Can an employer be liable for retaliation under the Rehabilitation Act when it denies a non-disabled pregnant employee’s request to work from home? In Wonasue v. University of Maryland Alumni Association (D. Md. November 22, 2013), the District Court of Maryland says it can when the denial is accompanied by a warning that the employee needs to commit herself to full time work.

The plaintiff, the executive manager of the Alumni Association, went to the emergency room because she was having “early sickness symptoms” associated with pregnancy. At the emergency room, she was diagnosed with hyperemesis, a severe form of morning sickness where excessive vomiting can cause dehydration and chemical imbalances. The emergency room doctor released her to return to work without any restrictions.

When the employee returned to work, she asked if she could work some days from home or take a leave of absence. Her supervisor denied her request and refused to read the medical discharge papers that the employee offered her. The supervisor reminded the employee of the full time nature of her job duties and told her that she needed to think about what she wanted to do if she could not commit herself fully to her job.

Within days, the employee resigned and brought a variety of legal claims, including discrimination based on her disability—the severe morning sickness—and retaliation against her for requesting accommodations for her pregnancy. The court held that since the emergency room doctor released her to return to work without any restrictions, the plaintiff’s severe morning sickness was not a disability and, thus, she was not entitled to any accommodation.

Concerning the retaliation claim, the court determined that this statement that plaintiff needed to think about her future if she could not commit fully to her job could be construed as a verbal warning. This statement, when added to the denial of her request to work from home or take leave, “might well have dissuaded” a reasonable worker from making or supporting a discrimination charge. Based on this, the court allowed the employee’s retaliation claim to proceed even though the employee was not disabled and was not entitled to an accommodation at the time of her request.

Allegations concerning an employer’s pre-FMLA leave comments were sufficient to plead an FMLA “discouraging” claim, according to a federal district court in New York. Bailey Stoler et al v. Institute For Integrative Nutrition and Joshua Rosenthal (S.D.N.Y. November 18, 2013). In this putative class action complaint, the plaintiffs alleged that defendants consider female employees’ potential to have children when making employment decisions. 

The FMLA regulations prohibit an employer from discouraging an employee from taking FMLA leave. Doing so, according to the regs, is a form of FMLA interference. Few decisions discuss this “discouraging” theory.

In denying the motion to dismiss concerning discouragement, the court pointed to comments to one plaintiff prior to her leave “that she should consider her priorities in planning her leave and return to work” and that “her position might change when she returned.” The plaintiff also alleged that the employer told her while she was on leave that her position might change. “Taken in totality, it is plausible that such comments were designed to coerce [the employee] to leave her employment or to discourage [the employee] from using her leave,” according to the court. 

The court also held that a request for “maternity leave” is a sufficient request for FMLA leave.  The court also rejected the argument that the employee did not have the FMLA right to be restored to her former position because she extended her leave—with her employer’s permission—an additional two weeks beyond the 12 weeks of FMLA leave.

Among the plaintiffs’ allegations are that defendants  created a “Maternity Projection” chart”, which “used each employee’s age, marital status, and maternal status to determine how soon the employee was likely to have a child.”

A federal district court in Indiana has rejected an employer’s argument that attendance is an essential function, citing two reasons for denying summary judgment: that the job description “is silent as to whether attendance is an essential function” and that the company has 22 “formal” leave of absence plans. EEOC v. AT&T Corp. (D. IN. November 20, 2013).

The message to employers concerning job descriptions is clear: each job description should state that regular and predictable attendance is an essential function of the job, assuming that is the case. That same message should be delivered regularly—in offer letters, orientation, work rules and performance evaluations.

The court’s reliance on the employer’s 22 leave plans presents a greater challenge. It creates a “Catch-22” for employers. The more generous an employer’s leave policies, the more likely attendance is not an essential job function, the argument goes. The fewer leave plans an employer has, the more likely attendance is an essential function.  Public policy should encourage employers to grant leaves beyond what the law requires.  In using a generous leave policy against an employer, the phrase “no good deed goes unpunished” comes to mind.

 

Perhaps we should take a lesson from the UK. Faced with a “three-decade-old body of law, featuring nine antidiscrimination laws” which some described as “outdated, fragmented, inconsistent, inadequate, inaccessible, and at times incomprehensible,” a research team in 2000 recommended a single equality act, according to a recent Vanderbilt Law Review article.  That single equality act was enacted in 2010.

The adjectives used to describe the UK’s antidiscrimination law describe perfectly the patchwork of leave laws in the US. More than 450 federal, state and local laws give employees the right not to come to work for a variety of reasons. As I have written previously, the issue is not the social policy behind any of these laws. The issue is that they present a significant compliance challenge for employers, especially multistate employers.

Try to draft a single attendance policy that would meet the requirements of the federal FMLA, all of the state family and medical leave laws, the ADA, federal and state pregnancy leave laws, and all of the seven jurisdictions that have paid sick leave laws. The result would be a leave policy that goes on for dozens of pages, a challenge to digest and apply for even the heartiest policy wonk.

Being a realist, I do not anticipate the US would ever be able to reach a single model leave law incorporating both federal and state laws. But drafting a model state leave law may be possible.  Reconciling the model leave law with federal law would remain a challenge, but a much more manageable one than we have today.  And when companies consider where to move or expand, an enlightened state that has adopted the model leave law might just have an advantage,
 

"Approved." Due to an email containing that single word, the Eleventh Circuit Court of Appeals found itself addressing an FMLA issue that is somewhat of a paradox–whether to expand FMLA coverage to absences not covered by the FMLA…when an employer has approved FMLA leave for the uncovered absence.  Put in a legal framework, the issue is whether there is a federal common law equitable estoppel cause of action that would prevent an employer from denying an employee’s eligibility for FMLA coverage even when there is no dispute that the reason for leave is not covered by the FMLA. Dawkins v. Fulton County Government (11th Cir. September 30, 2013).

