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.

A new California law, Senate Bill 142 (“SB 142”), effective January 1, 2020, expands on existing Labor Code requirements for employee lactation accommodations and provides significant new consequences to employers for non-compliance.  Under pre-existing law (Cal. Labor Code 1030 et seq.), employers were required to make reasonable efforts to provide a private location, other than a bathroom, in close proximity to the employee’s work area, for employees to express milk in private and to provide reasonable break time to express milk.

SB 142 amends Cal. Labor Code section 1031 to require the following features for private lactation spaces:

  • Must be safe, clean and free of hazardous materials;
  • Contain a surface to place a breast pump and personal items;
  • Contain a place to sit; and
  • Have access to electricity or alternative devices (e.g., extension cords or charging stations) needed to operate a breast pump.

SB 142 also requires employers to provide access to a sink with running water and a refrigerator (or cooler) to store milk, in close proximity to the employee’s workspace.  Further, if a multi-purpose room is used, then lactation purposes must take precedent over the other uses.

In addition, employers in a multitenant or multiemployer worksite may comply with new lactation room requirements by providing a shared space at the worksite, if they are unable to provide lactation accommodations within their own workspace.  The statute provides for further requirements for employers and general contractors to respond to subcontractor requests.

Employers with fewer than 50 employees may be exempted from a requirement specified above, if the employer can demonstrate that it would impose an undue hardship when considered in relation to the size, financial resources, nature, or structure of the business.

SB 142 also includes significant consequences for non-compliance with Cal. Labor Code sections 1030, et seq., including specifying that employees may report violations directly to the Cal. Labor Commissioner and levying a civil penalty of up to $100 per day for each day on which an employee is denied reasonable break time or adequate space to express milk.  Previously, the law permitted a $100 penalty per violation.

SB 142 also states that the denial of reasonable break time or adequate space to express breast milk is deemed a failure to comply with Cal. Labor Code section 226.7, which mandates rest and recovery periods. The penalty for failure to provide such rest and recovery periods is one additional hour of pay at the regular rate of compensation for each workday a rest or recovery period is not provided.

SB 142 also prohibits discrimination or retaliation against an employee for exercising or attempting to exercise any right within Cal. Labor Code 1030 et seq.

Lastly, newly enacted Cal. Labor Code section 1034 requires employers to implement a policy regarding lactation accommodation requirements that will be distributed to new employees upon hire or a request for parental leave.  The policy must, among other things, promise that the employer will respond in writing if unable to comply with an employee’s request for accommodation and advise employees of their right to report lactation accommodation violations to the Cal. Labor Commissioner.

Employers should reach out to the Jackson Lewis attorney they normally work with to evaluate their lactation accommodation obligations.

“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.