Pending California Legislation Alert! Senate Bill 937 Seeks to Require California Employers to Provide Lactation Facilities in the Workplace

If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law.

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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 sixteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not requiring an employee to follow customary call-in procedures for FMLA leave.

When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. 29 C.F.R. 825.303. For example, an employer may require employees to call a designated number or a specific individual to request leave.

In IBEW Local 1600 v. PPL Elec. Utils. Corp., 2017 U.S. Dist. LEXIS 210804 (E.D. Pa. Dec. 22, 2017), the employee was informed that she needed to call the employer’s third party FMLA administrator and her supervisor when calling off for FMLA leave. On a later date, the employee advised her supervisor that she needed to leave early, referring to FMLA time, but failed to also contact the employer’s third party FMLA administrator. As a result, the employer denied her request for FMLA leave for that day and recorded an unexcused absence on her record. The court determined that the employer did not interfere with the employee’s FMLA rights when it denied her FMLA leave. The court stated that the employer’s requirement of two phone calls to give notice of FMLA leave did not impose so great a burden on employees that it would discourage the employees from taking unforeseeable FMLA leave.

In Hunt v. Altec Industries, Inc., 2015 U.S. Dist. LEXIS 126210 (N.D. Ala. Sept. 22, 2015), the employee was terminated after accruing too many points for unexcused absences based on the employer’s attendance policy. The employee argued, however, that the absences were FMLA-qualifying and should not have counted against him. The employer’s leave policy was administered by a third party vendor, and mandated that all employees contact the third-party vendor to request a leave of absence. The court found that the employer did not interfere with the employee’s rights by terminating him, as the employee failed to avail himself of a protected right under the FMLA when he chose not to comply with the employer’s notice procedure of contacting the employer’s third-party vendor for FMLA-qualifying leave.

If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, an employer may delay or deny FMLA-protected leave. However, employers should clearly include this requirement in an FMLA policy, so that the requirement is well communicated.

Overtime Can Be An Essential Job Function

A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. See McNeil v. Union Pac. R.R._ 2018 U.S. Dist. LEXIS 85250.  On May 21, 2018, Union Pacific Railroad Company’s (“Union Pacific”) motion for summary judgment was granted and the Court determined that it did not have to grant an emergency dispatcher’s request to be exempt from overtime to accommodate her depression and anxiety because working overtime in emergency situations was an essential element of her job.

Tasha McNeil (“McNeil”) was hired by Union Pacific as a Critical Call Dispatcher in its Response Management Communication Center. Dispatchers are responsible for coordinating emergency responses for critical railroad incidents, responding to related phone calls, notifying government agencies about such incidents, and preparing witness reports. Dispatchers were scheduled for 8.25 hour shifts and were subject to mandatory overtime based on staffing needs. Each dispatcher’s work week was color-coded to determine the order of overtime assignments. On a “red day” a dispatcher could be called to begin a shift up to four hours before the standard start time and/or remain at work up to four hours beyond the typical end time. McNeil was assigned to the daytime shift.

In early 2014, McNeil took FMLA leave to care for her ailing mother. While on leave, she applied for, and received, short-term disability benefits relating to a diagnosis of depression and anxiety relating to caring for her mother. McNeil did not return to work at the end of her short-term disability. Instead she was placed on long-term disability leave. As her return to work date drew near, McNeil provided Union Pacific with medical records which stated that she could only work daytime hours and no overtime. McNeil was subsequently terminated because Union Pacific could not accommodate a permanent overtime restriction and there were no day shifts available at that time.

After exhausting her administrative remedies, McNeil filed suit alleging an assortment of Title VII and American with Disabilities Act (“ADA”) claims. Specifically relating to her disability discrimination claims, McNeil alleged that Union Pacific discriminated against her by failing to accommodate her inability to work overtime upon her return from long-term disability.

In its analysis, the Court recognized that an overtime requirements has been recognized as an essential job function. See Tjernagel v. Gates Corp., 533 F.3d 666, 673 (8th Cir. 2008). Moreover, “an employee who cannot meet the attendance requirements…cannot be considered a ‘qualified’ individual protected by the ADA.” Id. The facts, as evidenced by the dispatchers’ work schedules, job description, and the RMCC’s Schedule and Attendance Guidelines, showed that the ability to work overtime was an essential function of the Critical Care Dispatcher position. Therefore, McNeil’s requested accommodation to be exempt from the overtime requirement was not a reasonable accommodation, and Union Pacific was under no obligation to accommodate her inability to perform an essential function of her job.

Medical Progress Needs to Be Assessed in Determining Whether an Individual Is Qualified.

