Rejecting an obese plaintiff’s claim that her employer “regarded” her weight as a physical impairment, a federal district court said that her obesity is no more an impairment that any other physical characteristic, such as, for example, an individual’s neon green mohawk.  Powell v. Gentiva Health Services, Inc. (S.D. AL, February 12, 2014). The court held that both being overweight and having neon green mohawk may be viewed as “undesirable” physical characteristics but are not impairments under the ADA. The court granted summary judgment to the employer on the plaintiff’s ADA claims.

The plaintiff solicited new accounts and promoted hospice referrals for her employer, a provider of hospice services.  She was 5′ 3″ and weighed approximately 230 pounds.  She said that her being overweight was not due to any underlying medical condition, did not contribute to any other medical condition, and did not interfere with her ability to perform her job or care for herself.

 

Whenever a court holds that coming to work is an essential function of an on-site job, it is worthy noting given what seems to be frequent challenges to this common sense principle. In Mecca v. Florida Health Services Center, Inc. (M.D. FL, February 3, 2014). the court held that coming to work is an essential function of a “PICC” nurse. The nurse’s primary responsibility was to insert intravenous catheters through a patient’s vein until its tip rests next to the patient’s heart.

The plaintiff had panic attacks and anxiety and was granted leave numerous times. As an accommodation, he sought to be able “to go home or be absent from work if he was experiencing episodic flare-ups of depression and anxiety/panic making it difficult to function.” The court noted that “a request to arrive at work at any time, without reprimand, is not a reasonable accommodation because it would change the essential functions of a job that requires punctual attendance.”

The court also noted that “indefinite and indeterminable leave is not a reasonable accommodation…[because] [a]n employer does not have to wait indefinitely for an employee’s medical condition to be corrected, especially when it is uncertain whether the condition will improve.” The plaintiff had not provided “any estimate as to when or if his condition will improve.” Because no accommodation would enable the plaintiff to have punctual attendance, he was not a qualified individual with a disability. The court granted the employer’s motion for summary judgment.

We have posted about other decisions concerning attendance as an essential function. See here and here. Employers who believe “regular and predictable attendance” is an essential function of a position(s) should communicate that requirement to employees at every opportunity.

 

The legal principle in this case is interesting; the facts more so. The legal principle first. The court held that an employer can have a policy requiring employees calling out sick to stay at home unless the employee otherwise notifies the department. Corbin v. Town of Palm Beach (S.D. FL, January 23, 2014). The Town of Palm Beach, FL had such a policy; the plaintiff, a firefighter/paramedic for the Town, called out sick but did not stay at home or otherwise notify his employer.

Now the facts, as reported by the court. Between 8 a.m. August 2 and Saturday, August 6, plaintiff was scheduled to work one day, Friday, August 5. On August 2, he rented a car to drive to his grandparents’ home in Macon, GA. The rental agreement indicated that he would return the car on Saturday, August 6. Plaintiff called out “sick” on Friday, August 5 and spent that day at Six Flags Park. He said he stayed in Macon until late Friday because he was sick and, as a result, could not drive back to Florida.

On Friday, August 5, plaintiff’s supervisor made a “verification visit” to plaintiff’s residence. He rang the doorbell; no one answered. He called plaintiff on his cell phone; no one answered. He called plaintiff’s wife on her cell phone; the wife answered and told the supervisor plaintiff was home, sick and asleep. The supervisor asked to speak with the plaintiff.

Plaintiff came to the phone and said he was sleeping when the supervisor had called him. The supervisor told plaintiff that at that moment he was in plaintiff’s driveway and directed him to come to the door or window or “shake a blind” so he could verify plaintiff was home. Plaintiff declined his supervisor’s requests. Their call got disconnected.

Following that, Palm Beach detectives monitored plaintiff’s home to determine whether he was there. On Saturday, August 6, the supervisor knocked on plaintiff’s door and rang the doorbell. No response.

On Saturday evening, plaintiff’s wife and their two children came home. Plaintiff’s wife told detectives that plaintiff had been home sick for two days. Plaintiff then came out of his home and asked why the police were there. Plaintiff said he had been home sick.

During the administrative investigation, plaintiff said that on that Saturday evening, his wife had “dropped him off on the block behind his house and he cut through rear properties to enter his home from the rear.” He said that while driving to Florida, he recalled that there was a party at a park behind his house and he decided to go there rather than going home with his wife and children.

The Town of Palm Beach terminated plaintiff based on the supervisor’s belief that the plaintiff had violated its stay-at-home policy, had engaged in deceit and was insubordinate. The court referred to plaintiff as a “serial sick leave abuser” and granted summary judgment to the employer on all of the plaintiff’s ADA claims.

