The most famous reindeer of all may be Rudolph, but St. Nick has the lock on being the most famous driver in the entire transportation industry. And with such an incredible safety record and history of on-time deliveries, would we ever think of Santa as being disabled under the ADAAA? Continue Reading Is Santa Disabled? Obesity, The ADAAA, and The Most Famous Driver Of All
We previously reported that the California Court of Appeal for the Second Appellate District held that an employer’s denial of accommodation to a nondisabled employee may serve as evidence of association discrimination under the California Fair Employment and Housing Act. Castro Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal. App. 5th 1028. In Castro Ramirez, the employee alleged that he was terminated from employment after he made complaints about changes to his work schedule which impacted his ability to be at home during his disabled son’s dialysis treatments. On the surface, this seemed like a claim for reasonable accommodation (i.e., a modified work schedule) by a non-disabled employee and we all know that only disabled folks are entitled to receive reasonable accommodations. Easy decision, right? Wrong.
The Court of Appeal held that the California Fair Employment and Housing Act (FEHA) makes it unlawful to discharge a person based on physical disabilities or other characteristics, including the association with a person who has or is perceived to have any of those characteristics. Again, by itself, this holding is not controversial because the ADA contains a similar provision prohibiting discrimination on the basis of an association or relationship with a person with a disability. What made Castro Ramirez different, and what continues to concern California employers, is that employers must provide reasonable accommodations to individuals who do not, by ADA terms, have a disability. As one dissenting judge observed, the Court has gone “where no one has gone before, to find a California employer may be liable under FEHA for failing to accommodate a nondisabled employee’s request to modify his work schedule to permit him to care for a disabled family member.”
On November 30, 2016, the California Supreme Court denied Dependable Highway Express’ petition for review, effectively putting an end to the case. Because of the denial and because the case has not been depublished, all California trial courts now are bound by this authority unless and until there is a conflicting Court of Appeal published decision. California employers should review policies and practices in responding to all disability accommodation requests, even those of non-disabled employees associated with others in protected categories. At a minimum, employers must have a legitimate, non-discriminatory reason for denying the accommodation. However, given the mischief caused by Castro-Ramirez, it appears employers may need to consider expanding the scope of employees potentially entitled to reasonable accommodations under FEHA. With leave management already a major Human Resources challenge, employers must closely review this decision. Please contact Jackson Lewis with any legal questions about disability policies and practices.
What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the third in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.
Failing to restore an employee returning from FMLA leave to an “equivalent position.”
When an employee requests FMLA leave, an employer can do everything properly to provide required FMLA notices, designate FMLA leave, and require return-to-work certifications. But the process is not over yet. Under the FMLA, any eligible employee who takes FMLA leave is entitled, upon return to work, to be restored to the job position the employee held when the leave commenced, or to be restored to an equivalent job position with equivalent benefits, pay, and other terms and conditions of employment. 29 U.S.C.S. § 2614(a)(1).
This seems straightforward. However, changes can evolve over time in job duties and organizational operations. If such changes occur, an employer must be careful to analyze whether it is meeting this FMLA requirement when an employee returns from FMLA leave.
In one case, Mitchell v. Dutchman Mfg., 389 F.3d 746 (7th Cir. 2004), the plaintiff-employee quit her job shortly after returning from FMLA leave, and sued her employer for not returning her to the same or an equivalent position. Her job prior to her FMLA leave was working on an assembly line where cars were finalized and prepared for sale. Her job duties consisted of various cleaning tasks, sweeping, wiping, and applying sticker decals and putty to vehicles. While the employee was on FMLA leave, the employer consolidated two of its production lines. When the employee returned from leave, some of the tasks expected of her changed – she was also required to use certain small hand tools, including an electric screw gun, a screwdriver, and a caulking gun. The employee injured herself while using the screw gun, and ultimately presented a doctor’s note which prevented her from using the screw gun, but which stated she could still use the caulking gun. When her supervisor instructed her to use the caulking gun, the employee walked off of the job and did not return. The employee filed suit, claiming in part that the employer failed to restore her to the duties she had prior to her leave. The federal district court granted summary judgment to the employer, and the former employee appealed. The Seventh Circuit upheld the lower court’s grant of summary judgment, reasoning that the new tasks assigned to the employee only took 10-23 minutes per car, while she spent 40-45 minutes per car on the same tasks she performed pre-leave. The Court determined that her job duties remained “substantially similar,” and found that the employee was returned to an “equivalent position.”
