Obesity Discrimination Claims Allowed to Proceed Under California Law

Is obesity a disability under California law? Are a supervisor’s alleged “fat remarks” sufficient evidence of disability discrimination?  On December 21, 2017, a California Appellate Court published an extensive decision regarding obesity as a disability under California law and issued further guidance on both counts.

Ketryn Cornell was an obese woman (5’5”, 350 pounds) who was fired by her employer, Berkeley Tennis Club, after she allegedly planted a recording device attempting to tape record a board meeting. Cornell was employed as a Night Manager, Day Manager and Tennis Court Washer. Cornell alleged among other claims disability discrimination and harassment based on her obesity.

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

Not adequately investigating a potential FMLA abuse situation to put the employer in a stronger defensive position.

While an employer may never discourage legitimate FMLA leave, if there is suspected abuse of FMLA leave, an employer should investigate. Some courts have supported an employee’s termination for FMLA abuse when the employer acted reasonably and in good faith, and could establish that there was an “honest belief” that the employee engaged in FMLA abuse.

In Capps v. Mondelez Global, LLC, Case No. 15-3839 (3d Cir. Jan. 30, 2017), an employee’s manager found in his company mailbox an anonymously-delivered newspaper clipping reporting that the employee was arrested and convicted of DUI the previous year. The company investigated and reviewed the court docket to compare dates of the employee’s court appearances with dates the employee took FMLA leave.  The date of the employee’s arrest and other court dates for the DUI proceedings matched dates the employee took FMLA leave. When asked, the employee provided documents that the employer found not to be credible. The court found that the employer had an honest belief that the employee abused FMLA, based on the correlating dates as well as the employee’s failure to provide an adequate excuse. The court stated that the employer could not be liable for FMLA interference because it “honestly believed” that the employee had abused his taking of FMLA leave.

In Gurne v. Michigan Bell Telephone Co., Case No. 10-14666 (E.D. Mich., Nov. 15, 2011), an employee took FMLA on a day she was scheduled to work until 5:00 p.m. A co-worker reported seeing the employee at a birthday party for a mutual friend between 4:30 p.m. and 6:30 p.m.  The employer investigated, but was unable to determine if the employee was actually at the party before the end of her scheduled shift. The employer nevertheless terminated the employee. The court sided with the employee, finding that the employer could not establish that it “honestly believed” that the employee had abused FMLA because the employer’s investigation was not conclusive regarding whether the employee was at the party during her shift.

An employer’s “honest belief” about FMLA abuse should be supported by adequate investigation and supporting facts. The adequacy of the investigation may be subject to legal scrutiny, and a determination can be made on whether the employer was reasonable in the steps it took to form its belief about the employee’s conduct.

For a full discussion of the Capps v. Mondelez Global, LLC case, reference the link below: https://www.disabilityleavelaw.com/2017/02/articles/fmla/third-circuit-says-last-call-employee-terminated-caught-drinking-fmla-bed-rest/#more-2507

New California Disability and Leave Laws – Are You Ready for 2018?

With the turn of the year comes a wave of new California disability and leave laws.  Employers should review their existing policies and procedures to determine if they will be in compliance with these new laws—many of which will go into effect on January 1:

