The Supreme Court’s Defense of Marriage Act decision expands employer obligations under the FMLA, at least in the states that recognize same-sex marriages.  The Court held that Section 3 of DOMA, which states that the meaning of “spouse” in any federal law or regulation “refers only to a person of the opposite sex who is a husband or a wife,” was unconstitutional. U.S. v. Windsor (US Sup.Ct. June 26, 2013). 

Section 3 had left no doubt that the definition of   “spouse” under the FMLA could not possibly have included a same-sex spouse. With Section 3 gone, that prohibition went with it.

While much can and will be debated about the Court’s decision, the Court said explicitly that the definition of “spouse” under federal law includes a same sex spouse in  “lawful marriages.” Same sex marriages are lawful in 13 states.

The immediate issue is that a same sex spouse  now meets the definition of “spouse” under the FMLA in those 13 states and is entitled to the same benefits and protections under the FMLA as an opposite sex spouse.  That seems pretty clear, or is it? The 2009 FMLA regulations define a “spouse” as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.”

A same sex spouse who lives and works in one of the 13 “same sex” states would seem to meet the definition of “spouse” under the FMLA. But what if the spouse works in one of the 37 “non-same sex” states but lives in a “same sex” state? 

Complicating the issue is that while states typically recognize marriages from other states, Section 2 of DOMA says that a state need not recognize same sex marriages entered into in other states.  It is widely expected that a constitutional challenge to Section 2 is on the horizon.

Stay tuned. There will be more to come on this issue. 
 

An amputee’s request for work breaks to adjust his prosthesis may be a request for an accommodation under the ADA, according to a federal district court. Morton v. Cooper Tire & Rubber (N.D. MS, June 18, 2013). The employee was training to operate a machine which ran for twelve hour shifts.  To complete the training, an employee must "keep pace with the machine" for a full twelve hour shift.   While it usually takes two weeks to complete the training, after 30 days, the plaintiff was still unable to keep pace with the machine for a twelve hour shift. He said he could not do so because of his prosthetsic leg and asked for breaks at the beginning and end of the shift and lunch to readjust his prosthesis because sweat causes it to rub his skin and cause blisters and sores.  The plaintiff claimed he was not given the breaks he requested, and then was given the offer to resign or be terminated.

The plaintiff claimed he was terminated because of his disability and that the employer failed  to accommodate his disability. The parties agreed that operating the machine for an entire shift is an essential function.  The issue was whether the plaintiff could have performed that function with an accommodation, i.e., the requested breaks. The court denied the employer’s motion for summary judgment.  
 

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.