On December 22, 2016, the United States Court of Appeals for the Eighth Circuit issued an opinion in the case of Oehmke v. Medtronic, Inc., Case No. 16-1052, affirming the district court’s grant of summary judgment in favor of the defendant/employer on plaintiff’s claims of disability discrimination and retaliation under the Americans with Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA).  In its opinion, the Eighth Circuit analyzed the plaintiff’s disability discrimination claim under a mixed-motive causation standard, meaning that the Court would allow the plaintiff’s claim to proceed if it found evidence that the adverse employment action was motivated by both permissible and impermissible factors.  In other words, under a mixed-motive analysis, if a discriminatory intent contributed in any way to the adverse employment action, a plaintiff can establish the causation element of a claim for disability discrimination.   Continue Reading Eighth Circuit Leaves Open the Question of Whether a “Mixed-Motive” or “But-For” Causation Standard Should be Applied to Disability Discrimination Claims Under the ADA

ACaliforniare you sick of sick leave yet? Beginning on January 1, 2017, the new paid sick leave provisions under Santa Monica City’s recently adopted Minimum Wage and Sick Leave law will go into effect.  Since our California Workplace Law Blog article first outlined key provisions of the law, the ordinance was amended later this year, and importantly moved the effective date from July 1, 2016, to January 1, 2017 for the sick leave provisions.

As of January 1, 2017, smaller employers with 25 or fewer employees are required to provide at least 32 hours of paid sick leave, and larger employers with 26 or more employees are required to provide at least 40 hours of paid sick leave. As of January 1, 2018, these numbers will jump to 40 hours and 72 hours, respectively, according to the amendments.

Here are the key highlights of the effective version of the Santa Monica sick leave provisions:

  • Requires paid sick leave for employees who perform at least two hours of work per week within the City of Santa Monica and are entitled to payment of a minimum wage under the California Labor Code and wage orders published by the California Industrial Welfare Commission.
  • Accrual rate is one hour for every 30 hours worked.
  • Employers can cap accrual and limit the annual carryover of accrued sick leave (whether calendar year, fiscal year, or year of employment): 32 hours for small businesses, 40 hours for larger businesses for 2017. [Caution: Santa Monica permits lower accrual caps in 2017 than the 48 hours or 6 days required under State law, although employers still must comply with State law.]
  • No accrual or carryover is required if the full amount of leave required by the ordinance is provided at the beginning of each year (whether calendar year, fiscal year, or year of employment). [Thus, while State law permits a grant of 3 days or 24 hours, Santa Monica’s ordinance requires the grant be at least 32 hours for smaller employers and 40 hours for larger employers in 2017; these numbers increase to 40 hours and 72 hours, respectively, in 2018.]
  • Employers may prohibit use of sick leave until the 90th day of employment.
  • Employers are not required to pay out unused paid sick leave upon an employee’s termination, resignation, retirement, or other separation from employment, as long as the sick leave is offered separately from any paid time off or vacation plan.

For links to Santa Monica’s new law itself, further details, fact sheets, charts, legal notices, and other information, visit Santa Monica’s Minimum Wage and Sick Leave Website.  All employers operating in Santa Monica should carefully review their policies and practices related to paid sick leave.

Perhaps not, according to the First Circuit Court of Appeals. Not all retaliation is the same, the court reminds us in its December 14, 2016 decision in Chase v. U.S. Postal Service. Evidence that a supervisor retaliated because of an employee’s workers’ compensation claim does not itself prove the supervisor also retaliated because the employee took concurrent leave under the Family and Medical Leave Act (FMLA). Mocking an employee’s allegedly fake injury does not necessarily show hostility toward use of FMLA leave. Continue Reading Does Calling Someone an “Injury Compensation Specialist” Prove FMLA Retaliation?

The Equal Employment Opportunity Commission (EEOC) suffered a setback in its attempt to establish that the Americans With Disabilities Act (ADA) requires an employer to reassign an employee to an available position without having to compete with other candidates for that position.  In EEOC v. St. Joseph’s Hospital, the Eleventh Circuit Court of Appeals held that a Florida District Court correctly interpreted the ADA when it held that there is no mandate for noncompetitive reassignment as an accommodation.

The case involved a disabled nurse who sought accommodation under the ADA because she required the use of a cane.  The plaintiff could not continue working in her existing position while using a cane because it was a safety hazard and she therefore sought reassignment to another unit in the Hospital.  She was given the opportunity to apply for other jobs in the Hospital but she had to compete with other candidates for them.  The plaintiff did not meet the Hospital’s requirement for internal candidates to have been in their position for 6 months and to have no final written warnings.  The Hospital agreed to waive these requirements as an accommodation.  The nurse applied for seven positions and the EEOC argued that she was qualified for three of them.  For various reasons the Hospital determined that other candidates were better qualified and the plaintiff was not selected.  When she did not obtain another position, the Hospital terminated her employment.  The EEOC filed suit claiming the Hospital violated the ADA by not reassigning the plaintiff to a vacant position without requiring her to compete with other applicants for those jobs.

The court found that plaintiff was disabled and that she was qualified with respect to the jobs she was seeking.  However, the court concluded that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.”  The court acknowledged that reassignment to a vacant position is a potential accommodation that may be reasonable in some circumstances.  The court compared the Hospital’s policy to hire the best-qualified applicant to seniority systems.  Previous cases have held that it would be unreasonable to require an employer to reassign disabled workers in contravention of its seniority system.  Similarly, the court stated that “passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.” As such, the Hospital should not be required to undermine its policy requiring the best qualified candidate to be selected for a position.

