Employer’s Good Deed Goes Unpunished—Reliable Attendance Is Essential Function Despite Prior Accommodation of Employee’s Absences

While it’s true that acts of generosity sometimes backfire on those who offer them, the Court’s ruling in Higgins v. Union Pac. R.R. Co., No. 18-1902 (8th Cir. July 24, 2019) shows this is not always the case.  In Higgins, the Eighth Circuit affirmed summary judgment for Union Pacific—holding that regular, reliable attendance was an essential function of Higgins’ position despite the fact that Union Pacific accommodated Higgins’ poor attendance for over a decade.

Background

Higgins began working as a locomotive engineer for Union Pacific in 1976.  Between 1989 and 1992, he suffered spine injuries while performing his job, which led to chronic back pain.  In 1992, Higgins entered into a settlement agreement with Union Pacific in which he released his personal injury claims in exchange for payment and “the right to lay off whenever his back bothered him.”

For over a decade, Higgins had a high number of missed shifts—referred to as lay-offs—due to his chronic back pain.  Between 2004 and 2014, Union Pacific sent Higgins multiple letters admonishing him for his poor attendance.   Despite these warnings, Higgins’ poor attendance continued.

In 2014, Higgins’ doctor submitted information providing that Higgins’ back condition was the same as it was when he returned to work in the early 1990s and recommended that Union Pacific continue “providing at least 24 hours off between shifts.”  In December 2014, Union Pacific determined that Higgins’ restrictions prevented him from performing his essential job functions, and Higgins was not allowed to return to work.

Higgins then sued Union Pacific for disparate treatment and failure to accommodate under the Americans with Disabilities Act (“ADA”).

Eighth Circuit Decision

Affirming summary judgment for Union Pacific, the Eighth Circuit ruled that Higgins’ ADA claims failed because regular attendance was an essential function of the engineer position, and Higgins was unable to perform that essential function with or without a reasonable accommodation.

The Court explained that “regular and reliable attendance is a necessary element of most jobs,” and found ample evidence it was essential in this case, including (1) Union Pacific’s job description for the engineer position that listed reliable attendance as an essential job function; (2) Union Pacific’s attendance policy, which required employees to be available to work their assignment when scheduled; and (3) Union Pacific’s repeated warnings to Higgins that his attendance was unacceptable.

The fact that Union Pacific previously accommodated Higgins’ back problems by allowing him to miss a large percentage of his shifts did not create a material question of fact regarding whether job attendance was an essential function.  The Court rejected Higgins’ argument that his 1992 settlement agreement, which allowed him to lay off as necessary, superseded Union Pacific’s attendance policy, at least as applied to him.  The Court explained the agreement is “best characterized as an agreement to accommodate Higgins’ chronic back pain rather than an admission that job attendance is not an essential function.”

The Court also rejected Higgins’ argument that his proposed accommodations—laying off as necessary and receiving 24 hours of rest between shifts—were reasonable.  The fact that Union Pacific previously accommodated Higgins’ back pain by allowing him to miss a large percentage of his shifts did not create a material question of fact as to the reasonableness of these requested accommodations.  The Court explained that if an employer “bends over backwards to accommodate a disabled worker,” the employer “must not be punished for its generosity.”

Takeaway

Higgins reinforces the Eighth Circuit’s position that regular, reliable attendance is an essential function of most jobs.  This decision illustrates that a job description identifying attendance as essential, an attendance policy, and enforcement of the attendance policy are strong evidence that attendance is an essential function.  While the Court did not “punish” Union Pacific for its prior efforts to accommodate Higgins, employers should tread carefully in such situations because, depending on the circumstances, a pattern of excusing absences could be viewed as evidence that regular attendance is not an essential job function.

Dallas Paid Sick Leave Ordinance Faces Legal Challenge

Today two plaintiffs represented by the Texas Public Policy Foundation filed a lawsuit challenging the Dallas paid sick and safe leave ordinance, which is scheduled to go into effect on August 1. It remains to be determined whether the implementation date will be officially delayed – either through a preliminary injunction or by agreement. The lawsuit is pending in the Eastern District of Texas, Sherman Division. For more information on the status of paid sick leave in Texas, see our recent blog post.

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.

California Extends Paid Family Leave from 6 Weeks to 8 Weeks

Beginning on July 1, 2020, California will extend the maximum duration of Paid Family Leave (PFL) benefits from six weeks to eight weeks. Individuals may receive benefits from California’s state disability insurance (SDI) program:

  • To care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner.
  • To bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

The PFL program is not a leave right and does not provide job protection, but other state and federal laws such as the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and the Parental Leave law can provide such protection for eligible employees. You can read more about California’s Paid Family Leave program here.

