On January 31, 2017, the United States Court of Appeals for the Third Circuit joined the Seventh, Eighth and Tenth Circuits in holding that an employer’s honest belief that its employee was misusing FMLA leave is enough to defeat an FMLA retaliation claim. The court’s opinion in Capps v. Mondelez Global, LLC also serves as a reminder to employers that an employee’s request for intermittent FMLA leave may also trigger the employer’s obligation to engage in the interactive process with the employee under the ADA. Continue Reading Third Circuit Says “Last Call” for Employee Terminated After Caught Drinking While on FMLA “Bed Rest”

supreme courtIn case your news and twitter accounts are down, and you otherwise have not heard the news…   President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat.  There are surely countless articles about his nomination hitting the airwaves even as I type this, but for employers who struggle with leave management issues, a quick review of the Hwang v. Kansas State University decision, authored by Judge Gorsuch, may provide employers with hope that leave management law could move in the right direction.  Continue Reading Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations

CaliforniaWhat are employers to do if an employee has not provided a doctor’s note to continue his or her leave and the initial end date for that leave has passed? When can employers deem such an employee to have “voluntarily resigned”?  Leticia Bareno v. San Diego Community College District reminds employers that they must scrutinize what communications they have received from such employees about their leaves and their own attempts at follow-up before considering an employee to be, “voluntarily resigned.”

Continue Reading An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”?

Since Election Day, prognosticators and pundits have been speculating about how the Trump Administration’s actions will impact existing laws and regulations. Now that President Trump and his team have hit the ground running, what can we expect from the Department of Labor (including OFCCP), the EEOC and the President’s own executive actions in the areas of workplace disability and leave law? A brief guide appears below.

Department of Labor: The confirmation hearing for Trump’s Secretary of Labor nominee, Andrew Puzder, has been postponed from February 2 to February 7. If Puzder is confirmed, the DOL is expected to take more pro-business positions in both its litigation priorities and regulatory actions. Under Puzder’s leadership, the DOL may rescind existing regulations using the Administrative Procedure Act’s “notice and comment” procedures. Congress also has a variety of tools for invalidating unwanted Obama Administration regulations, including defunding their enforcement and invalidating recent regulations using the Congressional Review Act. Finally, the Obama Administration discontinued the DOL’s longstanding practice of issuing opinion letters interpreting the FLSA and FMLA; that practice may resume under Trump. More background on Puzder can be found in the Jackson Lewis article, Fast-Food Restaurant CEO Tapped to Head Labor Department: What to Expect.

OFCCP: During Republican administrations, the OFCCP tends to adopt more focused, targeted compliance efforts and audits, compared to more wide-ranging and aggressive enforcement efforts by Democratic OFCCPs. Under President Trump and Secretary-to-be Puzder, government contractors are likely to see an OFCCP refocused on more traditional priorities such as hiring and adverse impact; veterans; persons with disabilities; and recruitment of minorities and women.

EEOC: Shortly before the election, the EEOC issued an updated Strategic Enforcement Plan (SEP) for the fiscal years 2017-2021. This SEP reaffirmed and expanded the goals set forth the 2011-2016 SEP. ADA and Pregnancy Discrimination Act (PDA)-related priorities in both SEPs include the accessibility of online recruitment systems; ensuring pre-employment medical questionnaires are lawful; so-called “inflexible” leave policies; and accommodation of pregnant and disabled workers. It remains to be seen how much of the SEP will survive and guide upcoming EEOC actions and priorities. In addition, President Obama’s EEOC used litigation as an aggressive tool to advance EEOC goals. Employers can expect less vigorous enforcement and more compliance initiatives under a Republican-dominated EEOC. As a first step, on January 25, President Trump named the only Republican on the Commission, Victoria A. Lipnic, as Acting Chair (for more information, see the Jackson Lewis article President Appoints Victoria Lipnic EEOC Acting Chair). Changes to the composition of the Commission will not occur immediately, however, as the terms of the three Democratic Commissioners end in a staggered fashion between July 2017 and July 2019. Unless one of the Democratic Commissioners resigns, which is not expected, the EEOC will not have a Republican majority until July 1, 2017 at the earliest, which is the date that Commissioner Jenny Yang’s term ends.

Executive Orders: As a candidate, Trump said he would invalidate all of President Obama’s executive orders. EO’s of interest to employers include the Fair Pay and Safe Workplaces order and an order establishing seven days of paid sick leave for employees who work on or support government contracts. The Fair Pay and Safe Workplaces order and related regulations are expected to be on the chopping block soon. There has been no word yet on the paid sick leave order.