  • Parental Leave:  California will expand parental leave to small employers.  Current law requires that employers with 50 or more employees within 75 miles grant up to 12 weeks of unpaid leave to eligible employees who request time off to bond with a newborn child or a child placed in the employee’s home for foster care or adoption.  Effective January 1, California will extend this leave entitlement to employees who work for an employer with 20 or more employees within 75 miles.   More details can be found here.  Employers should ensure their policies are updated to account for this new leave entitlement.
    California and Local Sick Leave Laws:  Since the passage of the California Paid Sick Leave Law, various cities have enacted their own sick leave ordinances which pose additional requirements for employers.  Currently, the following cities in California have enacted sick leave ordinances: San Francisco, Los Angeles, San Diego, Oakland, Berkeley, Emeryville, and Santa Monica. Employers should revisit whether any of these ordinances apply to their organizations since very low thresholds of work trigger their application.
    Lactation Ordinance:  Effective January 1, San Francisco will expand existing federal and California laws regarding lactation in the workplace by requiring employers to provide employees with lactation rooms that are safe, clean, and free of hazardous materials; that contain a surface to place a breast pump and other personal items; that have a place to sit; and that have access to a refrigerator, sink, and electricity.  Employers should update their employee handbooks since they are now required to maintain a written lactation accommodation policy under the new ordinance.  More details about these requirements are discussed here.
  • Domestic Violence Leave Notice:  Current law requires employers with 25 or more employees to provide written notice to their employees to inform them of their rights to take protected leave for domestic violence, sexual assault, or stalking.  Employers are required to inform each employee of his or her rights upon hire and at any time upon request.  On July 1, 2017, the Labor Commissioner developed and posted online a form that employers may use to satisfy these new notice requirements.  Employers should review their new hire packets to ensure this notice is included.

Given the nuances of these new laws, employers should carefully review and revise its written policies, procedures, and new-hire packets as needed.  Please contact your Jackson Lewis attorney if you have any questions regarding your compliance with these new requirements.

Eleventh Circuit Upholds Alabama Cop’s Win in Pregnancy and FMLA Case

The U.S. Court of Appeals for the Eleventh Circuit has affirmed a jury verdict in favor of a former Alabama police officer on her pregnancy and Family and Medical Leave Act (FMLA) claims. Hicks v. City of Tuscaloosa, Ala., No. 16-13003 (11th Cir. Sept. 7, 2017). The Eleventh Circuit held that the Pregnancy Discrimination Act (PDA) bars bias against breastfeeding mothers and affirmed an award of $161,319.92 plus costs and attorneys’ fees to the plaintiff.

Former officer Stephanie Hicks claimed that, in violation of the PDA, she was transferred to a less desirable position and forced to quit after returning from maternity leave and requesting an accommodation to breastfeed. She also sued for interference and retaliation under the FMLA, claiming that after she returned from maternity leave she overheard her supervisor commenting to her captain about finding ways to write Hicks up and “get her out of here,” apparently because Hicks had taken her full 12 weeks of unpaid leave, which was longer than her supervisor wanted.

The police department argued that Hicks was reassigned because she had not been doing her job and she failed to meet with several confidential informants assigned to her by her new boss.

The three-judge panel held there was “sufficient evidence of discrimination” by the Tuscaloosa Police Department against Hicks when she was demoted from the narcotics division to a patrol assignment a mere eight days after returning from maternity leave. Not only was Hicks assignment changed, but her pay was cut, she would no longer have a vehicle, and she was required to work weekends. Moreover, Hicks alleged she was denied an accommodation for breastfeeding and then forced to resign due to the lack of accommodation when the police department placed her on an assignment that required her to wear a bullet-proof vest.

The Court sided with the plaintiff after concluding that “[m]ultiple overheard conversations using defamatory language plus the temporal proximity of only eight days from when she returned to when she was reassigned support the inference that there was intentional discrimination.” It also noted the new job duties required Hicks, who was breastfeeding at the time, to wear a ballistic vest all day long, which she claimed wasn’t possible, and when Hicks asked to be accommodated, she was told breastfeeding was not a condition that “warranted alternative duty” and told to either wear a larger size — which left dangerous gaps — or not wear a vest at all.

The jury awarded Hicks $374,000, but a magistrate judge reduced the award to $161,319.92 plus costs and attorneys’ fees, according to the opinion. On appeal, the Eleventh Circuit found “no reversible error on any issue” to warrant overruling the jury verdict. The panel also rejected the police department’s argument that Hicks did not mitigate her damages by seeking comparable work, as well as its challenge to the jury instructions.

This case highlights the importance of, among other things, properly analyzing employees’ requests for accommodations and ensuring that employee discipline is proper and consistent both before and after an employee takes protected leave.

