Unsettled Waters at the Accommodation of Last Resort

By Jonathan A. Roth on

In 2019, we are poised to learn where the Fourth Circuit stands on reassignment as an accommodation—an issue that has split the Circuits.

Before discussing where courts are divided, let’s start with the consensus.  First, the Americans with Disabilities Act (“ADA”) clearly requires employers to make reasonable accommodations to the limitations of an employee with a disability unless an employer can show that the accommodation would impose an undue hardship.  The statutory text of the ADA states that the term “reasonable accommodation” may include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).  Thus, if during the interactive process an employer is unable to identify a reasonable accommodation that will enable an employee with a disability to continue performing the essential functions of his or her current job, an employer may need to consider reassigning the employee to a vacant position—often referred to as the accommodation “of last resort.”  It is here, when we get to the meaning of “reassignment,” where courts diverge.

Does reassignment mean that the employee seeking accommodation gets the vacant position if he or she is qualified for it?  Or, does the ADA only require that the employee be allowed to compete equally with other applicants for the position?  Or, is the answer somewhere in the middle?

The Supreme Court has held that, in the run of cases, an employee with a disability seeking an accommodation is not entitled to a vacant position over a worker with superior rights to bid for the job under an employer’s seniority system.  US Airways, Inc. v. Barnett, 535 U.S. 391, 403 (2002).  The Supreme Court, however, has not addressed the rights of an employee with a disability seeking a reassignment outside this seniority system context.

A recurring, critical question is whether an employee with a disability seeking an accommodation is entitled to a vacant position over someone more qualified for the job, particularly when an employer has a practice or policy, like most employers do, of hiring the most qualified person for the job.  According to the Equal Employment Opportunity Commission (“EEOC”), reassignment means the employee with the disability seeking reassignment gets the vacant position if qualified for it even if another individual is more qualified.  EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Oct. 17, 2002).

Circuit Courts of Appeals are split on this issue.  Compare Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (“[T]he ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate.”), and EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 (11th Cir. 2016) (“Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’”), with EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012) (“[T]he ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”), Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. 1999) (en banc) (“[R]equiring the reassigned employee to be the best qualified employee for the vacant job is judicial gloss unwarranted by the statutory language or its legislative history.”), and Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc) (explaining that the word “reassign” in the ADA’s statutory text “must mean more than allowing an employee to apply for a job on the same basis as anyone else.”).

In Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1205 (10th Cir. 2018), the Tenth Circuit recently reiterated its position that “in most situations, an employer must award the [vacant] position to the disabled, but qualified, employee.”  The Tenth Circuit, however, explained that an employer’s policy of hiring the most qualified applicant for vacant positions is relevant and an “employer could point to its policy and argue that while the employee was technically qualified for a given position, the employee’s qualifications for the position fell significantly below the qualifications of other applicants such that reassignment is not reasonable or would place an undue hardship on the employer.”

The Fourth Circuit Court of Appeals, like several other Circuit Courts, has never squarely addressed this issue, but it could soon because of an appeal pending in Elledge v. Lowe’s Home Ctrs., LLC, No. 5:16-cv-00227-RJC-DCK (W.D.N.C. Dec. 20, 2018).  Elledge sought reassignment to multiple positions after his knee condition left him unable to perform the essential functions of his current job, which required frequent traveling, walking, and standing.  Lowe’s, like many employers, had a hiring policy requiring that jobs be posted and that individuals apply and compete for vacant jobs.  While Elledge applied for multiple vacant jobs, the evidence showed that Elledge did not obtain these positions because other applicants were more qualified.

Elledge brought suit alleging that Lowe’s violated the ADA by failing to reassign him to the vacant positions sought.  The district court dismissed Elledge’s claims on summary judgment.  The district court explained that Elledge “should not have enjoyed a privileged status in the job application process . . . . He was required to adhere to Lowe’s standard policy and compete on equal footing with other employees and outside applicants.” Elledge recently appealed the decision, and a ruling from the Fourth Circuit should come later this year.

