A Colorado law prohibits employers from terminating an employee for “engaging in any lawful activity of the premises of the employer during nonworking hours…” Another Colorado law allows individuals to obtain a license to use medical marijuana.

The Colorado Court of Appeals has held that licensed medical marijuana use is not a “lawful activity” under the Colorado statute because marijuana use violates federal law. Coats v. Dish Network, L.L.C. (Co. Ct. Appeals, April 25, 2013). The plaintiff, a quadriplegic, had alleged that he was licensed to use medical marijuana and was never under the influence of marijuana at work, but was terminated after he tested positive for marijuana, which established a violation of the employer’s drug policy. 

The focus of the court’s analysis was whether “lawful” meant lawful under state law alone. The court held that because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, an activity may be “lawful” only when it complies with both.

With 18 states and the District of Columbia having passed medical marijuana laws, and marijuana use remaining illegal under federal law, employers are likely to face more challenges to their drug policies. The Coats court cited, and employers are likely to rely on, a comment by the California Supreme Court in Ross v. RagingWire Telecommunications, Inc., that “[n]o state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users.”
 

On the day of her evening wedding, plaintiff called in and asked for a vacation day. When her request was denied, she said she would take an FMLA day instead. Since plaintiff had previously been approved for intermittent leave for migraine headaches, the employer approved her request.

A few weeks later, the plaintiff gave the company a copy of her marriage license to update her personnel records with her new married name. The employer noticed that the date of plaintiff’s marriage was the same day she had been granted intermittent leave.

During the ensuing investigation, plaintiff admitted she had planned to go to court to obtain a marriage license during the hours of her shift on her wedding day and had done so. The employer concluded that plaintiff had been dishonest in requesting FMLA and paid sick time on that day. The company terminated her for violating the company’s code of business conduct, which required employees to act honestly with respect to their use of company benefits.   

In rejecting the plaintiff’s FMLA claims, the court said that the employer had established that it had an “honest belief” that the plaintiff had misused FMLA leave. An employer has an “honest belief” in the reason for discharging an employee when it reasonably relies on the “particularized facts that were before it at the time the decision was made,” the court said.  Durden v. Oho Bell Telephone Company (N.D. Ohio April 2, 2013).

We have posted here, here and here about employers who have prevailed in FMLA cases by relying on the “honest belief” defense. To rely on this defense, before terminating an employee for FMLA abuse, an employer must investigate thoroughly and identify those “particularized facts” on which it will rely.

If you look out toward the leave-and-attendance legislation horizon, and you might have to squint a bit but not much, you can see yet another patchwork beginning to take shape. This one is on paid sick days. Multi-state employers need to watch this carefully since it is certainly heading for full-fledged “patchwork” status which, when combined with the patchworks of family and medical laws, pregnancy leave laws and disability discrimination laws, makes one mega-leave-and-attendance-patchwork!

It started with San Francisco in 2007. Then the District of Columbia, Connecticut, Seattle and Portland, OR followed. NYC is imminent, Philadelphia is one vote away. How much longer before Boston, Chicago, and Los Angeles follow suit?

Wisconsin and Indiana put the kibosh on the proliferation of local leave and attendance in their states. Similar “kibosh” legislation is pending in a few other states. (BTW, if you are interested in the origins of the term “kibosh,” click here.)

Of course, a real patchwork requires federal involvement. On March 13, 2013, the Healthy Families Act was introduced into both the House and the Senate. The HFA “would allow workers to earn paid sick leave to use when they are sick, to care for a sick family member, to obtain preventive care, or to address the impacts of domestic violence,” according to the press release concerning its introduction.

To be clear, the patchwork challenge has nothing to do with the social question of whether there should or should not be paid sick days. The challenge is the proliferation of leave and attendance laws and how they interact with each other. Does the time off under paid sick day laws run concurrent with  time off under these other leave-and-attendance laws or is it “stacked” on top of those laws?

The ideal solution would be a simpler, integrated national leave-and-attendance law, which is not likely to occur anytime soon. Until then, every paid sick days law should have a section entitled “Integration with other State and Federal Leave and Attendance Laws.” This will force legislators to think about the integration issue and would be most welcomed by employers aiming both to comply and  to have employees with regular and predictable attendance.

