Is vegan-ism a moral and ethical belief or a social philosophy or dietary preference, and what does this question have to do with disability, health and leave management at work?

It starts with the flu and, in particular, a hospital’s requirement that all employees get a flu shot. Some health care employers have such a requirement to protect their patients. A customer service representative refused the vaccine because she is a vegan and the vaccine was grown in chicken eggs. She also claimed that the hospital could accommodate her by not requiring her to get the vaccine, as it had done in the past.

The hospital terminated her employment and she sued, claiming that because her vegan practices were a "moral and ethical belief which is sincerely held with the strength of traditional religious views," her termination was religious discrimination. She submitted an essay entitled "The Biblical Basis of Vegan-ism" in support of her argument.

The federal district court in Ohio denied the hospital’s motion to dismiss the religious discrimination claims but told the hospital the evidence it would need to justify its mandatory vaccination program. The relevant evidence would be the nature and extent of the plaintiff’s contact with patients and of the risk her refusal would pose, the court said.Chenzira v. Cincinnati Children’s Hospital Medical Center, (S.D. Ohio, December 27, 2012).

This case brings back memories of the 1996 California case in which the EEOC regional office determined that a vegetarian bus driver fired for refusing to hand out free hamburger coupons to passengers was discriminated against on the basis of religion. The defendant paid $50,000 to the bus driver to settle that case.

We posted previously about the Seventh Circuit holding in EEOC v. United Airlines that, in deciding whether a disabled employee who cannot perform the essential functions of his or her position is entitled to a vacant position as an accommodation under the ADA, the employer must disregard its policy of awarding positions to the best-qualified candidate.  The “best-qualified” policy relates to the question of whether transfer to a vacant position, the ADA’s “accommodation of last resort,” requires an employer to provide the disabled employee a “mandatory preference” or “an opportunity to compete” for that position.

The Seventh Circuit had remanded the case and directed the district court to apply the “reasonable accommodation” analysis from U.S. Airways, Inc.  v. Barnett , i.e., whether mandatory reassignment would be reasonable “in the run of cases” and, if so, whether any considerations in this case would make mandatory reassignment an undue hardship. The court stayed its remand to allow United Airlines to seek review by the United States Supreme Court.

 

On December 6, 2012, United Airlines asked the Supreme Court to hear its appeal. United Airlines said the case “raises the important and recurring issue whether the “preferences” provided for in the ADA (i) level the playing field for disabled employees [i.e., provide the opportunity to compete] or (ii) go significantly further and require affirmative action such that, absent undue hardship, employers who have an established, bona fide policy to fill positions with the best-qualified individual ordinarily must instead fill that position by reassigning a minimally qualified disabled employee who is not the most-qualified individual.”

 

In 2008, the Supreme Court had agreed to resolve this issue by reviewing the Eighth Circuit’s decision in Huber v. Wal-Mart but dismissed the case as moot when the parties settled their dispute.

Determining when to terminate an employee on a leave of absence for medical reasons is a challenge under any circumstances. No “inflexible” rules can be applied, not even “equal treatment.”  As part of its deliberations, an employer must make an individualized assessment to determine if, when, and under what circumstances an employee can return to work. A National Labor Relations Board decision illustrates how that challenge can be even greater in a unionized workforce. 

In Hostess Brands Corporation, 359 NLRB No. 26 (December 3, 2012), the union sent the company a written request asking it to provide  ”..when or if the company will pursue termination on each [employee currently on workers’ compensation].” While the employer did not respond at all, in most workplaces, providing a substantive response would require gazing into a crystal ball.  The NLRB held that the information the union sought “was necessary for and relevant to the Union’s performance of its duties as the exclusive collective bargaining representative of the unit” and the company violated the National Labor Relations Act by not providing it.

The company told the plaintiff he was being terminated because it “feared that he had contracted swine flu while in Mexico for his sister’s funeral.” For a time, swine flu had been declared a public health emergency and medical authorities feared the worst. We now know that the swine flu hospitality and mortality profile is very similar to the seasonal flu. 

Can a plaintiff with a transitory and minor ailment who is mistakenly perceived as having a far more serious ailment bring a “perceived disability," aka, "regarded as” claim under the ADA? Citing the common sense principle—a principle somewhat at odds with the policy underlying the ADA’s “regarded as” theory–that “the question turns not on perception, but on reality,” the federal district court noted that the swine flu is both transitory and minor and granted summary judgment to the employer. Valez v. Minnesota Quarries, Inc., (D. MN. Dec. 10, 2012).

 

 

The House passed a bill striking the word ‘lunatic’ from federal laws. The Senate had previously passed a similar bill.

According to the New York Times, the word derives from the Latin word for moon and stems from the “ancient beliefs that people could become ‘moonstruck’ by lunar movements.” Mental health groups supported the bill, according to The Times report.  

In 2010, President Obama signed ‘Rosa’s Law,’ which replaced the term “mental retardation” with “intellectual disability” in federal laws.

Reading Hospital assigns parking locations to employees based on seniority, department location and shift.  Caught using a purloined parking pass, plaintiff was reassigned to a remote parking location, which required her to take a shuttle bus from her worksite to her car at the end of the workday, which delayed her departure, which made her unable to get to her daughter’s daycare before it closed, which led her to  ask for time off to find a suitable daycare provider that stayed open later, which was granted for a week. When she did not return the next scheduled workday, her employer terminated her. She claimed that her employer violated the FMLA by denying her leave to find a suitable daycare provider for her special needs daughter and by terminating her employment.

