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.”

Sometimes common sense seems to provide the answer to an “essential function” question, but not always. For example, we posted recently about a case where the issue was whether hearing was an essential function of a lifeguard position. Common sense may suggest the answer is “of course” but then we noted that the lifeguard with the record for “saves” was deaf.  Hmm, maybe there’s more to answering this question than common sense.

But sometimes common sense prevails. In a recent case, the issue was whether driving a fire engine with lights and sirens is an essential function of a firefighter’s job. The plaintiff, a firefighter blind in one eye, argued that the other two members of his crew could do the driving. Rejecting that argument, the court said “lives depend on the ability of him and his crew to respond quickly to life threatening situations…..[which] involve risk not only to members of the general public, but also direct risks to those [plaintiff] works with on a daily basis.” In a footnote, the court speculated: “One wonders what would occur if [plaintiff’s] co-workers were injured performing their duties and [plaintiff] was unable to safely transport them for treatment.” (Rorrer v. City of Stow, N.D. Ohio February 4, 2013).

Common sense prevailed. Workplace disability management wisdom is knowing when common sense prevails and when it is merely masquerading as a stereotype.

For the 20th Anniversary of the FMLA, the National Partnership for Women and Families urges changes to provide more employees with more protected leave to “advance the FMLA’s promise of a family friendly America.”

The amendments proposed include adoption of a national family and medical leave insurance program, funded by employer and employee contributions, to provide paid FMLA leave; lowering the coverage threshold to 25 or more workers; reducing the tenure and hours requirements to extend protection to part time and recently-hired workers; broadening the care giver relations to include domestic partners, grandparents, grandchildren, parents-in-law and siblings; and broadening the purposes for which leave can be taken to include domestic violence, sexual assault, stalking, school meetings, family member’s medical appointments and the death of a family member.

Through the years, numerous bills have been introduced in the Senate and House of Representatives to expand protected leave under the FMLA. Currently pending are bills to allow employees to take FMLA leave for the death of a child. (S.226; H.R.515).

The Eighth Circuit has rejected a plaintiff’s claim that she provided sufficient notice of her need for FMLA leave although she failed to contact her employer for more than a month. Bosley v. Cargill Meat Solutions Corporation (8th Cir. February 5, 2013).

On February 1, 2008, an employee with whom the plaintiff carpooled told the company that plaintiff would not be in because she was sick. The plaintiff did not contact the company until March 3, 2008, when she went to the company to get FMLA forms to cover her February absences, which she claimed were due to her depression. A week prior, the Company had terminated her for three consecutive call-in violations.  

In affirming summary judgment for the employer on plaintiff’s FMLA interference and retaliation claims, the court concluded that the plaintiff had failed to give the company notice of her need for FMLA-qualifying leave. The court rejected the argument that plaintiff’s carpooling coworker provided notice of her need for leave because the co-worker could not recall whether she told the company that plaintiff was depressed. The court also rejected plaintiff’s effort to be excused from providing notice because of the “extraordinary circumstances” exception. The court held that that the exception does not excuse notice completely, and that at least as of February 25, plaintiff was not incapacitated and could have contacted the company. The court also rejected plaintiff’s argument that her behavior provided the company “constructive notice” of her need for FMLA leave. The court held that an employee has an affirmative duty to notify his or her employer about the need for leave that might be FMLA-qualifying, and rejected any “constructive notice” argument that would negate this duty.

The Eight Circuit also changed the nomenclature in FMLA litigation by renaming “interference” claims as “entitlement” claims, noting that such a claim involves the denial of a benefit to which an employee is “entitled” under the statute.

Recall our post concerning the employee on FMLA who went to Cancun to recover from surgery. The court upheld her termination for violating a rule that those receiving wage replacement benefits must stay in the immediate vicinity of their homes.

Now comes a nurse on FMLA with a back and leg injury, collecting disability benefits, who vacationed in Mexico during her leave. While there, she posted on a social media site photos of her riding in a motorboat, lying on a bed holding up two bottles of beer and holding her infant grandchildren.

The nurse’s co-workers saw her postings and complained that she was misusing FMLA. The nurse had a different perspective. She emailed  her supervisor, complaining that the staff had not sent her a get well card.  Her supervisor responded that " since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work." The nurse responded that she had used a wheelchair at both airports and did not stand for any length of time.

When the nurse returned to work, she initially repeated that she had used a wheelchair at the airports but after being reminded that airports have cameras, conceded that she was not in a wheelchair at either airport.  Her employer terminated her for violating a policy prohibiting “dishonesty, falsifying or omitting information….”  She sued, alleging that her employer interfered with her exercise of FMLA rights and terminated her in retaliation for taking FMLA.

The court granted summary judgment to the employer, holding that the employer had the right to terminate the plaintiff for dishonesty and alternatively because it had an “honest belief” that she had been dishonest. (Lineberry v. Richards et al (E.D. Mi. February 5, 2013).

This is yet another case, see here, where the posts on social media sites of or by an employee on FMLA causes the employer to question whether the employee is using FMLA leave for its intended purpose. As social media becomes even more ubiquitous, this is likely going to be a recurring theme in leave litigation.

 To what extent may an employer deny a requested accommodation because of on an employee’s poor performance which is caused by a disability? 

The Federal Reserve Bank of New York denied an employee’s request to telecommute or to relocate his office to a different Fed building because the employee had been rated as “below standards” in a recent evaluation. The employee made the request because his department had moved from two blocks from Ground Zero to a building overlooking Ground Zero. On 9/11, the plaintiff had been trapped in his office and “believed he was going to die,” the court said, citing plaintiff’s complaint.   In January 2010, plaintiff’s department moved to the 23rd floor at 3 World Financial Center, which overlooks Ground Zero. According to plaintiff’s complaint, he began having flashbacks to 9/11, developed difficulty sleeping and concentrating and became anxious and depressed to the point that he had suicidal thoughts. During that period, he received a “below standard” rating for the first time. 