The ruling is good news for employers with employees in the Eleventh Circuit who have a desire to fill positions with the most qualified candidate. An employee whose disability prevents him or her from continuing to work in his/her original position will not need to be automatically reassigned to a vacant position just by showing minimum qualifications.  However, employers will be wise to approach such situations carefully, and not simply as “business as usual.”  The Eleventh Circuit’s ruling contemplated that there might be situations (“special circumstances”) where a non-competitive reassignment would be required as a reasonable accommodation.  Indeed, while the lower court here found that the Hospital was not required to reassign the nurse without competition as a matter of law, the court went ahead and held a jury trial on the issue.  Moreover, other courts of appeal have ruled differently and, given the split in the circuits, this issue may eventually  make its way to the Supreme Court.  We also believe that the EEOC will continue to expect reassignment be based only on minimal qualifications.  In short, the dynamics of reassignment continue to be challenging and it is best to work with legal counsel with ADA expertise to navigate these choppy waters.

In continuation of its series of “resource” documents which provide guidance to individuals with medical conditions or work restrictions, on December 12, 2016, the EEOC issued a “resource” document titled “Depression, PTSD, and Other Mental Health Conditions in the Workplace: Your Legal Rights” which is intended to provide guidance on workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (“ADA”).

In a news release regarding the document, the EEOC stated that discrimination charges based on mental health conditions are rising, and that the agency resolved approximately 5,000 charges relating to mental health conditions in 2016. https://www.eeoc.gov//eeoc/newsroom/release/12-12-16a.cfm.  As a result, the EEOC determined that a user-friendly explanation of the rights of individuals with mental health conditions was warranted.  The document highlights the fact that individuals who are suffering from depression, post-traumatic stress disorder or other mental health conditions are protected, under the ADA, against discrimination and harassment at work because of their condition.  Furthermore, these individuals have a right to request reasonable accommodations that can assist them in performing their job.  The EEOC even provides a related resource for the individual’s mental health care provider titled “Mental Health Provider’s Role in Request for Reasonable Accommodation at Work” which is intended to guide mental health care providers in how to provide supporting documentation for a reasonable accommodation to an employer.

The resource document for the individual is laid out in a question and answer format that outlines the protections and rights of individuals with mental health issues.  For example, the document provides information on when an employer can fire the employee because of a mental health condition, i.e., when the employee poses a direct threat to safety, the general limits on the employer’s ability to ask medical questions, and how to ask for a reasonable accommodation.

The resource document also provides guidance on when a request for a reasonable accommodation under the ADA is appropriate. However, one sentence that may give employers and employment counsel heartburn is the EEOC’s statement qualifying “substantially limiting.” The EEOC states that a condition may qualify by “for example, making activities more difficult, uncomfortable, or time-consuming to perform…”  This “uncomfortable” language is new and is not included in the regulations.  Only time will tell whether employees latch on to it in their reasonable accommodation requests.

At North Pole Enterprises, the company’s entire existence is dependent upon a single delivery on the night of December 24. On December 23, Santa Claus, the only licensed delivery driver at North Pole Enterprises, injures his back while loading packages in his “truck.”  Later that day, Mr. Claus contacts the Human Resources Department at North Pole Enterprises and requests FMLA leave because his chiropractor has placed him on bed rest for two weeks.  Can North Pole Enterprises deny Santa Claus’ request for FMLA leave under the key employee provision?

The simple answer to this question is no, North Pole Enterprises cannot use the key employee provision to deny the leave request. One common misconception under the FMLA is that leave can be denied to a key employee.  In reality, the key employee provision in the FMLA allows an employer to deny reinstatement under certain very limited circumstances, but does not serve as a basis to deny the leave request.  In fact, the FMLA regulations indicate that an employee who chooses to remain on leave after receiving notice that reinstatement will be denied under the key employee provision is still entitled to the other benefits of being on FMLA leave.  29 C.F.R. § 825.219(c).

While the key employee provision would not provide North Pole Enterprises with a basis to deny Santa Claus’ requested leave, it may allow the company to deny reinstatement to him. However, the requirements of the key employee provision are very stringent.  First, the employee must be a “key employee,” which means a salaried employee in the highest paid 10 percent of all employees within 75 miles of the worksite.  29 C.F.R. § 825.217.  Second, the employer must determine that the reinstatement of the key employee following FMLA leave will cause “substantial and grievous economic injury” to the operations of the employer.  29 C.F.R. § 825.218.  Importantly, as the Department of Labor notes in its publication on Key Employees and Their Rights, the substantial and grievous economic injury must result from the reinstatement of the employee and not the employee’s absence from work.  Finally, the employer must strictly comply with the written notice requirements set forth in 29 C.F.R. § 825.219 or will lose its right to deny reinstatement to the key employee.

Employers faced with a request for FMLA leave from a key employee must carefully analyze the economics of the situation before denying reinstatement under the key employee provision. In doing so, it is important to keep in mind that (1) the FMLA regulations clearly state that the “substantial and grievous economic injury” standard is more stringent than the undue hardship test under the ADA (29 C.F.R. § 825.218(d)) and (2) should litigation ensue, the employer will have the burden of proving that reinstatement of the key employee will result in such substantial and grievous economic injury (Kephart v. Cherokee County, North Carolina, Case No. 99-1789 (4th Circuit, Aug. 4, 2000)).  For these reasons, employers are strongly encouraged to consult with outside counsel before invoking the key employee provision.

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.