When tragic events like Hurricane Sandy occur, many companies try to find ways to assist affected individuals, including the company’s employees and their families.  "Leave sharing" programs, in which employees donate paid leave to other employees who need to miss work due to the storm or disaster, often become popular.  Many companies are surprised to learn that there are unique legal requirements for these programs, which are summarized in a new post on our Firm’s Benefits Law Advisor Blog. 

What happens in Vegas stays in Vegas, usually, but not in this case. What happened in Vegas was scrutinized because the plaintiff claimed that her absences for her trip there were protected by the FMLA because she was “caring for” her mother on her mom’s end-of-life trip. A charitable organization which grants wishes to persons with terminal illnesses had granted her mother a trip to Vegas. Plaintiff’s employer had terminated her for her unauthorized absences.  

In Vegas, the plaintiff administered her mother’s medication and looked after her, while also spending time with her mother playing slots, shopping on the Strip, people-watching and dining in restaurants. The Vegas trip did not include any medical care, therapy or treatment for her mom’s medical condition.

 

In denying summary judgment to the employer on plaintiff’s FMLA claim, the Court rejected the argument that time off to “care for” is only protected when it is connected to the family member’s need for treatment. In rejecting the employer’s argument that the absences were not protected because her mom chose to travel away from home for reasons unrelated to medical treatment, the Court said “where the care takes place has no bearing on whether the employee receives FMLA protections.” The Court concluded that because plaintiff’s mom had a serious health condition and was unable to care for her own basic medical, hygienic or nutritional needs or safety, plaintiff was caring for her mom in Vegas. Ballard v. Chicago Park District (N.D. IL September 29, 2012).

 

This case is also helpful because it analyzes decisions which have held that absences to care for a family member must be connected to medical treatment, especially when the family member travels away from home.  

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 “the accommodation of last resort”—transfer to a vacant lateral or lower position for which the employee is qualified.

Circuit courts had been evenly divided on whether an individual with a disability is entitled to that vacant position—a “mandatory preference” — or must compete with other candidates for it.  The Seventh Circuit has now changed its position to join the “mandatory preference” view. Considering its earlier position in light of the 2002 United States Supreme Court decision in U.S. Airways, Inc. v. Barnett, the Seventh Circuit held “that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer.”  EEOC v. United Airlines, Inc., (7th Cir. September 7, 2012).

 

The Tenth and D.C. Circuits also hold the “mandatory preference” view. The Eighth Circuit is the lone circuit to take the “opportunity to compete” view. In 2008, the United States Supreme Court was to resolve the issue by reviewing the an Eighth Circuit decision but dismissed the case as moot when the parties settled their dispute. Eventually, this issue will percolate up to the Supreme Court again. Until then, circuit matters. 

We posted recently about an Eighth Circuit decision in which the court held that rotating shifts was an essential function because “[i]f [plaintiff] were switched to a straight day shift and not required to work the rotating shift, then other Resource Coordinators would have to work more night and weekend shifts.”
 
Another court has now held that the impact of an employee’s requested accommodation on co-workers is a factor in determining the essential functions of a position.  In EEOC v. Ford Motor Company (E.D. Mo. Sept. 10, 2012), the EEOC argued that “regular attendance was not an essential function” of the plaintiff’s buyer position because she could have performed her job duties at home up to four days per week as an accommodation for her medical condition.  In rejecting that argument and granting summary judgment to the employer, the court held that regular attendance was an essential function of the position, in part because plaintiff’s “frequent unpredictable absences negatively affected her performance and increased the workload of her colleagues.”  
 
These two cases suggest an employer should consider raising the “adverse impact on co-workers” of a requested accommodation at both the “essential functions” and “reasonable accommodation” stages of the “qualified individual” analysis. 
 
This case also has helpful analysis on telecommuting as a reasonable accommodation. It cites numerous decisions in support of its conclusion that “in general, courts have found that working at home is rarely a reasonable accommodation”….and that this case did not present “the exceptional case where a work-at-home accommodation would be reasonable.” (emphasis added). 
 
