Employers Must Have Duties Based Reasons to Support the Assertion that Full-Time Attendance Is an Essential Job Function

Teenagers are not the only ones dissatisfied when their pleas of “why” are met with a “because I said so.” It turns out that courts of appeal do not care for it either.

Careful readers of this space know that the Americans with Disabilities Act (ADA) may require employers to allow modified work schedules when appropriate. An issue that often arises when considering a modified work schedule is whether an employee can perform the essential functions of their job if they are not at work full time.
A recent decision from the federal Sixth Circuit Court of Appeals makes it clear that employers cannot insist that a disabled employee work full time just because the employer says so. In Hostettler v. College of Wooster, 6th Cir., No. 17-3406, July 17, 2018, Heidi Hostettler was fired by her employer, the College of Wooster, while recovering from postpartum depression and separation anxiety after the birth of her child.

Believing that Hostettler was suffering from “one of the worst cases of separation anxiety” that he had seen, Hostettler’s doctor provided a restriction that Hostettler return on a part-time basis only, working a total of two or three days a week. The physician believed this would only last a couple of months.

Hostettler’s supervisor generally agreed to that accommodation but countered that she work 5 half-days per week instead. Hostettler accepted this and returned to work in late May on that schedule. Her performance evaluation, conducted in July 2014, contained no negative feedback, and referred to Hostettler as a “great colleague and a welcome addition to the HR team!” Shortly thereafter, Hostettler submitted an updated medical certification that continued the restriction and estimated that she could return to a full-time schedule in early September. The next day she was fired because, the supervisor argued, the department could not function appropriately unless Hostettler could return to full-time work immediately.

Hostettler sued. The district court granted Wooster’s motion for summary judgment, accepting the college’s assertion that full-time presence was an essential function of the HR Generalist position. According to the District Court, because she could not work full time, she was not qualified.

On appeal, the U.S. Court of Appeals for the Sixth Circuit disagreed and reversed. The Sixth Circuit held that although full-time presence may well be an essential function of some jobs, it is a fact-specific inquiry and depends on the job. Hostettler was able to point to two employees who had received longer periods of medical leave for non-pregnancy conditions and she presented an affidavit from a co-worker that there were no problems in HR resulting from Hostettler’s working part-time and that all the department functions had been fulfilled. This, according to the appeals court, created questions of fact that a jury needed to resolve: “In sum, full-time presence at work is not an essential function of a job simply because an employer says that it is. If it were otherwise, employers could refuse any accommodation that left an employee at work for fewer than 40 hours per week.”
The thoughtful employer will not deny a request for a part-time accommodation unless it can show (and hopefully document) that full time presence requirements are logically tied to some other work-related requirement.

Your Presence Is Required: Employee Unable to Travel to Job Site Was Not “Qualified” Within the Meaning of the ADA

In recent years, particularly with technology making it easier for employees to work remotely, courts have struggled to determine whether onsite attendance is an essential job function under the Americans with Disabilities Act (“ADA”).  This question is often dispositive because only qualified individuals—those who can perform a job’s essential functions with or without a reasonable accommodation—are protected by the ADA.  A federal court in South Carolina recently ruled that an employee who could not get to his worksite for a six-month period could not perform the essential functions of his job and thus his employer did not run afoul of the ADA in terminating his employment.  Dunn v. Faithful+Gould Inc., Case No. 6:15-cv-04382 (June 18, 2018). Read More

Cook County Sick Leave Entitlement Being Taken to the Voters

Although municipalities in suburban Cook County have — as we have previously reported — overwhelmingly opted out of the requirements of the Cook County Earned Sick Leave Ordinance, the County Board of Supervisors has decided, by majority vote, to let the voters weigh in on the issue. The Board cited the recent decisions of Wilmette and Western Springs to reconsider their initial decisions to opt-out of the Ordinance to justify its decision to take the issue directly to voters. In a controversial decision viewed by many as an effort to undermine the avalanche of municipal opt-outs, Cook County voters will see an advisory referendum question relating to the Sick Leave Ordinance on their ballots this fall.  Specifically, voters will be asked to answer the following question:

Shall your municipality match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?

[ ]        Yes

[ ]        No

Although the results of the referendum are not binding, if voters overwhelmingly answer the question in the affirmative – which they are widely expected to do — it will likely pressure local elected officials to revisit their earlier decisions to opt-out of the Ordinance.

