An employee may take leave under the FMLA to care for a child with a serious health condition, even a child 18 years of age or older who is incapable of self-care due to a disability.  But an employee may not normally take FMLA leave to care for a grandchild.  A recent decision by the Seventh Circuit Court of Appeals has opened the door for an employee to take leave to care for grandchildren as long as the employee also spends time caring for his or her child. Gienapp v. Harbor Crest and Myra Chattic (7th Cir. June 24, 2014).

The plaintiff took FMLA leave to care for her daughter, who was undergoing treatment for thyroid cancer. A month into the plaintiff’s leave, her employer filled her position and, when plaintiff, sought to return to work near the end of her 12 weeks of leave, her employer told her she no longer had a job.

One of the employer’s arguments responding to the FMLA lawsuit was that the plaintiff was not entitled to FMLA leave because she did not “care for” her daughter but, rather, cared for her daughter’s children “reducing the burden on those who were caring for” the daughter.  Noting that the employer had conceded that the employee had cared for the daughter at least for some time, the court framed the issue as follows: “whether a combination of assistance to one’s daughter, plus care of grandchildren that could take a load off the daughter’s mind and feet, counts as ‘care’ under the [FMLA].”

“To this the answer must be yes,” said the court, noting that the “FMLA does not treat care of grandchildren as disqualifying, if the employee also cares for an eligible relative such as a daughter.” The court suggested that caring of the grandchildren may have given plaintiff “a mental boost” and that “[a] person who knows that her family is well looked-after has an important resource in trying to recover from a medical challenge.”

Given the court’s comment that “taking a load off the daughter’s mind and feet” by caring for the daughter’s children is “caring for” the daughter, it is unclear just how much time an employee must care for the adult child during this combination child/grandchild leave for it to qualify under the FMLA.

A local government entity’s request for employee family medical history as part of an annual fitness-for-duty medical exam “clearly violates Title II of GINA,” according to an informal discussion letter from the EEOC Office of Legal Counsel (OLC). The government entity is not identified in the letter.

The question on the medical history form was one every doctor asks of new patients: “Have you or any of your immediate family (father, mother, sister and/or brother) ever had” followed by a list of medical conditions. The OLC noted that while GINA has six exceptions that allow covered entities to request, require, or purchase genetic information, none of these allow an employer or an employer’s health care provider to ask for family medical history as part of an employment-related medical exam.

The OLC also had ADA concerns with the breadth of two questions on the form: (1) “[i]n the past five years, have you been hospitalized overnight for any reason?”; and (2) “[i]n the past twelve months, have you seen a doctor for anything other than routine checkups?”

Noting that while annual fitness-for-duty examinations are allowed for employees in positions affecting public safety, the OLC said that the medical inquiries “must be narrowly tailored to address specific job-related concerns.” This is the same view espoused by the EEOC in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA (Question 18). The two questions above  “will likely result” in the employee’s “revealing far more information than is necessary to address specific job-related concerns,” said the OLC.

Not long ago, the OLC issued a similar letter after reviewing a reasonable accommodation policy, an accommodation request form to be filled out by an employee, and a health care provider questionnaire. As we noted in our post then, the OLC found shortcomings in each of the documents.  Obviously, employers have complete control over their forms and can have strong influence over the forms used by their healthcare providers for employment-related examinations. The general rule concerning employment documentation applies: good documentation is helpful, neutral documentation won’t hurt, and forms with unlawful inquiries not only present a compliance issue but can be harmful in employment litigation amd must be avoided.

 

The issue seems to occur regularly and a recent call for advice prompts me to address it. A supervisor accommodates an employee’s work limitation caused by a medical impairment and life goes on….until a new manager begins and ends the accommodation. 

A federal district court in Illinois addressed a very similar situation In Isbell v. John Crane, Inc. (N.D. IL, March 21, 2014), the plaintiff had been diagnosed with Adult Attention Deficit Disorder and Bipolar Disorder.  Her morning medications “did not kick in until several hours after she awoke,” according to the court. Although her regular shift began at 8:30 a.m., plaintiff began reporting to work at 10 a.m. Her supervisor did not object so long as plaintiff completed her projects on time. Plaintiff’s doctor stated in a note that she “would greatly benefit from a flexible work schedule to accommodate her challenge with focus and attention.”

