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.

 

The EEOC has brought a class action under the Genetic Information and Nondiscrimination Act (GINA) against a nursing and rehabilitation center, alleging that the defendant-employer "requires a class of applicants and employees to provide genetic information in response to questions about family medical history" as part of its pre-employment, return-to-work and annual medical exams of its staff.  EEOC v. Founders Pavilion, Inc., d/b/a Founders Pavilion (W.D.N.Y, filed on May 16, 2013).

GINA is a federal law that aims to eliminate the potential abuses relating to the use and disclosure of “genetic information.” GINA’s primary objective is to prohibit discrimination on the basis of “genetic information” in employment and health insurance plans.  The law restricts the use of, access to and disclosure of “genetic information” based on the idea that doing so will reduce discrimination.  GINA’s definition of “genetic information” includes family medical history.

The EEOC noted in its press release concerning the case that "[o]ne of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination."

The Founders Pavilion Complaint is the second GINA Complaint filed by the EEOC.  The first was filed on May 7, 2013 in the Northern District of Oklahoma against Fabricut, Inc., and also alleged that the employer violated GINA by requesting family medical history in a post-offer medical examination.  The parties filed a Consent Decree simultaneous with the filing of the Complaint. Among other provisions, the Consent Decree, requires Fabricut to pay $50,000 to resolve the GINA and ADA allegations and to conduct anti-discrimination training of employees with hiring responsibilities.
 

A mammography tech with epilepsy is not a qualified individual with a disability under the ADA because she cannot perform the essential functions of her job "during the indefinite periods in which she was incapacitated," according to the Eighth Circuit Court of Appeals. Olsen v. Capital Region Medical Center (8th Cir. May 7, 2013). We had posted previously about the district court’s decision granting the employer summary judgment on plaintiff’s ADA claim.

During seizures, the tech would lose consciousness for several minutes.  Twice she had a seizure while conducting mammogram examinations on patients. In affirming summary judgment, the court also rejected plaintiff’s argument that her employer failed to accommodate her by providing her "intermittent rest" because rest did not eliminate the seizures and did not allow her to perform her essential job functions during her periods of temporary incapacity. "The hospital need not subject its patients to potential physical and emotional trauma to comply with its duties" under the ADA, the court added.

Prior to the ADA Amendments Act, some courts had held that an employee who loses consciousness at work periodically was not "disabled" because the episodes were intermittent and, as a result, were not substantially limiting. As a result of the ADAAA, the medical conditions leading to the loss of consciousness are likely "disabilities." The Eighth Circuit’s holding that an employee who passes out at work as a result of such a medical condition is not a qualified individual with a disability provides employers much needed guidance in responding to these situations.

A week after the Olsen decision, the EEOC issued “Questions and Answers about Epilepsy in the Workplace and the Americans with Disabilities Act.” The Q’s and A’s do not discuss whether an individual with epilepsy who has seizures at work is a qualified individual with a disability, although it notes that an employer may need to provide “a private areas to rest after [an employee has] a seizure” as a reasonable accommodation.
 

On May 15, 2013, the EEOC issued revised “Q & A” documents addressing how the ADA applies to job applicants and employees with cancer, diabetes, epilepsy and learning disabilities.  http://www.eeoc.gov/eeoc/newsroom/release/5-15-13.cfm

Each of the revised Q & A documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.  Notably, the Q & A documents state that even applicants and employees with diabetes and epilepsy may be qualified to operate Commercial Motor Vehicles requiring individuals to meet certain minimum physical standards under the U.S. Department of Transportation (DOT) regulations based on established DOT waiver programs. http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=391.41.  Thus, the revised guidance may be of particular interest to employers in the trucking industry.

 

A flexible work schedule is not a reasonable accommodation if it will not allow the employee to perform the essential functions of her job, which can include regular and punctual attendance, according to the Tenth Circuit. Murphy v Samson Resources Co. (10th Cir. May 8, 2013). The court affirmed summary judgment in favor of the employer, holding that the employee was not “qualified” for her position due to her absences for migraine headaches.

