Who’s Responsible for Providing Disability-Related Workplace Accommodations to Temporary Employees?

Many businesses use temporary workers placed by staffing agencies. But who is responsible when a temporary worker requests a disability accommodation?  The staffing agency and the business could both be responsible if they are acting as “joint employers” under the Americans with Disabilities Act (ADA).

Staffing agencies commonly “employ” temporary workers: hire the workers, pay wages, provide any benefits, withhold taxes, pay employer taxes, etc.  The company or “worksite employer” often directs how and when the work is performed, supervises the workers, and expects the workers to comply with company policies and procedures.  In this situation, the staffing agency and the worksite employer are considered joint employers under the ADA, and both are responsible for ADA compliance.

Consider this scenario: Temporary worker Bob is an employee of ABC Staffing Company. Bob is placed with XYZ & Associates as a temporary office clerk.  ABC pays Bob and provides his medical insurance and other employee benefits.  XYZ sets Bob’s schedule, assigns him a supervisor, trains him on how to perform his job duties, and expects him to abide by its employee policies.  On his first day on the job, Bob asks his XYZ supervisor for a $250 “stand and sit” desk due to a chronic back condition, and provides supporting medical documentation.  XYZ alerts ABC to Bob’s request.  The placement contract between ABC and XYZ is silent on this topic.

Here, ABC and XYZ are each independently responsible for providing Bob with a reasonable accommodation, absent an undue hardship. Because a $250 expense is not at all likely to support a hardship argument, Bob’s accommodation should be granted.  As a best practice, ABC and XYZ should consider collaborating together to meet their ADA obligations.

The EEOC addressed this issue in an enforcement guidance on the application of the ADA to temporary and other contingent workers.  As noted by the EEOC, it may be beneficial to all parties if the handling and costs of disability-related accommodations for temporary workers are addressed in the contract between the staffing agency and worksite employer.  This enforcement guidance also provides helpful information about other ADA nuances unique to temporary workers.

Will Employers Be Forced to Accommodate Employees Who Test Positive for Marijuana?

On July 17, 2017 the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies.  While this decision is binding only in Massachusetts, it could represent the beginning of a significant shift in how employers will need to deal with employees using marijuana to treat a disability.

In Barbuto v. Advantage Sales and Marketing the employee claimed that before a drug test she notified her employer she would test positive because she has Crohn’s disease and was using lawfully prescribed marijuana under state law.  She indeed tested positive and was terminated as a result.  The issue is whether an employer may strictly enforce its drug free workplace policy or whether the employer is obligated to consider making an exception to the policy as an accommodation under state anti-discrimination laws.

As the legalization of medicinal marijuana expands to more states, employers have to decide how they will enforce their drug free workplace policy when employees with a disability test positive.  Where the use is for medical reasons, the employer must consider whether disability discrimination laws come into play.  Many employers have concluded that they would continue enforcing their drug free workplace policy because the employee is not protected under the Americans with Disabilities Act (ADA).  Individuals who currently engage in the illegal use of drugs are specifically excluded from the ADA’s definition of an “individual with a disability” and marijuana use for any reason is still illegal under federal law.  Therefore current users of marijuana are generally not protected by the ADA.

This seemed like a relatively straightforward analysis to apply in any jurisdiction.  After all, marijuana is still illegal under federal law which applies throughout the United States.  The Massachusetts court, however, determined that the drug’s status under federal law was not relevant.  The court concluded that the employee was not doing anything illegal under state law and the employee was seeking protection under the state anti-discrimination law, which requires employers to accommodate employees with a “handicap.”  Since the employee’s use of marijuana did not exclude her from coverage under the state anti-discrimination law, the employer would have to treat the employee just like any other disabled employee and determine if a reasonable accommodation would enable the employee to remain employed. 

Employers in Massachusetts must now engage in a case by case assessment of whether accommodating medical marijuana use is reasonable.  While the employer is not required to tolerate employees coming to work under the influence, it’s unlikely that a simple preference to have the entire workforce free of marijuana in their system will constitute an undue hardship sufficient to deny the accommodation.  Employers will need to establish some objective reason why allowing the employee to remain employed following the positive test will cause a hardship on its business.  For example, a federal contractor may argue that it has obligations under the Drug-Free Workplace Act.  This law requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.  Also, in some states, like Florida, employers may receive a reduction in workers’ compensation premiums for maintaining a drug free workplace. 