The Supreme Court: President Trump has announced that he will identify a nominee on February 2 to fill the seat vacated by the late Justice Scalia. Top contenders reportedly include Tenth Circuit Judge Neil Gorsuch, Third Circuit Judge Thomas Hardiman and Eleventh Circuit Judge William Pryor. Gorsuch authored Hwang v. Kansas State University, a 2014 decision in which the Tenth Circuit determined that a leave of absence of more than six months was not a reasonable accommodation and upheld the employer’s so-called “inflexible” leave policy. Hardiman wrote an unpublished opinion in 2008 in Lloyd v. Washington & Jefferson College, finding that an employee’s request to be present at the workplace only three days a week was not a reasonable accommodation because it would have excused him from performing essential job functions. In addition, three of the existing Justices are age 78 or older, so a lengthy Trump presidency could impact the Court for years to come.

Wild card: Reportedly influenced by his daughter Ivanka, President Trump has proposed six weeks of paid maternity leave for new mothers, to be structured similar to unemployment and funded with savings achieved through cracking down on unemployment fraud. Stay tuned for further developments in the first 100 days.

On January 25, 2017, in Equal Employment Opportunity Commission v. Flambeau, Inc., the Seventh Circuit rejected an EEOC challenge to an employer wellness program.  The circuit court had the opportunity to address whether an employer’s wellness program was an involuntary medical examination pursuant to the ADA, 42 U.S.C. 12112(d)(4), but instead found the issues of statutory interpretation to be moot.  As a result, employers are without what would have been welcome guidance on the ADA’s boundaries with respect to wellness programs.

Flambeau’s wellness program conditioned employer-subsidized health insurance on participation in a health risk assessment and biometric screening.  The district court found that the wellness program was permissible because it fell within the “safe harbor” provision of the ADA for bona fide benefit plans.  42 U.S.C. 12201(c)(2).  In so holding, the district court concluded the program was voluntary because an employee could decide not to participate, but remain employed.

After the EEOC initiated its lawsuit against Flambeau, the EEOC issued its 2016 Regulations relating to the Equal Employment Provisions of the Americans with Disabilities Act (the “2016 ADA Rule”) (29 C.F.R. §§ 1630.14(d)(3)).  Consistent with the EEOC’s position in Flambeau, the regulations provide that the ADA safe harbor provision does not apply to employer wellness programs.  The regulations also provide that a program such as Flambeau’s that denies benefits to those who do not participate is involuntary.

Rather than addressing the issues of statutory interpretation, the Seventh Circuit determined that the relief the EEOC sought was moot because the employee stopped working for the company before the lawsuit was filed and because the employer had stopped using the provisions at issue because they were not achieving desired cost savings.  The Seventh circuit acknowledged the importance of the statutory interpretation issues it could have reached, noting the issues impact “75 percent of firms offering health benefits that also offer wellness programs.”

As the week begins with new lexicon coming out of our nation’s capital, a recent federal court of appeals ruling reminds us that, in most situations, it’s the employer’s assessment of the facts, not the employee’s “alternative facts,” that matter when deciding the appropriate punishment for employee performance or misconduct issues.  And, perhaps more importantly, the ruling reminds us that the mere fact an employee has a disability, or has requested or taken FMLA leave, does not act as a “get out of jail” card for such performance or misconduct issues.

In DeWitt v. Southwestern Bell Telephone Company, 2017 U.S. App. Lexis 843 (10th Cir. Jan. 18, 2017), the plaintiff was a customer service representative who has Type I diabetes and is insulin dependent.  Throughout her employment, the plaintiff had on occasion taken FMLA leave related to her diabetic condition.  Already on a “last chance” agreement from a previous performance incident, the plaintiff hung up on customers on at least two separate occasions during a single shift.  The plaintiff denied having any recollection of doing so, claiming to have had a diabetes-related low blood sugar experience at the time of the calls.  In ultimately concluding that the plaintiff’s actions were intentional, and thereby warranted discharge, the decision maker considered a variety of factors, including but not limited to the fact that hanging up on a customer was difficult to do through mere inadvertence; there was no evidence other than the plaintiff’s unsupported assertion that she had in fact experienced a low blood sugar episode; and the plaintiff did not report having any type of medical issue until after she became aware of the likelihood of further discipline or discharge.  Following her discharge, the plaintiff filed suit under the ADA and FMLA.  The district court granted summary judgment to the company and the plaintiff appealed.