After reporting to work at 10 a.m. for about two and half years, her supervisor, in response to his new supervisor’s “heightened emphasis on attendance,” established uniform work hours for everyone, including the plaintiff.  Even with a 30 minute grace period, the plaintiff was reporting late and accruing points under the employer’s attendance policy and  was eventually terminated under that policy. 

In granting the plaintiff’s motion for summary judgment on the reasonable accommodation claim, the court stated that “[n]o real reason has been proffered by Crane as to why a new management broom…should be entitled to start by subjecting [plaintiff] to a one-size-fits all timing sweep.” The court noted that the issue was not whether allowing plaintiff to report to work late was a reasonable accommodation but whether “it was reasonable for Crane to withdraw that existing accommodation” and whether continuing that accommodation created an undue hardship for Crane.

This case suggests that the orientation of a new supervisor or manager should include a review of the accommodations being provided in his or her department and that none should be discontinued without considering the ADA implications.  

The recent Tenth Circuit decision in Hwang v. Kansas State University upholding the employer’s inflexible leave policy causes one to ponder the logic of leave as an accommodation under the ADA in a broader sense. When contemplating such issue, the “oxymoronic anomaly” relating to this issue comes to the fore. Just what is this anomaly?

Start with the words of the amended ADA. An employer discriminates on the basis of disability by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.…” A qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (Emphasis added) “Can perform” is in the present tense.

But how can an individual who has been on leave because he or she cannot perform the essential functions of the job, with or without an accommodation, has exhausted all of the leave available under the employer’s policy, and is seeking additional leave because he or she still cannot perform those functions, be a “qualified individual” with a disability, i.e. one who can perform those functions?

Others have recognized this anomaly. “When a period of leave from a job may appropriately be considered an accommodation that enables an employee to perform that job presents a troublesome problem, partly because of the oxymoronic anomaly it harbors…,” observed one judge. “Not working is not a means to perform the job’s essential functions,” observed another.

In rejecting the plaintiff’s claim that she was entitled to more leave than allowed under her employer’s policy as a reasonable accommodation, the Hwang court echoed the same concept: reasonable accommodations “are all about enabling employees to work, not to not work.”

Reports of the demise of inflexible leave policies—leave policies that result in termination if the employee is unable to return to work after a fixed amount of leave – are premature.

The EEOC has sued numerous employers, alleging that their “inflexible leave policies” were unlawful because they did not take into account the possibility of the employer’s providing additional leave as a reasonable accommodation. Those employers have agreed to pay, literally, millions of dollars to settle those cases. We have posted about those settlements. See here.

But now, the U.S. Court of Appeals for the Tenth Circuit has not only rejected the idea that inflexible leave policies are inherently discriminatory, but has gone even further and has recognized that such policies “can serve to protect…the rights of the disabled” by ensuring fair and uniform treatment. Hwang v. Kansas State University (10th Cir. May 29, 2014). The court’s decision may very well be a “tipping point” in ADA inflexible leave law litigation.

Hwang had been granted six months of medical leave under the employer’s inflexible leave policy. When her request for additional leave was denied, she sued under the Rehabilitation Act, a law very similar to the ADA, which prohibits recipients of federal funding from discriminating on the basis of disability. Citing EEOC guidance, she claimed that the inflexible leave policy was inherently discriminatory and that her employer needed to provide her additional leave as a reasonable accommodation. The district court granted the employer’s motion to dismiss her complaint. The Tenth Circuit affirmed that decision.

While most decisions begin with a recitation of the procedural history of the case and the facts, the Tenth Circuit got right to the point. It framed the issue in the opening sentence: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?”

And then immediately answered its question: “Unsurprisingly, the answer is almost always no.” By adding ““unsurprisingly,” the court suggests that not only is “no” the right answer but it is not even a close question.

The Hwang case is replete with quotable quotes supporting the legality and business justification of inflexible leave policies.  The court said that it “perhaps goes without saying that an employee who isn’t capable of working for [six months] isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations–typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work.”  It is “difficult to conceive how an employee’s absence for six months…could be consistent with discharging the essential functions of most any job in the national economy today,” the court added.