The employee’s job description for her accounting assistant position stated that regular and punctual attendance was an essential function of the job. The employee did not dispute that regular and punctual attendance was an essential function but argued that she was nonetheless “qualified” under the ADA because a flexible schedule was a reasonable accommodation that would enable her to perform her job. The court rejected this argument because even with the flexible schedule, she was making mistakes in her work and failed to make up all the time she had missed. The court reiterated that an employee’s request to be relieved from an essential function is not a reasonable or even plausible accommodation.

The employee also argued that the Company should have granted her leave under its short term disability policy as a reasonable accommodation. In rejecting this argument, the court said the plaintiff had “failed to present evidence of the expected duration of her impairment.” It was “uncertain if or when Murphy would be able to return to work given the sporadic nature of her migraines,” the court added.

Are employees who request FMLA leave before they are eligible for the leave entitled to the protections of the FMLA? It depends on whether the employee requesting leave will be eligible at the time of the leave.

The Eleventh Circuit Court of Appeals has held that the FMLA protects a pre-eligibility request for post-eligibility leave. Pereda v. Brookdale Senior Living Communities, Inc. (11th Cir. Jan. 10, 2012). So "pre-post" is protected.

The Seventh Circuit Court of Appeals has held that the FMLA does not protect a pre-eligibility request for pre-eligibility leave. Basden v. Professional Transportation, Inc. (7th Cir. May 8, 2013). So "pre-pre" is not.

 

An employer lawfully terminated an employee pursuant to an attendance policy that did not distinguish between absences for medical reasons and other reasons, according to the Seventh Circuit Court of Appeals. Basden v. Professional Transportation, Inc. (7th Cir. May 8, 2013). Some of the plaintiff’s absences were due to the onset and symptoms of her medical condition, multiple sclerosis. She provided a doctor’s note after each of her absences.

In affirming summary judgment for the employer, the Court held that attendance is generally an essential job requirement and an employer “need not accommodate erratic or unreliable attendance.” The Court added that a “plaintiff whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a qualified individual for ADA purposes.” This statement is significant because of the uncertainty surrounding the administration of no-fault attendance policies. The EEOC has contended that an employer must excuse absences caused by a disability as a reasonable accommodation, unless to do so would be an undue hardship.

The Court also held the employer did not fail to accommodate the plaintiff when it rejected her request for a 30 day unpaid leave and then terminated her. While the court held that the employer might not have engaged in the interactive process concerning the leave request appropriately, the plaintiff did not establish that the leave or any other accommodation would have resulted in her regular attendance when she would have returned.
 

Florida may join Wisconsin and Indiana in putting the kibosh on local leave and attendance laws in their states. On May 2, 2013, the Florida Legislature passed House Bill 655, which prevents Florida’s political subdivisions from requiring private employers to provide employees with disability, sick leave or “personal necessity” benefits, among others. The bill, which would be effective on July 1, 2013, is awaiting Governor Scott’s signature.

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.

The Equal Employment Opportunity Commission (EEOC) is holding a public meeting this Wednesday, May 8, 2013, to discuss how wellness programs should be treated under various federal laws such as the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and other statutes enforced by the EEOC.

The EEOC will hear from at least seven confirmed panelists who will discuss the interaction between the above statutes and wellness programs with an emphasis on how these laws might be implicated.

The meeting will be an open session beginning at 9:00 a.m. EST at agency headquarters, 131 M Street, N.E., Washington, D.C. 20507.

As we noted in an earlier post, the EEOC regulations, and the EEOC’s Interpretive and Enforcement Guidance permit employers to conduct voluntary medical examinations, including voluntary medical histories, as part of a voluntary employee wellness program. In a formal 2000 Guidance, the EEOC stated that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.” The employer community has long-awaited guidance from the EEOC on the nature and extent of incentives employers can offer in their wellness plans. Perhaps this meeting will begin the process leading to that EEOC guidance.