 

San Antonio May Delay Paid Sick Leave Implementation to December 1; Dallas Remains on Track for August 1 and Issues Rules

They say everything is bigger in Texas and the controversy surrounding paid sick leave is no exception. With less than two weeks before the effective date of two paid sick leave laws in Texas, here is a quick scorecard on where these laws stand:

San Antonio

As is now being reported, the City of San Antonio has agreed to delay implementation of its paid sick and safe leave ordinance until December 1, 2019. The ordinance was originally scheduled to go into effect on August 1 for most employers. On Monday, July 15, a business coalition initiated an action in Bexar County to challenge the San Antonio ordinance, arguing that it is unconstitutional. The Texas Attorney General filed a petition in intervention in the action on July 19, siding with the business coalition (the Texas Civil Rights Project filed a petition in intervention on July 18 representing several stakeholders, including the Texas Organizing Project Education Fund). The city via Deputy City Attorney Ed Guzman announced that it had submitted an agreed order in the lawsuit to delay implementation until December 1, noting “This additional time will allow us to continue working with the paid sick leave commission, committees and our stakeholders to refine the ordinance.” A hearing is scheduled for Wednesday, July 24, at which time the court will decide, among other things, whether to allow the delayed implementation date.

Austin

As previously reported, a (thus far) successful challenge to Austin’s paid sick and safe leave law ordinance is still pending and may be addressed by the Texas Supreme Court in the coming months. On November 16, 2018, the Austin Third Court of Appeals declared the Austin ordinance to be unconstitutional and ordered the district court to grant a temporary injunction against the Austin ordinance.

Dallas

Despite the uncertain future of these laws, the City of Dallas has published rules for implementation of its paid sick and safe leave law and remains on track to implement its ordinance as scheduled on August 1, 2019 (for most employers). You can find more information about the Dallas ordinance here.

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.

We thank our summer clerk Logan Collier Adams, in our Dallas office, for his assistance.

Washington State Pushes Back First Reporting Deadline for Paid Family and Medical Leave Law

The Washington Employment Security Department (ESD) has pushed back the first reporting deadline under this new law to August 31, 2019. By that date, all Washington employers must file reports about their employees, including their wages and associated hours worked during the first two quarters of 2019. In addition, Washington employers must remit all premiums due for those first two quarters. To file these reports and remit these premiums, Washington employers will need Paid Family and Medical Leave accounts with ESD. Detailed instructions on creating accounts, filling reports, and remitting premiums are available on ESD’s Paid Family and Medical Leave web page. With the exception of these first two quarters, the law requires Washington employers to report information and remit premiums by the last day of the month after every completed quarter.

Washington’s Paid Family and Medical Leave Law went into effect on January 1, 2019. This year, the state will collect premiums and information from Washington employers. Starting on January 1, 2020, eligible Washington employees may apply to ESD for benefits under this law.

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.

Paid Sick Days Back on Track in Pittsburgh

The Pennsylvania Supreme Court upheld the Pittsburgh Paid Sick Days Act (“PSDA”) in a decision today, overturning two lower court decisions that found the Act was invalid as an impermissible business regulation.

Under the PSDA, employers with 15+ employees must provide paid sick leave, up to 40 hours per year, at a rate of 1 hour of leave for every 35 hours worked.  Employers with less than 15 employees must also provide paid sick leave at the same accrual rate, up to 24 hours per year.   

The effective date of the PSDA is unknown at this time, but we will continue to update this post as more information becomes available.

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 Joins Growing Number of States Requiring Paid Family and Medical Leave

Just hours before the constitutionally-mandated end of Oregon’s state legislative session (June 30 at midnight), the Oregon Senate voted to pass HB 2005—which will provide paid family and medical leave to eligible employees beginning January 1, 2023.  HB 2005 now heads to the desk of Governor Kate Brown, who has already said she intends to sign the bill.

With Governor Brown’s signature, Oregon will become the eighth state to require paid family medical leave for eligible employees.  The paid leave framework—styled the Family and Medical Leave Insurance (“FAMLI”) Program—was modeled after Oregon’s unemployment insurance program and will similarly be administered by the Oregon Employment Department and funded through payroll contributions.

Please click here for a more detailed analysis of Oregon’s new paid family and medical leave law.