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Extending Leave Was Not A Reasonable Accommodation Under The ADA Where There Was A Lack Of “Certainty” About Return To Work Date

While employers generally accept that they cannot apply a maximum leave period after which employees are automatically terminated, they continue to struggle with how much leave must be provided as a form of accommodation under the ADA.  There is little dispute that leave for an indefinite period where the employee has a long term chronic condition is not a reasonable accommodation, but how much time must the employer give?  Is a month of extended leave reasonable?  Two months?  Four months?

The Eleventh Circuit Court of appeals recently took a step toward providing employers with guidance on the ADA’s requirements for job protected leave as an accommodation.  In Billups v. Emerald Coast Utilities Authority, the Court noted that the accommodation language of the ADA is written in the present tense – that is, whether an employee “can” (not “will be able to”) perform the essential functions of the job with or without accommodation.  As such, when an employee seeks job protected leave as an accommodation, the employee must show that “his requested accommodation would have allowed him to return to work “in the present or in the immediate future.”  An accommodation is therefore unreasonable if it would only allow an employee work at some uncertain point in the future.

 There is nothing particularly novel about affirming the denial of leave where the return to work date is unspecified.  In the Billups case, however, the Court addressed a situation where the employee’s condition was likely to be corrected at some point in the future.  In other words, it was undisputed that the employee’s restrictions were expected to be lifted but the issue was when.  Mr. Billups was provided with over six months of leave.  At that time of his termination his surgeon indicated that he “might” be able to return to work in another month but that he had to be evaluated again.  His physical therapy was “projected” to end in about a month as well.  The Court concluded that there was only a “possibility” Mr. Billups could return to work in a month but there was “no certainty” that he could do so.  Because of the lack of certainty the Court concluded that this was effectively an open ended request for sufficient time to ameliorate Mr. Billups’ condition and he therefore was not denied a reasonable accommodation.

 Employers must continue to exercise extreme caution in these situations.  While the Court in Billings focused on the lack of certainty about the employee’s return to work date, employers must be careful not to take this concept too far.  As those who practice in this area know, every situation is unique and must be treated as such.

Prior Entitlement to FMLA Leave Is Not A Free Ticket To Miss Work For Non-FMLA Covered Reasons

The U.S. District Court for the Middle District of Pennsylvania recently upheld an employer’s decision to terminate an employee under its policy against excessive absenteeism, in spite of the fact that the former employee had previously taken leave under the Family and Medical Leave Act (“FMLA”), because the absences at issue were not related to her FMLA qualified condition. See Bertig v. Julia Ribaudo Healthcare Grp., LLC, 2017 WH Cases2d 390378 (M.D. PA 2017).

The employee in this case worked as a nurses’ aid in a nursing home. She also was diagnosed with bladder cancer and asthma during her employment.  The employee completed the necessary FMLA paperwork relating to these conditions and took FMLA leave from May 29, 2012 to June 25, 2012.  However, during the next year, the employee missed an additional thirteen days of work.  According to the employer’s call-in records, the absences were for various reasons, i.e. foot pain, stress fracture in her foot, common cold, sore throat, etc.; however, none of the absences were related to either of her FMLA qualifying conditions.

The employer had a company policy which stated that termination may occur when an employee accrues seven absences within a twelve month period. After identifying that the employee had violated this policy with her thirteen absences, the employee was contacted and informed that she was being terminated for excessive absences.  The employee filed a complaint on November 19, 2015 asserting causes of action for interference and retaliation under the FMLA and disability discrimination and failure to accommodate under the Americans with Disabilities Act (“ADA”).  The employer subsequently filed a motion for summary judgment.

The Court analyzed the requirements for both FMLA interference and retaliation claims and found that the employee’s claims under both causes of action failed because the evidence showed that, although she was entitled to FMLA leave for medical issues relating to both the bladder cancer and asthma, her own stated reasons for the absences showed that the absences were completely unrelated to either of these medical diagnosis. Instead, the employee’s absences were due to foot pain, common cold, etc.  None of these ailments entitled the employee to FMLA leave.  Therefore, the Court held that the employee’s FMLA causes of action should be dismissed.