It all began when the plaintiff sent her supervisor an email, requesting time off to assist her father who was dealing with his brother’s grave health condition.  Leave for this reason is not covered by the FMLA. In her request, the employee had asked that the FMLA packet be sent to a particular address. 

The supervisor promptly emailed a one-word response to the plaintiff’s request: Approved.  When the employer rescinded the plaintiff’s temporary assignment because of her absences, she claimed it was in retaliation for taking FMLA leave.  The employer argued that since the reason for leave was not covered by the FMLA, the plaintiff was not entitled to the FMLA’s protection.

The Eleventh Circuit held that even if a federal common law claim of equitable estoppel were to exist with regard to the FMLA, the plaintiff would not have such a claim because she did assert that she relied on any misrepresentation or that her reliance was both reasonable and to her detriment. The decision also notes the four circuits that have recognized such a cause of action—the Second, Fifth, Sixth and Eighth—while four other circuits—First, Seventh, Ninth and Tenth Circuits—have considered the issue but have not decided whether such a cause of action exists.

 

Denying a school district summary judgment on the plaintiff’s ADA claim, a court held that plaintiff’s anxiety and depression, “likely stemming from her concerns about possibly getting fired,” may be a disability under the ADA. Huiner v. Arlington School District, (D.SD, Sept. 26, 2013).

The plaintiff, a teacher, had been placed on a performance improvement plan. Her failure to successfully complete the plan could lead to the nonrenewal of her contract, effectively the termination of her employment. As a result of being placed on the plan, plaintiff claimed that she was unable to “maintain her nutritional needs,” was having difficulty caring for her children and had sleep pattern deficits. 

Noting the ADAAA’s “relaxed standards” for determining what is a disability, the court rejected the school district’s argument that plaintiff had not produced evidence that her anxiety substantially limits one of her major life activities. 

 

And then there were seven. Seven patches in the developing “paid sick leave” patchwork that we presaged months ago. It started with San Francisco in 2007. Then the District of Columbia, Connecticut, Seattle, Portland, OR, and  NYC . Now, add the Jersey City, N.J. patch.

The Jersey City variation requires employers with at least 10 employees to accrue an hour of paid sick time for every 30 hours worked, and smaller employers to accrue an hour of unpaid sick time for every 30 hours of work. The ordinance states specifically that an employer’s “absence control policy” may not count paid sick time taken under it as an absence, which means an employer must close its eyes to these absences as it must to those taken pursuant to the FMLA. 

Employees must give notice of the need to use sick time “as soon as practicable.” Accrued sick time may be used in the smallest increment that the employer’s payroll system uses to account for absences or use of other time, or one hour, whichever is less.

The ordinance has the usual prohibitions. An employer may not restrain or interfere with an employee’s exercise of rights under the ordinance or retaliate against someone who does. 

To be clear, the patchwork challenge has nothing to do with the social question of whether there should or should not be paid sick days. The challenge is the proliferation of leave and attendance laws and how they interact with each other. Does the time off under paid sick day laws run concurrent with time off under these other leave-and-attendance laws or is it “stacked” on top of those laws? 

Rest assured, we will soon be discussing the eighth patch in the patchwork!
 

A California employer may not prohibit an employee from providing voluntary emergency medical services, such as CPR, in response to a medical emergency, according to a law approved by the Governor last week. 

The law has a few caveats. An employer may have a policy authorizing trained employees to provide those services but, even with such a policy, any available employee may voluntarily provide those services if a trained and authorized employee is not “immediately available” or is otherwise unable or unwilling to do so.

Also, an employer may prohibit an employee from performing emergency medical services on a person who has expressed the desire to forgo resuscitation or other medical intervention through any legally recognized means such as an advance health care directive or legally recognized health care decision-maker.

The law notes specifically that it does not impose any duty on an employer to train employees regarding emergency medical services or CPR.
 

As I read and re-read the OFCCP’s14 points of guidance to employers interested in establishing a “best practice” reasonable accommodation program, Appendix B to the Section 503 regulations   issued in August, I had a déjà vu moment. I kept thinking that I had previously read something remarkably similar to the 14 points.

It finally came to me.  In response to an Executive Order requiring agencies to adopt reasonable accommodation policies for their employees, the EEOC has adopted “Procedures For Providing Reasonable Accommodation For Individuals with Disabilities.”  All of the OFCCP’s suggested 14 points, in substance, are in the EEOC’s Procedures, albeit with a few modifications.

For example, the OFCCP’s guidance says that if supporting medical documentation is not needed, a request for a reasonable accommodation should be processed within 5 to 10 business days. If medical documentation is needed or special equipment must be ordered, the request should be processed within 30 calendar days, absent extenuating circumstances beyond the contractor’s control.

The EEOC has up to three times longer to process requests for accommodation. Its policy states that requests will be processed as soon as possible “but no later than 30 business days from the date the request is made.” Also, if the agency requests information from the requester’s doctor, the time counting stops on the day the request is made and resumes when the information is received. Any employer who has requested medical information in connection with a reasonable accommodation request knows that it can take some time, and multiple follow up calls, to obtain a response from the health care provider, The EEOC’s method of counting time for its own employees is more favorable that the OFCCP’s suggested time frame for contractors.

The OFCCP guidance also recommends that if a contractor’s processing of a request will exceed the established timeframes, that the contractor provide a signed and dated written notice to the requester, indicating the reason for the delay and projected date of a response. The EEOC Procedures do not have such a requirement.

Finally, the OFCCP guidance suggests contractors provide annual training to supervisors and managers. The EEOC Procedures do not address this topic.