 

If you are well enough to fish in fishing tournaments, you are well enough to come to work, right? Most employers, I suspect, would agree with that view and would be quite upset to learn that an employee on paid FMLA leave was on the road, fishing in tournaments, earning prize money. But the situation, as reported by NBCChicago, illustrates the challenge in dealing with mental impairments under the FMLA.

The employee was a top administrator in the Illinois Department of Natural Resources (DNR) and a pro fisherman before that. During his more than 3 months of FMLA/ sick leave in 2013, most of which was paid, he fished in numerous out-of state tournaments. He was at a tournament in Florida when he got the call requesting his resignation. DNR officials said they requested his resignation because he violated their policy of working elsewhere while on FMLA. (It is unclear how they would have responded if the administrator was fishing for recreation only.) He resigned.

You might jump to the conclusion that the administrator was not using FMLA leave for its intended purpose. But there is “another side” to the story. The administrator conceded he had been fishing while on sick leave, but produced an email from his doctor indicating that she had “encouraged” him to fish and be involved in fishing tournaments to alleviate his stress related to a medical condition. The administrator also said that DNR administrators “knew full well” where he was and what he was doing.

So what was it? A legitimate use of FMLA for a serious health condition, which required the employer to accept that its administrator could not work but could fish in fishing tournaments? Or a fish story? We’ll never know.

But in this case, the F in FMLA stands for fishing.

In June 2011, the EEOC held a public hearing on leave as a reasonable accommodation under the ADA and suggested it might issue guidance on the topic. We posted previously that waiting for that guidance is like waiting for Beckett’s Godot, where those waiting come to the realization at the end of each day that he is not coming today, he might come tomorrow.

BNA reported that a senior attorney for the EEOC said in a January webinar that is it “somewhat unlikely” that the EEOC  would issue leave guidance during fiscal year 2014. It is not coming this year, it might come next year.

The extent of an employer’s obligation to extend leave and excuse absences as a reasonable accommodation under the ADA is perhaps the most vexing ADA issue for employers. Employers have waited and continue to wait for guidance. And while waiting, every time an employee is on extended leave—after having exhausted FMLA and whatever additional leave the employer provides—the employer will continue to ask: How long must I wait? How long must I wait before filling that long unoccupied position?

In the words of Beckett’s Estragon, “such is life.”

The Supreme Court of the United States agrees to hear—“grants certiorari”—very few cases. Because of this, the maxim has developed that ““it’s a long, long way to certiorari,” a variation of the British music hall song, “It’s a Long Way to Tipperary.” One of the reasons the Supreme Court may agree to hear a case is when different circuit courts of appeals have ruled differently on the same legal issue.

Due to a recent decision by the Seventh Circuit, we now have a “split in the circuits” on whether absences are protected by the FMLA when they are to “care for” a covered family member but do not involve any medical treatment. Ballard v. Chicago Park District (7th Cir. January 28, 2014).

The road to certiorari in this case goes directly through Vegas. It all began with a mother-daughter trip from Chicago to Vegas for the mom’s “end-of-life” trip. The mom was terminally ill. The plaintiff-daughter’s employer terminated her for unauthorized absences related to the trip. The FMLA issue is whether the daughter’s absences were protected by the FMLA because she was “caring for” her mom in Vegas.

While in Vegas, the mother and daughter did Vegas-type activities—they played slots, shopped on the Strip, dined in restaurants. The daughter also helped her mom with her medication. The trip did not include any medical care, therapy or treatment for her mom’s medical condition.

The district court rejected the defendant’s argument that time off to “care for” is only protected when it is connected to the family member’s need for medical treatment. It also held that “where the care takes place has no bearing on whether the employee receives FMLA protections” (For our post on the district court decision, click here.) On appeal, the Seventh Circuit affirmed, rejecting the reasoning of two other circuit courts.

The Seventh Circuit “respectfully part[ed] ways” with the Ninth Circuit and First Circuit decisions which held that some participation in ongoing treatment is necessary to trigger the “caring for” protection under the FMLA. Parsing the words of the FMLA and the DOL’s FMLA regulations, the Court noted that the FMLA does not restrict care to a particular place and does not define “care.” The Court cited the DOL’s regs, which state that being “needed to care for” involves assisting the family member “who is unable to care for his or her own basic….needs.” The Seventh Circuit noted that neither the statute nor the regulations use the term “treatment” in their definition of “care.” Based on this, the Court concluded that “caring for” requires taking care of a covered relation’s “needs,” even if it does not include any medical treatment.

