Can You Be “Regarded as” Disabled Based on a Potential Future Disability?

This certainly sounds futuristic. (Pun intended.) Still, in a case just decided by the Eleventh Circuit Court of Appeals, EEOC v. STME, LLC, the EEOC espoused precisely this position.

The EEOC sued STME for disability discrimination under the Americans with Disabilities Act on behalf of Kimberly Lowe, a former STME massage therapist. Lowe was not disabled. However, STME terminated Lowe in 2014 because she traveled to Ghana against her employer’s wishes. The company’s owner was concerned about reports of an Ebola epidemic then raging in several neighboring countries and feared Lowe might contract Ebola while in Ghana. As it turned out, Ebola never reached Ghana, and Lowe returned from her trip Ebola-free.

After Lowe filed a charge of discrimination, the EEOC found cause and sued. The complaint alleged that STME had terminated Lowe unlawfully by regarding her as disabled based on its fears and beliefs about Ebola. The EEOC also claimed that the termination was unlawful discrimination based on Lowe’s association with people in Ghana who STME believed might be disabled by Ebola. The trial court was unpersuaded and dismissed both claims. The court of appeals agreed.

Under the ADA, for Lowe to be deemed “regarded as” disabled, the EEOC was required to show that she suffered an adverse action “because of an actual or perceived physical or mental impairment….” Lowe was healthy at the time of her termination, and STME’s owner did not perceive her to be impaired at that time. He only perceived her as having the potential for becoming infected in the future if she traveled to Ghana. The court held that the actual or perceived impairment must exist at the time of the adverse action. A mere belief that someone might contract an impairment in the future does not satisfy the ADA’s “regarded as” standard.

The court also rejected the EEOC’s argument that STME discriminated against Lowe based on a feared association with Ebola carriers in Ghana. The ADA requires a showing that an employer knew of a particular association with a specific disabled person. Yet, the EEOC never identified any such person and only referred vaguely to Lowe’s potential association with unknown individuals. This was too speculative to support a claim.

To be sure, the Eleventh Circuit’s ruling is good news for employers. But keep in mind that in the eyes of the EEOC, acting on the mere possibility of a future impairment could constitute disability discrimination. This may not be the last case we see on this subject.

You Can’t Go Home Again: Employee’s Telework Accommodation Unreasonable, Seventh Circuit Rules

The Department of Housing and Urban Development (“HUD”) did not fail to accommodate a disabled lawyer by rejecting her request to work from home and offering alternative accommodations instead, the Seventh Circuit ruled in Yochim v. Carson, No. 18-3670 (7th Cir. Aug. 15, 2019).  Affirming summary judgment, the Court held that the employee’s telework request was unreasonable on its face.

Background

Yochim worked as a lawyer for HUD for over two decades.  Throughout the majority of Yochim’s tenure, HUD had a flexible telework policy, which permitted employees to work from home several days per week at their manager’s discretion.  In late 2012, however, HUD’s legal department underwent a functional reorganization—requiring attorneys to assist each other through cross-training and collaboration—a change in approach less suited for telework.

Shortly thereafter, Yochim had surgery to treat her carpal tunnel syndrome in her hand.  Following surgery, she requested time off and permission to work from home on certain days, and HUD granted her request.  In 2014, Yochim’s supervisor revoked Yochim’s telework privileges and issued her a written reprimand for performance deficiencies.  Thereafter, Yochim again requested to telework three days per week for six months plus two additional days per week as needed due to pain, medical appointments, and recovery.  She supported her request with a doctor’s note explaining she had significant pain and stiffness and recommending work from home at least three days per week.

Yochim’s supervisor responded by offering a list of alternative accommodations, including an ergonomic assessment, additional paralegal assistance to reduce Yochim’s typing, a compressed weekly schedule, and generous leave approval.  Yochim’s supervisor explained to Yochim that working from home was no longer an option because of her performance deficiencies.

Yochim retired and filed suit alleging that HUD violated the Rehabilitation Act by failing to accommodate her requests for telework.