If you thought you wouldn’t have to hear much more about the Cook County Sick Leave Ordinance in 2018 and beyond, hold on to your hat. The issue seems far from settled.

You Can’t Always Get What You Want: Employers Don’t Have to Provide an Accommodation Requested by an Employee if There Are Other Reasonable Alternatives

A recent Third Circuit case, Sessoms v. Trs. Of the Univ. of Pa., 2018 U.S. App. LEXIS 16611 (3rd Cir. June 20, 2018), serves as a reminder that while the Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to disabled employees, it does not obligate an employer to provide the accommodation requested by the employee. An employer may choose among reasonable accommodations as long as the chosen accommodation is effective

Sessoms, a University of Pennsylvania (“Penn”) employee, was out on an approved leave of absence relating to mental and physical disabilities. Prior to returning to work, she requested a part-time schedule (with eventual plans to return full time) and to be transferred to a different supervisor in a “lower-stress department/office.”

While Penn agreed to accommodate Sessoms part-time schedule request, it declined to transfer her to a different supervisor. Despite Penn’s efforts, Sessoms was unwilling to agree to any accommodation that included continuing to report to her current supervisor. As a result, Penn terminated her employment.

In affirming the District Court’s grant of summary judgment in favor of Penn, the Court found that Penn demonstrated that it made good faith efforts in attempting to accommodate Sessoms: her supervisors met with her, considered her accommodation requests, and offered several accommodations, including a part-time work schedule.

In its ruling, the Court noted that “[w]here an employee requests an accommodation in the form of a transfer, she must make a showing that this accommodation is possible, i.e., the existence of an equivalent-level, vacant position for which the employee could qualify. A reasonable accommodation does not entitle an employee to a supervisor ideally suited to their needs.” While Sessoms wanted to transfer to another department or supervisor, she failed to provide any evidence that vacant positions existed to which she could be transferred. (It is well settled that a reasonable accommodation does not include creating a new position for an employee if no vacant position exists for which the employee is qualified.)

The ADA requires an employer to provide a reasonable accommodation. It does not limit an employer to providing only an accommodation requested by an employee, or a more costly or burdensome accommodation, if there are other effective reasonable accommodations. That said, if providing an employee’s preferred accommodation does not create a burden or additional expense, that option should be seriously considered.

As noted by the Equal Employment Opportunity Commission in its Enforcement Guidance, if more than one accommodation is effective, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”

Employers should ensure that they have a well-documented interactive process. Penn’s ability to demonstrate its good-faith efforts in attempting to accommodate Sessoms was noted by the Court in its ruling.

Jackson Lewis can assist employers engage in the ADA interactive process, as well as help navigate complex FMLA and other leave issues.

Chicago and Cook County Paid Sick Leave: One Year Later

July 1, 2018 marked the one year anniversary of the effective dates of the Chicago and Cook County Earned Sick Leave Ordinances. A year later, more than 80% of the municipalities in Cook County have opted-out of the requirements of the Cook County Earned Sick Leave Ordinance.  However, the opt-out issue is far from settled.  We have recently watched as two municipalities – Wilmette and Western Springs – reconsidered their initial decisions to opt-out of the Cook County Ordinance.  In the case of Wilmette, the Village ultimately voted last month to continue to opt-out of the Ordinance even while deciding to opt-in to the Cook County minimum wage requirements.  On the other hand, in April, Western Springs did an about-face, reversing its prior decision to opt-out of the Cook County Earned Sick Leave Ordinance.  On July 10, the Village of Northbrook decided that it would revisit its earlier decision to opt-out of the Cook County Ordinance at its next board meeting on September 25.  Stay tuned for further developments.

Now that the Chicago and Cook County Ordinances are a year old, it is a good time for employers to confirm that they have either: (1) properly calculated the amount of sick leave their employees are entitled to carry over to the second Accrual Period, or (2) frontloaded the appropriate amount of carryover hours beginning on July 1, 2018 in lieu of calculating the precise amount of carryover hours to which each employee is entitled. As a reminder, a Covered Employee is entitled to carry over half of his or her accrued, unused Earned Sick Leave to the second Accrual Period, up to a maximum of 20 hours.  Further, FMLA-Eligible Covered Employees are entitled to carry over an additional up to 40 hours of accrued, unused Earned Sick Leave to the second Accrual Year for use exclusively for FMLA-qualifying reasons.

Confused yet?