A recently filed federal court case should serve as a reminder to employers that medical advances often make the impossible possible and, as a result, can make the unqualified qualified under ADA. Although the suit asserts a constitutional violation and not a claim under the ADA, the lesson is worth heeding by the conscientious non-governmental employer.
The ADA sought to strike at the heart of stereotypes that employers may harbor about differently abled workers—whether based on irrational fears or paternalistic instincts. Congress found that these stereotypes prevented folks from advancing in the workplace or from being hired in the first place. These stereotypes concern serious illnesses as well as obvious characteristics such as missing limbs and being wheelchair bound. There are, of course, some illnesses that are disqualifying. But there are also illnesses that were once seen as disqualifying, but are not necessarily so now. Some believe that restrictions against employment of people with certain diseases must be discarded when medical advances have all but neutralized the disqualifying aspects of the illness. This is the argument being advanced by an Army National Guardsman who has sued the U.S. Department of Defense. Nicholas Harrison claims that Army policies that variously exclude or limit the military service of HIV-positive people are unconstitutional and have denied him the right to serve in Judge Advocate General Corps as a military attorney and may deny him the right to serve altogether. Harrison et al. v. Mattis et al., case number 1:18-cv-00641
Harrison is challenging decades-old DOD policies that bar HIV-positive people from joining the military, and limit the service of troops who contract the virus while in service. His lawsuit claims that these policies are flawed and fail to account for medical advancements that make the disease effectively irrelevant to the ability to serve.

According to the Complaint, until the mid-1990s, a HIV was a terminal disease but scientific and medical advances related to antiretroviral medications have “radically changed” the landscape for treating and preventing HIV since then, and as a result changed the ramifications for people living with the disease and it is now a manageable chronic condition instead of a terminal disease.
For private employers the lesson here is, as always, to treat every request for an accommodation on an individual basis and to keep an open mind. Medical and biomedical research maybe helping a potentially valuable employee vanquish a disabling stereotype despite what we might have taken as fact a short time ago.

District Courts in the Seventh Circuit Begin to Clarify Landmark Severson Decision

As we have previously reported, on September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a significant ruling for employers in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), when it held that an multi-month, non-FMLA leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  Since that time, district courts in the Seventh Circuit have begun to interpret and clarify the landmark holding in Severson.  On April 10, 2018, the U.S. District Court for the Northern District of Illinois denied the defendant’s motion to dismiss the plaintiff’s ADA claims in EEOC v. S&C Electric Co., Case No. 17-c-6753, squarely rejecting defendant’s argument that under Severson, an employee who seeks to return to work following a multi-month leave of absence is not protected by the ADA.

In S&C Electric, the plaintiff had been employed by the defendant for more than 52 years.  After being diagnosed with cancer and subsequently fracturing a hip, which required the plaintiff to undergo surgery and physical therapy, he was placed on a 12-month, long-term disability leave which was scheduled to end on August 29, 2015.  On August 15, 2015, the plaintiff contacted defendant seeking to return to work and provided a note from his doctor authorizing him to return to work with no restrictions.  However, instead of allowing the plaintiff to return to work, defendant suggested that he retire.  When the plaintiff refused to do so, his employment was terminated.  The plaintiff then filed suit claiming that the termination of his employment violated the ADA.

The defendant moved to dismiss plaintiff’s complaint, arguing that under Severson, the plaintiff was not a qualified individual with a disability because he had been on a nearly year-long medical leave and an “inability to work for a multi-month period removes a person from the class protected by the ADA.”  The court flatly and succinctly rejected defendant’s argument, simply calling it, “nonsense.”  The court noted that unlike the plaintiff in Severson, the plaintiff in S&C Electric was “ready, willing and able to return to his position without any accommodation,” and was ultimately fired not because he could not work, but rather, because he could. While the court left open the possibility that the defendant could have possibly terminated the plaintiff while he was on leave without violating the ADA, the defendant’s decision to terminate his employment when he requested to return to work was sufficient for the plaintiff to withstand a motion to dismiss for failure to state a claim, notwithstanding Severson.

The S&C Electric case serves as a reminder to employers about the limits of the Severson decision.  Even in a post-Severson world, the facts and circumstances of each situation should be evaluated independently.

