“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the tenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly considering treatment for substance abuse as FMLA-qualifying.

Substance abuse is a workplace issue that can quickly become complicated. Employers should keep in mind that substance abuse can be a serious health condition (SHC) under the FMLA if the requirements for a SHC are otherwise met (for an overview of those requirements, see our earlier post in this series discussing what constitutes a serious health condition).

FMLA leave may only be taken for substance abuse if the treatment is administered by a heath care provider, or by a provider of health care services on referral by a health care provider. FMLA leave is for treatment of the employee’s substance abuse. An employer need not tolerate absences because of the employee’s use of the substance, which would not qualify for FMLA leave.  While an employer may not take action against an employee because the employee exercised FMLA rights, an employer can take employment action for substance abuse if the employer has an established policy, applied in nondiscriminatory manner that has been communicated to all employees and which provides under certain circumstances an employee may be terminated for substance abuse.

In Green v. Baptist Hospital, Case No. 3:15cv124 (D. Fla. Nov. 28, 2016), an employee alleged that his employer interfered with his right to take FMLA when he was fired. The employee took 3 weeks of FMLA for substance abuse treatment, and about two weeks later relapsed. Plaintiff was a “no call/no show” from work for five days, and he was fired on the sixth consecutive day of unexcused absence for his “no call/no shows.”  The court decided that the employer properly terminated the employee, who testified that he was absent because he was “probably just getting high.” The court found that the employer acted properly by allowing the employee to previously take FMLA leave to receive treatment, and the employer was entitled to terminate the employee for the “no call/no show” behavior because no FMLA protection existed for the situation where an employee was absent due to his substance use.

In Holloway v. D.C. Government, Case No. 09-512 (D.D.C.  Dec. 30, 2013), the court denied an employer’s motion for summary judgment of an employee’s FMLA interference claim. The employee entered a long-term substance abuse treatment program, and informed his employer of his need to take FMLA leave for successful completion of the program. However, the employer failed to respond to the employee’s leave request and ultimately terminated the employee after the employee did not report to work. The court decided that the employee had provided his supervisor with adequate notice of his desire to take FMLA leave to attend a substance abuse program, a valid use of FMLA.

Employers must balance goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition that might require FMLA leave. Employers should keep in mind that an employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.

On September 20, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a significant opinion for employers in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. Sept. 20, 2017), holding that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  The Seventh Circuit joins the Tenth Circuit in rejecting the EEOC’s position that an extended leave of absence may be required as a reasonable accommodation under the ADA.  In Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), former Tenth Circuit Judge Neil Gorsuch (now a Supreme Court Justice) found that the plaintiff’s request for a leave of absence beyond the six months provided by the defendant’s leave policies was not a reasonable accommodation under the ADA.

To read more about this important decision, click here.

The Severson decision is a huge win for employers in the Seventh Circuit.  Stay tuned to find out if Severson will file a petition for review with the U.S. Supreme Court.  However, if he does, it is safe to assume that he has at least one foe (Justice Gorsuch) waiting to weigh in.

The New Parent Leave Act has made it to Governor Jerry Brown’s desk awaiting his signature or veto. This bill would mean significant expansion of parental leave for small employers in California. It is uncertain whether Governor Brown will sign the bill into law after vetoing a similar bill almost a year ago. Continue Reading Governor Brown Has Another Opportunity to Expand Parental Leave to Small Businesses in California

Diligent and well informed employers know that it is the best practice to engage in an individualized assessment of a requested accommodation. Sometimes an employer may be tempted to refuse to discuss an accommodation because it doesn’t believe that the request is reasonable or because the employee is not “qualified.” It should resist the temptation.

A recent Maryland case drove home this point.  In Van Rossum v. Baltimore County, Maryland, the Plaintiff was a community health inspector in Baltimore County who alleged that she started experiencing a variety of symptoms in May 2009, including severe pain, reduced vision, numbness, and “brain fog,” all of which she attributed to the presence of mold and fungus in the courthouse where her office was located. After her department moved to the fourth floor in a new building her symptoms worsened which she attributed to poor ventilation. The County refused her request to change offices from the fourth floor and she felt forced to retire early. She claimed constructive discharge, a failure to accommodate, discrimination and retaliation for seeking an accommodation.

