Employers can easily feel overwhelmed when it comes to enforcing employee attendance standards while providing reasonable accommodation to employees with chronic health conditions. Increasingly, however, court decisions such as Williams v. AT&T Mobility Services LLC are providing much-needed guidance regarding the scope of an employer’s duty to accommodate. The Williams case illustrates how carefully-designed policies, frequent communication, and a generous sprinkling of patience form key ingredients in the recipe for avoiding liability under the Americans with Disabilities Act (ADA). Continue Reading Breaks and Flexible Hours Not a Reasonable ADA Accommodation for Frequently Absent Employee, Court Holds

An employer’s failure to provide a fragrance-free work environment does not equate to a failure to provide a reasonable accommodation or an adverse action against an employee, according to the District Court for the Northern District of Illinois in Alanis v. Metra.   In fact, this case reiterates that employers are not required to provide every accommodation requested by an employee.

While at work in November 2011, after almost 10 years of work, Alanis began suffering from a variety of fragrance-sensitivity symptoms such as difficulty breathing and speaking.  Alanis was seen by Metra’s medical provider who concluded that she would return to work but gave her 30 days to obtain a psychological clearance exam.  The next week, Alanis again experienced symptoms and claimed that she was unable to speak and could only communicate through text messages, in writing or by whispering.  She once again saw Metra’s medical provider who determined that the speaking issues prevented her from performing her job and she was “medically disqualified” from working.

Alanis took FMLA leave and applied for short-term disability.  In early January, her treating physician released her to return to work.  However, because she had not completed the physiological examination and received clearance, Metra did not allow her to return.  Alanis submitted to this examination and was diagnosed as having a fragrance sensitivity, but was cleared to return to work in April.

Upon her return, Alanis requested the following accommodations: flexible work hours, a modified dress code, limitation on extended talking, periodic rest breaks, self-paced work-load, a fragrance-free workplace, and a private office.  Metra provided every accommodation request except for the private office and fragrance-free workplace.  Metra was unable to provide Alanis with a private office because the only two private offices that it had were being used by employees who handled confidential employee information, which required a private office space.  Furthermore, Metra was unable to ensure that the office was completely fragrance-free, it took a number of steps and implemented new policies to ensure that the amount of fragrances were limited.  For example, Metra changed the cleaning products which were used in the office and bathroom, moved Alanis’ cubicle so that it was further away from the kitchen, and requested that employees not wear perfume or cologne.  Finally, Metra invited Alanis to notify it of any odor issues, and when Alanis reported an issue, Metra intervened and asked the employee to refrain from wearing perfume.

Unsatisfied, Alanis filed suit against Metra alleging that she was discriminated against based on the fact that she was Hispanic and retaliated against because of her disability.  The Court found that there was no evidence of discrimination or retaliation because no adverse employment action was taken against Alanis.  Furthermore, the Court found that Metra had gone above and beyond to grant her requests for accommodation, specifically noting the changes Metra made to reduce the existence of odors in the workplace.  This case serves as a good reminder that you just can’t satisfy every employee.  And sometimes that’s ok!

A United States District Court in Florida thwarted an employer’s attempt to toss the FMLA claims of an employee who sued after his medical condition was disclosed to co-workers who subsequently made fun of him.  The employee requested FMLA leave after he developed a chronic condition with his genito-urinary system.  The leave request was approved and the employee received all of the time off he needed.  However, Plaintiff claims that after a manager disclosed his condition to co-workers at a staff meeting he was the target of jokes and obscene gestures.    

In Holtrey v. Collier County Board of Commissioners the Plaintiff alleged that the breach of his right to confidentiality was an unlawful interference with his FMLA rights.  He also claimed retaliation because the ridicule by his coworkers was a material adverse employment action arising out of his exercise of FMLA rights.  The employer moved to dismiss the interference claim on the grounds that the employee was not denied leave, therefore it could not have interfered with his right to FMLA benefits.  Interference claims under the FMLA arise when an employer restrains or denies the exercise or attempted exercise of rights or benefits under the FMLA.  The issue, however, was not whether the right to leave was violated, but rather the right to confidentiality which is provided by the regulations.  Plaintiff had a right to confidentiality of his medical condition, therefore the Court concluded, an allegation that the employer violated that right is enough to establish an interference claim.  The Court noted that this decision conflicts with other district courts that declined to find sufficient basis for an interference claim where the employer discussed the employee’s condition with coworkers. 

As to the retaliation claim, the issue was whether Plaintiff could establish that he suffered an adverse employment action.  The Court concluded that the Plaintiff’s allegations of coworkers’ repeated and frequent jokes and gestures about his condition was enough to show that there was a material impact on his working conditions.  Because Plaintiff alleged that the ridicule was caused by his exercise of FMLA rights the retaliation claim survived.

Employers are often in a difficult position regarding disclosure of medical information.  For example, an employee’s absences may have a negative impact on coworkers because others have to work harder to cover for her/him.  The employer may be tempted to explain why the employee is out of work but there is a risk of violating the employee’s confidentiality rights when doing so.  Any time an employee’s medical condition is shared beyond those who administer leave for an organization there is a risk that the disclosure results in adverse treatment of the employee.  Employers should assess on a case by case basis what information needs to be shared and with whom. 

On Tuesday, February 7, 2017, Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Rosa DeLauro (D-Conn.) reintroduced the Family And Medical Insurance Leave (FAMILY) Act, which would create a national system of paid leave for employees. This is the third attempt in the last five years by these same legislators to create federal paid leave.  But, with Republicans in control of the Executive and Legislative branches of our government, does the FAMILY Act stand a chance of becoming reality?