Court Confirms Minneapolis Sick Leave Ordinance Not Enforceable Against Employers Based Outside of City

Last week, a court upheld the Minneapolis paid sick leave ordinance, but ruled that it is only enforceable against employers within the city’s limits. Minneapolis’s paid sick leave ordinance was passed in 2016 and was immediately challenged by the Minnesota Chamber of Commerce, which argued that the Minneapolis ordinance conflicts with state law and cannot be enforced against employers who do not have a physical presence in the city. That challenge resulted in a temporary injunction of the ordinance against employers located outside of the City of Minneapolis, but employers located within the city had to comply and offer the mandated paid sick leave.  Now, the court has made the temporary injunction permanent. Employers should keep their eye on the status of the Minneapolis paid sick leave law to see if the City appeals the court’s decision or amends the ordinance in a way to cover more employees working in Minneapolis for employers that don’t have a physical presence in the city.

Meanwhile, the State of Minnesota has tried to stop the Minneapolis ordinance and the City of Saint Paul’s paid sick leave ordinance by proposing a state-wide bill that would preempt local governments from passing wage and benefit ordinances, such as these cities’ paid sick leave laws and Minneapolis’ minimum wage ordinance. The preemption bill has been introduced unsuccessfully in the last three legislative sessions, leaving Minneapolis’ and St. Paul’s paid sick leave laws intact for now.

Jackson Lewis monitors state and local wage and benefits laws, including paid sick and family leave laws. We regularly assist employers in creating comprehensive, multi-state compliance programs, taking into consideration federal, state, and local laws that may cover an employee’s single absence.

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 fifteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly communicating with an employee who is about to exhaust the 12 week leave period.

 The FMLA allows eligible employees of a covered employer to take job-protected, unpaid leave for up to a total of 12 workweeks in any 12 months. Employers should keep in mind that failure to properly communicate with an employee who is about to exhaust the 12 weeks of leave, and terminating the employee, can pose legal risk.

In Ashby v. Amscan, Inc., 2017 U.S. Dist. LEXIS 33576 (W.D. Ky. March 9, 2017), the employee requested FMLA leave when she fell at her home and fractured her ankle. The employee was given a full release to return to work with no restrictions soon after she exhausted her twelve weeks of FMLA leave. Immediately upon her return to work, the employee was terminated for exceeding the allotted twelve weeks of leave by four days. The court determined that that the employer interfered with the employee’s FMLA rights when it terminated her. The court stated that the employer had a duty to inform the employee of her rights under the FMLA, which included warning the employee that her leave period was coming to a close.

In Dusik v. Lutheran Child & Family Servs. of Ill., 2017 U.S. Dist. LEXIS 62119, (N.D.Ill. April 24, 2017) the employee advised her employer that she would need three to six months of leave following a torn ACL and meniscus in her knee that required surgery. The employer advised the employee that her FMLA leave would begin on March 31, 2015, but did not communicate with the employee after that point regarding her leave. The employer terminated the employee on July 15, 2015, because she had exhausted her FMLA leave. The court stated that the employer interfered with the employee’s FMLA rights, and retaliated against her for engaging in those rights, because the employer was “suspiciously non-communicative” as the employee approached the end of her FMLA leave.

When an employee is about to exhaust FMLA leave, employers should consider communicating with the employee regarding the leave and return-to-work status. Employers should also consider the interaction between the FMLA and ADA, and explore whether additional leave can be provided as a reasonable accommodation under the ADA.

‘Safe Time’ Amendments to New York City Paid Sick Leave Effective May 5, 2018

Amendments to the New York City “Earned Safe and Sick Time Act” (ESTA) went into effect on May 5, 2018. Eligible employees under the ESTA will be able to use paid time off for circumstances resulting from the employee or a covered family member of the employee being the victim of family offense matters, sexual offenses, stalking, or human trafficking.

Additionally, New York City employers are required to provide an updated notice of employee rights to employees within 30 days of the effective date, by June 4, 2018. The notice is available here. Further, employers will need to update existing policy language to comply with the “safe time” amendments.

For more information on the amendments, see our articles, New York City Council Expands Earned Sick Time Law to Include Safe Time and Mayor Signs Law Adding Safe Time to NYC Earned Sick Time.

Please contact a Jackson Lewis attorney with any questions about the New York City Earned Safe and Sick Time Act and related employer policies.

A fully Qualified Promise is No Promise

As law students learn early in first year contracts, not every statement is an enforceable promise. That point formed the basis of a recent decision from the United States District Court for the District of Vermont. See Noel v. Walmart. The case concerned the termination of a pharmacist who suffered from trypan phobia (a fear of needles that causes nausea, dizziness and fainting at the sight of a needle) because he could not administer immunizations for Walmart customers—something that Walmart had determined to be an essential job function.
Taken alone, that determination is not necessarily newsworthy. Vermont is in the Second Circuit and in 2017 the Second Circuit Court of Appeals, in a nearly identical case, upheld a pharmacy’s determination that giving immunization shots was an essential job function and that because the pharmacist could not administer the injections, he was not qualified and was not entitled to an accommodation. The Vermont District Court is required to follow Second Circuit precedent.