In another case, Adler v. Orangetown Cent. Sch. Dist., 05 Civ. 4835 (SCR) (S.D.N.Y. Jan. 17, 2008), an employee who worked as a teacher took FMLA leave for a high-risk pregnancy. After she returned from FMLA leave, the teacher requested that she continue to teach certain Advanced Placement (“AP”) classes that she had previously taught. The school informed her she would not be teaching the AP classes due to issues relating to her pregnancy and because of the school’s “rotational philosophy,” which was never fully explained. The teacher alleged that the non-AP classes she was assigned to teach upon her return from FMLA leave were not equivalent to the AP classes she taught prior to her FMLA leave. The School asserted that there was no legal basis to support the teacher’s contention that the FMLA required her to be given her top choice class assignments, and asserted that the distinction between a few AP classes was de minimus. The court decided, on the motion to dismiss, that it could not conclude, as a matter of law that the teacher was returned to an “equivalent position” because the teacher argued in her complaint that teaching AP classes is different than teaching non-AP classes for a variety of reasons. That sufficed, at the early stage of litigation, to deny the employer’s motion to dismiss.
The above cases illustrate that when employees return from FMLA leave, employers should be careful at this final stage of the leave process to analyze the specific job position to which the employee will be returning. If an employee has been on continuous leave and organizational changes have been made, or job duties have otherwise changed, an employer should carefully analyze how this might impact the employer’s obligation to return the employee to an “equivalent position.” If an employee is returning to his/her same position, an employer should determine whether any of the actual job duties have changed, or been reassigned, in order to confirm that the employee is returning to the same position with the same job duties.
In case you missed it, on December 4, 2016, the popular news program 60 Minutes aired a story on the alarming growing number of ADA drive-by lawsuits filed against businesses. A transcript of the story is provided here. Title III of the ADA requires places of public accommodation, such as restaurants, banks, movie theaters and just about any business that sells goods and services to the public, to make their premises accessible to disabled people through a comprehensive and detailed design code called the ADA Standards for Accessible Design.
The story, called “What is a Drive-By Lawsuit?,” reported on the staggering number of lawsuits filed under the ADA by disabled individuals who simply drive by a store, restaurant or some other place of public accommodation, spot accessibility issues, such as a handicap parking sign that is a bit too low or a ramp that is a bit too steep, and then sues the store without any warning whatsoever. The story also noted the growing prevalence of “Google” lawsuits, where accessibility issues such as a hotel not having a pool lift, can be observed by plaintiffs using Google Earth. While Title III does not permit a plaintiff to collect cash damages, the 60 Minutes story ends with a cautionary note. Observing that with many state laws providing for cash damages, and many businesses being technically out of compliance with the ADA, “it may not be long before you start hearing about these kinds of lawsuits in a town or city near you.”
Businesses should consider protecting themselves against these lawsuits by removing “red flags” from their premise. Red flags are readily visible accessibility issues such as un-ramped entrance steps (or no other visible means to enter the business with a wheelchair), poorly maintained routes from handicap parking spaces to the store’s entrance or handicap parking spaces with no access aisle.
In a November already riddled with surprises and filled with looming uncertainty for employers – from the preliminary injunction blocking the DOL from enforcing the new federal overtime regulations, to the possible dramatic impact of the new Trump Administration on workplace law – on November 15, 2016, the Village of Barrington, Illinois, passed a Municipal Ordinance (the “Village Ordinance”) opting out of the requirements of the Cook County Paid Sick Leave Ordinance (the “Cook County Ordinance”), which was passed by the Cook County Board of Commissioners on October 5, 2016. The Cook County Ordinance mandates that all employers in Cook County, Illinois, allow eligible employees to accrue up to 40 hours of paid sick leave in each 12-month period of their employment. Continue Reading Municipal Ordinance Passed by the Village of Barrington, Illinois Opting Out of the Cook County Paid Sick Leave Ordinance Creates More Uncertainty for Cook County Employers
What is a disability? And when are employers on notice to provide employees leave? These were some of the questions raised in the California Court of Appeals (Second Appellate District) November 15, 2016 decision, Soria v. Univision Radio Los Angeles, Inc.
Sofia Soria, a former DJ at Univision Radio Los Angeles Inc. (“Univision”), filed suit against Univision, primarily alleging disability discrimination, failure to accommodate disability, failure to engage in the interactive process under the California Fair Employment and Housing Act (“FEHA”) and interference with California Family Rights Act (“CFRA”) rights. Soria was diagnosed with a potentially cancerous stomach tumor in late 2010. In late 2011, she allegedly gave multiple notices of her condition to Univision and missed some work due to medical appointments. In December 2011, after Soria allegedly told her supervisor that she may need surgery, she was terminated.