Given the Circuit split on the extent of an employer’s obligation to reassign an employee with a disability to a vacant position as a reasonable accommodation, the Supreme Court may soon resolve this issue should the appropriate case come before it.  Until then, employers should stay up to date on the evolving law in the jurisdictions where they operate and consult with legal counsel when considering reassignment as an accommodation.

Village of Glenview Latest Municipality to Opt Back In to the Cook County Earned Sick Leave Ordinance

By Jody Kahn Mason on

On February 7, 2019, the Village of Glenview, Illinois, voted to opt back in to the Cook County Earned Sick Leave Ordinance, effective July 1, 2019. In doing so, Glenview joins the growing list of suburban municipalities to reconsider their previous opt-outs, including Wilmette, Northbrook, and Western Springs. (Of note, Glenview also voted to opt back in to the Cook County Minimum Wage Ordinance.)

Glenview’s decision followed on the heels of a non-binding advisory referendum on the ballot in November in which Glenview voters overwhelmingly voiced their support of the Cook County sick leave and minimum wage ordinances. However, the Glenview ordinance includes a provision which provides that the ordinance will be nullified and repealed if state-wide sick leave legislation is enacted.

The question remains: in light of the growing uncertainty among Cook County municipalities, will the state legislature take the bait?

What Did She Say? Dispute Over Content of Voicemails Requires Jury Trial on FMLA Claims

By Tasos C. Paindiris on

An employee seeking the protection of FMLA leave must give adequate and timely notice of the need for leave.  In situations where the leave is due to a qualifying reason for which the employer previously provided the employee FMLA leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.

In Holladay v. Rockwell Collins, Inc., (S.D. Iowa, Jan. 24, 2019) the company approved Ms. Holladay for intermittent FMLA leave for migraines.  When Ms. Holladay was absent from work four consecutive days she left a voicemail for her supervisor to report her absence each day.  However, the parties disagreed as to the details she provided in those voicemails.  Ms. Holladay testified that she said “I had a migraine and I would not be in that day.”  According to the company, Ms. Holladay never specified migraines and only stated she would be absent due to either an “illness” or “doctor’s visits.”  Ms. Holladay’s supervisor testified that she “write[s] down in a steno book when somebody calls in and what they leave.”  In connection with Ms. Holladay’s absences the supervisor wrote “ill/out,” “ill out,” “DR,” and “DR,” respectively.  She did not recall if Ms. Holladay mentioned migraines.

Additionally, for absences of more than three consecutive working days company policy required employees to submit a doctor’s note prior to the start of the employee’s shift on the fourth day of absence.  Ms. Holladay did not submit the note before the start of her shift and she was terminated for violation of the attendance policy.

Ms. Holladay claimed the company interfered with her FMLA rights by not designating her absences as FMLA.  The Court concluded that if Ms. Holladay cited migraines as the reason for her absences in the voicemails then the company should have designated her absences as FMLA.  If Ms. Holladay only said that she was ill her notice was deficient and her FMLA claim fails.  Because there was competing evidence on both sides the Court held that a jury must decide in a trial.

The company also argued that Ms. Holladay failed to comply with the company’s policy requiring a timely doctor’s note and therefore the FMLA leave could be denied for her failure to follow its usual notice and procedural requirements.  The Court agreed with Ms. Holladay that the policy imposed a burden that is more onerous than the medical certification requirements under the FMLA, therefore the policy could not be used to deny FMLA.

This case demonstrates how an employee can avoid summary judgment dismissal of her lawsuit by testifying that she specifically referenced the FMLA when calling in her absences.  It is a good reminder for employers to revisit their process for documenting what employees are reporting as the reason for the absence and whether the employee is required to contemporaneously confirm what was reported.  Additionally, employers must be careful not to discipline employees using FMLA for failure to follow the employer’s process for submitting a doctor’s note if no medical documentation is otherwise required by the FMLA.

Do I Have to Grant Leave for Employee Requests to Attend Their Children’s School Activities? Maybe in California

By Susan E. Groff and Ariel Beverly on

School children are back at school following winter break, and that may mean employee requests for time off for parent-teacher conferences, school assemblies, and more.  While less known, California law has a collection of statutes affording parents protected time off. One of those protections is California Labor Code section 230.8, which provides parents, and other parental figures, with protected time off to attend to child related activities.

