On July 30, 2019, California Governor Gavin Newsom signed SB 30 into law, changing existing law to permit opposite-sex couples under the age of 62 years old to register as domestic partners. Those who enter into domestic partnerships have the same rights, protections, and benefits as spouses under California law, including the right, if otherwise eligible, to use sick time, take protected leave pursuant to the California Family Rights Act, or receive Paid Family Leave benefits from the State, in order to care for a spouse with a qualifying health issue, among other rights.

Existing law within the California Family Code section 297 provided, among other requirements, that a domestic partnership could be entered into between two individuals who were either: (1) members of the same sex; or (2) if members of the opposite sex, at least one of the two individuals were over 62 years old and meet the eligibility criteria for certain federal benefits under the Social Security Act.

Under the new law, which will be effective on January 1, 2020, California Family Code section 297 will allow any two adults to enter into a domestic partnership if they are single, at least 18 years old, not related by blood in a way that would prevent them from being married to each other, and capable of consenting to the domestic partnership. This will allow individuals who did not previously qualify for domestic partnerships to enter into them and receive the benefits provided to spouses and domestic partners within the state of California.

SB 30 also includes a provision within California Family Code section 299.2 that recognizes as a valid domestic partnership the legal union of any two persons, other than a marriage, that was validly formed in another jurisdiction and that is substantially equivalent to a California domestic partnership. California’s prior law only recognized such unions if entered into between two persons of the same sex.

Jackson Lewis will continue to continue to monitor developments relating new California laws. Please contact the Jackson Lewis attorney with whom you usually work, if you have any questions about SB 30 or how it will impact your workforce or workplace policies.

The Seventh Circuit joins the Eighth, Ninth and Tenth Circuits in holding that such a refusal would not violate the Americans with Disabilities Act. In Shell v. Burlington Northern Santa Fe Railway Company, No. 19-1030, the appellate court addressed the certified question “whether the ADA’s regarded-as provision encompasses conduct motivated by the likelihood that an employee will develop a future disability within the scope of the ADA.”

Shell had applied to work in a safety-sensitive position for BNSF and received a conditional offer of employment, subject to him passing a medical evaluation. BNSF’s chief medical officer determined that at 5’10” and 331 pounds with a body-mass index of 47.5, Shell was not medical qualified for the job. Employees in safety-sensitive positions are required to have a BMO of less than 40.

Shell sued, claiming that BNSF’s refusal to hire him constituted discrimination on the basis of a perceived disability in violation of the ADA.

Looking to the statutory language of the ADA, the court held that the ADA’s “regarded as” prong does not cover a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. The ADA’s “regarded as” prong defines “disability” as “being regarded as having [a physical or mental impairment.” (Emphasis added). As such, the text plainly encompasses only current impairments, not future ones. “Having” means presently and continuously.

Shell did not base his disability claim on his obesity, as a recent Seventh Circuit opinion foreclosed that possibility. In Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019), the court of appeals joined other circuits holding that obesity alone is not a physical impairment under the ADA unless accompanied by evidence that the obesity is caused by an underlying physiological disorder or condition. Shell instead based his disability claim on those medical conditions that BNSF feared he would develop – sleep apnea, diabetes, and heart disease – which undisputedly qualify as impairments under the statute. But Shell did not have those impairments at the time he applied to work for BNSF, nor was there any evidence that the company perceived him to currently have those impairments.

The Seventh Circuit agreed with the Eight Circuit: the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment, but does not prohibit discrimination based on a perception that a physical characteristic – as opposed to a physical impairment – may eventually lead to a physical impairment under the Act. With only proof that BNSF refused to hire him because of a fear that he would one day development an impairment, Shell could not establish that the company regarded him as having a disability, or that he was otherwise disabled.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 27th blog in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Filling an employee’s position while on FMLA leave even when it appears that the employee might not return to work.

Does an employee in need of a transfer as an ADA accommodation get to fill the position of another employee on FMLA leave?