The court also said that an inflexible leave policy “can serve to protect rather than threaten the rights of the disabled by ensuring  disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”  The court noted that such policies provide the same positive benefits as a seniority system in that they create and fulfill employee expectations of fair, uniform treatment, introduce an element of due process and limit potential unfairness in personnel decisions.

The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work, the court observed. It does not “turn employers into safety net providers for those who cannot work.”

There will be more to come on this very significant decision.

 

Now that summer is upon us, at least some employees—a small percent, no doubt–may be thinking about how to turn those half day Fridays off into full day Fridays off, or turning two day weekends into three day weekends.   For employees lacking the creativity to develop their own strategies, the internet offers much guidance, such as the recently published piece entitled “the best and worst excuses for calling in sick on those summer Fridays.”

By July 4, more than a few managers will be frustrated with those employees missing in action on Fridays and will be bringing their woes to the human resources department, proclaiming that such employee(s) is engaging in “a pattern of sick leave abuse.” After the required disclaimers about protected leave under the FMLA, ADA and paid sick leave laws, the conversation will likely turn to this question: what is a “a pattern of sick leave abuse” anyway?

Very few attempts have been made to define this all-too-common phenomenon. Two paid sick leave ordinances give some guidance. The Portland, OR Protected Sick Time Ordinance defines it as “repeated use of unscheduled sick time on or adjacent to weekends, holidays, vacation, or pay day, regardless of the number of consecutive days.”   Calling out sick on summer Fridays would likely meet that definition, at least after the “repeatedly” requirement has been satisfied, perhaps by August 1.

The San Francisco Paid Sick Leave Ordinance defines a “pattern of suspected abuse” by providing examples such as an absence when an employee’s vacation request was denied; when an employee is scheduled for an undesirable shift; and on  Mondays or Fridays or days following a holiday. Calling out sick on summer Fridays would likely meet this definition for a couple of reasons, including that being scheduled for summer Fridays may be considered an “undesirable shift.”

I suspect every employer would have additional suggestions to include in the definition,  the suggestions no doubt a result of having engaged with a master sick time abuser. But such a definition would be too long and inevitably omit something. Perhaps “a pattern of sick time abuse” can best be defined with the same words used by former Supreme Court Justice Potter Stewart in a 1964 decision  describing pornography: “I would know it when I see it.”

This, my fourth and last post about the Sixth Circuit’s decision in EEOC v. Ford Motor Company (6th Cir. April 22,2014), deals with the adage, variously attributed to Oscar Wilde, Clare Booth Luce and a host of others, that “no good deed goes unpunished.”

Recall the plaintiff in this case, Harris, a resale buyer, had sought to work from home for up to four days per week. The Sixth Circuit reversed the grant of summary judgment to Ford, holding that the telecommuting request may have been a request for a reasonable accommodation.

First, the good deed. Ford had extended telecommuting options to other resale buyers, “albeit on a more limited basis than Harris’s initial request.”

And then the punishment. The dissent quoted the EEOC’s summary of its position at oral argument: “If that part of the [resale buyer] work is so critical and spontaneous that you can’t predict when it’s going to happen, then it doesn’t make sense for Ford to let anybody telecommute ever. Yet [Ford does] let people telecommute, people doing the exact same job as [Harris] is.”

And then the lesson, as taught by the dissenting judge: “So the lesson for companies from this case is that, if you have a telecommuting policy, you have to let every employee use it to its full extent, even under unequal circumstances, even when it harms your business operations, because if you fail to do so, you could be in violation of the law. Of course, companies will respond to this case by tightening their telecommuting policies …to avoid that legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility…I find this outcome regrettable.”

We have encountered and posted about this “no good deed” leave management lesson previously. In EEOC v. AT&T Corp. (D. IN. November 20, 2013), a federal district court in Indiana rejected an employer’s argument that attendance is an essential function, noting that the company had 22 “formal” leave of absence plans. Perhaps the employer would have fared better if it had no leave policies beyond those required by law.

Of course, for employers who do “good deeds,” the issue now is whether to be deterred by these few “regrettable” outcomes… or to continue to do good deeds anyway.

One more thing about EEOC v. Ford Motor Company (6th Cir. April 22, 2014). (See previous posts about that case here and here.) We have posted about the growing number of court decisions recognizing that the impact on co-workers of a plaintiff’s requested accommodation is a factor in the undue hardship analysis.  See here and here.

