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.

 

Ain’t nothing like it used to be,” wailed the rock band Steppenwolf a few decades ago, and that observation applies as well to the definition of “substantial limitation” under the ADA.  In a case of first impression, the United States Court of Appeals for the Fourth Circuit held that the “substantial limitation” on a major life activity needed to meet the ADA’s definition of “disability” need not be as substantial as it used to be.   Summers v. Altarum Institute, Corporation (4th Cir. January 23, 2014).

The decision comes as no surprise. In 2002, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court held that the terms ‘substantially’ and ‘major’ “need to be interpreted strictly to create a demanding standard for qualifying as disabled” under the ADA. In 2008, Congress passed the ADA Amendments Act, specifically rejecting this “demanding standard” in favor of “broad coverage” and telling courts to find that individuals have a disability “to the maximum extent” permitted by the law. Due to Summers, temporary impairments may be sufficiently “substantially limiting” to support a finding that the individual has a disability.

In Summers, due to an accident, the plaintiff had fractured bones and torn tendons in his legs and knees. His doctors told him that with surgery and physical therapy, he would be unable to walk normally for at least seven months; without surgery and PT, he would be unable to walk normally for at least a year. He had surgery. Six weeks after the plaintiff’s accident, his employer terminated his employment.

In dismissing the plaintiff’s ADA claim, the district court had said that a “temporary condition, even up to a year” was not a substantial enough limitation. In reversing that decision, the Fourth Circuit cited EEOC regulations stating that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” if they are “sufficiently severe.”  The court concluded that being unable to walk for seven months, and even longer without surgery, was sufficiently severe to be “substantially limiting.”

A correctional officer whose doctor restricted her from working the graveyard shift (6 p.m. to 6 a.m.) may pursue her ADA failure to accommodate and constructive discharge claims, according to a federal court in New Mexico. Maes v. City of Espanola (D.N.M. January 13, 2014).

Plaintiff’s doctor wrote that plaintiff’s working the graveyard shift “caused her a number of medical problems including severe insomnia, migraine headaches, and much worsened depression.” Her doctor advised against plaintiff’s working any “sustained” period of graveyard shifts, according to the court. A later doctor’s note said that she would “not tolerate full/graveyard type shift work.”

In addition to rotating 12 hours shifts, correctional officers were also assigned to standby for the shift they were not scheduled to work, on a rotating basis, in weekly increments, to fill in for absences. When the plaintiff was scheduled for a week of graveyard shift standby, she sought to be excused. Her supervisor told her she could line up a replacement but that the standby schedule was her responsibility. While on standby, the plaintiff was called in, reported in, but left before the end of the shift. The next day, her supervisor told her that her leaving early, in effect, was a resignation. While the plaintiff disagreed, the next day, she resigned, stating in her letter that “the stress and, what I consider mental abuse…leaves me no other opton…”

The court denied the employer’s motion for summary judgment on these ADA claims, holding that a jury should decide whether defendants failed to reasonably accommodate plaintiff’s medical condition and whether the circumstances of her discharge were sufficient to be a constructive discharge.

This decision does not discuss a few issues that seem to warrant discussing. The doctor’s note said the plaintiff could not work a “sustained period of graveyard shifts” or “full/graveyard type shift work.” Is working graveyard on standby only working a “sustained” or “full” graveyard shift? A second issue not discussed is whether working the graveyard shift, or rotating shifts, or standby shifts is an essential function of the correction officer position. We have posted about other decisions that addressed that issue here and here. If it were an essential function, the issue would be whether there was an accommodation the employer could provide that would enable to plaintiff to fulfill that function.

A nursing home has settled claims of systemic violations of the Genetic Information Nondiscrimination Act (GINA) brought by the EEOC by agreeing to pay $370,000, the EEOC has announced.  In EEOC v. Founders Pavilion, Inc. (W.D.N.Y., filed May 16, 2013), the EEOC had alleged that the employer violated GINA when the doctor to whom it sent applicants for post-offer/pre-employment medical exams asked them for family medical history. About $110,400 will be distributed to the 138 individuals who were asked for their genetic information. The remainder of the settlement will go to five individuals who claimed they were not hired because they were pregnant or due to perceived disabilities.