Because the County did not even attempt to engage in the interactive process, at trial it could only argue that Van Rossum was not entitled to a reasonable accommodation because she was not qualified. It based its argument on the fact that after she quit, Van Rossum received Social Security Disability Insurance (“SSDI”) which was based on a determination that she was unable to work. There were two problems with this. First, Van Rossum did not apply for SSDI until after her termination and so the County could not have based its failure to engage in the interactive process on that basis. Second, pursuant to Cleveland v. Policy Management Systems Corp., the fact that an employee receives SSDI is not conclusive of the qualification issue under the ADA. In Cleveland, the U.S. Supreme Court held that receipt of such benefits does not necessarily conflict with an ADA claim and it is possible for an employee to provide a sufficient explanation for any apparent contradiction i.e. that she could have done the job with a reasonable accommodation.

The court, following Cleveland, allowed Van Rossum to try and explain the apparent contradiction. She explained to the jury that she was unable to work only because the County denied her accommodation and forced her to return to work in a place that made her sick. She testified that she could perform the essential functions of her job when accommodated and would have been able to do so if they had let her switch offices. It was only after the denial of the accommodation that her health deteriorated because she had to work on the fourth floor. The jury agreed with Van Rossum.

Had the County engaged in the interactive process with Van Rossum it may have been able to offer an accommodation that would have been reasonable even if it wasn’t the one Van Rossum preferred. Alternatively, it may have been able to show that there was no reasonable accommodation available. By failing to engage at all, the County handicapped itself at trial.

While off-the-shelf employee handbooks can be cost-efficient in the short-term, sometimes they leave important employer defenses on the table.  This is particularly true for state-specific defenses.  For example, while most Michigan employers know it is best to include a reporting procedure for harassment in their employee handbook, many do not know that Michigan’s Persons with Disabilities Civil Rights Act can provide a statutory defense to failure to accommodate claims, if key language is included in the handbook or a posted workplace notice.

Under Section 210(18) of Michigan’s Persons with Disabilities Civil Rights Act, an employee or applicant with a disability may allege a failure to accommodate claim only if the individual notifies the employer in writing of the need for accommodation within 182 days after the date the individual knew or reasonably should have known that an accommodation was needed.  However, for this restriction on Michigan failure to accommodate claims to apply, the employer must post notices or use “other appropriate means” to provide all employees and job applicants with notice of the time limit and the requirement of a writing (See MCL 37.1210(19)).

Including required language in an employer handbook or policy can go a long way to safeguarding this defense.  Additionally, the Michigan Department of Civil Rights (MDCR) has also decided to assist employers this year in that the most recent version of Michigan’s Discrimination Law poster includes a note to employees and applicants with disabilities regarding the 182-day time limit and required writing.  This version of Michigan’s poster is not required because a business does not have to include the information in its anti-discrimination posting.  However, as the MDCR’s website states, “[w]hether the notice is included in this poster or not, a business that fails to provide adequate notice to its employees may waive the ability to use the time limit as a defense.”

This example emphasizes why it is important for employers to have an attorney review employee handbooks, and keep up to date with posters that are either required or recommended under state and federal law.  For multi-state employers, it is particularly important to review handbooks and policies for compliance with the laws of every state in which they have employees.  As an aside, however, note that for compliance with the Americans with Disabilities Act and employee relations, an employer should still engage in the interactive process with any employee who needs an accommodation, even if the employee did not comply with the required procedure.  The example above only creates a defense under Michigan law, as this blog post suggests.

Make no mistake about it: ADA compliance can be challenging.  This is especially true when it comes to providing reasonable accommodation.  Not uncommonly, managers wanting to do the right thing actually provide more than the law requires.  Although well-intentioned, this practice often leads to conflict if more generous accommodations are later scaled back. Thankfully, a recent decision by the Eleventh Circuit Court of Appeals supports the notion that employers should not be penalized for going beyond their legal obligations.