The Ford decision has a very clear, likely to be oft-cited, pronouncement on this issue: “A proposed accommodation that burdens other employees may be unreasonable.”  Add that line to the collection of other appellate court pronouncements on this issue, which include:

  • “an accommodation that would require other employees to work harder is unreasonable.”  Mason v. Avaya Communications, Inc. (10th Cir, 2004);
  • an accommodation “that would result in other employees having to work harder or longer hours is not required.” Johnson v Midwest City (10th Cir. 1999); and
  •  an employer need not grant an accommodation that will “increase the difficulty of [plaintiff’s] co-workers’ jobs: EEOC v. United Airlines (10th Cir. 1999).

This growing recognition that the impact on co-workers is part of the “undue hardship” analysis is significant. As a practical matter, the impact on co-workers is often the most significant effect of a requested accommodation. Employers should consider referencing these cases along with those we have posted about previously in position statements, briefs, oral arguments and jury instructions when the undue hardship argument includes the requested accommodation’s “impact on co-workers.” 

The Sixth Circuit’s decision in EEOC v. Ford Motor Company is so rich with disability management lessons that one post just does not do it justice.  So here is my second post on that case. (The first is here.) There will be more to come.

As we have discussed, the Supreme Court of the United States in its 2002 decision in US Airways v. Barnett held that there is a two step process to evaluate whether a requested accommodation is reasonable.  The Court held that an employee has the burden of proving that a requested accommodation is reasonable “in the run of cases” by showing that the accommodation is “reasonable on its face” or, if it is not, that “special circumstances” make the accommodation reasonable in the specific situation (the first step).  If the plaintiff meets this burden, the employer may argue that the proposed accommodation poses an undue hardship on its operation (the second step).

A significant issue in EEOC v. Ford Motor Company was whether a team member’s request to work at home up to four days a week was a request for a reasonable accommodation. One would anticipate that the Barnett “two-step” would be the framework of analysis.  But in Ford, there is no reference to Barnett, and no analysis of whether a team member’s request to work up to four days per week at home is reasonable “in the run of cases” or reasonable “on its face” or whether special circumstances make it so.  Not in the majority opinion and not in the dissent.

Instead, the court used the one-step approach advocated by the EEOC–a requested accommodation is reasonable unless the employer can establish that it is an undue hardship.  As we have posted previously, we refer to the approach of not applying the Barnett “two step” in favor of applying the “one step” as the “Barnett Slide.”

In its 2005 guidance on working at home, or telecommuting, as a reasonable accommodation, the EEOC said that “[m]any employers have discovered the benefits of allowing employees to work at home through telework…programs.” I suspect as many requests to work at home are met with quiet groans by employers as by the excitement of discovering the benefits of telework, especially when a “team” member is making the request. In such a case, one member working at home while the others are in the office can be extremely inconvenient, even an undue hardship, to the employer.

A recent Sixth Circuit decision is likely to lead to more telecommuting requests, and more lawsuits against employers denying these requests. EEOC v. Ford Motor Company (6th Cir. April 22, 2014). It is a “must read” for an employer evaluating a request to telecommute as an accommodation.

The EEOC had brought the suit against Ford on behalf of  Harris, a resale steel buyer, which is an intermediary between steel suppliers and the companies that use steel to produce parts for Ford.  To try to control the symptoms of her irritable bowel syndrome, Harris asked to telecommute “up to four days per week.” Ford argued that “the essence of the job was group problem-solving,” which required that the buyer be available to interact with others, and that her job included meeting with suppliers.  Ford denied the request; the district court granted summary judgment to Ford on the accommodation claim.

In a 2-1 decision, the Sixth Circuit reversed and remanded the case for further proceedings. The court held that the EEOC had produced sufficient evidence to create disputed issues about whether presence at the worksite was an essential function of the job and whether telecommuting was a reasonable accommodation. The court noted that, due to the advance of technology, the workplace can no longer be assumed to mean the employer’s physical location. The court said that that the law must recognize “that the ‘workplace’ is anywhere that an employee can perform her job duties.”

Responding to the dissent’s comment that in 1997, the Sixth Circuit said that it would be an “unusual” case for an employee to survive summary judgment in a telecommuting case, the court said that “given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”