According to a Mississippi federal district court, the answer is “no.” In Maxwell v. Wash. Cty., Miss., No. 4:18-CV-154, 2019 U.S. Dist. LEXIS 170065 (N.D. Miss. Oct. 1, 2019), an employee was on continuous FMLA leave for 12 weeks after exhausting all company-paid sick leave. The employer had some reason to believe that the FMLA employee would not be coming back to work because the employee failed to purchase personal devices that would enable him to perform his job.

Meanwhile, another employee who could no longer perform his job functions because of a disability requested a transfer to the FMLA employee’s position as an ADA reasonable accommodation. The employer refused the transfer request. While transfer to a vacant position may be a reasonable accommodation for an employee’s disability, the court concluded that a position is not “vacant” if the vacancy is created because another employee is on FMLA leave. The court found that the employer did not violate the ADA by refusing to transfer the ADA employee to the FMLA employee’s position—even though it appeared that the FMLA employee might not return to work. The court implied that if the employer had transferred the ADA employee, it would have violated the FMLA employee’s rights under the FMLA. The court reasoned that the FMLA employee’s position could only be considered “vacant” if the employer knew for certain that the employee was not going to return from leave.

This case addresses the unique situation of an employer’s FMLA obligations running up against ADA accommodation requests. This case illustrates that an employer can potentially violate the FMLA by filling the position of an employee on FMLA leave even if the employer has some belief that the employee will not return to work after FMLA leave. What might be a reasonable alternative? Risk is likely reduced by placing the ADA employee into the FMLA employee’s position on a temporary basis until the FMLA employee either returns from leave, or the employer is certain that the FMLA employee is not returning.

The Westchester County Safe Time Leave Law takes effect today October 30, 2019.  Starting on January 28, 2020, employers must begin providing eligible new hires with a copy of the law and written notice, which is intended to explain how the law applies to them.   Employers have until January 28, 2020 to provide a copy of the law and written notice to eligible current employees. The Safe Time Leave Law also requires that employers post a poster in English, Spanish and any other language deemed appropriate by Westchester County, in a conspicuous location.   Employers can locate a copy of the law, a model Notice of Employee Rights, the postings and FAQs on Westchester County’s website. 

The Safe Time Leave Law covers employees who work in Westchester County for more than 90 days in a calendar year with limited exceptions.  Eligible employees have the right to use up to 40 hours of leave in a year to attend or testify in a criminal or civil court proceeding relating to domestic violence or human trafficking or to move to a safe location.  Employers must provide safe time leave in addition to sick leave provided under the Westchester County Earned Sick Leave Law (“WCESLL”).  Unlike the WCESLL, there is no accrual option. 

For more information about Westchester’s Safe Time Leave Law, please see our blog Westchester County Adopts Safe Time Law.

Please contact Arin Liebman, Susan Corcoran or the Jackson Lewis attorney with whom you regularly work with any questions related to Westchester County’s Safe Time Leave Law.

 

The much-anticipated decision from the U.S. Supreme Court (SCOTUS) on Domino’s Pizza’s Petition for Certiorari is in. On October 7, 2019, the SCOTUS denied review of a decision from the Ninth Circuit Federal Court of Appeals in Robles v. Domino’s Pizza. The Ninth Circuit in Robles held that (1) Title III of the ADA covers websites with a nexus to a physical place of public accommodation, and (2) liability for not having an accessible website, even without any regulation on the subject, does not violate due process rights of business covered by Title III. The SCOTUS denial of certiorari leaves intact the Ninth Circuit’s decision. The case will be remanded to the federal district court where Plaintiff filed the lawsuit originally for a decision on the merits.

Business trade groups were looking to the SCOTUS to review Robles in order to provide some relief and clarity to what has been chaotic legal regime resulting in an ever-ticking upwards onslaught of lawsuits against business. The Department of Justice (DOJ), the federal agency responsible for issuing regulations under Title III so that stakeholders better understand their rights and obligations under the law, does not appear to be poised to issue website accessibility regulations anytime soon, if at all. The DOJ first announced its intention to do so back in 2010. Business trade groups were hoping the SCOTUS might provide some needed guidance in this area.