Pending California Legislation Alert! Senate Bill 937 Seeks to Require California Employers to Provide Lactation Facilities in the Workplace

If passed, California Senate Bill 937: Lactation Accommodation, will require employers to provide a lactation room, or location, in close proximity to the employee’s work space, and it must include prescribed features such as access to a sink and refrigerator. SB 937 also would deem denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law.

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

Not requiring an employee to follow customary call-in procedures for FMLA leave.

When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. 29 C.F.R. 825.303. For example, an employer may require employees to call a designated number or a specific individual to request leave.

In IBEW Local 1600 v. PPL Elec. Utils. Corp., 2017 U.S. Dist. LEXIS 210804 (E.D. Pa. Dec. 22, 2017), the employee was informed that she needed to call the employer’s third party FMLA administrator and her supervisor when calling off for FMLA leave. On a later date, the employee advised her supervisor that she needed to leave early, referring to FMLA time, but failed to also contact the employer’s third party FMLA administrator. As a result, the employer denied her request for FMLA leave for that day and recorded an unexcused absence on her record. The court determined that the employer did not interfere with the employee’s FMLA rights when it denied her FMLA leave. The court stated that the employer’s requirement of two phone calls to give notice of FMLA leave did not impose so great a burden on employees that it would discourage the employees from taking unforeseeable FMLA leave.

In Hunt v. Altec Industries, Inc., 2015 U.S. Dist. LEXIS 126210 (N.D. Ala. Sept. 22, 2015), the employee was terminated after accruing too many points for unexcused absences based on the employer’s attendance policy. The employee argued, however, that the absences were FMLA-qualifying and should not have counted against him. The employer’s leave policy was administered by a third party vendor, and mandated that all employees contact the third-party vendor to request a leave of absence. The court found that the employer did not interfere with the employee’s rights by terminating him, as the employee failed to avail himself of a protected right under the FMLA when he chose not to comply with the employer’s notice procedure of contacting the employer’s third-party vendor for FMLA-qualifying leave.

If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, an employer may delay or deny FMLA-protected leave. However, employers should clearly include this requirement in an FMLA policy, so that the requirement is well communicated.

Overtime Can Be An Essential Job Function

A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. See McNeil v. Union Pac. R.R._ 2018 U.S. Dist. LEXIS 85250.  On May 21, 2018, Union Pacific Railroad Company’s (“Union Pacific”) motion for summary judgment was granted and the Court determined that it did not have to grant an emergency dispatcher’s request to be exempt from overtime to accommodate her depression and anxiety because working overtime in emergency situations was an essential element of her job.

Tasha McNeil (“McNeil”) was hired by Union Pacific as a Critical Call Dispatcher in its Response Management Communication Center. Dispatchers are responsible for coordinating emergency responses for critical railroad incidents, responding to related phone calls, notifying government agencies about such incidents, and preparing witness reports. Dispatchers were scheduled for 8.25 hour shifts and were subject to mandatory overtime based on staffing needs. Each dispatcher’s work week was color-coded to determine the order of overtime assignments. On a “red day” a dispatcher could be called to begin a shift up to four hours before the standard start time and/or remain at work up to four hours beyond the typical end time. McNeil was assigned to the daytime shift.

In early 2014, McNeil took FMLA leave to care for her ailing mother. While on leave, she applied for, and received, short-term disability benefits relating to a diagnosis of depression and anxiety relating to caring for her mother. McNeil did not return to work at the end of her short-term disability. Instead she was placed on long-term disability leave. As her return to work date drew near, McNeil provided Union Pacific with medical records which stated that she could only work daytime hours and no overtime. McNeil was subsequently terminated because Union Pacific could not accommodate a permanent overtime restriction and there were no day shifts available at that time.

After exhausting her administrative remedies, McNeil filed suit alleging an assortment of Title VII and American with Disabilities Act (“ADA”) claims. Specifically relating to her disability discrimination claims, McNeil alleged that Union Pacific discriminated against her by failing to accommodate her inability to work overtime upon her return from long-term disability.

In its analysis, the Court recognized that an overtime requirements has been recognized as an essential job function. See Tjernagel v. Gates Corp., 533 F.3d 666, 673 (8th Cir. 2008). Moreover, “an employee who cannot meet the attendance requirements…cannot be considered a ‘qualified’ individual protected by the ADA.” Id. The facts, as evidenced by the dispatchers’ work schedules, job description, and the RMCC’s Schedule and Attendance Guidelines, showed that the ability to work overtime was an essential function of the Critical Care Dispatcher position. Therefore, McNeil’s requested accommodation to be exempt from the overtime requirement was not a reasonable accommodation, and Union Pacific was under no obligation to accommodate her inability to perform an essential function of her job.

