Employers must carefully navigate Family and Medical Leave Act (“FMLA”) pitfalls when administering attendance policies.  As illustrated by the Sixth Circuit’s decision in Dyer v. Ventra Sandusky, LLC, No. 18-3802 (6th Cir. Aug. 8, 2019), one misstep can lead to potential FMLA liability.

Background

Dyer worked as a technician for automotive supplier Ventra Sandusky.  Dyer suffered from migraine headaches that often prevented him from working.

Ventra Sandusky’s no-fault attendance policy assessed points to employees for absences.  At 11 points, the policy called for termination.  The policy expressly excluded FMLA absences from the point-accumulation system, and it was undisputed that Dyer never received any points for taking FMLA leave.

Ventra Sandusky also maintained an Attendance Point Reduction Schedule—allowing employees to reduce attendance points by achieving perfect attendance for 30 days.  This policy treated time off for vacation, bereavement, jury duty, military duty, union leave, and holidays as days “worked” toward the 30-day perfect attendance requirement, and such absences did not stop or “reset” the 30-day clock.  In contrast, the point reduction schedule did not count FMLA leave, and other kinds of unpaid leave such as disability, as time “worked” toward the 30-day perfect attendance streak.  For example, if an employee worked three days, took the fourth day off for an FMLA-qualifying purpose, and returned to work on the fifth day, his attendance streak restarted at one day worked, rather than four.

Dyer used intermittent FMLA due to his migraines on several occasions.  Ventra Sandusky always approved his FMLA leave, and he was never assessed any points for taking FMLA leave.  In 2016, Ventra Sandusky terminated Dyer for accumulating 12 points.  Claiming that he would have stayed below 11 points, and thus not been terminated, if his perfect attendance streak did not stop and restart each time he took FMLA leave, Dyer sued Ventra Sandusky for FMLA interference.  The trial court granted summary judgment in favor of Ventra Sandusky.

The Sixth Circuit reversed and remanded.  The Court relied on the regulations interpreting the FMLA, which provide “[b]enefits accrued at the time leave began . . . must be available to an employee upon return from leave.”  29 C.F.R. § 825.215(d)(2).  The Court held that point reduction could be viewed as an employment benefit, the accrual of which must be available to an employee upon return from leave.  Thus, “Dyer’s FMLA leave could freeze the accrual of attendance but could not reset it; upon returning, Dyer was entitled to the days of attendance he had accrued when leave began and to continue accruing them in the same way.”  The Court rejected Ventra Sandusky’s argument that no benefit actually accrued until the 3oth day when an attendance point was dropped.

In addition, the Court explained that Dyer could prevail on his claim by showing Ventra Sandusky treated FMLA leave less favorably than other equivalent leave statuses.  There were disputed issues of material fact as to what constituted “equivalent” leave under the policy and whether equivalent leave statuses similarly reset the point-reduction clock.

Takeaway

While employees are not entitled to accrue benefits while on FMLA leave, the benefits they accrued before taking leave must be available when they return.  The Sixth Circuit and other courts have broadly interpreted the term “benefits accrued.”  With this expansive interpretation in mind, employers should closely examine their policies and procedures to ensure that an employee’s FMLA leave does not negatively affect accrued benefits.  Employers also must be careful not to treat FMLA leave less favorably than other equivalent leave statuses—bearing in mind that whether a type of leave is “equivalent” may be up for debate.

 

Employees who take FMLA leave may be required to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. If the employee does not follow these requirements, the employer may delay or deny FMLA-protected leave.  But what happens if the employer’s policy has different notice requirements for FMLA leave than for other time off?  What if the FMLA requirements are more burdensome than the requirements for non-FMLA leave? In Moore v. GPS Hospitality Partners IV, LLC, etc., the United States District Court for the Southern District of Alabama tackles this issue (S.D. Ala. June 3, 2019).

The employee repeatedly told her managers that she would need leave to take care of her hospitalized mother.  Nevertheless, she was scheduled for work and she received a warning for her failure to show up for work.  After receiving the warning Ms. Moore learned about the FMLA and she decided to seek leave again. She informed her managers that she wanted FMLA leave. The employer’s policy required an employee to notify her supervisor and Human Resources to request FMLA leave. A manager provided Ms. Moore with information regarding the person in Human Resources to contact for FMLA leave.  Ms. Moore claims she told the manager she was unclear on what to do with this information yet she was not provided with any assistance.  Ms. Moore was later terminated after she took additional time off.