The district court denied the employer’s motion for summary judgment, finding issues of fact about whether plaintiff’s daughter had a chronic serious health condition that caused an impairment that resulted in the daughter’s incapacity, and plaintiff’s need to care for her by finding a suitable daycare provider for her.  On this latter issue, the court noted that the FMLA regulations state that “caring for” includes making arrangements for “changes in care” and that the regulations do not require that the change in care relate to medical treatment. While not determining the outcome of the case, the court stated that "when Reading Hospital changed [plaintiff’s] parking assignment, she had to make arrangements for a change in [her daughter’s] care, entitling [plaintiff] to FMLA leave."   Wegelin v. The Reading Hospital and Medical Center (E.D.Pa. Nov. 29, 2012)

 

An employer’s email to a “no call/no show” employee asking “what is going on” is not a “medical inquiry” under the ADA, according to the 7th Circuit.eeoc v. Thrivent Financial for Lutherans (7th Cir. Nov. 20. 2012). 

The Court rejected the EEOC’s argument that the word “inquiries” in the “Medical Examinations and Inquiries” section of the ADA refers to all job-related inquiries, not just medical inquiries. The Court held that “at a minimum,” an employer must know “something was wrong with the employee before initiating the interaction ….for that interaction to constitute a[n] inquiry [under that section].” No evidence suggested that the defendant should have inferred that the employee’s absence that day was due to a medical condition, the Court noted.

In response to the employer’s email inquiry, the employee provided a lengthy response attributing his absence, and inability to call in, to a migraine headache, and detailing his history of migraine headaches. The Court held that because the employer’s email was not a medical inquiry, the employer’s disclosure of the information it learned from the employee’s response did not violate the ADA’s confidentiality provisions.

 

The case arose because the employee believed the defendant violated the medical information confidentiality provisions of the ADA by sharing the information from his email response with prospective employees calling for reference checks. The Court affirmed the district court’s grant of summary judgment to Thrivant on this claim.   

Lactation discrimination does not violate Title VII, according to a Texas federal district court in a case brought by the EEOC. EEOC v. Houston Funding II (S.D. Tex. February 2, 2012). The EEOC claimed the employer fired the worker because she wanted to pump breast milk at work.

In granting summary judgment to the employer, the court noted that discrimination based on pregnancy, childbirth or a related medical condition violates Title VII but that lactation is none of these. The district court said “[f]iring someone because of lactation or breast-pumping is not sex discrimination.” Even if the EEOC’s allegations were true, “the law does not punish lactation discrimination,” the court added.  

 

The EEOC appealed the district court’s decision.  A three judge panel of the Fifth Circuit heard oral argument on the appeal on November 6, 2012.

Add another multi-million dollar settlement notch to the EEOC’s “inflexible leave” belt. The EEOC announced that national trucking company Interstate Distributor Company will pay $4.85 million to resolve a nationwide class disability discrimination lawsuit the EEOC had brought against Interstate.

The lawsuit alleged that Interstate had a policy of terminating employees who needed more than 12 weeks of leave, rather than determining whether it would be reasonable to provide additional leave as an accommodation. The EEOC had also alleged that Interstate refused to allow employees with restrictions to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions.

We have posted about the EEOC’s assault on “inflexible leave” policies, and about the EEOC’s failure to issue guidance to employers on the most vexing leave management questions of whether attendance is an essential function of a position and how much leave beyond the FMLA an employer must provide as a reasonable accommodation.

 

In addition to requiring Interstate to revise its policies, the EEOC’s Consent Decree requires the company to take certain additional affirmative steps, which provides a roadmap for employers who want to take prophylactic measures to manage this risk. These steps include requiring Interstate to “adopt and maintain a written policy that addresses how reasonable accommodations will be provided” and requiring Interstate to conduct ADA-focused “EEO training” to non-supervisory, supervisory and human resource employees annually, with a defined length of training for each of these groups.  

First Oktoberfest, now Pulaski Days.

Recall our post about an employee on FMLA who was terminated after his employer learned about his Oktoberfest festival jaunt. The Sixth Circuit affirmed summary judgment for the employer on the plaintiff’s FMLA retaliation claim, holding that, based on the plaintiff’s actions at the festival,  the employer had an “honest belief” that the employee had “over-reported” his restrictions to avoid doing light duty work. Seeger v. Cincinnati Bell Telephone, (6th Cir. May 8, 2012). 

Just six months later, the Sixth Circuit decided a very similar case, this one involving Pulaski Days, a Polish heritage festival. Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. November 7, 2012). There, the plaintiff, while on FMLA, spent eight hours on a Friday at three Polish Halls at the festival and then posted some photos of the day on her Facebook page. That weekend, plaintiff left voicemails for her supervisor, also her Facebook "friend,” stating that she would not be in on Monday because of her pain.

The photos led the employer to investigate. When asked whether her attending the festival was inconsistent with her health care provider’s statement that she was totally incapacitated, plaintiff said that “no one had told her that [attending the festival] was prohibited” and that “she was in pain at the festival and just was not showing it,” the court noted.  The employer terminated the plaintiff’s employment.  In affirming summary judgment for the employer on the plaintiff’s FMLA retaliation claim, the Sixth Circuit again cited the employer’s honest belief—in this case, that plaintiff’s behavior at the festival was inconsistent with her claim of total disability.

Among the lessons for employers from these cases is that the “honest belief” defense is powerful and that employers should investigate thoroughly to develop evidence to support that defense. Another is that festivals seem to be a good place to find evidence of potential FMLA fraud, at least within the Sixth Circuit.