The lower court granted summary judgment in favor of Univision, but the California Court of Appeals (the “Court”) disagreed, finding there were factual disputes which the Court could not resolve. Some of the key disability and leave related findings include:
Continue Reading CA Revives Former DJ’s Disability and Leave Claims Against Univision Radio
In a case addressing a challenging accommodation scenario faced by many employers, a Florida District Court held in Hargett v. Florida Atlantic University Board of Trustees that an employee seeking a less stressful environment and an end to hostile confrontations with her manager was not seeking a reasonable accommodation. The employee suffered from epilepsy with seizures brought on by high tension and stress. She demanded as a reasonable accommodation that her supervisor cease his “hostile confrontations” with her. She also requested that her employer provide her with “calm, fair, non-confrontational treatment.”
The Court noted that asking a supervisor to adopt a less overbearing management style is generally not a reasonable accommodation. While “specific stressors…may in some cases be legitimate targets of accommodation, an employee cannot immunize herself from stress and criticism in general.” The employee failed to identify any specific stressors that her supervisor created and that her employer could address through the accommodation process.
When a request for accommodation is patently unreasonable, the employer may not have an obligation to investigate and engage in the interactive process. That is also the case if the demand for accommodation lacks sufficient specificity. While this decision was a good win for employers, it could be risky to ignore the interactive process altogether. In situations involving employees seeking a less stressful work environment due to a medical condition, the employer should start by asking the employee to identify the specific stressors that are causing the medical issues and which the employee is seeking to have eliminated or modified.
Does an employer violate the Americans with Disabilities Act (ADA) if it requires an entire class of employees to undergo a medical examination without assessing each class member’s individual characteristics? Filling a relative void in case law, the Eighth Circuit recently said no – at least where the employer has credible safety concerns and seeks to comply with federal regulations and guidelines. Continue Reading Court Again Approves Safety-Based Medical Examination without Individualized Assessment
According to the Consent Decree filed on November 15, 2016, Georgia Power Company (“Georgia Power”) has agreed to pay $1.6 million and to revise its seizure and drug and alcohol policies in order to settle the lawsuit brought by the EEOC which claimed that the utility company violated the Americans with Disabilities Act (“ADA”) when it fired, or refused to hire, employees with actual or perceived disabilities on the basis that it believed the individuals posed safety threats. However, according to the EEOC, these actions were taken without actually assessing the individual’s ability to perform the required tasks.
In 2013, the EEOC brought suit on behalf of 24 alleged discrimination victims (EEOC v. Georgia Power Company, Civil Action No. 1:13-cv-03225-AT) in the District Court for the Northern District of Georgia, Atlanta Division. According to the EEOC, Georgia Power either refused to hire disabled individuals or barred some employees from returning to work after medical leave because it believed that they couldn’t safely do their jobs. The EEOC claims that Georgia Power ignored the opinions of treating physicians that the individuals were able to perform their job functions, and instead automatically disqualified them without any individualized assessment.
Under the ADA, an employer can deny jobs to individuals with disabilities if it believes the workers pose a “direct threat,” which the ADA defines as “a significant risk” to the health or safety of others that can be eliminated by reasonable accommodation. The employer has the burden of proving that such a threat exists.
According to the EEOC, each of the individual plaintiffs were qualified individuals who were able to perform the job functions with or without reasonable accommodations. For example, plaintiff Harper was able to perform the essential functions of a paid intern, but Georgia Power rescinded the offer of employment after it learned that she was taking medication for a traumatic brain injury. Furthermore, in the case of plaintiffs Simmons, Allen, and Butler, each individual was cleared by a physician to return to work, but instead, their employment was terminated by Georgia Power. See Complaint, pg. 4. The EEOC asserted that each of these individuals were discriminated against because of their disability and that Georgia Power failed to provide any evidence that the individuals posed a “direct threat” to the safety of others.
Georgia Power denies that it violated the ADA, but has entered into the settlement to avoid additional litigation costs.
The take away from this settlement is to ensure that you, as employers, have conducted an individualized assessment for each individual prior to disqualifying them from being able to perform specific job functions.
On October 7, 2016, Dependable Highway Express filed a petition asking the California Supreme Court to review a decision to allow a non-disabled employee to pursue his claim of association based disability discrimination. The employee alleged that he was terminated from employment after he made complaints about changes to his work schedule which impacted his ability to be at home during his disabled son’s treatments. At issue is an appellate court’s decision to reverse a grant of summary judgment given to an employer. In deciding to allow the case to go forward, the appellate court found that a reasonable juror could find that the employee’s complaints, which were close in time to his termination, could be evidence of associational disability under the Fair Employment and Housing Act. As we have reported previously, the California courts continue to grapple with whether a failure to accommodate a non-disabled employee can lead to liability for association discrimination. Under California’s Rules of Court, the California Supreme Court has until December 6, 2016 to decide if it will review the matter or give itself a 30-day extension of time to further consider review. If the California Supreme Court takes no action by December 6, 2016, the petition for review will be deemed denied. We are monitoring this case and will provide an update as more information becomes available.