Ms. Moore alleged that her former employer interfered with her FMLA rights and retaliated against her for exercising those rights.  The employer argued that Ms. Moore failed to follow the “usual and customary notice and procedural requirements” for requesting FMLA leave. However, the defendant’s policy for other forms of leave only required employees to make requests to a supervisor and did not have the additional requirement of notifying Human Resources.  The Court held that the requirements for requesting FMLA leave cannot be any more onerous than the requirements for requesting non-FMLA leave.  The requirement that employees must follow “usual and customary notice and procedural requirements” to obtain FMLA does not permit employers to deny leave based on a failure to comply with more stringent notice requirements applicable only to FMLA requests.  Here the only additional requirement for FMLA leave was to contact Human Resources in addition to the supervisor yet that additional burden was enough for the Court to deny the employer’s attempt at dismissal of the claim.

Whether an employee complied with the employer’s usual and customary notice requirements is an issue that often arises in the context of intermittent leave and/or where the employer uses a third party to administer its FMLA.  While the FMLA regulations clearly authorize employers to adopt “usual and customary notice and procedural rules for requesting leave, absent unusual circumstances,” this case suggests employers should closely review any such rules to determine whether they place impermissible additional burdens on employees seeking FMLA leave.

Employees in Puerto Rico may take up to 15 days of unpaid leave each calendar year to address situations related to domestic or gender-based violence, child abuse, sexual harassment in employment, sexual assault, lewd acts, or felony stalking under a new law. The new “Special Leave” is in addition to any other leave to which the employee might be entitled under law. The victim need not file a police report to be entitled to take Special Leave. The perpetrator of the abusive conduct is not entitled to take leave under the new law. Read more about the new law here.

The state of Washington has weighed in on the debate as to whether obesity is a disability under disability discrimination laws. In Taylor v. Burlington Northern Railroad Holdings Inc., a case that wound its way through the courts for nine years, the United States Court of Appeals for the Ninth Circuit certified this question to the Washington Supreme Court: “Under what circumstances, if any, does obesity qualify as an ‘impairment’ under the [WLAD]?” The Washington Supreme Court responded by holding that obesity is always an impairment under the Washington Law Against Discrimination (WLAD) because it is a “’physiological disorder, or condition’ that affects multiple body systems listed in the statute.” Therefore, an employer who takes employment action against an individual because the employer perceives the individual to be obese, may run afoul of the WLAD.

The court determined that the WLAD is more expansive than the Americans With Disabilities Act (ADA) and expressly refused to follow the rulings of some federal courts (interpreting the ADA) which hold that obesity can be a disability only if it is caused by a separate underlying physiological disorder. Unlike the ADA, under the WLAD an impairment can constitute a “disability” regardless of whether it limits life activities, if it (a) is medically cognizable or diagnosable, (b) exists as a record or history, or (c) is perceived to exist whether or not it exists in fact. In this case, the employer perceived the individual to be disabled because it called him obese, which the court determined is a medically cognizable and diagnosable condition.

In Taylor, Casey Taylor applied for the job of electronic technician at the BNSF Railway. He received a job offer, contingent on passing a physical exam and medical history questionnaire. He met the minimum physical demands of the job’s essential functions. However, a medical exam revealed that he had a Body Mass Index of more than 40, which BNSF considered to be morbidly obese and a threshold for further screening. BNSF decided not to hire him because it could not determine if he was medically qualified for the job based on the significant health and safety risks associated with his morbid obesity and uncertain status of his knees and back. The company offered to reconsider their hiring decision if he paid for medical testing, including a sleep study, blood work, and an exercise tolerance test, which he could not afford. His only other option was to lose 10% of his weight and keep it off for six months. Instead, he sued BNSF for discrimination based on a perceived disability.

The Taylor case was a perceived disability case and as such, its holding is not as broad as some report. Although the court determined that “obesity” is always an impairment, it did not hold that accommodation is always required simply because someone is diagnosed as obese. The court correctly noted that in a failure to accommodate case, the plaintiff would need to show limitation in addition to showing an impairment. In addition, the court noted that there is a difference between obesity and merely being overweight. Obesity is a medically diagnosable disorder which, according to the court, always affects the systems of the body. The court distinguished this from a person with a high body mass index (BMI) but whose systems were not affected. The court concluded that the latter person “would not have obesity and therefore would not be covered by this opinion.”

This decision adds a new layer of protection to individuals who have obesity in the state of Washington. In order to ensure compliance, Washington employers should train their managers and human resources teams on the impact of this decision. This decision may impact (1) how pre-employment (and other) medical inquiries are handled; (2) when accommodations need to be provided; (3) whether changes to job requirements are necessary to make sure that employees are not being excluded simply because of obesity; (4) how the employer responds to claims of harassment based on an employee’s weight; and even (5) customer service training (as the ruling may be extended beyond the employment setting). As with any significant legal development like this, consulting with your employment and labor counsel would be prudent.

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.

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.

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.

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.

 

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.

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.

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.