What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 26th blog in in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Increasing legal risk by making stray comments while investigating potential FMLA leave abuse.

While employers may not discourage legitimate FMLA use, employers can (and should) investigate suspected employee abuse of FMLA leave.  In January 2018, we discussed the perils of not adequately investigating potential FMLA abuse before taking action.  We now discuss a similar topic: how just one stray comment can undo an otherwise effective investigation into FMLA abuse.

In Poitras v. ConnectiCare, Inc., 206 F. Supp. 3d 736 (D. Conn. 2016), an employee was granted FMLA leave based on a spinal condition that caused pain and prevented her from standing or sitting for long periods while at work.  While out on leave, the employee attended a non-work event at a local bar.  Soon afterward, a video and photos surfaced of the employee drinking and dancing at the event.  Coworkers informed supervisors of the employee’s behavior, and the employer investigated for potential FMLA abuse.  During the investigation, the employee asked for an additional 30 days of FMLA leave, which was approved.  The investigation later revealed that, in addition to the event at the bar, the employee delivered Avon products to another office while on leave.  The employer terminated the employee for FMLA abuse.

Although the employer relied upon the “honest belief” defense and the strength of its investigation, the court sided with the employee.  Significantly, the court focused on a single remark made by one of the managers, a decisionmaker, who made the comment that she decided termination was proper when she learned that the employee had requested additional FMLA leave.  The court reasoned that this remark showed that the employer’s true motive might have been retaliation against the employee for taking FMLA leave—not for abusing that leave.

What can we learn from this? One stray remark can be costly. Good faith compliance with the FMLA is key to successfully defending FMLA claims and managers and supervisors should be trained on FMLA obligations.

After an initial delay, payroll and wage withholdings to fund the Massachusetts paid family and medical leave program are set to begin on October 1. The Massachusetts Paid Family and Medical Leave Act (PFMLA) established a fund that will allow employees in the Commonwealth to begin taking paid leave in 2021 for their own serious health condition or to care for a family member with a serious health condition. Employers will contribute to the state created fund through a contribution of .75% of employee wages up to the social security cap, currently set at $132,900 per individual for 2019.

Employers can withhold up to .378% of employee wages to fund the contribution. Of that .378% withholding, .13% will be allocated towards funding family leave and .248% will be allocated towards funding medical leave. The remaining .372% of the contribution must come directly from the employer. Employers with fewer than 25 Massachusetts employees are exempt from the required employer contribution and only need to deduct and contribute the .378% of payroll withheld from employees.

Employers must make the required contribution to the Commonwealth through the MassTaxConnect system quarterly and contributions are due by the end of the month following the quarter close. The first contributions must be made to the state by January 31, 2020.

In addition to the contribution requirements, employers must take the following actions by October 1, 2019:

  • Display the published PFMLA poster in a conspicuous place in the workplace;
  • Distribute the notification of the law to all current employees and receive their acknowledgement of receipt (notice and acknowledgement of receipt can be provided electronically);
  • Add the notification of the PFMLA to the existing on-boarding materials for new hires;
  • Notify any labor unions in the workplace of the company’s intent to bargain over the employee portion of the contribution;
  • Register the company with MassTaxConnect, if not yet registered;
  • Prepare for quarterly reporting to the state through MassTaxConnect (employee names, SSNs, wages paid).

There are a few other deadlines to note in the coming months:

  • If your company intends to apply for a private plan exemption, the application must be completed by December 20, 2019 to apply to the initial contributions;
  • The initial payment for the first quarter of contributions must be made to the state by January 31, 2020.

This is a complex law with a number of moving parts, please reach out to your Jackson Lewis attorney if you have any questions regarding the new law or its administration.

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.

New Maryland laws governing the workplace will take effect on October 1, 2019. These laws:

  • Amend the state’s Fair Employment Practices Act (FEPA) with respect to harassment claims and with respect to the definition of “employee”;
  • Require unpaid leave and provide additional protections for employees serving as organ or bone marrow donors;
  • Promote gender diversity in the boardroom;
  • Provide additional civil penalties with respect to Equal Pay violations; and
  • Prohibit non-compete agreements for low-wage earners.

Click here to read more.

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.

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.

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.

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.

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

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.