Seventh Circuit’s Decision

Affirming summary judgment, the Seventh Circuit held that no reasonable jury could find that HUD failed to accommodate Yochim.

The Seventh Circuit explained, “a general consensus exists among courts that jobs often require face-to-face collaboration.”  The Court concluded that Yochim held just such a job—noting the change in the legal department that required attorneys to work in teams and collaborate more with each other.  Thus, Yochim could not show that “the two accommodations she sought but did not receive—to telework full-time for one month and later for three to five days per week for six months—were reasonable on their face.”

The Court found no fault with HUD’s proposed alternative accommodations and reaffirmed that employers need only provide a reasonable accommodation, “not the accommodation the employee would prefer.”

Takeaway

No bright lines exist as to when telework may be required as a reasonable accommodation.  Rather, as the Seventh Circuit noted in its ruling, an accommodation to telework requires a context-specific inquiry.  With advancements in technology, working remotely is certainly becoming more feasible.  However, as the Seventh Circuit recognized, many jobs still require face-to-face collaboration, and thus accommodations in lieu of telework may be proper and lawful in many instances.  The Court’s decision also demonstrates the importance of maintaining accurate job descriptions as HUD relied on its updated job description to support its argument that onsite attendance was required.

New DOL Opinion Letter – No Delaying Designating FMLA Leave, Even When A Collective Bargaining Agreement Provides Otherwise

On September 10, 2019, the Department of Labor issued an FMLA opinion letter stating that an employer may not delay designating paid leave as FMLA leave if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the designation be delayed.

The CBAs in question provided employees with job protected paid leave for certain family and medical reasons that could also be covered under the FMLA.  Employees could elect (or in some situations were required) to use the paid leave before taking FMLA leave.

The September 10 opinion letter follows the DOL’s March 14, 2019, opinion letter providing that an employer may not voluntarily permit employees to exhaust some or all available paid sick (or other) leave prior to designating the leave as FMLA-qualifying.

While the March 14 opinion letter did not specifically address when a CBA applies, the DOL, in its September 10 opinion letter, makes clear that a CBA does not provide an exception to the DOL’s view: Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

The DOL also reminded employers that they may adopt leave policies, including in CBAs, that provide more generous leave, as long as the leave policies comply with the FMLA.  The issue raised in the new opinion letter is that permitting employees to delay FMLA leave does not comply with the FMLA.

The DOL, again, informs employers that once it has enough information to determine that an employee’s leave request qualifies under the FMLA, it must designate the leave as FMLA leave.  As the DOL stated in the opinion letter, “This is the case even if the employer is obligated to provide job protection and other benefits equal to or greater than those required by the FMLA pursuant to a CBA or state civil service rules.”

As discussed in our prior blog, employers should also be aware of the FMLA’s limitations on requiring employees to substitute paid leave during FMLA leave.

Employers should ensure that their policies and practices do not permit or require employees to delay FMLA leave when there is sufficient information to designate the leave under the FMLA.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

What’s New in 2019? A Look at the Ever-Changing Leave and Accommodation Law Landscape

2019 has brought a flurry of new leave and accommodation laws.  In fact, in the first 8 months of 2019, more than 20 new laws in this area have passed.

The states (and US territory) that passed new laws, expanded or otherwise amended existing leave and accommodation laws, or had new laws go into effect this year include: California, Colorado, Connecticut, District of Columbia, Kentucky, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Puerto Rico, Utah and Washington.

A few notable trends are emerging.

Mandatory PTO

Maine  (effective January 1, 2021), Nevada (effective January 1, 2020) and Bernalillo County, New Mexico (effective July 1, 2020) became the first jurisdictions to mandate that employers provide employees with paid leave that can used for any reason. These laws are a significant departure from the paid sick leave laws that have been adopted in many states and cities across the country that limit the leave to specific reasons.  We expect this broader trend to continue as other jurisdictions are considering similar proposals.

Paid Family and Medical Leave

Efforts to adopt and expand paid family and medical leave across the country continue, as new laws were passed, including in Connecticut and Oregon; benefits were extended in California; Colorado established a task force to implement a family and medical leave insurance program; and the District of Columbia began collecting taxes from private sector employers to fund its paid family leave program.