 

Planned and Foreseeable Absences

Under California Labor Code section 230.8, parents of covered employers may take up to 40 hours per year of job-protected time off to find, enroll, or reenroll their children in school or with a licensed child care provider, or to participate in activities of the school or child care provider.  To exercise their protected time off, parents must provide their employer with reasonable notice before any planned absence. Additionally, any time off incident to school or child care enrollment or child related activities coordinated by the school or child care provider must not exceed eight (8) hours in any calendar month of the year.  Although the code leaves child related school and care activities undefined, its broad enough to include activities such as field trips, parent-teacher conferences, and school assemblies.

Emergency Absences

Parents may also use the annual 40 hours of job-protected leave for unplanned absences resulting from “emergency” situations.  A child care provider or school emergency is one in which the child cannot stay in the care of the school or child care provider because:

  • the school or child care provider has unexpectedly requested that the child be picked up
  • behavioral or discipline problems
  • unexpected closure or unavailability of the school or child care provider
  • natural disasters such as fire, earthquake, or flood.

Parents must still notify their employers of their unplanned absence as soon as practicable.

Covered Employers and Employees

The provision applies to employers who employ 25 or more people at a single location. Parents, for purposes of section 230.8, includes a natural parent, guardian, stepparent, foster parent, or grandparent of a child of the age to attend kindergarten or grades 1 through 12 or a licensed child care provider—i.e., non-adult children.

Employer Verification and Intersection with Other Employer Policies

An employer may request that the employee obtain documentation from the school or child care provider verifying that the employee engaged in one of the specified child related activities on a particular date and time.

The employee may use his or her existing vacation for any planned time off related to enrollment or school and child care organized activities, but the employer need not independently offer paid time off to accommodate absences under section 230.8.

* * * *

Please do not hesitate to contact your Jackson Lewis attorney should you have questions regarding employee leaves of absence.

How the Government Shutdown Impacts Employee Leave Requests

By David S. Mohl on

As of midnight December 21, 2018, 380,000 federal employees were placed on furlough.  An additional 420,000 are considered “excepted” and have continued working without pay.  Federal employers and employees should be aware of how the government shutdown impacts both paid time off requests as well as approved FMLA leaves.

According to the Office of Personnel Management Guidance for Shutdown Furloughs, employees who are furloughed are on a leave without pay.  Therefore, there is technically no job to take leave from.  All paid time off during a shutdown furlough period is cancelled as the requirement to furlough supersedes employee leave requests and other paid time off rights.  This is because paid time off creates a debt to the government that is not legally authorized.  This rule extends to both furloughed and “excepted employees,” which include employees who are (1) performing emergency work involving the safety of human life or the protection of property, (2) performing minimal activities as necessary to execute an orderly suspension of agency operations related to non-excepted activities, or (3) performing certain other types of excepted work.

Any previously scheduled FMLA leave will be treated as a leave without pay and will not be counted towards an employee’s FMLA entitlement.  If an excepted employee faces circumstances that would normally qualify them for FMLA leave, the employee is placed in a furlough status, which does not count against their FMLA leave entitlement.  This means that if the government is shut down during a furloughed employee’s FMLA leave, the furloughed employee will be entitled to his or her full leave once their employing agency or department resumes operations.

Federal employers should ensure that they are properly administering FMLA leaves during the government shutdown.

What Am I Doing Wrong?? Common FMLA Mistakes

By Sheri L. Giger on

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. Up until now, the most common mistakes were addressed in this blog. Now that we have hit the twentieth post in this series, we are going to dig a bit deeper into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Requesting recertification for FMLA qualifying exigency leave or leave to care for a covered servicemember.

FMLA leave for a “qualifying exigency” of a covered family member or to care for the serious injury of a covered servicemember are usually not the most frequent types of FMLA leave taken by eligible employees. When eligible employees do take these types of FMLA leave, employers should be careful not to forget some of the unique differences between these types of FMLA leaves and the more routine leaves for serious health conditions of employees or covered family members.