In affirming summary judgment for the employer, the Tenth Circuit reiterated that, absent evidence to the contrary, an employer’s good faith, honest belief that the employee engaged in misconduct suffices to overcome a claim of discrimination or retaliation, even if the employer ultimately is proven to be mistaken or made what others might have concluded was a poor business decision.  Here, the plaintiff offered no such contrary evidence, as the witnesses she relied on were not decision makers and/or had no personal knowledge of any of the events that transpired.  Moreover, the plaintiff’s only purported ADA accommodation request was that the company overlook her misconduct in light of her alleged low blood sugar incident, a request that in fact was not reasonable.  As the Tenth Circuit noted, ADA accommodation requests are prospective in nature and an employer is not required to excuse past misconduct, even if the misconduct is the result of the employee’s disability.

Accordingly, although cautioned to tread wisely when an employee claims a disability or the use of FMLA leave is at play, employers need not let the employee’s version of the facts, or the mere pre-existence of a disability or previous use of FMLA leave, control what if any discipline may be imposed on the employee for poor performance or incidents of misconduct.

The Village of Rosemont and the City of Oak Forest have become the latest suburban Cook County municipalities to join the Village of Barrington in opting out of the Cook County Earned Sick Leave Ordinance.  (They both passed ordinances either superseding or opting out of the Cook County Minimum Wage Ordinance.)  In rejecting the Cook County Ordinances, local officials claimed that the requirements put an increased burden on local businesses and negatively impacted their ability to compete with businesses outside of Cook County.  Stay tuned for further updates regarding whether additional suburban municipalities will follow suit (we expect Palatine may be the next municipality to opt-out) or if the County will pursue legal action regarding the enforceability of the municipal ordinances.  Continue Reading The Saga Continues: Recent Opt-Outs and Other Developments Relating to the Cook County Earned Sick Leave Act, Illinois Employee Sick Leave Act

A January 9 decision by the Seventh Circuit Court of Appeals serves as a vivid reminder that employers must tread with great caution when managing intermittent leave under the Family and Medical Leave Act. As the ruling in Wink v. Miller Compressing Company highlights, making abrupt changes in leave accommodations or providing misinformation about leave rights can have serious consequences.

Tracy Wink, a long-time Miller employee, had an autistic two-year-old son. In July 2011, the company granted Wink intermittent FMLA leave to take the child to medical appointments and therapy. Wink’s mother took care of the toddler three days a week while Wink was at work; for the remaining two days, Wink relied on daycare. But in February 2012, the child was expelled from daycare due to his autism-related aggressive behavior. To cover the childcare gap, Wink asked Miller to allow her to work from home two days a week so she could provide the needed care and work as time allowed. Miller agreed, with the proviso that, if Wink needed to take time off work intermittently during the workday to attend to her son, the time would be counted as intermittent FMLA.

This arrangement continued for almost five months until Miller, facing financial difficulties, terminated all work-from-home arrangements in the summer of 2012. On a Friday in July, Miller’s human resources officer instructed Miller that the change would take effect the following Monday.  Thereafter, Wink would be required to work on company premises eight hours a day, five days a week. Wink tearfully protested that it would be impossible to secure alternative care over the weekend. In response, the officer advised – falsely – that FMLA only covers leave for medical appointments and therapy. In fact, Wink was also entitled to take FMLA leave to provide care to her autistic child.

Wink went to the office that Monday and informed the human resources officer that she had been unable to find a caregiver. The reply was that the first time she did not work a full day at the office, the company would consider her a “voluntary quit.” Needing to attend to her son, Wink went home, never to return. She was terminated that same day.

Wink sued, alleging that Miller had both retaliated against her for asserting her right to FMLA leave and interfered with her FMLA rights. After a three-day trial, the jury found for Wink on her retaliation claim but not her claim of interference. Miller appealed the verdict. In an opinion written by Judge Posner, the Seventh Circuit affirmed, finding that the jury had reasonable grounds to find retaliation. Miller had allowed Wink to work from home without any issue for nearly five months and had no compelling reason to fire her. A jury could reasonably infer that Miller was angry because Wink had asked to stay home two days a week and to use intermittent FMLA leave on those two days when she needed time off to provide care for her child.