Other Types of Leave

The number of jurisdictions with laws requiring accommodations for pregnant and breastfeeding employees continues to grow.  We also saw a number of jurisdictions pass laws providing protected leave to employees serving in the state National Guard, civil air patrol and serving as emergency responders. A growing number of jurisdictions are also requiring leave for employees who are the victims of violence or who serve as organ donors.

Keeping up with the dynamic legal landscape can be a daunting task.  Jackson Lewis is here to help.  For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

Ninth Circuit Dodges the Question of Whether Morbid Obesity is an “Impairment” Under the ADA; EEOC Says Yes

On August 20, 2019, the Ninth Circuit dodged answering the question of whether morbid obesity is a disability under the Americans with Disabilities Act. In Valtierra v. Medtronic Inc., No. 17-15282, the Ninth Circuit affirmed the District Court’s grant of summary judgment in favor of the defendant, but came short of joining the Second, Sixth, Seventh and Eighth Circuits in explicitly holding that obesity cannot constitute a disability under applicable EEOC regulations unless there is evidence that the obesity is caused by an underlying physiological condition. Read More

New York Revises Employment Protections for Domestic Violence Victims, Adds Accommodation Obligations

New York has amended its Human Rights Law to expand protection from employment discrimination for victims of domestic violence. Signed by Governor Andrew Cuomo on August 20, 2019, the new law amends the New York State Human Rights Law with respect to victims of domestic violence. It also requires employers to provide reasonable accommodations. The new law will become effective on November 18, 2019. Click here to read more.

It’s Back to School Time—Which Means California School Activities Leave

It is back to school time for school children, which means that parents are more likely to request time off to attend to child care or other school activities. And in California—parents have leave entitlements which employers should be mindful of. Please find the rest of this article on our California Workplace Law Blog here.

Bernalillo County, New Mexico Adopts Paid Leave For “Any Reason” Law

The patchwork of paid leave laws around the country is getting increasingly more intricate as local governments adopt mandatory paid time off laws. This week, Bernalillo County, New Mexico added its patch adopting the first paid time off ordinance in New Mexico. Beginning on July 1, 2020, the Employee Wellness Act will require employers within the unincorporated limits of Bernalillo County to permit most employees to accrue paid time off and use that paid time off for any reason. While the ordinance was originally considered earlier this summer as a more traditional paid sick leave law, it was amended to allow for employees to use the time off for “any reason.” The County is following what looks to be a trend started by Maine and Nevada which both passed laws this summer allowing employees to use mandatory accrued paid time off for any reason.

Under Bernalillo County’s new law, covered employers must permit employees to accrue a minimum of one hour of earned paid time off for every 32 hours worked, or employers may choose to use a frontload method and provide for accrual of all earned paid time off at the beginning of the year. The law sets out a three-year phase in period. Employers must allow employees to accrue up to 24 hours of paid time off as of July 1, 2020, 40 hours of paid time off as of July 1, 2021, and 56 hours of paid time off as of July 1, 2022 and thereafter. To be covered by the ordinance, employers must have “a physical premises within the unincorporated limits of the County, which employs two or more employees within the unincorporated limits of the County.”

Employees are required to provide notice to employers “as soon as practicable” for foreseeable leave and “when possible” schedule the use of paid leave “in a manner that does not unduly disrupt the operations of the employer.” Employers, however, may not require advance notice for employees to use paid leave for “emergency or illness.”

Employees may file complaints against employers with the County who is tasked with investigating and adjudicating those complaints. Under the final adopted ordinance, employees are required to exhaust these administrative remedies before filing a claim in court.

Employers with employees working within the unincorporated limits of Bernalillo County, primarily including areas in the South Valley and the East Mountains, should prepare for the following: to provide this paid time off to employees beginning in July 2020, to update their policies, and to provide a notice to all employees that complies with the law. Employers should watch for the County to publish a poster in English and Spanish.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

Oregon Governor Signs Paid Family and Medical Leave Law

Oregon’s paid family and medical leave law was signed by Governor Kate Brown on August 9, 2019. Eligible workers will be permitted to take up to 12 weeks of paid leave under the new law beginning January 1, 2023.