For now we will have to see how this issue evolves on the state level and employers should consider revisiting their drug testing policies in states where medical marijuana is legal. 

For additional information on this issue click here.

FMLA Leave Does Not Shield An Employee From Disciplinary Action Unrelated To The Leave

The Court of Appeals of North Carolina recently held that an employer didn’t interfere with an employee’s rights under the Family Medical Leave Act (“FMLA”) or retaliate against her by contacting her to schedule her disciplinary hearing while she was on FMLA leave. Jennings v. Univ. of N.C., N.C. Ct. App., No. COA16-1031, 7/5/17.

Crystal Jennings (“Jennings”) was hired in January 2010 by Elizabeth City State University (the “University”) to work in the University’s Department of Information Technology. In January 2014, Jennings applied for, and was granted, FMLA leave due to her ongoing battle with cancer.  During her leave, the University contacted her to schedule a disciplinary conference relating to allegations, that occurred prior to her leave, that she had “accessed, copied, and stored emails and confidential information…without proper authority or a legitimate business need” prior to her taking leave.  Jennings failed to attend the conference and was ultimately terminated for abusing her privileges as a network server and Microsoft Exchange administrator.  Jennings subsequently filed claims against the University alleging wrongful termination in violation of North Carolina’s whistleblower protections and violations of FMLA.  Specifically, Jennings claimed that the University wrongfully interfered with her FMLA leave by holding pre-disciplinary conference and subsequent terminating her employment.

In order to make out an interference claim under the FLMA, and employee must demonstrate that (1) she is entitled to an FMLA benefit; (2) her employer interfered with the provision of that benefit; and (3) that the interference caused harm. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).  However, this does not mean that an employer is prevented from disciplining or terminating an employee for poor performance while the employee is out on FMLA leave. Mercer v. Arc of Prince Georges Cty., Inc., 532 F. App’x 392, 396 (4th Cir. 2013).

In fact, Jennings did not claim that the interference was in response to her use of FMLA leave; instead, she asserts that the scheduling of the disciplinary conference during her FMLA leave was the interference and violation of the Act. The Court disagreed with this assertion and found that the University had the right under FMLA to discipline the employee while she was on leave.

The takeaway for employers is that they can proceed with disciplinary action against an employee who is out on FMLA leave for poor performance that occurred prior to the leave request. However, the performance issues should be well documented to enable the employer to protect itself from an FMLA interference or retaliation claim.

Nurse’s Disability Discrimination Claims May Proceed to Trial, New Jersey Supreme Court Rules

A registered nurse employed by a New Jersey health care system for approximately 10 years may proceed to a jury trial with her disability and perceived disability claims under the New Jersey Law Against Discrimination, the Supreme Court of New Jersey has ruled. Grande v. Saint Clare’s Health Sys., 2017 N.J. LEXIS 746 (July 12, 2017).  For more information including lessons to be learned from the decision, click here.

That Stinks! EEOC Sues on Behalf of Employee Denied Relief from Workplace Smells

On July 12, 2017, the EEOC filed suit in the Middle District of North Carolina alleging that an employer violated the Americans with Disabilities Act (ADA) by refusing a request to telecommute from an employee with a sensitivity to workplace smells.

In the lawsuit filed against Advanced Home Care, Inc., the EEOC claims that the employee asked her supervisor on three separate occasions if she could work from home to avoid exposure to the fragrances and odors she encountered in the workplace, since those scents aggravated her asthma and COPD. However, the employee’s supervisor allegedly ignored the requests to telecommute, even though the employee worked as a case manager for patients requiring home services and could have performed her essential duties from home.  The EEOC asserts that the employer’s rejection of the request to telecommute, without first conducting an individualized assessment of the requested accommodation, was a violation of the ADA.