Miller also sought to overturn the imposition of liquidated damages, which doubled the actual damages award. Liquidated damages are awarded automatically unless the employer proves it acted in good faith. The Seventh Circuit ruled against Miller, persuaded that Miller’s “phony line” that FMLA could be used only for doctor’s appointments and therapy did not demonstrate good faith. As a final matter, the appellate court held that Wink’s failure to win her FMLA interference claim did not warrant reducing the amount of attorneys’ fees she could recover. FMLA retaliation and interference claims are very similar in nature, so that it made sense for Wink’s attorneys to play it safe and assert both. As the separate interference claim added only marginal cost, Wink was entitled to recover all of the fees she had incurred.

The Wink case is but one example of the treacherous waters an employer must navigate when making changes to special intermittent FMLA leave arrangements. The FMLA does not itself grant a right to work from home. But it is not uncommon for employers to allow employees serving as caregivers to use a combination of FMLA leave and telecommuting. When it comes to such arrangements, good communication is key. The terms and conditions should be expressly agreed to and well documented. And once in place, any change must be thoroughly substantiated and implemented with great care.

As previously discussed, AARP has filed suit against the EEOC and challenged the agency’s wellness regulations.  See https://www.disabilityleavelaw.com/2016/10/articles/ada/the-eeocs-2016-wellness-program-regulations-the-saga-continues/  On December 29, 2016, this challenge suffered a setback.  In the December 29, 2016 Memorandum Opinion, U.S. District Judge John D. Bates denied AARP’s request for preliminary injunction and held that the regulations would take effect on January 1, 2017.  The Court based this ruling on its determination that AARP members had failed to show that any potential disclosure of health information was likely to cause them irreparable harm. Furthermore, the members’ claim that they would be harmed by the higher premiums is an economic harm, which a member could recover through monetary damages, and does not constitute irreparable harm. As a result, the Court found that AARP had not established that its members would suffer irreparable harm if the rules took effect as planned.

The Court further found, based on the limited administrative record before it and the amount of deference owed to the EEOC, that AARP had failed to demonstrate that it was likely to succeed on the merits. However, the Court clearly stated that this determination was limited to the preliminary injunction analysis and that the Court was not “concluding that the agency has shown a substantial likelihood of success.” See Memorandum Opinion at 26. The Court acknowledged that a thorough review of the administrative record was necessary to determine the outcome of this case.

Finally, the Court found that the public interest weighed against an injunction because blocking the rules on the eve of the effective date would cause “considerable disruption” for employers who have been working to ensure that their wellness programs were compliant with the EEOC’s rules.

This ruling comes as a relief to most employers who have already drafted their wellness programs to comply with the EEOC’s rules under the American with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). For the time being, it is business as usual for employers with wellness programs. However, this issue is not resolved and employers should stay tuned for more.

 

We all know that the FMLA is fraught with pitfalls that can lead to costly mistakes. But a collective action for simply failing to post a notice?  On January 6, 2017 a U.S. District Court in Maryland rejected such an attempt.  In Antoine v. Amick Farms, LLC the plaintiffs claim that a class of employees were prejudiced by the company’s failure to post a notice of FMLA protections because they did not know they had the right to request or take protected FMLA leave.  The Court held that there is no private right of action by an individual based on an employer’s failure to post the general FMLA notice required by the regulations.  Only the Department of Labor (“DOL”) has the authority to enforce the posting requirement and seek penalties against the employer.  It is important to note, however, that the decision is limited to the general notice requirements of the FMLA, and not the individual notice requirements.

The FMLA requires two types of notice by employers. The “general” notice provision requires an employer to post a DOL approved notice summarizing the provisions of the FMLA and the rights provided to employees.  The regulations state that the DOL may issue a civil penalty against an employer who fails to meet the posting requirements.  The FMLA also requires that employers provide an “individual” notice to affected employees regarding their rights and responsibilities and whether an absence qualifies under the FMLA.  Failure to comply with the individual notice requirements may constitute an interference with the exercise of an employee’s FMLA rights and result in liability to the employee.

In addition to the collective action for failure to post the general notice, the plaintiffs in Antoine v. Amick Farms also brought claims for violation of the individual notice requirements which were not dismissed and will proceed through the litigation process.  This is a good reminder to check on your FMLA general notice postings and your process for providing individual notice.  Once an employer is aware that an employee is taking time off that is potentially FMLA-qualifying, the employer must, within five business days, notify the employee of his or her eligibility to take FMLA leave and the employee’s rights and responsibilities under the FMLA.  Individual notice requirements also include the requirement to notify the employee in writing whether the leave will be designated as FMLA leave and the specific amount of leave that will be counted against the employee’s FMLA leave entitlement.