When the law goes into effect, Oregon will become the eighth state to adopt legislation requiring paid family and medical leave for eligible employees. Oregon’s program is the most generous and inclusive state law passed to date, with low-income workers receiving 100 percent of their wages while on eligible leave. Benefits are capped at 120 percent of the state average weekly wage (currently, approximately $1,200 a week). You can read more about it here.

Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

DOL Opines That Parent’s Attendance at IEP Conference Warrants FMLA Leave

In an August 8, 2019 opinion letter, the U.S. Department of Labor’s Wage and Hour Division (WHD) shed some light on what counts as “caring for” a family member under the FMLA. In Opinion Letter FMLA2019-2-A, the WHD found that a parent was entitled to take intermittent FMLA leave to attend a meeting at her child’s school to discuss the child’s Individualized Education Program (“IEP”). Such meetings were held four times per year and were attended by a number of professionals, including a speech pathologist, school psychologist, other therapists, teachers and school administrators. The parent had been told by her employer that attendance at these meetings was not covered by the FMLA.

The FMLA allows eligible employees to use protected leave to “care for” a family member with a serious health condition. 29 U.S.C. §2612. The Department of Labor’s FMLA regulations, however, provide little guidance on what specific circumstances count as “caring for” a family member. The regulations acknowledge such care “encompasses both physical and psychological care,” and includes situations where the “family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety.” The regulations state that FMLA leave can be used to transport a family member to a medical appointment, as well as “substitut[ing] for others who normally care for the family member,” or “to make arrangements for changes in care, such as transfer to a nursing home.” “Psychological comfort and reassurance” expressly counts as care.

Courts have not always agreed on how to apply these rules. There are inconsistent decisions on whether attending a “dream trip” or vacation with a seriously ill family member qualifies as FMLA leave. Courts generally have found that handling errands or housework for a seriously ill family member does not qualify as “caring for” that individual under the FMLA. Generally, attending care meetings with health care personnel has been found to qualify, and one court held that attendance at a ceremony for an employee’s terminally ill parent also counted as “caring for” the family member.

In the opinion letter, the WHD found that attendance at the IEP meetings qualified as “care for a family member” because part of the purpose of these meetings was to make arrangements for changes in care. The WHD pointed to a previous opinion letter, in which the Division had found that attending “care conferences” related to a parent’s health condition qualified for FMLA leave. This was because the employee’s attendance at these conferences, during which the individual’s health care providers (nurses, dieticians, physical therapists, activity directors, doctors, etc.) discussed the individual’s medical condition, needs, incidents, and well being was “clearly essential” to the employee’s ability to provide appropriate physical or psychological care. In the case of the IEP meeting, similarly, the Division found that the parent’s attendance was “essential to [her] ability to provide appropriate physical or psychological care” for her children, since she “attends these meetings to help participants make medical decisions concerning [her] children’s medically-prescribed speech, physical, and occupational therapy; to discuss [her] children’s wellbeing and progress with the providers of such services; and to ensure that [her] children’s school environment is suitable to their medical, social, and academic needs.”

Employers should tread lightly before denying requests for FMLA leave involving less conventional forms of care. Depending on the circumstances, attendance at meetings, accompanying a family member on travel, and being present at special events can qualify for FMLA leave. Rather than take a restrictive view of what counts as “caring for” a family member, employers should review current guidance from the WHD and case law in their jurisdiction, and remember that “caring for” a family member is not limited to direct, physical care.

For guidance on leave management issues, please contact a Jackson Lewis attorney. Register here if you would like to receive information about our workthruIT® Leave & Accommodation Suite. The Leave & Accommodation Suite provides subscribers an expanding array of tools to manage leave and accommodation issues, including electronic access to a state and local leave law database that is developed and updated continually by our Disability, Leave & Health Management attorneys.

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