Medical Progress Needs to Be Assessed in Determining Whether an Individual Is Qualified.

A recently filed federal court case should serve as a reminder to employers that medical advances often make the impossible possible and, as a result, can make the unqualified qualified under ADA. Although the suit asserts a constitutional violation and not a claim under the ADA, the lesson is worth heeding by the conscientious non-governmental employer.
The ADA sought to strike at the heart of stereotypes that employers may harbor about differently abled workers—whether based on irrational fears or paternalistic instincts. Congress found that these stereotypes prevented folks from advancing in the workplace or from being hired in the first place. These stereotypes concern serious illnesses as well as obvious characteristics such as missing limbs and being wheelchair bound. There are, of course, some illnesses that are disqualifying. But there are also illnesses that were once seen as disqualifying, but are not necessarily so now. Some believe that restrictions against employment of people with certain diseases must be discarded when medical advances have all but neutralized the disqualifying aspects of the illness. This is the argument being advanced by an Army National Guardsman who has sued the U.S. Department of Defense. Nicholas Harrison claims that Army policies that variously exclude or limit the military service of HIV-positive people are unconstitutional and have denied him the right to serve in Judge Advocate General Corps as a military attorney and may deny him the right to serve altogether. Harrison et al. v. Mattis et al., case number 1:18-cv-00641
Harrison is challenging decades-old DOD policies that bar HIV-positive people from joining the military, and limit the service of troops who contract the virus while in service. His lawsuit claims that these policies are flawed and fail to account for medical advancements that make the disease effectively irrelevant to the ability to serve.

According to the Complaint, until the mid-1990s, a HIV was a terminal disease but scientific and medical advances related to antiretroviral medications have “radically changed” the landscape for treating and preventing HIV since then, and as a result changed the ramifications for people living with the disease and it is now a manageable chronic condition instead of a terminal disease.
For private employers the lesson here is, as always, to treat every request for an accommodation on an individual basis and to keep an open mind. Medical and biomedical research maybe helping a potentially valuable employee vanquish a disabling stereotype despite what we might have taken as fact a short time ago.

District Courts in the Seventh Circuit Begin to Clarify Landmark Severson Decision

As we have previously reported, on September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a significant ruling for employers in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), when it held that an multi-month, non-FMLA leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  Since that time, district courts in the Seventh Circuit have begun to interpret and clarify the landmark holding in Severson.  On April 10, 2018, the U.S. District Court for the Northern District of Illinois denied the defendant’s motion to dismiss the plaintiff’s ADA claims in EEOC v. S&C Electric Co., Case No. 17-c-6753, squarely rejecting defendant’s argument that under Severson, an employee who seeks to return to work following a multi-month leave of absence is not protected by the ADA.

In S&C Electric, the plaintiff had been employed by the defendant for more than 52 years.  After being diagnosed with cancer and subsequently fracturing a hip, which required the plaintiff to undergo surgery and physical therapy, he was placed on a 12-month, long-term disability leave which was scheduled to end on August 29, 2015.  On August 15, 2015, the plaintiff contacted defendant seeking to return to work and provided a note from his doctor authorizing him to return to work with no restrictions.  However, instead of allowing the plaintiff to return to work, defendant suggested that he retire.  When the plaintiff refused to do so, his employment was terminated.  The plaintiff then filed suit claiming that the termination of his employment violated the ADA.

The defendant moved to dismiss plaintiff’s complaint, arguing that under Severson, the plaintiff was not a qualified individual with a disability because he had been on a nearly year-long medical leave and an “inability to work for a multi-month period removes a person from the class protected by the ADA.”  The court flatly and succinctly rejected defendant’s argument, simply calling it, “nonsense.”  The court noted that unlike the plaintiff in Severson, the plaintiff in S&C Electric was “ready, willing and able to return to his position without any accommodation,” and was ultimately fired not because he could not work, but rather, because he could. While the court left open the possibility that the defendant could have possibly terminated the plaintiff while he was on leave without violating the ADA, the defendant’s decision to terminate his employment when he requested to return to work was sufficient for the plaintiff to withstand a motion to dismiss for failure to state a claim, notwithstanding Severson.

The S&C Electric case serves as a reminder to employers about the limits of the Severson decision.  Even in a post-Severson world, the facts and circumstances of each situation should be evaluated independently.