There was this one, this one, and now yet another multi-million dollar settlement with the EEOC involving allegations that an employer had an inflexible leave policy. The EEOC announced that Dillard’s had agreed to pay $2 million as part of a consent decree to resolve the agency’s allegations relating to the company’s medical inquiries and a “maximum-leave policy limiting the amount of health-related leave an employee could take and, in practice, [] not regularly engag[ing] in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation of the employee’s disability.”

According to the EEOC, the consent decree  “requires that Dillard’s hire a consultant with ADA experience to review and revise company policies as appropriate,”  implement “effective training” for supervisors and staff on the ADA and, develop a centralized tracking system for employee complaints involving disability discrimination.   

 

We haveposted previously about the ADA’s “accommodation of last resort”: when an employee cannot perform the essential functions of his or her position, with or without an accommodation, due to a disability, an employer must consider transferring the employee to a vacant lateral or lower position for which the employee is qualified.

Whether a position is “vacant” is usually not in dispute. But in Wardia v. Justice and Public Safety Cabinet Department of Juvenile Justice; Campbell County Regional Justice Department of Corrections (6th Cir. January 3, 2013),  that was an issue the Sixth Circuit grappled with.  

While the plaintiff, a “youth worker,” was recuperating from an injury, the employer assigned him temporarily to the control room position. This assignment lasted more than a year. The employer ended it when the employee’s health care provider indicated that the employee’s restrictions were permanent.

When the control room position is not filled by a recuperating employee, youth workers rotate through the position, which is a less stressful job, and “provides a break from dealing directly with juveniles, a break that potentially improves overall staff performance," according to the court.

The employee requested that the control room position be made his regular position as a reasonable accommodation. The Sixth Circuit affirmed the district court’s rejection of this claim.

"Employers cannot be required to convert either rotating or temporary positions into permanent positions," the court said. The permanent assignment of the control room position "would essentially require the creation of a new position rather than reassignment to an otherwise existing vacant one," the court noted. It would shift essential job functions to others who could not rotate off their regular assignment as often, “leaving them with [plaintiff’s] share of physical restraints and direct juvenile contact,” the court added.

The court also said that to require the employer to convert the temporary light duty position to a permanent position “would actually frustrate the purposes of the ADA–if employers are locked into extending temp positions for injured workers on a permanent basis they might well be less inclined to permit such an arrangement in the first place.”

We have posted previously that courts are willing to consider the impact on other employees of a plaintiff’s request for an accommodation. In this case also, the Sixth Circuit considered the fact that the plaintiff’s co-workers would not be rotating through the easier position, and would be picking up the plaintiff’s responsibilities in its “undue hardship” analysis.

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.