Although disability rights groups and the plaintiff’s bar may tout the SCOTUS’s decision as a victory, the impact on website accessibility litigation under Title III is far from clear. While the decision is certainly not going to reduce the number of lawsuits filed or dampen the motivation of attorneys and serial plaintiffs to file these lawsuits, most plaintiffs’ law firms already had been filing literally thousands of lawsuits over the last few years on the premise that holding companies liable under Title III due to an inaccessible website does not violate due process rights. Unfortunately, the SCOTUS’s decision to deny certiorari does not help businesses or, for that matter, the disabled as there remains no consistent guidance on website accessibility. Since the Congress does not appear ready to amend the law and the DOJ is seemingly reluctant to regulate in an area where the agency many years ago stated it was needed, the courts have been left to decide what the law requires in a rapidly-changing technological environment. Unfortunately, because many of these cases settle early on, litigation is also not likely to timely and effectively shape the law in this area either.

Under the Americans with Disabilities Act (“ADA”), an employee is entitled to a reasonable accommodation if the employee has a disability and is a “qualified individual,” meaning that the employee can perform the essential functions of the position with or without reasonable accommodation. When assessing an employee’s request for an accommodation under the ADA, employers often reference the job description to identify the “essential functions” of the position. A recent federal court decision, however, serves as a reminder that the actual job duties—not those listed in the job description—are controlling and that reliance on the job description alone may not carry the day.
In 2015, Mary Wiggins (“Wiggins”) a long-time employee of the City of Montgomery, Alabama (“the City”) applied for a promotion to the position of Revenue Examiner. The job posting and the job description both indicated that the “[w]ork involves inspecting premises … for violations and verifications” and that the “[w]ork is performed primarily in the field…which may involve working in inclement weather, visiting construction sites, climbing stairs, walking over rough terrain…etc.”
Wiggins had significant knee problems that would have prevented her from carrying out the site inspection duties but applied anyway, seeking a position as an “Inside Examiner.” The City denied Wiggins’ application and promoted three other candidates to fill its vacant Revenue Examiner positions.
Wiggins sued, claiming, among other things, that the City discriminated against her, when it failed to provide her with a reasonable accommodation. The City moved for summary judgment arguing that based on the job description Wiggins was not a “qualified individual” under the ADA. The court denied summary judgment because the evidence suggested that conducting site visits was not as “essential” as the job description and job posting indicated. Two of the individuals promoted instead of Wiggins had not conducted a single site visit or even left the office for field duty during their first 11 months in the position. The Court determined that a jury must determine whether Wiggins could have performed the essential functions of the Revenue Examiner position with a reasonable accommodation (i.e. no site visits) and, therefore, was a qualified individual under the ADA.
Employers should regularly review and update job descriptions to ensure they accurately reflect the essential functions of the position and when considering an accommodation request, employers cannot rely on the job description alone.
The decision is Wiggins v. City of Montgomery, C.A. No. 2:17-cv-425 (M.D. Al. Sept. 20, 2019)

With Election Day fast approaching, employers should ensure they are in compliance with state law requirements related to employee voting rights. While not all states impose requirements on employers, some impose time off obligations and notice requirements with the possibility of criminal or civil penalties for non-compliance. Applicable voting laws vary by state. Some state laws require paid time off to vote, while other state laws do not mandate such time off be paid. Laws also vary as to the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the employee’s workday. Further, some jurisdictions require postings to advise employees of their voting leave rights. Additionally, some jurisdictions also obligate employers to provide time off to employees who serve as election officials or to serve in an elected office. You can read more about it here.

 

A federal appeals court upheld the termination of an employee who tested positive for amphetamines on a random drug test – despite his claim that the result was due to over-the-counter drug use – and rejected his arguments that the random drug test was an impermissible medical examination and that the Medical Review Officer’s questions constituted an impermissible disability-related inquiry. Turner v. Phillips 66 Co., Case No. 19-5030 (10th Cir. Oct. 16, 2019). You can read more about it here.

