The Connecticut law prohibiting discrimination against an individual who has a “physical disability” does not create a cause of action for discrimination by someone who does not have, but is perceived to have, a physical disability, according to the Connecticut Appellate Court. Desrosiers v. Diageo (Aug 14, 2012).  The Court noted that the state law prohibiting discrimination based on “mental disability” specifically includes those “regarded as” having a mental disability within its definition, while the definition of “physical disability” does not have the “regarded as” term.
 
Prior to this decision, state trial courts had split on whether the Connecticut Fair Employment Practices Act (CFEPA) had created a cause of action for perceived physical disability.
 
Jackson Lewis LLP submitted an amicus brief to the Court on behalf of the Connecticut Business & Industry Association, urging the Court to find that CFEPA did not create a cause of action for perceived physical disability.

While the FMLA does not require an employer to reduce its performance standards when an employee is actually on the job, the FMLA “can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave,” according to the United States Court of  Appeals for the Seventh Circuit. Pagel v TIN, Inc. (7th Cir August 9 2012).  In reversing summary judgment for the employer, the Court stated that the plaintiff had produced evidence that the defendant terminated him in part for not meeting sales expectations  which had not been reduced to take his FMLA absences into account.

Prior to terminating for performance an employee who has taken FMLA leave, an employer must ensure it has made the appropriate “performance standard” adjustment to account for FMLA absences. This issue arises in a variety of contexts, both with employees who have objective performance criteria such as sales quotas or performance scores as well as with employees without objective performance metrics.
 

An employee’s taking a morning off to make an unannounced visit to his physician’s office to get a prescription refill and confirm that referral paperwork for an appointment that afternoon had been completed was not protected by the FMLA because the visit was not “treatment” for a serious health condition, the Seventh Circuit has held. Robert Jones v. C&D Technologies, Inc. (7th Cir. June 28, 2012).  During the morning visit, the physician did not examine or evaluate the employee. 

The morning absence, when combined with other absences, led to plaintiff’s termination under his employer’s policy.  In affirming summary judgment for the employer, the court rejected plaintiff’s arguments that his receipt of the prescription refill note was “medical treatment” under the FMLA.  The court stated that being on a “course of prescription medication” is a “regimen of continuing treatment,” which is relevant in determining whether someone has a serious health condition. However, for leave to be protected by the FMLA, the “regimen of continuing treatment” must prevent the employee from performing his job, which was not the case here, the court said.

We had previously written about a son who took time off to prepare breakfast for his mom and dress her to take her to a doctor’s appointment. The court there held that the activities preceded the doctor’s visit were not protected by the FMLA because the mother could have fed and dressed herself. These cases provide guidance to an employer looking to ensure that FMLA is used for its intended purpose and only for its intended purpose. 

 Under a new Connecticut law, a “qualifying patient” with a “debilitating medical condition” may obtain a supply of marijuana from a licensed dispensary to alleviate symptoms or effects of such symptoms.  The statute lists eleven “debilitating medical conditions” and gives the Department of Consumer Protection the ability to add others.

The act also gives guidance to address the workplace issues that will occur inevitably. The lawful palliative use of marijuana does not protect the ingestion of marijuana in the workplace.  Also, the law “does not restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”  However, an employer may not refuse to hire a person or discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under this law. Most of the law is effective October 1, 2012, An Act Concerning the Palliative Use of Marijuana, Public Act. 12-55.

The Sixth Circuit has affirmed summary judgment for an employer who terminated an employee on FMLA leave based on its “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).

Under the labor contract, an employee on otherwise unpaid FMLA leave could receive paid disability benefits by allowing the employer access to his or her medical records and by agreeing to work in a light duty position consistent with any medical restrictions, if required to do so. After plaintiff was on FMLA and paid disability leave due to a herniated lumbar disc for three weeks, the employer offered him temporary, part-time, sedentary telephone work. Plaintiff’s doctor said plaintiff could not do any restricted work.

 

Just days after rejecting restricted work, plaintiff visited the Oktoberfest in downtown Cincinnati, where he walked approximately ten blocks.  He encountered co-workers, some of whom told the human resource department that they had seen plaintiff “walking unassisted and seemingly unimpaired through the crowded festival.” In investigating the incident, the company also reviewed the employee’s medical records. When asked why he could attend Oktoberfest but not do part time sedentary work, plaintiff said his doctor prohibited him from doing light duty. The company concluded that plaintiff had “over-reported” his symptoms to avoid part time, light duty work and terminated him for disability fraud. 

 

Rejecting plaintiff’s FMLA claim, the court held that “an employee on FMLA leave may be terminated for violating the more stringent requirements of a concurrent paid leave policy, as long as that policy is reasonable” and does not conflict with or diminish the protections of the FMLA. The court concluded that the employer had made a reasonably informed and considered decision, which gave it an “honest belief” that the employee had committed disability fraud.

 

The lesson from this case is that an employer in search of tools to ensure that FMLA leave is used for its intended purpose may find or even create those tools in the “more stringent requirements” for a concurrent paid leave policy.

The Ninth Circuit ruled today in James v. City of Costa Mesa, that the Americans with Disabilities Act does not protect medical marijuana users who claim they are subject to discrimination on the basis of their marijuana use. The Court concluded that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA which excludes from its definition of "disability" individuals who are currently engaged in the "illegal use of drugs."  The Court also held that this conclusion is not altered by recent congressional actions allowing the implementation of the District of Columbia’s local medical marijuana initiative.  While the decision involved a question under Title II of the ADA and did not involve claims of employment discrimination, the Court’s analysis seemingly would apply to the employment provisions (Title I) of the ADA as well.  

