A new law gives Vermont employees the right to request "a  flexible work arrangement" for any reason and requires the employer to consider such a request "at least twice per calendar year."

A "flexible work arrangement" is defined as "intermediate or long-term changes in the employee’s regular working arrangements, including changes in the number of days or hours worked, changes in the time the employee arrives at or departs from work, work from home, or job-sharing."

When given a request, the employer must discuss it in good faith with the employee, an interactive dialogue of sorts. The employer must grant the request if it is "not inconsistent with business operations or its legal or contractual obligations,"  a term somewhat akin to "undue hardship."  The law list eight reasons a request might be "inconsistent with business operations." They include that the flexible schedule would result in additional costs or in an inability to reorganize work among existing staff, or have a detrimental effect on "aggregate employee morale,"  on the employer’s ability to meet consumer demand, or on "business quality  or business performance."

 The law is part of an equal pay law, which amends the state’s equal pay law and also gives employees the right to take unpaid leave to attend his or her town meeting if it would not conflict with "the essential operation" of the employer’s  business.

For additional information concerning this law, click here.

A plaintiff’s claim that she was constructively discharged because her employer refused to transfer her to an office closer to the place where she received therapy to deal with the pain caused by her arthritis has survived her employer’s motion to dismiss.

The plaintiff worked in the home office of a child welfare agency.  She asked the agency to accommodate her arthritic condition by transferring her to a field office closer to where she received therapy for her condition. This would enable to her to work a full day and then attend therapy after work. According to the court, the change in location would not have affected plaintiff’s ability to fulfill her responsibilities.  Blickle v. Illinois Dep’t of Children and Family Services (N.D. Ill. June 7, 2013)

Nine months after her unsuccessful request for a change of worksite, the pain that resulted from her being unable to see her therapist as a result of the location of the home office led the 70 year old plaintiff to retire. In denying the motion to dismiss the ADA constructive discharge claim, the court held that a jury could find that “a reasonable person would resign instead of enduring severe pain to perform his or her job."

Numerous ADA accommodation cases involve a request for a schedule change  to enable an employee to obtain medical treatment. Fewer involve a request for a change of worksite.  As this case illustrates, changing an employee’s worksite to enable the employee to obtain medical treatment may be a reasonable accommodation in some circumstances.
 

It comes down to the definition of "medical condition." The Pregnancy Discrimination Act, an amendment to Title VII,  prohibits discrimination based on "pregnancy, childbirth, or related medical conditions." Lactation is none of these, a federal district court held last year, granting summary judgment to the employer. See our post of that decision here.

Reversing that decision, the  Fifth Circuit Court of Appeals has held that lactation is a "medical condition" for purposes of the PDA.   Noting that a medical dictionary definition of  "medical condition" includes a "physiological condition," the Court said that  "it is difficult to see how [the definition of "medical condition’}  could not encompass lactation." EEOC v. Houston Funding II, Ltd  (5th Cir. May 30, 2013).

The EEOC alleged the employer had fired the plaintiff because she wanted to pump breast milk at work. The case was remanded to the district court.
 

Is a resignation a request for FMLA  leave? Of course not most would say, but it  depends on whether you ascribe to words their plain meanings.  One of the more well-known  exchanges concerning the meaning of words occurred between Humpty Dumpty and Alice in "Through the Looking Glass."

“When I use a word…‘it means just what I choose it to mean — neither more nor less," Humpty said. "The question is"’ said Alice,"‘whether you can make words mean so many different things."

The Sixth Circuit rejected recently a plaintiff’s  claim that her employer should have interpreted her statement that she was not coming back to work and her one line  "I am resigning" letter as a request for FMLA leave.  Obviously ascribing the plain meaning to the plain words used by the plaintiff to communicate her resignation,   the court said that the plaintiff’s contention  "rings hollow."   To paraphrase Alice, words can mean many things, but  "I am resigning" is not a request for  FMLA leave.  Miles v. Nashville Elec. Serv. (6th Cir. May 19, 2013).

The employee had taken a month long medical leave.  Upon her return from leave, she provided a doctor’s note stating that she could return to work without restriction.  On plaintiff’s  first day back to work, her supervisor granted her request to leave early.  The next morning, the plaintiff called her supervisor and said she was not coming back to work.   That same day, she gave her supervisor the one-line resignation letter.

For additional information about this case, click here.

 

In a case with facts more akin to a soap opera than a lawsuit, a federal court in Michigan granted summary judgment to an employer, WLAA, who required an emergency medical technician to undergo psychological counseling as a condition of continued employment. Kroll v. White Lake Ambulance Authority, (W.D. Mich., May 22, 2013)

Summary judgment was first granted in August 2010 on the basis that psychological counseling is not a medical examination. However, the Sixth Circuit Court of Appeals reversed and remanded, holding that there was sufficient evidence for a jury to find the counseling to be a medical exam under the ADA and therefore subject to the “job-related and consistent with business necessity” requirement.