 

A plaintiff with chemical or other sensitivities alleging disability discrimination is not unusual. The typical claim is that such a plaintiff, despite such sensitivities, is a qualified individual with a disability and the employer failed to accommodate those sensitivities.  The pro se plaintiff in an Eleventh Circuit case making that claim, a nurse in a VA  hospital, had more than the usual number of sensitivities.  According to the Court, the plaintiff “had suffered allergic reactions or experienced sensitivity to floor sealant, floor stripper, cleaning products, chemical solvents, ammonia, rubbing alcohol, sprays, molds, dust, perfumes, scents and odors, fumes of any kind, latex, insect bites, changes in temperature or weather, volatile compounds, asbestos, and industrial equipment.”  Her doctor said she “must NOT be within less than one foot” of certain chemicals or solvents.  The Court held that because her employer “could not guarantee that she would not come near the hundreds of chemicals it commonly used at its facility,” the plaintiff could not perform the essential functions of her position, with or without accommodation, and, for that reason, was not a qualified individual under the Rehabilitation Act. Dickerson v. Secretary, Dep’t of Veterans Affairs Agency (11th Cir. September 7, 2012).

Recall our post concerning the claims of the acrophobic bridge worker and incontinent court reporter that rotating through job assignments was not an essential function of their jobs.    Now comes a “Resource Coordinator” seeking a straight day shift as an accommodation to her disability and claims that working rotating shifts is not an essential function of her position. Resource Coordinators work in teams of two on nine week schedules that rotate between twelve-hour and eight-hour shifts and day and night shifts.   

The Eighth Circuit held that working rotating shifts was an essential function of the Resource Coordinator position and affirmed summary judgment for the employer. Kallail v. Alliant Energy Corporate Services, Inc. (8th Cir. September 4, 2012). In reaching that holding, the court not only focused on the employer’s business justification for the rotating shifts, as you would expect, but also focused on aspects of the “non-work life” of Resource Coordinators. Rotating shifts “enhances the non-work life of all Resource Coordinators by spreading the less desirable shifts—nights and weekends, among all” of them, the Court said. “If [plaintiff] were switched to a straight day shift and not required to work the rotating shift, then other Resource Coordinators would have to work more night and weekend shifts,” the Court said.

 

Employers should always consider pointing to the adverse impact on co-workers of an employee’s requested accommodation in making an “undue hardship” argument. This case suggests that an employer should consider raising that issue at the earlier “essential function” stage as well. 

The question frustrating employers for decades remains: how much leave, beyond FMLA and employer policies, must an employer give a disabled employee as a reasonable accommodation under the ADA? More than a year after the EEOC hosted a public hearing on this topic, raising hopes that guidance may be forthcoming, only to have those hopes dampened if not dashed by the fifteen months-and-still-counting of waiting, the Tenth Circuit has provided some specific guidance. Robert v. Board of County Commissioners of Brown County, KS. (10th Cir. August 29, 2012).

“There are two limits on the bounds of reasonable for a leave of absence,” the court said. “The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties….Without an expected end date, an employer is unable to determine whether the temporary exemption [from performing essential duties] is a reasonable one.” 

“The second is durational,” the court added. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future,”” the court said, referencing an Eighth Circuit case where that court held that a six month leave request was too long to be a reasonable accommodation.

Since the plaintiff in Robert failed to provide a “definite estimate” of her ability to resume the essential functions of the job, the court held that “any further exemption following six months of temporary accommodation would be unreasonable as a matter of law.” The court affirmed summary judgment for the employer.

While a “bright line” leave limit would be much-welcomed and  administratively convenient, it is probably premature to assume that the Eighth and Tenth Circuit decisions create a six month “bright line,” especially given the ADA’s injunction that employers do an “individualized assessment” when making disability-related decisions. But these opinions, combined with the Seventh Circuit’s repeated reference to a “multi-month leave” as being a sufficient accommodation, are beginning to sharpen the issue and provide that much-needed, and long-awaited guidance.