An employer is entitled to request a certification to support the need for an employee’s FMLA leave request for a qualifying exigency or to care for a covered servicemember. The U.S. Department of Labor developed separate certification forms specifically for these purposes at https://www.dol.gov/whd/forms/WH-384.pdf (qualifying exigency) and https://www.dol.gov/whd/forms/WH-385.pdf (serious injury or illness of a current covered servicemember), or https://www.dol.gov/whd/forms/wh385V.pdf (serious injury or illness of a covered veteran).  The use of these forms is voluntary, but an employer may not seek information outside the scope of the U.S. Department of Labor forms.

Perhaps the most unique aspect of FMLA qualifying exigency and covered servicemember leaves is that employers may not request a recertification relating to such leaves.

There is no insight from case law on this particular issue, so the FMLA regulations are the leading guidance at this time.

The FMLA regulations specifically state that recertification does not apply to leaves taken for a qualifying exigency or to care for a covered servicemember. Therefore, the recertification rules and reasons available for other forms of FMLA leave simply do not apply to qualifying exigency or covered servicemember FMLA leaves.

As a best practice, employers should periodically review their existing FMLA processes and procedures. If an employer is using its own certification forms, they should be checked to make sure they are not requesting information outside the scope of the DOL forms. Further, the leave process should be clear that recertifications are not permitted for FMLA leave for a qualifying exigency or to care for a covered servicemember. Steps should be in place to prevent a recertification request being issued to an employee on FMLA leave due to these reasons.

 

For questions regarding this and other FMLA or related leave issues, please contact the JL attorney with whom you regularly work, or the author.

Federal Court of Appeals To Decide Whether Morbid Obesity Is An Impairment

By Daniel P. Schwarz on

We know that the ADAAA (Amendments Act of 2008) substantially altered the landscape for review of claims asserting a disability. But are employees still required to show some sort of disorder or impairment to state a claim? Is morbid obesity an impairment even if it is not tied to any underlying disorder? A case pending before the Seventh Circuit Court of Appeals is set to decide whether obesity is an impairment in and of itself under the ADAAA.

Prior to the ADAAA, both federal appeals and district courts had held that obesity was a physical characteristic that had to stem from an underlying physiological disorder to be considered an impairment under the ADA. In the case pending before the Seventh Circuit, Richardson v. Chicago Transit Authority, Nos. 17-3508 and 18-2199, the lower court found that obesity didn’t, on its own, qualify as an impairment, and dismissed Mark Richardson’s wrongful termination suit under the ADA
Richardson, an obese bus driver, alleged that he was wrongfully fired when he attempted to return to work after an extended medical leave. Richardson also claimed that he was subjected to a “safety assessment” that was different from the one normally required for bus drivers returning from leave. After his request to return to work was denied, he filed a discrimination complaint with the EEOC.

Richardson is supported in his appeal by the AARP, the Obesity Action Coalition, the Obesity Society and other obesity advocacy and medical organizations. They each filed amicus (friend of the court) briefs arguing that the ADAAA recognized that obesity itself could be an impairment without any underlying physiological disorder and citing new scientific and medical evidence.

The Transit Authority, with the support of industry groups, asserts that Congress intentionally preserved the ‘impairment’ aspect of the ADA in the ADA Amendments Act, and that the scientific evidence is neither new nor supportive of a changed legal standard for evaluating claims involving alleged obesity discrimination. They argue that because the ADAAA did not address pre-ADAAA court decisions, or the EEOC’s earlier guidance, the court should conclude that the legislative body meant to keep the same approach and handling of impairment and obesity claims. They also argue that expanding the definition of impairment to include obesity without an underlying physiological disorder would burden employers more than the ADA intended.

Oral Argument has not yet been scheduled and there is no timetable for a decision, but this will certainly be a case to watch in 2019.

Appellate Courts Agree: Regular, Reliable Attendance Is Essential Function of Most Jobs

By Jonathan A. Roth on

Recent decisions from the Second, Fifth, and Eighth Circuit Courts of Appeals exemplify the growing consensus amongst courts that even employees with a disability are generally required to comply with company attendance policies.  While employers may need to provide leave as a reasonable accommodation, many courts generally agree that regular, reliable attendance is an essential function of most jobs within the meaning of the Americans with Disabilities Act (“ADA”).