The Fed denied his request based on his poor performance and need for supervision. The court stated: “This explanation is troubling, since denial of an accommodation on the ground that a non-accommodated, disabled employee is experiencing performance inadequacies turns the rational for the ADA’s rule of reasonable accommodation on its head.” Goonan v. Federal Reserve Bank of New York, (S.D.N.Y. January 7, 2013). The court quoted from Borkowski v. Valley Central Sch. Dist., 63 F.3d 131 (2d Cir. 1995), that “failure to consider reasonable accommodations for disabilities which lead to poor performance which result in termination for performance deficiencies resulting from the disabilities amounts to a discharge solely because of the disabilities.”  The court added somewhat cryptically: “Poor performance begs the question, but does not answer it.” The court denied the employer’s motion to dismiss the plaintiff’s claim.

 

Some employers have policies restricting employees with performance deficiencies from bidding on or transferring to another position. When the request to bid or transfer comes from an employee with performance deficiencies due to a disability, and is a request for a reasonable accommodation, those policies can be “troubling,” to quote the Goonan court.

        

“It depends,” according to the U.S. Department of  Justice. “Some individuals with food allergies have a disability as defined by the ADA–particularly those with more significant or severe responses to certain foods. This would include individuals with celiac disease and others who have autoimmune response to certain foods, the symptoms of which may include difficulty swallowing and breathing, asthma, or anaphylactic shock,” the DOJ explained.

The discussion about food allergies is in the DOJ’s “Questions and Answers” concerning its recent settlement of a Title III ADA complaint with Lesley University.  In that settlement, the university agreed to, among other things, provide gluten-free and allergen-free food options in its dining hall to enable students with food allergies to use its mandatory food plan.

Anticipating the question of whether the ADA requires all public accommodations that serve food, such as restaurants, to serve gluten-free or allergen-free food, the DOJ said the ADA does not do so. “Because the [Lesley University] meal plan was mandatory for all students living on campus, the ADA required that the University make reasonable modifications to the plan to accommodate students with celiac disease and other food allergies. This is different than the ADA’s obligation for restaurants that serve the general public,” the DOJ explained.  

A parent otherwise eligible for FMLA leave can use that leave to care for a child 18 years of age or older, if that child (1) has a “disability” under the ADA; (2) is incapable of self-care due to that disability; (3) has a “serious health condition”  under the FMLA; and (4) needs care due to the serious health condition, according to the U.S. Department of Labor Wage and Hour Division’s Administrator’s Interpretation No. 2013-1 (January 14, 2013). The interpretation also states that whether the adult child’s disability began before or after the age of 18 is irrelevant.

The DOL’s “clarification” discusses the four eligibility criteria. Due to the broadening of the ADA’s definition of “disability,” many more adult children now have a “disability,” and many more parents may be eligible for FMLA leave to care for them. A recurring issue is whether an employee is entitled to “grandparent leave” when the employee’s daughter has a baby. The clarification reiterates that pregnancy is not a disability under the ADA, though “pregnancy-related impairments, such as gestational diabetes” may be.

An adult child is “incapable of self care” if the child requires “active assistance or supervision to provide daily self-care” in three or more of the ‘activities of daily living’ (ADLs) or ‘instrumental activities of daily living’ (IADLs). ADLs include caring for one’s grooming and hygiene, bathing, dressing and eating. IADLs include “cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, [and] using a post office….” 

The adult child’s medical condition must be both a “disability” under the ADA and a “serious health condition” under the FMLA. A chronic medical condition will likely meet both definitions. However, since “minor and transitory” impairments are not disabilities under the ADA, FMLA leave would not be available to the parent of an adult child with such an impairment.

The requirement that the parent is “needed to care” for the adult child can often present the most challenging issues. When the parent is needed to assist with ADLs or IADLs, the need for leave is often clear. However, that need is more amorphous and subjective when it is to “provid[] psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care.”

For additional discussion of the DOL’s clarification, click here. The DOL has also issued a series of FAQ’s concerning the use of FMLA leave to care for adult children. Those FAQs may be accessed here.

 

Is a deaf person qualified to be a wave pool lifeguard? Before answering, consider that the lifeguard holding the record for most “saves”–more than 900–is Leroy Columbo, who was a deaf man.

In Keith v. County of Oakland (6h Cir. January 10, 2013), the plaintiff, deaf since birth, had completed the County’s lifeguard training programs with the assistance of an American Sign Language interpreter to communicate verbal instruction, applied for a position with the County as a wave pool lifeguard, and was offered a position, subject to passing a medical examination from a County-appointed physician.

According to the court, at the medical examination, after reviewing the plaintiff’s medical history, the physician stated: "He’s deaf; he can’t be a lifeguard." When Keith’s mom questioned this, the physician responded, again according to the court: "Well, I have to. I have a house and three sons to think about. If something happens, they’re not going to sue you, they’re going to sue the county, they’re going to come after me."

Keith was not hired and he sued. The district court held that he was not “otherwise qualified” because he was unable to show that he could perform the essential communication functions of a lifeguard, with or without accommodation and granted summary judgment to the County. The Sixth Circuit reversed this holding because it found that Keith had shown that a reasonable accommodation was possible and that questions of fact remain as to whether Keith is “otherwise qualified.”

The court noted that the most compelling evidence to suggest that a deaf individual may be "otherwise qualified" is the fact that the American Red Cross certifies deaf lifeguards and that Gallaudet University, a university dedicated to serving the needs of deaf individuals, has a lifeguard certification program. And, of course, there’s Leroy Columbo.