The wrinkle in the Noel case is that after Walmart had notified Noel in April of 2016 that administering injections was now a minimum qualification of his job, he applied for, and was granted, an accommodation and was told he would not have to do so. He received a letter on July 19, 2016 stating that administering immunizations “is not considered to be an essential function of . . . [Plaintiff’s] position.” However, the letter also contained a clear qualification: “[t]his approval is subject to further review in case your job description is revised in the future” and that “the company reserves the right to revisit the approval of Plaintiff’s accommodation at any time.”

In October of 2016, Walmart informed Noel that it was changing his job description and that administering injections was an essential function of the job. When he told his employer that he could not do this he was told that he would be fired. In November, 2016 Walmart published a new job description specifically stating that it was an essential job function.
The only real distinction between Noel’s case and the binding Second Circuit precedent was the July 19, 2016 letter which, Noel argued, precluded Walmart from arguing that administering injections was an essential job function. The District Court disagreed:
The July 19, 2016 letter was a mere conditional exemption, explicitly subject to revision at any time. By contrast, Walmart currently asserts that administering immunizations is an essential function, and it has previously indicated so in its company-wide announcement on April 8, 2016 and the company-wide job description on November 17, 2016.
The Court went on to dismiss Noel’s claims. It is not clear whether the result would have been different had the July 19, 2016 letter not contained language that it was subject to revision at any time. The Court gave significant deference to the employer’s determination of an essential function. The conditional language, however, gave the Court an easy hook on which to hang its hat. Employers should consider using similar language to protect against an argument that its exemption from a job duty has become permanent when that was not the employer’s intent.

Are You Interfering With FMLA Rights If You Offer The Option to Work During Leave?

Employees who take leave to care for a family member often have the ability to continue working during their leave if the caretaking obligations do not consume all of their time.  If the employee asks to work limited hours while taking time off to care for a family member that is generally treated as a request by the employee for reduced schedule or intermittent leave.  But what happens if the employee requests a continuous leave and the employer tells the employee she can continue working a limited schedule if she wants to?  What if the employee interprets the “offer” as a “request?”  This issue was recently addressed by the Fifth Circuit Court of Appeals in D’Onofrio v. Vacation Publications (5th Cir. Apr 23, 2018).

The case involved a sales representative who requested FMLA leave to care for her husband.  It turns out that was not the real reason for the employee’s leave.  Her husband acquired a franchise for a competing business and Ms. D’Onofrio requested the FMLA leave so that she could attend the training program.  At the conclusion of her “leave” she was planning to go work with her husband.  When Ms. D’Onofrio requested her FMLA leave, the Company believed it was a valid request for leave and offered her two options: (1) she could go on unpaid FMLA leave or (2) she could log in remotely a few times per week and continue to service her existing accounts so that she could keep the commissions from those accounts while on leave.  She chose the latter option.

Shortly after the leave began the Company learned Ms. D’Onofrio was not responding to emails and voicemails.  The Company decided to bring the clients in house and Ms. D’Onofrio was locked out of her company accounts.  She also learned that the Company sent an email to clients stating she was no longer working there.  Unbeknownst to Ms. D’Onofrio that email was sent in error.  When the Company e-mailed her that her FMLA leave expired Ms. D’Onofrio responded that she was not returning because she believed that she had been terminated.

Among other claims Ms. D’Onofrio alleged that her FMLA rights were interfered with because her employer asked her if she wanted to work during her leave.  The Court held that “giving employees the option to work while on leave does not constitute interference with FMLA rights so long as working while on leave is not a condition of continued employment.” (Emphasis added).  The Court noted that the FMLA permits voluntary acceptance of work by employees on medical leave, but an employer may violate employee’s FMLA rights by coercing her to work while on leave.  In this case there was no evidence of coercion and the Court found there was no interference.

While this case did not present a surprising outcome given the facts before the Court, it emphasizes the need for caution when having a discussion with an employee taking leave about performing any work during that leave.  If an employer is going to offer the employee the ability to continue working, the employer must document that discussion and emphasize that it is completely voluntary.  The employee should sign an acknowledgment that he/she is choosing to work voluntarily and without coercion.  Additionally, if the employee chooses to work while taking leave, the employer should give the employee the option to change his/her mind and opt out of the agreement to continue working.