Maine Enacts Law Extending Protections to Pregnant and Nursing Employees

On June 27, 2019, Maine Governor Janet Mills signed into law L.D. 666, which extends existing protections for pregnant and nursing employees in Maine. The act, entitled “An Act to Protect Pregnant Workers,” creates broad protections for workers, covering any limitation of an employee’s ability to perform their job due to pregnancy, child birth, or related medical conditions including lactation. The act also amends existing provisions of 5 M.R.S.A. § 4572-A to make the section’s protections gender-neutral.
Of significance to Maine employers, the new law requires employers to provide reasonable accommodations for pregnancy-related conditions. Employers may only avoid providing these accommodations if they are able to demonstrate that the accommodation proposed would impose an undue hardship on the operation of their business. L.D. 666 sets out examples of reasonable accommodations for pregnancy-related conditions. These include, but are not limited to, providing more frequent or longer breaks, temporary modifications in work schedules, seating or equipment, temporary relief from lifting requirements, temporary transfer to less strenuous or hazardous work, and provisions for lactation.
The new law does not substantially alter the already existing provisions of § 4572-A. These prohibit employers from treating pregnant workers who are able to work differently from other workers and requires employers to treat pregnancy-related conditions in the same manner as other disabilities or illnesses.
L.D. 666 will take effect on September 19, 2019.

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 24th blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not properly understanding how holidays and holiday pay play into FMLA leave.

With the Fourth of July holiday this week, this blog post is a reminder for employers of how company holidays play into the scheme of FMLA leave.

Under the FMLA regulations, determining the amount of leave used by an employee is treated differently based on whether the employee is on continuous or intermittent FMLA leave:

Continuous FMLA leave.  If an employee is on continuous FMLA leave, the fact that a company holiday may occur within the week taken as FMLA leave has no effect.  The entire week of leave is counted as FMLA leave.

Intermittent FMLA leave.  If an employee in on intermittent FMLA leave and using increments of less than one week, the holiday will not count against the employee’s FMLA leave, unless the employee was scheduled and expected to work the holiday and takes the day off as FMLA leave.

Do I have to pay holiday pay?

Regarding whether an employee is entitled to holiday pay for FMLA leave requires a separate analysis.  The FMLA regulations state that an “employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g. holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).”  (29 CFR §825.209.)  This means that an employer must analyze how it treats holiday pay and non-FMLA leaves.

For example, if an employee takes a full week of vacation time to travel with family, does the employee receive holiday pay for the holiday?  If yes, then an employee who takes a full week of vacation time concurrently with FMLA leave during the same week also must be paid for the holiday.  This way, the holiday pay practice is consistent with how the employer pays out holiday pay for any employee taking vacation during the same week, whether for FMLA or non-FMLA.

Similarly, if an employee takes a full week off for non-FMLA personal reasons on an unpaid basis, perhaps under a Personal Leave or similar policy, and is not paid for the holiday, then an employee who takes a full week off for FMLA reasons on an unpaid basis is also not paid for the holiday.

In a nutshell…

Navigating through the regulations reveals the basic rules regarding holiday pay.

  • Continuous leave of one week or more?  The entire week is counted as FMLA, despite the holiday.
  • Intermittent leave of less than one week?  The holiday is not counted as FMLA unless the employee is scheduled to work on the holiday and calls off for FMLA.
  • Treatment of holiday pay?  Holiday pay must be consistent with other forms of non-FMLA leave, whether paid or unpaid.

Paid Sick Leave on Track in Dallas and San Antonio

As noted in our recent post, absent extraordinary legislative action or prompt legal challenge, by August 1, 2019, most employers with employees working at least 80 hours a year in Dallas or San Antonio should be prepared to comply with paid sick leave ordinances.

The city of San Antonio recently released an eight-month implementation plan for its paid sick leave ordinance. The implementation plan (dubbed as a “listening tour”) will run through April 1, 2020, and will focus on educating employers and employees about the new paid sick and safe leave ordinance. The city will host six public meetings so that individuals can learn about the law and ask questions. Starting August 1, 2019, a team will begin investigating complaints in San Antonio as part of its efforts to educate employers. San Antonio’s Metro Health Department webpage offers an employer checklist, a sample paid sick leave policy, and a spreadsheet to help companies track employees paid sick time.

The city of Dallas has not yet announced an implementation plan, even though its ordinance is nearly identical to the San Antonio ordinance and shares the same fast-approaching effective date. The city of Dallas has confirmed that the director of the Office of Fair Housing and Human Rights is the “director of the department designated by the city manager to implement this ordinance,” and that the Office is creating informational materials and resources to assist with implementation. Any informational materials and resources will be posted on the city website.

Despite the effective date for the Dallas and San Antonio paid sick leave ordinances, civil penalties will not apply until April 1, 2020. But both the Dallas and San Antonio ordinances provide for civil penalties for retaliation as of August 1, 2019 (for most employers).

With the effective date quickly approaching, employers with employees in Dallas or San Antonio need to prepare. For more information on both the Dallas and San Antonio Municipal Ordinances, click here.

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.

We thank summer clerks Rachael I. Thomson, in our Houston office, and Logan Collier Adams, in our Dallas office, for their assistance.

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