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.”

Dance professionals would never confuse the “one-step” with the “two-step” and neither should employers when it comes to evaluating the reasonableness of a requested accommodation. The two-step analysis comes from the Supreme Court’s 2002 decision in US Airways, Inc. v. Barnett. The one-step analysis, much less favorable to employers, continues to be advanced by the EEOC in what we refer to as “the Barnett Slide.”

Barnett is the only decision from the United States Supreme Court concerning an employer’s accommodation obligation under the ADA.  In Barnett, the Court held that in filling a vacancy, granting a preference to a disabled employee over more senior employees was not “reasonable in the run of cases” and such accommodation requests are unreasonable absent “special circumstances.”  In accommodation cases, 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).

Despite Barnett, the EEOC seems to continue to advocate a “one-step” analysis—an accommodation is reasonable unless the employer can prove it is an undue hardship. In a recent letter from the EEOC Office of Legal Counsel, the OLC stated “[w]hether leave granted as a reasonable accommodation is “excessive” must be determined by considering whether it imposes an undue hardship” and notes in a footnote that “[t]he EEOC regards the length of leave as an issue of undue hardship.” No reference to the Barnett two-step. Also, we posted recently about an EEOC Commissioner’s suggestion that additional job-protected leave is “always” reasonable because it is “plausible.”  Again, no reference to the Supreme Court’s two-step analysis.

Given that the highest court in the land has already decreed that the two-step analysis applies to requests for accommodations under the ADA, the legal authority for the “Barnett Slide” is unclear, at best. In position statements, pleadings and jury instructions, employers should follow the two-step analysis and avoid the “Barnett Slide” into a one-step analysis.

To add structure to the often amorphous process of obtaining and evaluating requests for accommodations, employers seeking compliance, efficiency and consistency have developed forms to assist their efforts. In an EEOC Office of Legal Counsel (OLC) “informal discussion letter” replete with cautions for those employers, the OLC said: “The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer.” (emphasis supplied).  Translated: if you are using an all purpose, one-size-fits-all “request for accommodation” form, it may have some unlawful questions.

The OLC had been asked to review a reasonable accommodation policy, an accommodation request form to be filled out by an employee, and a health care provider questionnaire. With regard to such forms, the OLC said that “employers should consider the purpose behind each question on the form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Any question that does not address at least one of these issues should be carefully reviewed to determine whether the information requested is necessary to enable the employer to determine the need for a reasonable accommodation, especially if it is a disability-related question.”

The OLC found shortcomings in each of the three documents. For example, the OLC questioned the statement in the policy that “unscheduled” leave is not a reasonable accommodation since “[i]t is highly unlikely that an employer could deny unscheduled leave in all cases.” The OLC also noted that requiring each employee who requests an accommodation to complete the request form “will violate the ADA in most, if not all, instances” because “an employer cannot justify routinely asking individuals requesting a reasonable accommodation to divulge in detail their treatment plans.” The OLC also noted that the form asked employees to address the need for accommodations they have not requested. Some questions asked about an employee’s ability to work a normal schedule, which is irrelevant if the accommodation sought is modified equipment.

As for positive guidance, a form could ask “in plain English” information about the nature of the requestor’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; the way in which the activities are affected; and “the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition,” the OLC stated.

A form could also ask “how an accommodation would assist the individual to apply for a job, perform the job’s essential functions or enjoy equal access to the benefits or privileges of employment,” the OLC said.

Many employers use forms in administering accommodation requests. Since this OLC letter is the most focused guidance concerning the use of such forms, employers should analyze each of the questions on their forms using the guidance in this letter.

The ADA lesson from this case goes beyond limitations related to golf and sex.

The day after the plaintiff told his employer that he had scheduled his back surgery, the employer terminated him. The plaintiff sued, claiming that his termination violated the ADA. Based in part on the plaintiff’s deposition testimony that “his back problems only affected his ability to play golf and have sex,” the district court held that plaintiff had not established that he had a “disability” or was “regarded as” having a disability and granted summary judgment to the employer on the ADA claim.

Reversing that decision, the Eleventh Circuit  Court of Appeals held that the district court erred by relying on the plaintiff’s testimony about his golf and sex limitations because it was “unclear” whether this testimony referred to the plaintiff’s limitations before his operation or after his operation/termination.  Mazzeo v. Color Resolutions Int’l, LLC (11th Cir. March 31, 2014).  To establish a prima facie case of discrimination under the ADA, “a plaintiff must show that, at the time of the adverse employment action, he had a disability…,” the court said (emphasis added). “The questions that were posed to [the plaintiff] did not contain a specific time frame,” the court noted.

Unlike the deposition testimony, the ADA lesson here is clear: when evaluating the limitations caused by a plaintiff’s physical or mental impairment, the focus must be on the nature and extent of the limitations at the time of the adverse employment action.

An employee’s inability to sit for a prolonged period may be a disability under the ADA, according to the United States Court of Appeals for the Second Circuit. Parada v. Banco Industrial de Venezuela, C.A., et al (2nd Cir, March 25, 2014). Reversing a grant of summary judgment to the employer, the Court said that a categorical determination that an inability to sit for a period of time cannot be a disability is unwarranted.

Soon after starting her employment, the plaintiff, who had a largely sedentary job, fell and hurt her back severely enough that she could no longer sit for prolonged periods. Her medical reports stated that she could only sit for 10 or 15 minutes at a time. As a result, she stood for parts of the workday and iced her neck and back. She requested an ergonomic chair a number of times. Having not received any response to her request, she went on leave. Five months later, more than a month after her application for long term benefits was denied, the company terminated her employment. The plaintiff sued, claiming her employer had violated the ADA by ignoring her requests for a reasonable accommodation of her back injury and by terminating her employment.

The court noted that some district courts had mistakenly interpreted its holding in Colwell v.Suffolk County Police Department (2nd Cir 1998) to mean that the major life activity of sitting is substantially limiting only, as one court said, “if the plaintiff’s impairment precludes him from sitting at all, not if the plaintiff’s impairment merely makes it more difficult to sit.” Such a “categorical rule” would conflict with the ADA injunction to do a fact-specific inquiry to determine whether an impairment substantially limits a major life activity, the court said.