The filing of this lawsuit should serve as a reminder on two fronts for employers. First, an employee’s claim that he or she is allergic to certain scents or substances in the workplace should not be dismissed offhand.  Frequently, the employee’s sensitivity to such scents or substances is related to an underlying respiratory condition such as asthma, COPD, or allergic rhinitis.  Such conditions often constitute a disability under the ADA since they typically impact the major life activity of breathing.  Second, once an employee requests to telecommute as an accommodation for a disability, that request should never be ignored.  In EEOC v. Ford Motor Company, the seminal decision regarding telecommuting as an accommodation, the Sixth Circuit Court of Appeals recognized that both employers and employees must engage in a good faith “interactive process” to determine if the requested accommodation is reasonable or if it creates an undue hardship on the employer.  If the employer ignores the request to telecommute and thus fails to engage in the required “interactive process” it runs a significant risk of liability for failure to accommodate.  On the other hand, the employer who rejects the request to telecommute after engaging in a good faith interactive process with the employee will be in a much more defensible position should litigation result.

San Francisco Passes “Lactation in the Workplace Ordinance”

On June 30, 2017, San Francisco Mayor Ed Lee signed the “Lactation in the Workplace Ordinance” (“Ordinance”), increasing protections for nursing mothers working in San Francisco. The Ordinance becomes effective January 1, 2018, and applies to anyone employed within the “geographic boundaries” of San Francisco.

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Documented Performance Issues and Inadequate Notice of Need for Leave Sink Employee’s FMLA Claims

Granting summary judgment to an employer on Family and Medical Leave Act claims asserted by a former employee, an Illinois district court held that: (1) the employee had failed to demonstrate his firing had any causal relationship to his prior FMLA leave (or any potential future need for FMLA leave); and (2) the employer’s initial denial of FMLA leave was justified based on the plaintiff’s failure to provide sufficient medical documentation justifying his wife’s “serious health condition.” Davidson v. Evergreen Park Community High School District 231, No. 15 C 0039, 2017 U.S. LEXIS 77724 (N.D. Ill. May 23, 2017).

The former employee, Brad Davidson, a high school science teacher, sued Evergreen Park Community High School District 231 alleging he was fired for using FMLA leave and the District unlawfully denied him leave or use of leave to take care of his wife from August 19-22, 2014, as required by the FMLA.

Davidson was hired by the District in August 1995. He was placed on a Performance Development Plan (“PDP”) in 2013 after receiving “Needs Improvement” on his tenured teacher evaluation. Pursuant to the Illinois School Code, part of the evaluation process included the use of sick leave. After Davidson failed to improve, the Board of Education voted to terminate him on April 1, 2015, in accordance with the Illinois School Code.

Magistrate Judge Rowland acknowledged that Davidson engaged in protected activity when he took FMLA leave and that he suffered an adverse employment action when he was terminated. However, the court held Davidson failed to establish the District terminated his employment because he took FMLA leave (or because he might do so in the future). The Magistrate Judge relied on Davidson’s poor job performance over several years and found he has not demonstrated the reasons given for his termination were pretextual.

The court found significant that the remediation plan was prepared in consultation with the District’s attorney and was created five months before Davidson’s requested FMLA leave in August 2014.

The undisputed evidence showed Davidson’s employment was terminated solely because he failed to remediate his “Unsatisfactory” job performance during a three-year teacher evaluation and remediation period and not because of his FMLA leave. Similarly, Davidson failed to provide any evidence of a causal connection between his discharge and his possible future need for or use of FMLA leave.

Davidson also alleged the District unlawfully denied him FMLA leave from August 19-22, 2014. Although, after receiving proper medical documentation, the District granted Davidson’s FMLA request, he asserted the initial denial of leave was unlawful. While an employee is entitled to FMLA leave to care for a family member with a serious health condition, he must alert his employer to the “seriousness of the health condition” when requesting leave. “Merely contacting the employer about illness-related absences does not adequately communicate the seriousness of the medical condition.” Here, the only information provided by Davidson with regard to his August 19 absence was a voicemail message stating that “due to a serious family health emergency, [he] would be out of school.” After he called in sick again on August 20, the superintendent requested that Davidson provide her with a physician’s certificate substantiating the reasons for his absence. On August 21, Davidson told the superintendent he was “working with [his wife’s] physicians to get both her urgent immediate and intermediate healthcare needs met.” On August 22, he submitted a letter from his wife’s physician that stated, “Ms. Davidson is a patient of mine, who first presented on 8/15/2014. Since then she has had office visits, phone consultations, been refered [sic] to physical therapy and prescribed education and decreased activity.” After reviewing the letter, the superintendent determined Davidson’s wife did not have a “serious health condition,” and thus, Davidson did not qualify for either the District’s leave policy or FMLA leave.