In Trautman v. Time Warner Cable Tex., LLC, No. 18-50053 (5th Cir. Dec. 12, 2018), Vitti v. Macy’s Inc., No. 17-3493 (2d Cir. Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp., No. 17-2152 (8th Cir. Dec. 19, 2018), the Fifth Circuit, Second Circuit, and Eighth Circuit each found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment in favor of the employer.

In Trautman, Time Warner’s attendance policy provided employees could be terminated for exceeding 112 hours of unexcused absences in a rolling 12-month period.  The evidence showed that the plaintiff accrued unexcused absences totaling over 200 hours in less than a 12-month period.  Time Warner submitted evidence that the plaintiff was treated similarly to other non-disabled employees along with evidence of prior accommodations of plaintiff, including medical leave, as evidence that it lacked discriminatory animus.  Based on this evidence, the Fifth Circuit affirmed summary judgment for Time Warner, concluding that the plaintiff was terminated for violating Time Warner’s attendance policy and not because of an alleged disability.

Likewise, in Vitti, Macy’s terminated the plaintiff for excessive tardiness and absences in violation of its attendance policy after multiple warnings.  The Second Circuit concluded that the plaintiff was not qualified for her job working in Macy’s cosmetics department because of her unreliable attendance record.  Alternatively, the Second Circuit held there was no genuine dispute of material fact that the plaintiff was terminated for violating Macy’s attendance policy and not because of an alleged disability.  While the plaintiff argued that she was terminated because of her disability based on the close temporal proximity between her excused medical leave and her termination, the court rejected this argument because Macy’s began progressively disciplining the plaintiff prior to her medical leave.

Similarly, in Lipp, Cargill had an attendance policy that provided for termination after 9 occurrence points.  The evidence showed that the plaintiff was terminated after accruing 195 occurrence points, many of which were related to a multi-month leave that was unrelated to her alleged disability.  The Eighth Circuit affirmed summary judgment for Cargill without reaching the issue of whether the plaintiff was terminated for a legitimate, non-discriminatory reason, concluding the plaintiff could not even show that she was qualified for her job based on her poor attendance.  The Eighth Circuit found regular attendance was clearly an essential function of the plaintiff’s job—which required her to assemble and stack boxes on a production line—as evidenced by Cargill’s attendance policy.  The Eighth Circuit concluded that the plaintiff was not meeting the essential function of attendance as evidenced by her 195 absences over a period of less than a year.

These recent appellate decisions show that unreliable attendance can render an employee unqualified for his or her job and that violating an attendance policy can be a legitimate, non-discriminatory reason for termination.  However, whether an employee who has missed or needs to miss a significant amount of work (either because of a block of leave or due to sporadic absences) is nonetheless a qualified individual is a fact-intensive question that often depends on numerous factors.  Thus, employers should tread carefully and seek guidance from legal counsel when considering adverse action against an employee with irregular, unreliable attendance related in whole or in part to a potential disability.

California State Disability Insurance (SDI) Increases

By Cepideh Roufougar on

It’s a new year, and California SDI benefits will be increasing. The SDI withholding rate continues to be 1.0% of wages. But, the taxable wage limit will increase from $114,967 to $118,371.

For new SDI claims (whether for short-term disability benefits or paid family leave benefits) the maximum weekly benefit will increase from $1,216 to $1,252 a week.

Employees who allow employees to integrate paid leave hours with SDI benefit to receive the equivalent of their full salary should be aware of these increases. Employers should consider asking employees to provide a copy of any Notice of Computation of Benefits from the California Employment Development Department to assist with calculating the maximum value of leave to be integrated.

In addition, employers in San Francisco should pay particular attention to these changes to ensure compliance with the Supplemental Compensation requirements of the San Francisco Paid Parental Leave Ordinance.

Jackson Lewis is available to assist employers in achieving compliance with these and other workplace requirements.

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