The FAMILY Act, which is modeled on existing paid leave systems in California, New Jersey, and Rhode Island, would provide employees with up to two-thirds of their pay for up to 12 weeks when they take time off for covered reasons under the FMLA. However, unlike the FMLA, the FAMILY Act provisions would extend to covered employees of all employers, regardless of their size.  The system would be funded by both employee and employer payroll contributions of two-tenths of 1 percent each, an amount which the National Partnership for Women & Families estimates would be less than $1.50 per week for a typical employee.  The Act would create a new Office of Paid Family and Medical Leave to administer the law.

When the FAMILY Act was introduced by Senator Gillibrand and Representative DeLauro in 2013 and 2015, the proposed legislation never made it out of committee. So why should we expect things to be different in 2017, when the Republicans are in complete control in Washington?  For starters, President Trump has already indicated that he supports paid leave, albeit only for new mothers.  In addition, given the recent proliferation of local and state-enacted paid leave laws, multi-location employers are increasingly challenged by compliance with a wide variety of paid leave programs.    As Republicans in the Senate and House continue to hear compliance horror stories from their constituent employers, the adoption of a federal paid leave system may be viewed as a potential solution to this compliance challenge.  If President Trump is in need of a bipartisan victory sometime this year, then perhaps the third time will truly be the charm for the FAMILY Act.

More information, including the current status, related to the FAMILY Act legislation proposed in the House and Senate can be obtained through the following links:

https://www.congress.gov/bill/115th-congress/house-bill/947?r=1

https://www.congress.gov/bill/115th-congress/senate-bill/337?r=1

 

Obesity is still a hot topic both in our health conscious culture and in our courtrooms where we continue to see ADAAA claims based on the notion that an employer fired an employee because the employee was obese. After the ADA was amended, there was some question about how the courts would treat obesity under the ADAAA, especially claims alleging that the employer regarded the employee as disabled.  Fortunately, most federal courts to have considered the issue have concluded that obesity that is not a caused by an underlying physiological disorder is not a disability under the ADAAA.  On February 3, 2017, an Arizona district court joined the Eighth, Sixth, and Second Circuits in holding that obesity (including even morbid obesity) cannot qualify as a disability under the ADAAA unless it falls outside the normal range and occurs as the result of a physiological disorder.  In doing so, the Arizona court added its voice to the growing majority view expressly rejecting the EEOC’s contrary position on this issue. Continue Reading Weighty Issues: Obesity And The But-For Test Under The ADAAA

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

Not providing an employee with a sufficient Notice of Eligibility and Rights & Responsibilities.

When an employee requests FMLA leave, or when an employer acquires knowledge that an employee’s need for leave might be FMLA-qualifying, an employer must notify the employee of the employee’s eligibility to take FMLA leave and rights and responsibilities within 5 business days, absent extenuating circumstances. This “Eligibility and Rights & Responsibilities Notice” must be in writing and must state whether the employee is eligible for FMLA leave (and if not, the reason why). The Notice also must provide details regarding the specific expectations and obligations of the employee and must explain any consequences of a failure to meet the obligations.

A failure to issue a proper Eligibility and Rights & Responsibilities Notice can result in a FMLA interference claim. Generally, an employee must show that “harm” resulted from an employer’s failure to provide proper notice, in the form of an “impairment of rights and resulting prejudice.”

In Bellone v. Southwick-Tolland Reg’l Sch. Dist., 748 F.3d 418 (1st Cir. 2014), the employee requested FMLA leave, which the employer granted.  Ultimately, the employee failed to report back to work on the anticipated return to work date, and was terminated. The employee sued, arguing in part that he received an insufficient Eligibility and Rights & Responsibilities Notice at the beginning of the FMLA process. The lower court agreed that the Notice was insufficient, as it did not contain any of the required information and only instructed the employee to fill out a FMLA medical certification form.  Fortunately for the employer, the employee was unable to establish that he was actually harmed by the employer’s insufficient Notice, and the court affirmed summary judgment in favor of the employer on the issue.

In Ross v. Youth Consultation Services, Civil No. 2:14-2229 (KSH)(CLW), 2016 U.S. Dist. LEXIS 179693 (D. N.J. Dec. 29, 2016), an employee alleged that her employer failed to provide her with proper Notice.  After the employee initially provided her employer with a doctor’s note supporting the need for leave, the employer sent the employee a packet containing information about FMLA leave benefits, a leave request form, a “Leave Designation/Employee Acknowledgment of Obligations” form, and a medical certification form. The employee provided additional notes from her doctor indicating the need for additional time off, which was in excess of 12 weeks.  The employer ultimately terminated the employee, because it determined that she had exhausted her 12 weeks of FMLA leave and could no longer hold open the employee’s job.  The employee argued, in part, that her employer never gave her proper Notice, and if it had, she would have structured her leave differently.  The court determined that while the employer met the “eligibility” notice requirements, the employer did not satisfy the individualized notice required in the “rights and responsibilities” notice.  This resulted in the employer’s failure to adequately inform the employee of her FMLA rights.  The court stated that “[t]he overall intent of the FMLA is lost when an employer fails to provide an employee with the opportunity to make informed decisions about her leave options and limitations.”  The employee suffered prejudice because she did not have the opportunity to structure her leave differently and save her job.

Employers should not overlook the crucial step in the FMLA process of providing employees with a proper Eligibility and Rights & Responsibilities Notice within 5 business days. There are resources available to help employers meet the eligibility notice requirements. Employers may use Form WH–381 (Notice of Eligibility and Rights & Responsibilities), which is available cost-free at www.dol.gov/whd/fmla.

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.