Magistrate Judge Rowland held that Davidson did not provide the employer with any specific information with respect to his wife’s medical condition, diagnosis, prognosis, or the amount of time that he would need to be off work. Such terms as “serious” and “urgent” are too vague. Because the doctor’s note from his wife’s physician did not convey the seriousness of her medical condition, as a matter of law, it was inadequate to put the District on notice that Davidson was seeking FMLA and his spouse suffered from a serious medical condition.

Lessons: Employee coaching and performance improvement and counseling are important. Here, the employer was able to demonstrate job performance issues before the employee’s requests for leave. However, it was equally important that appropriate coaching, counseling, and performance management continued while the employer was managing the employee’s leave requests as it would with any other employee. Further, when presented with documentation in support of a leave request, employers should review and analyze it, determine whether it satisfies a “serious health condition” and, if not, to question it and request additional information. The employer did just that in this case, and its initial denial of the plaintiff’s FMLA leave request was upheld as justified.

What Am I Doing Wrong?? Common FMLA Mistakes

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the ninth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Assuming an adult son or daughter is not a covered family member.

Employers may be familiar with the FMLA’s definition of a son or daughter as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age.” Less familiar is the FMLA’s protection for an adult son or daughter- those 18 years of age or older and incapable of self-care because of a mental or physical disability. The FMLA regulations adopt the Americans with Disabilities Act’s (ADA) definition of “disability.”

In Gienapp v. Harbor Crest, 756 F.3d 527 (7th Cir. 2014) the employee was granted FMLA leave in January to care for her adult biological daughter, who was undergoing treatment for thyroid cancer.  The FMLA certification question on the expected duration of the leave was blank, and the employer did not request that the answer be completed.  The certification stated that if the daughter did recover she would require assistance through July, and the employer inferred that the employee would not return to work at the end of the 12 weeks of leave.  In mid-February, the employer hired someone else to fill the employee’s position.  When the employee reported to work at the end of March, she was told that she no longer had a job. The employer contended that the employee was never qualified for FMLA leave because the employee’s daughter was “emancipated, an adult, and married.” The court determined that the employee’s daughter met the FMLA definition of “daughter,” because she met the disability condition of the “son or daughter” definition, even though she was over age 18.

In Gray v. Clarksville Health Sys., G.P., No. 3:13-00863, 2015 U.S. Dist. LEXIS 2455 (M.D. Tenn. Jan. 9, 2015) the court ruled in favor of the employer, in part, because the employee’s adult daughter’s state of being pregnant, as opposed to being incapacitated because of pregnancy, did not qualify as a “serious health condition” under the FMLA.  The employee was terminated for ten unexcused absences in a twelve month period. One of the absences that the employee challenged in her FMLA retaliation claim was when her adult daughter was in labor.  The court determined that the protections of the FMLA do not extend to an employee taking leave to care for her adult child simply because that child is pregnant, unless, for example, that child is incapacitated due to the pregnancy and is incapable of self-care.

Employers can minimize the risk of FMLA interference claims by carefully analyzing the facts related to FMLA leave to care for an adult child of an employee, keeping in mind the broad definition of disability under the ADA. The United States Department of Labor issued an Administrator’s Interpretation that further explains adult son or daughter status, which provides helpful insight: https://www.dol.gov/WHD/opinion/adminIntrprtn/FMLA/2013/FMLAAI2013_1.pdf


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Asking Enough But Not Too Much: Medical Certifications for Leaves of Absence Under the FMLA and CFRA

The FMLA and CFRA both permit an employer to require an employee requesting a leave of absence to provide a medical certification, but these laws differ with respect to the information and employer can request about the reasons for an employee’s requested leave.

