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.

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).