So set your GPS heading for certiorari via Vegas. And while another maxim holds that what happens in Vegas stays in Vegas, if the defendant seeks cert, what happened in Vegas will be scrutinized in D.C., a clear violation of that maxim.

And remember, in the meantime, when it comes to “caring for,” absent medical treatment, circuit matters.

 

Add Philly to the quickly growing list of jurisdictions requiring employers to accommodate pregnant employees.

The Philadelphia Ordinance requires employers, upon request, to reasonably accommodate an employee “for needs related to pregnancy, childbirth, or a related medical condition” unless to do so will cause an undue hardship.

Examples of reasonable accommodation include “restroom breaks, periodic rest for those who stand for long period of time, assistance with manual labor, leave for a period of disability arising from childbirth, reassignment to a vacant position, and job restructuring.”

The Ordinance lists a variety of factors relating to the employer’s overall operations and the facility involved to determine whether an accommodation would be an “undue hardship.” These include: the nature and cost of the accommodation; type of operation, size and financial resources, number of employees, and any other impact on the operation.

In addition, an employer may raise as an affirmative defense to any denial of accommodation claim that the person aggrieved could not, with reasonable accommodations, satisfy the “requisites of the job,” a term which is not defined in the Ordinance.

Concerning the ongoing challenge of integrating local, state and federal laws on the same disability management topic, the Philadelphia Ordinance states that it should not be construed to affect any other law relating to sex or pregnancy discrimination.

Maryland, New Jersey and NYC are some of the more recent jurisdictions to enact similar laws. For our posts on these laws, click here and here.

Expect more states and cities to follow suit, creating a patchwork of laws on this issue, to be followed—when, and if, the political stars align—by a federal law purporting to add a “federal blanket” over the patchwork but, in reality merely adding a patch.

It began in 2013, with Colorado and Washington voting to legalize recreational marijuana. Alaska and Oregon will follow suit in 2014, according to The Kiplinger Letter. Next in line are Arizona, California, Massachusetts, Maine, Montana and Nevada, which are likely to legalize recreational marijuana in 2016, according to Kiplinger’s. And let’s not overlook the possibilities for New Hampshire, where the House of Representatives voted last month to legalize “recreational use.”

As the number of “recreational use” states grows, so will the challenges for employers in those states. Can they still refuse to hire an applicant who tests positive for marijuana? Or fire an employee who tests positive for marijuana? There have been a handful of legal challenges dealing with “medical marijuana” and, thus far, the outcomes have been favorable for employers. Most recently, on January 27, 2014, the Colorado Supreme Court agreed to review a decision which held that an employer did not violate the state’s legal activities law by terminating an employee who used “medical marijuana” off duty. Coats v. Dish Network, No. 13SC394 (CO. Jan. 27, 2014). To read the facts of that case and the appellate court’s decision, click here.

Meanwhile, marijuana remains classified as a Schedule I drug under the federal Controlled Substances Act.

Employers should follow these developments closely. Any diminution of an employer’s ability to enforce a “zero tolerance” policy with regard to substance abuse at work would have significant consequences, especially with regard to safety-sensitive positions.

New Jersey joins the growing number of jurisdictions requiring employers to provide reasonable accommodations to pregnant employees. The law became effective on January 20, 2014.

An employer must provide such an accommodation to a pregnant employee who makes such a request for needs related to pregnancy, and upon the advice of her doctor, unless to do so would be an undue hardship. The law defines “pregnancy” to include pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.

Examples of accommodations listed in the law include; bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.

Factors considered in the “undue hardship” analysis include: the overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget, type of operations, including the composition and structure of the employer’s workforce, the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding, and the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.

Obviously concerned that this reasonable accommodation law would morph into yet another leave law, the law states specifically that it shall not be construed “as otherwise increasing or decreasing any employee’s rights under law to paid or unpaid leave in connection with pregnancy.”

Maryland and NYC are two of the more recent jurisdictions to enact laws requiring an employer to provide reasonable accommodations to pregnant employees. Click here for our post concerning the NYC law.

Under revised Office of Federal Contract Compliance Programs (OFCCP) regulations implementing Section 503 of the Rehabilitation Act of 1973 (Section 503), covering individuals with disabilities, employers must invite job applicants and employees to self-identify their disabilities on a standard “Voluntary Self-Identification of Disability” form prescribed by the agency. Office of Management and Budget (OMB) approved the form on January 22, 2014. The initial draft form was revised after OFCCP received numerous comments from contractors. For additional information, click here.