The National Safety Council, a nonprofit organization whose stated mission is to eliminate preventable deaths at work, in homes and communities through leadership, research, education and advocacy, published a Position/Policy Statement on October 21, 2019 addressing cannabis (marijuana) impairment in safety-sensitive positions. NSC stated that “it is clear that cannabis impacts psychomotor skills and cognitive ability,” and concluded that “there is no level of cannabis use that is safe or acceptable for employees who work in safety-sensitive positions.” (“Safety-sensitive” refers to jobs that impact the safety of the employee and the safety of others as a result of performing that job). You can read more about it here.

The Sixth Circuit previously explained in Hostettler v. College of Wooster, 895 F.3d 844 (6th Cir. 2018) that regular, in-person attendance is not a per se essential function of every job.  Rather, employers must tie time-and-presence requirements to the specific job at issue.  In Popeck v. Rawlings Co., LLC, No. 19-5092 (6th Cir. Oct. 16, 2019), the Court ruled that Rawlings showed regular, on-site attendance was an essential function of Popeck’s auditor job, and Popeck was not a qualified individual under the Americans with Disabilities Act (“ADA”) because she could not perform this essential function.

Background

Popeck worked as an auditor for Rawlings from 2009 until her termination in 2015.  In 2013, Popeck’s doctor diagnosed her with irritable bowel syndrome (“IBS”).  Shortly thereafter, Rawlings approved Popeck for intermittent FMLA leave—allowing her to arrive to work late or leave early when needed to address her IBS symptoms.

In November 2014, Popeck exhausted her FMLA leave for the year.  Rawlings, however, as an ADA accommodation, continued to allow Popeck to come in late or leave early when her IBS symptoms flared up—bridging the gap until her FMLA leave renewed in December 2014.

In 2015, Popeck’s work performance dwindled. By July 2015, she exhausted her FMLA leave for the year.  She again sought an ADA accommodation as a bridge until her next period of FMLA eligibility, but Rawlings denied the requested accommodation.  Popeck continued to miss work, and Rawlings ultimately terminated Popeck for excessive tardiness.

Popeck then filed suit alleging, among other things, that Rawlings violated the ADA by failing to accommodate her and terminating her.

Sixth Circuit’s Decision

The Sixth Circuit affirmed summary judgment for Rawlings on Popeck’s ADA claims.  Because Popeck could not attend work regularly and in person, the Court had to decide whether regular, in-person attendance was an essential function of the auditor job at Rawlings.

The Court held “regular, in-person attendance constitutes an essential function of most jobs,” and it was an essential function of auditor jobs at Rawlings.  The Court explained that auditors must access information about healthcare claims from secure computers in Rawlings’ offices, and Rawlings prohibits auditors from working remotely because of the “large volume of confidential and HIPAA protected personal information” in the claims they review.

Popeck argued in-person attendance was not essential because Rawlings allowed other employees to work remotely.  The Court rejected this argument because the other employees Popeck pointed to were not auditors and had different job functions.

The Court then considered whether Popeck proposed a reasonable accommodation that would enable her to perform the essential functions of the job and concluded she did not.  Popeck’s proposed accommodation—occasional flexibility to arrive late and leave early when her IBS symptoms flared—did not allow her to perform the essential function of regular, on-site attendance because the evidence showed that by the end of her employment she missed work nearly 60% of the time.

Takeaway

As the Sixth Circuit explained in Hostettler, regular, in-person attendance is not an essential function “simply because an employer says that it is”; rather, “an employer must tie time-and-presence requirements to some other job requirement.”  While issues of fact existed as to the human resources job at issue in Hostettler, Rawlings successfully made this connection as to Popeck’s auditor job.  As highlighted by these Sixth Circuit decisions, employers should always conduct a fact-intensive analysis of the job position at issue when considering work schedule and work location accommodations.