The Indiana Legislature has passed a bill prohibiting local government units from requiring  private sector employers to provide employees “an attendance or leave policy”… “that exceeds the requirements of federal or state law, rules, or regulations.” A sponsor of SB 213 said its goal was to prevent a “hodge-podge” of different employment benefits and laws around the state. The bill is heading to Governor Pence’s desk for signature.

The Indiana Legislature’s action comes at a time when a growing number of cities are considering and passing paid sick leave laws. Portland, OR recently enacted such a law.

In our previous post, we noted that in 2011, Wisconsin became the first state to pass a law preempting local laws providing family and medical leave. Governor Scott Walker said the state needed to avoid a “patchwork” of different leave requirements in different parts of the state.

With more than 450 federal, state and local attendance and leave laws nationwide, the terms “patchwork” and “hodge-podge” understate the challenge facing multi-state employers in managing employee attendance and leave.  

Miles’ Law, named for Rufus Miles, a chief in the U.S. Bureau of the Budget in the 1940’s, states that “where you stand depends on where you sit.” That law certainly applies to paid sick leave legislation.

Advocates tout that everyone will benefit, including businesses. For example, Portland, Oregon recently enacted an ordinance requiring sick time for employees of businesses in Portland. Among the litany of findings in the ordinance were some which purport to benefit business, such as reduced worker turnover and reduced risk of workers coming to work with illnesses and health conditions that reduce their productivity (often referred to as “presenteeism”).

A recent study by the Employment Policies Institute (EPI) reported the response by Connecticut businesses to the Connecticut Paid Sick Leave Law, which went into effect on January 1, 2012. According to that study, as a consequence of that law, employers responded in various ways, including by raising consumer prices, reducing or increasing the cost of other employee benefits, reducing hours and overtime, and reducing wages.  Some employers reported they were likely to hire fewer employees. Other said they would restrict expansion in Connecticut.

As for the benefits to business, the EPI survey notes that one advocacy group claimed that Connecticut employers would save $73 million annually due in large part to cost savings from reduced employee turnover. In the EPI survey, only two employers of the 156 responding believed paid sick leave would reduce employee turnover and only two believed it would increase employee productivity.  

As for reducing “presenteeism,” i.e. the number of sick employees coming to work, the EPI study refers to a 2011 report concerning San Francisco’s paid sick leave law, which went into effect in 2007. That report  noted “that 80 percent of employers in San Francisco reported that “presenteeism” …was unchanged following passage of the city’s sick leave mandate.”

The EPI survey notes that “[w]hile it will take time to determine the true effect on employees, these preliminary results suggest that the monetary benefits of sick days were overstated in Connecticut—much as they were in San Francisco”…and perhaps in Portland?

“You can choose your friends but you [sure] can’t choose your family,” Harper Lee wrote in To Kill a Mockingbird. Add health care providers to those you can choose. But when you chose them, you are stuck with their medical opinions. Two plaintiffs learned this lesson when they tried to discredit the work restrictions their health care providers had imposed.

In Hohn v. BNSF Railway Company, (8th Cir. February 28, 2013), the employer placed the plaintiff on leave and told him to have his eyes examined. His optometrist diagnosed him with an advanced stage of a degenerative eye disease that causes tunnel vision and night blindness, and for which there is no known cure. One of his doctor’s restrictions was that he not work in any job that requires more than 15 degrees of visual field. Plaintiff worked in a 360 degree environment. The employer did not return him to work. At trial on his accommodation claim, the plaintiff claimed he could do and had been doing tasks that exceed his doctor’s restrictions. In denying a new trial, the court said the plaintiff selected his doctor and did not submit any medical evidence to contradict his doctor’s restrictions. “The ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden,” the court said.

In Wulff v. Sentara Healthcare, Inc. (4th Cir. March 4, 2013), plaintiff’s health care provider gave plaintiff work restrictions, which she gave to her employer. When the employer said it could not accommodate those restrictions, plaintiff claimed her health care provider overstated her restrictions and that they were misleading. In affirming summary judgment for the employer, the court said that the plaintiff submitted the form without taking any steps to clarify or correct the alleged misstatements and that her employer was justified in abiding by the restrictions on this form.