As of July 1, 2012, several employers in Philadelphia now have to provide their employees with paid sick leave.  Pursuant to an amendment to Chapter 17-1300 of the Philadelphia Code, titled “Philadelphia 21st Century Minimum Wage and Benefits Standard,” certain entities providing services to, or receiving financial aid from, the City of Philadelphia must provide up to a maximum of 56 hours, or 7 days, of paid sick leave to all full-time, non-temporary, non-seasonal covered employees.  In certain circumstances, a covered employer can seek partial or total waiver of the paid sick leave requirement from the Philadelphia Office of Labor Standards. For example, if a covered employer contends that it is unable to pay all or part of the paid sick leave or if the paid sick leave is waived by a bona fide collective bargaining agreement, an employer can seek a waiver of the paid sick leave requirement.

Notably, there are penalties if a covered employer fails to comply with the paid sick leave obligations. Covered employees who believe that their employer failed to provide them with the minimum paid sick leave benefit may bring an action against an employer for back pay, compensatory and punitive damages, as well as attorneys’ fees and costs. It is also unlawful for an employer to retaliate or discriminate against a covered employee who claims his or her employer violated Philadelphia’s paid sick leave requirement. Finally, following notice and a hearing, a covered employer found to have failed to comply with Philadelphia’s paid sick leave requirement may be suspended from bidding on or participating in City contracts for up to three years.

So what should you be doing to ensure compliance with this ordinance?  As an initial matter, you will want to determine whether you are covered as an “employer” under the Philadelphia 21st Century Minimum Wage and Benefits Standard. If you provide services to the City, either through a direct contract or a subcontract, you will need to consider the size of the contract, the amount of your gross receipts, and whether your business is a for-profit or non-profit entity.  If you are a covered employer, you should review your leave policies and revise your policies as necessary to provide no less than the amount of paid sick leave required under Chapter 17-1300 of the Philadelphia Code.

An employer had an ”honest suspicion” that an employee was not using FMLA for its intended purpose based in part on the report of a private investigator, according to the Seventh Circuit.  The Court affirmed summary judgment for the employer. Scruggs v. Carrier Corporation. (7th Cir. August 3, 2012).

The employer had hired the investigator to follow approximately 35 employees it believed may have been misusing leave or had a high incidence of unexcused absences.. According to the decision, the plaintiff took an FMLA day to pick up his mother from a nursing home and take her to a doctor’s visit. The investigator had reported that the plaintiff did not leave his home that day other than to get his mail from the mailbox. Documentation the plaintiff provided, which seemed to suggest that plaintiff mistakenly brought his mother to her doctor’s appointment more than six weeks early and an hour before he signed his mother out of the nursing home, also supported the employer’s “honest suspicion,” according to the Court.

When an employee works a “rotational” schedule—typically weeks “on” followed by weeks “off”—do the “off” weeks count when calculating FMLA leave? An Oklahoma federal court held that an employer did not violate the FMLA by counting scheduled weeks off as FMLA leave. Murphy v. John Christner Trucking (D. Ok. Aug. 15, 2012). In 2010, an Alaska federal court reached the opposite conclusion. Truitt v. Doyon Drilling (D.Alaska 2010)

In Murphy, the plaintiff worked seven days on, seven days off. When “on,” he worked 84 hours weekly. To calculate his FMLA entitlement, the employer averaged his weekly work time and then applied that time to both weeks “on” and weeks “off.” In upholding the employer’s approach, the court said that while the FMLA and the DOL’s regulations concerning intermittent and reduced schedule leave restrict employers from applying FMLA leave time to periods when the employee would ordinarily not be scheduled to work, neither the statute nor regulations have similar language for other types of FMLA leave, such as leave taken in a block of time.

 

In Truitt, the plaintiff worked two weeks on, two weeks off. The court said that language in the preamble of the DOL’s FMLA regulations suggested that an employer cannot consider weeks an employee would ordinarily have been scheduled “off” to be FMLA leave.

 

In 2012, the DOL sued an energy services company in Alaska concerning the calculation of FMLA leave for an employee on a rotational schedule. The DOL asserted “that weeks that a rotational employee is not scheduled to work cannot be counted as leave.”