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.

A federally subsidized housing complex designed by a deaf architect, with such features as video phones, lights that flash when the phone or doorbell rings, and wiring that sends announcements to residents’ hearing aids, is being accused by the federal government of discrimination against those who are not deaf, according to a New York Times report. Those with hearing impairments occupy more than 90% of the housing units in the Arizona complex.

A spokesperson for the U.S. Department of Housing and Urban Development said in a statement that “federal law prohibits facilities that receive HUD funds from providing separate or different housing for one group of individuals with disabilities because this practice denies or limits access to housing for other individuals based on the types of disabilities they have,” according to the Times report.

 

To what extent may an employer contact an employee on FMLA leave about work-related matters before that contact becomes, in effect, a denial of FMLA leave? 

"Fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights," according to a 2009 federal district court in New York. When such calls are "limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls," the court added.

In a later case, an employer required an employee on FMLA leave to complete reviews of her subordinates and to enter certain test data in a computer. The plaintiff also claimed her employer required her to complete certain educational training during her leave. Holding that a jury could find that the employer’s communications with the plaintiff went beyond merely passing on institutional knowledge and providing closure on completed assignments, the court denied summary judgment to the employer. Vess v. Scott Medical Corporation (S.D. Ohio, March 15, 2013).

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?