The Departments of Justice, Education and Health and Human Services issued a joint letter to the nation’s medical schools, dental schools, nursing schools, and other health-related schools regarding hepatitis B discrimination.  In the letter, the departments express concern that some health-related schools may be making enrollment decisions based on an incorrect understanding of the hepatitis B virus, resulting in discrimination.

The letter describes the Department’s March 2013 hepatitis B settlement agreement with the University of Medicine and Dentistry of New Jersey (UMDNJ) resolving allegations that UMDNJ violated the Americans with Disabilities Act by retracting admittance offers to previously-accepted applicants with hepatitis B, and updates health-related schools on the latest recommendations from the Centers for Disease Control and Prevention (CDC) regarding the participation of students with hepatitis B in health-related schools.  The letter also emphasizes the importance of CDC’s recommendations, especially as they relate to the schools’ obligation to comply with federal laws prohibiting discrimination on the basis of disability (including Titles II and III of the ADA and Section 504 of the Rehabilitation Act) and other federal civil rights laws.  The ADA and Section 504, among other things, prohibit the use of criteria or methods of administration that have the effect of discriminating against people with disabilities and also require schools and other covered entities to make reasonable modifications to their policies, practices or procedures when necessary to avoid discrimination on the basis of disability, unless the modification would fundamentally alter the nature of the program or the services provided.

 

Florida Governor Rick Scott has signed a bill that puts the kibosh on local leave and attendance laws.  House Bill 655 prevents Florida’s political subdivisions from requiring private employers to provide employees with disability, sick leave or “personal necessity” benefits, among others.

In a statement, Governor Scott said: "This bill fosters statewide uniformity, consistency and predictability in Florida’s employer-employee relationships. These fundamental elements are essential to ensuring a business-friendly environment that supports job creation."

Florida’s interest in restricting political subdivisions from acting independently on workplace issues began in 2003, when, in response to “living wage” ordinances passed by municipalities in other states, Florida passed a law prohibiting local governments from establishing minimum wage levels for private employers in their individual jurisdictions.  Allowing municipalities to do so “would threaten to drive businesses out of these communities and out of the state in search of a more favorable and uniform business environment,” according to the introductory provisions of that bill.
 

An employee’s text message to her supervisor telling him that she could not be on call that night because her father was in the emergency room was not a request for FMLA leave. Lanier v. Univ. of Texas Southwestern Medical Center (5th Cir. June 12, 2013).  Affirming summary judgment for the employer, the court said the text message was insufficient to inform her supervisor of her intent to request FMLA leave to care for her father. The court observed that the plaintiff had taken FMLA leave previously and knew how to request it, but that the plaintiff’s "only request" was to be relieved of on-call duty that night.  "The employer is not required to be clairvoyant," the court said.

Noting that an employer may have an obligation to inquire further if the employee’s statements warrant it, the court rejected the plaintiff’s  claim that her text message  imposed such an obligation.  Also, the fact that the supervisor knew her father was over 90 years of age,  in poor health, and was having breathing problems that morning did not suggest that the employer should have made further inquiry.

 

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.