Paul Boyle joined the City of Pell City in March 2001 as a Heavy Equipment Operator in the Street Department.  An on-the-job injury that same year left him disabled, and he could no longer perform the duties of his position. The Street Department Superintendent initially accommodated Boyle by letting him do office work.  In 2005, Boyle and the Superintendent reached a written agreement, under which Boyle would perform the duties of the Street Department Foreman for two years, but at his prior Heavy Equipment Operator pay rate. During this time, the actual Foreman voluntarily worked as a mechanic but retained his Foreman title and pay.

As it turned out, this arrangement continued unchanged until June 2012, when the Superintendent retired.  The new Superintendent promptly removed Boyle from the Foreman position and assigned him to work inventory, over Boyle’s protests that the physical demands of the inventory job made it difficult for him to work.  When Boyle asked to be returned to the Foreman position, the Superintendent insisted that since the original Foreman retained the Foreman title and pay, he – not Boyle – should perform the duties of the job.

Boyle ultimately took disability retirement. He then filed suit, claiming among other matters that the City had violated the Rehabilitation Act because the Superintendent’s refusal to return him to the Foreman position denied him a reasonable accommodation.  The district court granted summary judgment for the City.

The appellate court affirmed, holding that Boyle had failed to identify any reasonable accommodation the City could have provided.  Like the Americans with Disabilities Act (ADA), the Rehabilitation Act does not require an employer to create a new position for a disabled employee or to reassign the employee to another job if no vacant position is available.  Boyle presented no evidence that the Foreman position was ever vacant during the time he performed Foreman duties.  The City was not obligated to create a second Foreman position.  Nor did it have any responsibility to “bump” the actual Foreman from the job to generate a vacancy for Boyle, or to promote Boyle as an accommodation for his disability.

Most importantly, the mere fact that the City had accommodated Boyle for years by allowing him to perform Foreman duties did not, in the Eleventh Circuit’s opinion, mean his removal from those duties was a failure to accommodate.  This accommodation was not required by law.  Therefore, removing it would not run afoul of the Rehabilitation Act’s accommodation requirements.

Sometimes good deeds do go unpunished.

Under the Family and Medical Leave Act (“FMLA”), an employer is permitted to contact an employee’s healthcare provider, with the employee’s permission, to clarify a medical certification submitted in support of the employee’s request for a leave of absence. Under the FMLA, “clarify” means to understand the handwriting on the certification or the meaning of a healthcare provider’s response contained in the certification.  “Clarify” does not mean obtaining a better understanding of a vague, ambiguous, or incomplete certification.  For that, an employee must sign an employer’s written notice of the “deficiency” and allow the employee at least seven calendar days to cure any deficiency.  Moreover, an employer may not ask the healthcare provider for any information beyond that which is on the certification form.

California law is far more restrictive and does not allow an employer to contact an employee’s healthcare provider to “clarify” a certification for a leave of absence under the California Family Rights Act (“CFRA”). Therefore, when presented with a medical certification for a leave of absence when an FMLA and CFRA leave run concurrently, the CFRA’s less permissive rules apply and an employer should not contact the employee’s healthcare provider for “clarification” of the certification. An employer may, however, ask employees to cure deficiencies in certifications and insist upon receiving a complete and sufficient medical certification.

Massachusetts says yes!

An amendment to the Massachusetts Fair Employment Practices Act requires employers to accommodate pregnant workers.

According to the law, some accommodations that may be necessary for pregnant workers, include:

  • more frequent or longer breaks;
  • time off;
  • acquisition or modification of equipment or seating;
  • temporary transfers;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • a modified work schedule.

The amendment goes into effect April 1, 2018 (less than 9 months away).  Massachusetts is not the first state to expressly expand this protection to pregnant workers (and likely will not be the last).  Click here to read more about this Massachusetts law.

Many businesses use temporary workers placed by staffing agencies. But who is responsible when a temporary worker requests a disability accommodation?  The staffing agency and the business could both be responsible if they are acting as “joint employers” under the Americans with Disabilities Act (ADA).

Staffing agencies commonly “employ” temporary workers: hire the workers, pay wages, provide any benefits, withhold taxes, pay employer taxes, etc.  The company or “worksite employer” often directs how and when the work is performed, supervises the workers, and expects the workers to comply with company policies and procedures.  In this situation, the staffing agency and the worksite employer are considered joint employers under the ADA, and both are responsible for ADA compliance.