The Court next analyzed the employee’s claims under the ADA and determined that, although she qualified as a disabled person under the ADA, her claims failed because she failed to establish that the employer’s decision to terminate her was based on her disability. Furthermore, the Court found that the employee failed to request any additional FMLA leave, so there was no retaliation by the employer.  In addition, there was no evidence that the employee ever sought an accommodation from the employer for her disabilities.  Because no accommodation was ever sought, she could not bring a failure to accommodate claim under the ADA.

The takeaway for employers is that you aren’t prevented from following your policies and procedures against excessive absenteeism just because an employee has previously taken FMLA leave. If the employee’s reasons for the absences are not related to the FMLA qualifying condition, then you are entitled to proceed with your disciplinary procedures for excessive absenteeism.  The entitlement to FMLA leave is not a free ticket for missing work for non-FMLA covered absences.

Timing Is Everything: FMLA Claim Survives Summary Judgment Where Employer Began Auditing Employee’s Records The Day After FMLA Leave Request

Employees requesting, currently taking, or just returning from leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons that are unrelated to their FMLA leave. This point is exemplified by Jennings v. Univ. of N.C., N.C. Ct. App., Case No. COA16-1031 (July 5, 2017), which was the subject of a prior post on this Blog.  In Jennings, the North Carolina Court of Appeals ruled that an employer did not violate the FMLA by proceeding with a disciplinary hearing and termination of an employee because of allegations of misconduct that arose prior to her FMLA leave.

Timing is everything in life, however, and the timing of an employer’s investigation of misconduct by an employee in relation to the employee’s request for leave is significant. The Western District of Missouri’s denial of summary judgment in Diamond v. American Family Mutual Insurance Company, Case No. 4:16-cv-00977 (Nov. 9, 2017), illustrates this point.  Diamond, a claims adjuster for American Family Mutual (“AFM”), met with his supervisor on February 12, 2015 for his annual performance review, which was positive.  During that meeting, Diamond told his supervisor that he was planning to take FMLA leave.  The next day, Diamond’s supervisor pulled phone records to investigate if Diamond had actually made calls that he reported making.  The supervisor testified the investigation was prompted by complaints in January and February 2015 from insureds and agents who reported they had not received follow-up calls or call-backs from Diamond.  After the supervisor determined that Diamond’s claim file entries were inconsistent with the report of calls made from his desk phone, Diamond was terminated for falsifying company records on February 24, 2015.

In denying AFM’s summary judgment motion, the court acknowledged that the FMLA does not prohibit an employer from terminating an employee for reasons unrelated to the FMLA, and the court also acknowledged that falsifying records is a lawful reason for termination. However, the court found there were issues of fact as to the reasons for Diamond’s termination, noting that Diamond’s phone records were pulled the day after he expressed his intent to take FMLA leave and that Diamond had received a favorable performance review the day before his records were pulled.

The Diamond decision serves as an important reminder that employers must be extremely cautious when disciplining employees who have recently requested, taken, or returned from FMLA leave.  While discipline is lawful if unrelated to the request, courts will be skeptical if there is evidence that the employer began looking for misconduct after the FMLA leave request was made.  Additionally, Diamond is a good reminder that employers should ensure that performance reviews are accurate and consistent with any concerns regarding an employee’s performance and conduct.

City of Santa Monica Minimum Paid Sick Leave Accrual Limits to Increase January 1, 2018

The grace period is over. Effective January 1, 2018, the City of Santa Monica’s minimum cap on accrued sick leave for eligible employees will increase from 40 to 72 hours for businesses with 26 or more employees. The accrual-cap for businesses with 25 or fewer employees will increase from 32 to 40 hours.

Santa Monica’s sick leave requirements have been in effect since January 1, 2017 under the City’s Minimum Wage Ordinance (the “Santa Monica Ordinance”). Under the Santa Monica Ordinance, the first year required a 32-hour accrual cap for small businesses and a 40-hour accrual cap for large businesses with the planned increase going into effect January 1, 2018. Read More

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

Not properly considering when a medical recertification can, and should, be requested when an employee exceeds the anticipated frequency and/or duration of leave.