Under the FMLA, an employer is permitted to obtain the following information in a medical certification:

  • The name, contact information, and type of medical practice or specialization of the employee’s healthcare provider;
  • The approximate date on which the employee’s serious health condition commenced and the probable duration of the serious health condition;
  • A description of “appropriate medical facts” regarding the serious health condition adequate to support the need for leave (including information such as symptoms, diagnoses, hospitalizations, treatment regimens, and whether any medications have been prescribed);
  • Information sufficient to show the employee cannot perform the essential functions of the job, as well as information regarding work restrictions (where the requested leave is for the employee’s own serious health condition);
  • Information to establish the medical need for leave, as well as an estimate of the dates and duration of medical treatments or periods of incapacity necessitating leave (where the employee requests an intermittent or reduced-schedule leave for the employee’s own serious health condition);
  • A statement that leave is medically necessary to care for a family member (where intermittent or reduced-schedule leave is sought for an employee to care for a family member).

The rules under the CFRA with respect to information an employer can seek in a certification for an employee’s requested leave are narrower:

  • With regard to a request for leave for the employee’s own serious health condition, an employer only may require a certification to include the date on which the serious health condition began, the probable duration of the condition, and a statement that due to the employee’s serious health condition, the employee cannot perform the functions of his or her position.
  • Where an employee requests a CFRA leave to care for a family member, an employer is only allowed to require that a certification provide the date on which the serious health condition began, the probable duration of the condition, an estimate of the amount of time the healthcare provider thinks the employee will need to provide care to the family member, and a statement that the serious health condition warrants a family member’s provision of care.
  • In contrast to the FMLA, the CFRA does not allow an employer to require – and, in fact, expressly prohibits an employer from seeking – information that identifies the serious health condition necessitating the leave. An employer therefore cannot require a certification to include information about the symptoms, diagnoses, or other specific information behind a requested CFRA leave. 

Where, as is often the case, a CFRA leave runs concurrently with an FMLA leave, it is incumbent on employers to adhere to the stricter provisions of the CFRA. When requiring certifications for employee leaves of absence, it is thus important for California employers to be mindful of these differences between federal and state law.

The Layers of the Paid Sick Leave Law in Montgomery County, Maryland

On October 1, 2016, Montgomery County’s Earned Sick and Safe Leave law became effective.  This law allows all employees, with few exceptions, that work in Montgomery County, Maryland, to accrue paid and/or unpaid sick and safe leave, depending on the size of their employer, to use for their own illness, an illness of a family member and (originally) five other specific reasons.  Since its passage the Montgomery County Council has amended the law once and is considering a further amendment.

Amendment Effective November 2016

Effective November 9, 2016, the Montgomery County Council amended the law to allow eligible employees to use earned sick and safe leave for parental purposes.  Specifically, the amendment allows earned sick and safe leave to be used for “the birth of a child or the placement of a child with the employee for adoption or foster care” and “to care for a newborn, newly adopted, or newly placed child within one year of birth, adoption or placement.”  These two additional reasons for leave bring the total number of permitted uses of earned leave under the law to nine specified reasons.

Such an amendment to paid sick leave laws, which essentially turn the laws into paid family leave laws, could begin trending in the counties, cities and states that have passed their own sick leave laws.

Potential Future Amendment

The Montgomery County Council is also considering an amendment, introduced in 2016, which would exempt certain seasonal employees from the law completely and also require that employees paid on a commission-only basis earn only unpaid sick leave.

Under this potential amendment, seasonal employees would not be eligible to earn sick and safe leave if they work less than 120 days per year for an amusement or recreational employer that operates for less than 120 days per year in the County. The introduction included with a version of the bill explains that under the current law, which allows employers to prohibit the use of earned sick and safe leave in the first 90 days of employment, “a summer camp counselor employed for an 8-week camp season will never be able to use the earned sick and safe leave earned during the 8-week season unless the individual is rehired within 9 months,”—which is typically not the case.  Therefore, a total exemption for this type of seasonal employee makes sense given the current law’s parallel practical effect.

The current law also requires that an employee who uses earned sick and safe leave be paid “at the same rate and with the same benefits as the employee normally earns.”  Commission-only employees are not paid a base rate and the commissions they earn fluctuate according to their work, so calculating a “normally earned rate” would be challenging.  To reconcile this payment requirement in the current law against the realities of commission-only sales employees, under this amendment, commission-only employees would earn only unpaid sick and safe leave.

This potential amendment has not yet been voted into law leading to the question—how should commission-only employees in Montgomery County be paid when using earned sick and safe leave now?