Both decisions are logical and welcome. An employer must rely on the restrictions imposed by the employee’s own health care provider to determine whether it could accommodate those restrictions. Both cases place the burden on the plaintiff to take steps to clarify or challenge the restrictions imposed by his or her health care provider.

The EEOC passed yet again on the opportunity to provide guidance on the meaning of “voluntary” under the ADA as it applies to wellness plans. Guidance would be helpful because the ADA, 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.”

In a January 18, 2013 informal letter responding to an inquiry concerning a wellness program, the EEOC reiterated its 2000 Guidance and that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary.”  This means that the EEOC might take the position that the larger the reward or penalty, the more likely the program is not voluntary.

But how much does this really matter? As we posted previously, a Florida district court rejected a class action lawsuit challenging Broward County’s use of a $20 surcharge to motivate employees to complete a finger stick for glucose and cholesterol and a health risk appraisal as part of a wellness plan. The Court found that the employer’s actions were protected by the ADA’s “safe harbor” provisions and whether the wellness program was “voluntary” was irrelevant. The safe harbor provisions protect employers from liability for conduct that would otherwise violate the ADA if it were taken pursuant to an insured or self-insured benefit plan so long as the plan is not “a subterfuge to evade the purposes of the ADA.” The 11th Circuit affirmed the district court’s decision.

The message from the Broward County decision is that the EEOC’s guidance on the meaning of “voluntary,” if and when it  comes, might not matter for wellness plans. Stay tuned.

A passenger in a wheelchair being pushed to the front of the security and screening lines is a common sight at an airport. No one expects that after clearing security, that passenger is going to jump out of the chair and rush into the terminal, travel bags in hand. But that is occurring regularly and more frequently, according to an article in the Wall Street Journal. One wheelchair attendant calls these situations “miracles,” according to the report.

More able-bodied passengers are realizing that they can jump lines or get assistance with luggage by asking for a wheelchair, according to the article. A Los Angeles Airport official estimates that nearly 300 wheelchair requests per day are “bogus,” it notes. Fraudulent wheelchair requests can cause delays in providing wheelchair assistance to persons with a legitimate need for it. Under the 1986 Air Carrier Access Act, airlines must provide wheelchair assistance to any passenger who requests it. 

From time to time, I ruminate about the relationship between common sense and the ADA. It might be when cogitating about whether showing up for work is an essential function of a job. Or when pondering whether a bridge worker with agoraphobia is a qualified individual with a disability. In framing arguments on such issues, I search for the right words to express the relationship between common sense and the ADA.  

My search may have ended. In a case rejecting an ADA claim brought by an employee terminated after his optometrist wrote that his eyesight had deteriorated to that point “that he may pose a hazard to himself or fellow workers if working in an area that uses dangerous tools,” and after the company proceeded “cautiously and carefully” before concluding that plaintiff was unfit to work, the court said "the ADA was never intended as a stumbling block to the exercise of common sense,…" Kemp v. Volvo Group North America (W.D. Va., Jan 24, 2013). Common sense prevailed!  And I assure you I will cite that phrase often.

Arriving to work on time might not be an essential function if the late employee would still be able to complete his work in a timely manner, according to the Second Circuit Court of Appeals. McMillan v. City of New York (2nd Cir. March 4, 2013).

The plaintiff, a case manager for NYC’s Human Resources Administration (HRA), took medication in the morning which made him “drowsy” and “sluggish.” The HRA had flex hours which allowed employees to arrive at the building between 9 a.m. and 10 a.m., and leave between 5 and 6 p.m. Plaintiff often arrived late, sometimes after 11 a.m. After allowing plaintiff to be late for at least ten years, HRA began requiring him to report to work on time.

Reversing summary judgment to the HRA, the Second Circuit said that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.”  Citing the need for “a penetrating factual analysis” into both the employer’s description of a job and how the job is actually performed in practice, the Second Circuit said that the fact that the employer allowed plaintiff to be late for many years, and the fact that the employer offers flextime “implies that punctuality and presence at precise times may not be essential.”