A frequent concern in administering FMLA leave is when employees exceed the estimated frequency and/or duration identified on the employee’s medical certification. The FMLA regulations provide, in part, that an employer may request medical recertification:

  • no more frequently than every 30 days and only in connection with an absence;
  • after the minimum duration of the condition expires, if the medical certification indicates the minimum duration of the condition is more than 30 days.

An employer may request recertification more frequently, however, if:  1) the circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications); or 2) the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.

In Norris v. Allison Transmission, Inc., No. 1:13-cv-01287-SEB-DML, 2015 U.S. Dist. LEXIS 10936 (S.D. Ind. Jan. 30, 2015), an employee alleged that his employer interfered with his FMLA rights when he was terminated for exceeding the frequency and duration of his estimated 3-4 days per month of leave. The employee took off approximately 15 days in one month. The employer requested recertification because the employee exceeded his approved frequency and duration of leave.  According to the employee, the nature of his wife’s serious health condition had changed.  The employee never submitted recertification paperwork, and was terminated for being absent beyond the approved time frame of the leave. The court determined that the employer acted in accordance with its rights under the FMLA to request recertification, and to subsequently terminate the employee based on his failure to provide the requested medical recertification.

In Edusei v. Adventist HealthCare, Inc., Civil Action No. DKC 13-0157, 2014 U.S. Dist. LEXIS 91956 (D. Md. July 7, 2014), an employee brought an FMLA interference claim against her employer after she was denied a five-day extension to her four week FMLA leave to care for her ill father.  The employer argued that the employee was only entitled to an extension of her FMLA leave if her father’s condition worsened.  The court decided that an individual’s serious health condition does not need to become more serious for an employee to be granted an extension of leave, and if the employer had reason to question the condition of the employee’s father, it should have requested recertification.

When an employee exceeds the estimated frequency and/or duration of approved FMLA leave, an employer should consider requesting a recertification before imposing any discipline. Failure to seek a recertification and instead imposing discipline in these situations may result in FMLA interference claims.


Seventh Circuit Holds that the ADA Is Still Not a Leave Statute

On October 17, 2017, on the heels of its landmark decision in Severson v. Heartland Woodcraft, the Seventh Circuit affirmed summary judgment in favor of the employer in its unpublished opinion in Golden v. Indianapolis Housing Agency, No. 17-1359 (7th Cir. Oct. 17, 2017), reiterating that “[a]n employee who needs long-term medical leave…is not a ‘qualified individual’ under the ADA.”  In Golden, the plaintiff – a fifteen year employee of the Indianapolis Housing Agency (“IHA”) –was diagnosed with breast cancer in November 2014.  After taking twelve weeks of leave under the FMLA, the plaintiff remained unable to return to work.  At that time, her physician described the plaintiff’s condition as “ongoing” and noted that she would be incapacitated “until released.”  Thereafter, IHA granted the plaintiff an additional four weeks of unpaid leave with the understanding that at the conclusion of those four weeks, she would be required to return to work or would be automatically terminated.

The day before the plaintiff’s additional four weeks of leave was set to end, the plaintiff requested an unpaid leave of absence of up to six months.  IHA denied the plaintiff’s request for leave and terminated the plaintiff’s employment the following day.  The plaintiff filed suit under the ADA and the Rehabilitation Act, arguing that IHA was required to provide her with an additional six months of unpaid leave as an accommodation for her disability.  The district court granted summary judgment for IHA and the plaintiff appealed.

The Seventh Circuit ruled that it was bound by its own precedent in Severson, in which it held that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  The Court held that “while [it] sympathize[d] with Golden’s plight,” “a request for six months of medical leave in addition to the twelve weeks required by the FMLA removes an employee from the protected class under the ADA and the Rehabilitation Act.”

In a concurring opinion, Circuit Judge Rovner reluctantly joined in the judgment of her colleagues, but decried a per se rule which would exclude an employee from seeking a multi-month leave of absence regardless of a showing of hardship to the employer, finding such a rule to be “nonsensical.”

Stay tuned, as it seems inevitable that the Supreme Court will eventually weigh in on the issue of whether, and to what extent, the ADA requires leave as an accommodation.