The snare that caught this employer awaits many unwary employers and is stuck in the crevice between the medical and employment worlds. The standard practice for treating physicians is to ask patients their family medical history. However, when employers use doctors to provide post-offer/pre-employment physicals or fitness for duty exams, employers must instruct the doctors not to request genetic information, including family medical history. In these circumstances, the doctors are not “treating” a patient, but are evaluating the applicant’s current ability to perform a job and collecting information about their current medical status.

The scope of these employment exams is limited by a variety of employment statutes and regulations, including GINA. The challenge for doctors is to change perspectives from the “treating physician,” where family medical history may be vital, to the occupational physician, where, the EEOC says, family medical history is always irrelevant.

Every time an employer requests a medical exam of or medical documentation from an applicant or employee (including FMLA certification forms), the employer should include a GINA Safe Harbor notice specifically directing the doctor not to ask for genetic information, including family medical history, and not to disclose genetic information that might already be in the doctor’s file (if the doctor is the employee’s treating physician).

 

The plaintiff drove an excavator, which had an automatic transmission. The plaintiff moved the excavator from one jobsite to another by hauling it on a trailer behind a semi-truck, which had a manual transmission. While other employees sometimes hauled the excavator, the plaintiff moved it about 70% of the time. Due to a motorcycle accident, the plaintiff had his left leg amputated. When he sought to return to work, his employer terminated him because he was unable to drive the semi-truck to transport the excavator, which the employer considered to be an essential function of the position. The plaintiff sued under the ADA.

The Sixth Circuit Court of Appeals reversed the district court’s holding that driving the semi-truck was an essential function of the excavator’s job. The appeals court held that a jury should decide whether driving the semi was an essential function because some facts suggested that it was not. These included the transporting the excavator was not on the excavator’s job description but was on that of the truck/tractor position; the excavator’s job description did not list driving a manual transmission vehicle as an essential function; and since the excavator remained at the work site “90% of the time,” hauling it was a “marginal time investment” for the excavator operator. The appeals court also noted that the employer did not seek volunteers to transport the excavator from the truck driver or other excavator operators, suggesting impliedly that the employer should have done so. The employer’s reference in the job description to “other duties as assigned” was not sufficient to establish that it was an essential function, the court held. Henschel v. Claire County Road Commission (6th Cir. December 13, 2013).

 

An employer’s losing a summary judgment motion in an employment case is one thing; for a plaintiff to win summary judgment is quite another. Such was the case in Lafata v. Dearborn Heights School District No. 7 (E.D. MI December 11, 2013), where a court rejected an employer’s defense that it “had a right to rely on” its doctor’s opinion concerning an applicant’s medical restrictions to determine that the applicant could not perform some of the essential functions of the job.

During the post-offer physical, the district’s doctor diagnosed plaintiff with a genetic disorder that causes muscle deterioration and gradual loss of strength. Both the applicant and his personal doctor said that he had sufficient strength to do the job. In his report, the employer’s doctor recommended that plaintiff only do “ground level” work and recommended a lifting restriction. The district withdrew the offer of employment.

In rejecting the employer’s “right to rely” argument, the court said neither the doctor nor the district considered that the plaintiff was then, and had been for ten years, a building superintendent; or the assertion by plaintiff and his doctor that he had sufficient strength to do the job; or whether the employer could provide a reasonable accommodation that would enable him to do the job.

The district “had a duty to review [its doctor’s] report to assure itself that his examination and analysis were thorough and/or reasonable,” according to the court. Since it did not do so, it had “no basis to evaluate whether the restrictions were reasonably based on plaintiff’s actual physical limitations,” the court concluded.

Since there was no evidence to support the district’s position that the applicant could not do the job, with or without accommodation, the court granted summary judgment to the plaintiff.