On May 22, 2013, the district court considered the case again, this time granting summary judgment for WLAA on the basis that the directive to receive psychological counseling was job related and consistent with business necessity.

An employer may require a medical examination where it has a reasonable belief based on objective evidence that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.

Here, according to the decision, Kroll had a tumultuous affair with a married coworker, Easton. The two often became jealous of one another, leading Easton to check Kroll’s text messages and even hack into her email account. Other employees began voicing concerns about Kroll’s mental and emotional health. Some said they thought Kroll was suicidal and that they often found her crying. Also, employees reported that Kroll often fought with Easton via texting and calls, sometimes while crying, while driving the ambulance. Kroll was also reported to have refused to give a patient oxygen when asked to do so by another alleged girlfriend of Easton. Based on these reports, the Company determined that Kroll needed to go for psychological counseling to remain employed.

The Court found that the concerns expressed by the WLAA employees regarding Kroll’s emotional health and its impact on her work performance provided a significant basis for WLAA to question whether Kroll could perform the essential functions of her job and justified requiring a mental health evaluation. The same factors also justified requiring psychological counseling on the basis that Kroll posed a direct threat to herself and others.

The Court’s approach in this case illustrates a few key points for employers: it is facts showing work-related concerns that make the difference in successfully defending fitness for duty evaluations, a thorough investigation with documentation is necessary and action related to fact-based concerns is more easily defensible.

 

The U.S. Department of Justice (DOJ) has reached a settlement with DeCamp Bus Lines, a New Jersey transportation company, to ensure that bus transportation is provided on equal terms to people with disabilities.  The DOJ determined that DeCamp Bus Lines violated Title III of the Americans with Disabilities Act by requiring that passengers with disabilities provide 48 hours of advance notice to secure a wheelchair-accessible bus, even though passengers without disabilities did not have to provide any advance notice.  The settlement agreement requires DeCamp to comply with all ADA requirements for accessible service, and not exclude persons with disabilities from its transportation services.

 

The proposed Family and Medical Leave Inclusion Act would allow an employee to take time off to care for an expanded list of covered relationships, including a same sex partner, a domestic partner, parent-in-law, adult child, sibling, grandchild or grandparent.  The FMLA already allows an eligible employee to take time off to care for a spouse, parent or child, including an adult child under certain circumstances.

The bill was introduced in April 2013 in both the Senate and the House.

While the meaning of most of the Inclusion Act’s new covered relationships is self-evident, the definition of "domestic partner" is not. The Act defines a "domestic partner" as an employee’s same sex domestic partner, partner in a civil union, or, in a state that does not recognize same-sex marriage, an unmarried adult of the same sex as the employee who is in a committed, personal relationship with the employee, who is not a domestic partner to any other person, and whom the employee designates to the employer as the employee’s domestic partner.

Excluded from the Inclusion Act’s list of inclusions is an employee’s opposite sex domestic partner.
 

In what the EEOC has called “one of its finest moments” in its effort to “combat employment discrimination,” a jury awarded $240 million to 32 individuals in an ADA case brought by the EEOC. It was the EEOC’s largest jury verdict ever. The award for compensatory and punitive damages amounted to $7.5 million per individual. Because of the caps on emotional distress and punitive damages, the award has been reduced to $1.6 million, which is $50,000 for each individual.

The circumstances leading to the verdict are quite unique. The EEOC represented 32 intellectually disabled workers who were paid just $65.00 a month to eviscerate turkeys on a full-time basis at Hill Country Farms. The workers lived in company-provided bunkhouses, which had been shut down by the state due to substandard construction, hazards and other unsafe living conditions, such as a leaky roof and insect infestation. The disabled workers alleged that non-disabled supervisors abused them verbally and physically. The EEOC’s ADA claims included disparate treatment and harassment based on the employees’ disabilities.

While the facility had already been shut down, and it is unlikely that there are many other employers who provide similar working conditions, the case gives the EEOC a burst of adrenaline. At a time when private class actions face a number of legal hurdles due to recent Supreme Court decisions, this victory bolsters the EEOC’s strategy to focus on systemic discrimination, even in harassment cases. The EEOC does not need to satisfy the same Rule 23 requirements that have hampered private plaintiffs attempting to bring class claims.

The case also rewards the EEOC for its reluctance to negotiate less than full economic relief during the conciliation process. The $240 million verdict was for compensatory and punitive damages. Backpay for the individuals was already awarded in the EEOC’s favor at the summary judgment stage.