The extent of an employer’s obligation to extend leave and excuse absences as a reasonable accommodation under the ADA is perhaps the most vexing ADA issue for employers. In June 2011, the EEOC held a public hearing on leave as a reasonable accommodation, and suggested it might issue guidance on the topic in 2011. When EEOC Commissioners were scheduled to speak at a December 2011 webinar entitled “ADA: Guidance from the EEOC,” guidance-watchers were agog since the timing was right for some hint of when this attendance guidance might be issued, and perhaps even a sneak peak at what it might say. Alas, not a single mention of this guidance during the webinar.  The year ended, guidance-less.    

Guidance-watchers waited with great anticipation for the EEOC’s April 25, 2012 meeting. Among the agenda items to be considered was “Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act,” a topic broad enough to encompass guidance on attendance issues. Also, for Commission Member Stuart Ishimaru, whose resignation from the Commission is effective April 30, if he were going to have an opportunity to weigh in publicly on the guidance, this was likely his last opportunity. Guidance hopes were dashed the morning of the hearing, when the EEOC’s website noted that this agenda item had been removed. Alas, no guidance, yet again.  In the words of Beckett’s Estragon, “such is life.”

 

Employees not coming to work is something nearly all employers deal with regularly. Employers need guidance on the amount of leave they must grant disabled employees, and need assurance that they can require regular and predictable attendance, regardless of the reason for the absence.

 

It is unclear when, or even if, the EEOC will issue the much-needed and much-awaited guidance. Waiting for the guidance has become like waiting for Beckett’s Godot. Those waiting come to the realization at the end of each day that it is not coming today, it might come tomorrow.

An ADAAA “rule of construction” is that an episodic impairment is a disability if it would substantially limit a major life activity when active. A Missouri federal district court has held that whether an employee with an episodic impairment is a qualified individual with a disability is also determined when the impairment is active.  The court held that a mammography technician who had fourteen epileptic seizures in two years was not a qualified individual with a disability “because she could not perform the essential functions of her position while she was experiencing an uncontrolled and unpredictable seizure.”  Olsen v. Capital Region Med. Ctr. (W.D. Mo. April 12, 2012).

The court also held the plaintiff was not qualified because she posed a direct threat of harm to herself and others.  A “direct threat” exists when there is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. During seizures, the plaintiff suffered numerous injuries to herself, including cuts and abrasions, bites to her tongue and cheek and, on one occasion, an interruption of her breathing. She would lose consciousness for several minutes during a seizure.

Twice she had a seizure while conducting mammogram examinations on patients. “[I]t is not hard to imagine what harm a patient could potentially suffer if the mammography machine was in full compression and plaintiff experienced a seizure or if plaintiff were to fall on a patient while she was positioning [her] in the machine,” the court said.

In granting summary judgment to the employer on plaintiff’s disability discrimination claims, the court concluded that the defendant’s actions were not motivated by discrimination based on plaintiff’s disability but “were in response to the unpredictable and severe consequences caused by plaintiff’s seizures.”

When a 527 pound employee at a residential drug and alcohol treatment center was terminated, she filed an ADA charge with the EEOC, claiming her severe obesity was the reason. She died while her charge was pending. The EEOC sued her former employer and the parties have resolved the lawsuit with a Consent Decree. EEOC v. Res. For Human Dev. Inc. d/b/a Family House of La. (E.D. La. April 4, 2012).

The Consent Decree requires Family House to create and maintain a tribute to the ex-employee at her former workplace. Family House must “permanently name a children’s room” in her memory and “memorialize the room” with a plaque at least 9 X 12 inches in size, with the inscription specified in the Decree. The plaque must also include a color copy of the former employee’s photograph, attached to the Decree, at least 8 X 10 inches and “printed on archival quality paper.” The plaque and photograph shall state on the back that it is posted pursuant to the court’s order.

The Decree requires that Family House post the plaque and photograph for as long as Family House of La. operates the facility and, should it no longer operate the facility, the plaque and photo shall be “permanently placed” at a prominent location at its headquarters.

The Consent Decree also requires Family House to pay $125,000.

A man walks into the woods with a gun and sits in a comfortable chair already set up in a blind. An hour earlier that Monday, 2 ½ hours into his shift, he told his employer he was in severe pain and could not perform his work duties. Because the employee’s FMLA requests tended to straddle weekends and holidays, the employer had hired a private investigator to tail him. The investigator tracked the man’s entry into the woods. The investigator had also reported observing the employee hunting one day the prior week while on FMLA leave for a strained back. 

The company terminated the hunter for fraudulently claiming FMLA leave. The hunter sued, claiming interference with his FMLA rights and retaliation against him for exercising those rights. He denied abusing FMLA and hunting after he left work that Monday. Turner v. Parker-Hannifin Corp. (W.D. MI, April 12, 2012).

The hunter survived his employer’s motion for summary judgment. The court said that the investigator’s report did not indicate whether the hunter’s activities were inconsistent with his doctor’s restrictions that he not bend, twist or lift heavy objects. “The determination of whether it was reasonable for the Company to simply equate hunting with the ability to work without considering what was involved in either activity is a question of fact” for the jury, the court said.