Consider this scenario: Temporary worker Bob is an employee of ABC Staffing Company. Bob is placed with XYZ & Associates as a temporary office clerk.  ABC pays Bob and provides his medical insurance and other employee benefits.  XYZ sets Bob’s schedule, assigns him a supervisor, trains him on how to perform his job duties, and expects him to abide by its employee policies.  On his first day on the job, Bob asks his XYZ supervisor for a $250 “stand and sit” desk due to a chronic back condition, and provides supporting medical documentation.  XYZ alerts ABC to Bob’s request.  The placement contract between ABC and XYZ is silent on this topic.

Here, ABC and XYZ are each independently responsible for providing Bob with a reasonable accommodation, absent an undue hardship. Because a $250 expense is not at all likely to support a hardship argument, Bob’s accommodation should be granted.  As a best practice, ABC and XYZ should consider collaborating together to meet their ADA obligations.

The EEOC addressed this issue in an enforcement guidance on the application of the ADA to temporary and other contingent workers.  As noted by the EEOC, it may be beneficial to all parties if the handling and costs of disability-related accommodations for temporary workers are addressed in the contract between the staffing agency and worksite employer.  This enforcement guidance also provides helpful information about other ADA nuances unique to temporary workers.

On July 17, 2017 the Massachusetts Supreme Judicial Court ruled that under the Massachusetts Anti-Discrimination law an employer may be required to accommodate an employee who is a current user of medical marijuana regardless of the employer’s drug free workplace and drug testing policies.  While this decision is binding only in Massachusetts, it could represent the beginning of a significant shift in how employers will need to deal with employees using marijuana to treat a disability.

In Barbuto v. Advantage Sales and Marketing the employee claimed that before a drug test she notified her employer she would test positive because she has Crohn’s disease and was using lawfully prescribed marijuana under state law.  She indeed tested positive and was terminated as a result.  The issue is whether an employer may strictly enforce its drug free workplace policy or whether the employer is obligated to consider making an exception to the policy as an accommodation under state anti-discrimination laws.

As the legalization of medicinal marijuana expands to more states, employers have to decide how they will enforce their drug free workplace policy when employees with a disability test positive.  Where the use is for medical reasons, the employer must consider whether disability discrimination laws come into play.  Many employers have concluded that they would continue enforcing their drug free workplace policy because the employee is not protected under the Americans with Disabilities Act (ADA).  Individuals who currently engage in the illegal use of drugs are specifically excluded from the ADA’s definition of an “individual with a disability” and marijuana use for any reason is still illegal under federal law.  Therefore current users of marijuana are generally not protected by the ADA.

This seemed like a relatively straightforward analysis to apply in any jurisdiction.  After all, marijuana is still illegal under federal law which applies throughout the United States.  The Massachusetts court, however, determined that the drug’s status under federal law was not relevant.  The court concluded that the employee was not doing anything illegal under state law and the employee was seeking protection under the state anti-discrimination law, which requires employers to accommodate employees with a “handicap.”  Since the employee’s use of marijuana did not exclude her from coverage under the state anti-discrimination law, the employer would have to treat the employee just like any other disabled employee and determine if a reasonable accommodation would enable the employee to remain employed. 

Employers in Massachusetts must now engage in a case by case assessment of whether accommodating medical marijuana use is reasonable.  While the employer is not required to tolerate employees coming to work under the influence, it’s unlikely that a simple preference to have the entire workforce free of marijuana in their system will constitute an undue hardship sufficient to deny the accommodation.  Employers will need to establish some objective reason why allowing the employee to remain employed following the positive test will cause a hardship on its business.  For example, a federal contractor may argue that it has obligations under the Drug-Free Workplace Act.  This law requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a Federal agency.  Also, in some states, like Florida, employers may receive a reduction in workers’ compensation premiums for maintaining a drug free workplace. 

For now we will have to see how this issue evolves on the state level and employers should consider revisiting their drug testing policies in states where medical marijuana is legal. 

For additional information on this issue click here.