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.

 

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.