Whether and to what extent attendance is an essential job function is perhaps the most vexing ADA issue. In Samper v. Providence St. Vincent Medical Center (9th Cir April 11, 2012), the plaintiff, an ICU neo-natal nurse with fibromyalgia, asked to “opt out” of the employer’s unplanned absence policy as an accommodation.

 In a remarkably refreshing opinion likely to be cited regularly for its analysis of whether regular attendance is an essential function, the Ninth Circuit affirmed summary judgment for the hospital, noting that plaintiff’s job “unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment.” 

 Applying the Supreme Court’s infrequently applied US Airways, Inc. v Barnett analysis, the Court stated that plaintiff’s request to “miss work whenever she felt she needed to and apparently for so long as she felt she needed to” is “not reasonable on its face.” The hospital “was under no obligation to give [plaintiff] a free pass for every unplanned absence,” the Court said. Her request would exempt her from an essential function and “would gut reasonable attendance policies,” the Court noted, adding that in a hospital, such an accommodation could “quite literally, be fatal.” 

Worst v. Glynn County School District (S.D. Ga. March 29, 2012) reminds employers that the  best case scenario is to avoid connecting performance issues and leave. Worst, a third grade teacher, told her principal she would need leave for surgery beginning a month hence. Before Worst’s leave began, her principal spoke with her about her performance and told her that she would be placed on a performance development plan (PDP) when she returned from leave.

When Worst returned, the principal instituted the PDP, which Worst considered to be “intense scrutiny.” When her request to transfer to another school was denied, Worst resigned and brought FMLA interference and retaliation claims, including a constructive discharge claim.

 

The court granted summary judgment to the school district on all claims except the FMLA retaliation claim. The court held that implementing the PDP was an adverse action and that there were issues of fact concerning whether her behavior and performance were the real reasons for the PDP. These factual issues arose from both the “temporal proximity” between the onset of the PDP process and Worst’s leave, and the multiple instances where medical leave was discussed in conjunction with the PDP.

 

These instances, or “documented connections,” included: a letter from Worst’s principal stating “It is my hope that when you return to work after medical leave that you will be able to rectify the aforementioned concerns”; an email from the principal stating “[Worst] is having yet another surgery and will be out for 6 weeks….When she returns, I am going to put her on a PDP….”; a letter to Worst in response to her transfer request which notes that  “[w]e sincerely hope that your health will improve, but missing 24.5 of the current 76 days of schools (sic), we are very concerned about the education of the … students.”

 

While the school still may prevail at trial, since these “documented connections” were one of the reasons summary judgment was denied, eschewing them is best to avoid the Worst case scenario.   

When dealing with ADA claims relating to benefit plans, make sure to plot the coordinates for the ADA’s Section 501(c) “safe harbor.” Sections 501(c)(2) and (3) protect employers from liability for conduct that  would otherwise violate the ADA if it were taken pursuant to an insured or self-insured benefit plan so long as the plan is not “a subterfuge to evade the purposes of the ADA.”   

Some courts have relied on the “safe harbor” to reach favorable results for employers. As we reported previously, a district court granted summary judgment to Broward County, FL, upholding the County’s $20 bi-weekly surcharge for employees who did not participate in a "voluntary" wellness program requiring biometric testing for glucose and cholesterol, and completion of a health risk assessment.   Seff v. Broward County. Also,  a Minnesota district court  granted summary judgment to an employer who had terminated an employee for failing to answer health history questions requested by the employer’s insurance broker.  Barnes v. Benham Group, Inc.

A plaintiff invariably argues that the purported “safe harbor” is merely a “subterfuge” to evade the purposes of the ADA. The EEOC argues that if a benefit plan contains disability-based distinctions, the plan is a subterfuge unless the sponsor can establish that the distinction is justified by cost justifications and/or risk classification, such as such as age, occupation, personal habits (e.g., smoking), and medical history. 

A federal district court has reiterated the rejection of the EEOC’s “subterfuge” analysis. In granting summary judgment on a claim brought by a paraplegic employee who was denied standard coverage for long term care insurance, the court noted that “[t]he D.C. Circuit and every other circuit to have considered the issue have rejected the contention that the ADA safe harbor provision applies only to plans with terms that are actuarially justified.” Instead, the court said, “subterfuge” must be given “its ordinary meaning as ‘a scheme, plan, stratagem, or artifice of evasion.’’ (citation omitted. Rouse v. Berry (March 24, 2012). To establish “subterfuge,” a plaintiff must establish the “actual intent to use the terms of the benefit plan as a means of discriminating against a disabled individual in protected aspects of employment,” the court added.

On the issue of whether states, as employers, may be liable for damages for violating the FMLA, it is fair to say that the U.S. Supreme Court lacks a consensus. On March 20, 2012, the Court said states cannot be sued for damages for violating the self-care provisions of the FMLA, i.e., those provisions dealing with an employee’s own serious health condition. Coleman v Court of Appeals of Maryland. That decision has five opinions: four justices joined the plurality opinion; two wrote concurring opinions; two dissented; and two justices joined in not quite all of that dissent.

In 2003, the Supreme Court said states may be sued for damages for violating the family leave provisions of the FMLA. Nevada Dept of Human Resources v. Hibbs, 538 U.S. 721 (2003). That decision has five opinions as well: five justices joined the majority opinion; three joined in a concurring opinion; one wrote a separate concurring opinion; three joined in a dissent; one justice filed a separate dissent. 

 

The different outcomes are due to the Court’s evaluation of whether Congress had the authority to abrogate states’ sovereign immunity from suits for damages. Congress may abrogate that immunity to remedy or prevent state conduct which violates the equal protection clause of the Fourteenth Amendment. 

 

In Coleman, the Court held that Congress could not abrogate State immunity for suits for damages under the self-care provision of the FMLA because “[t]here is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination.”

 

In Hibbs, the majority held that Congress appropriately abrogated states’ sovereign immunity because Congress had evidence that states had family leave policies that differentiated on the basis of sex and administered neutral family leave policies in ways that discriminated on the basis of sex.

 

An unresolved issue in Coleman is whether a plaintiff may sue a state for an FMLA violation and obtain injunctive relief. Two dissenters stated that since the FMLA was also an exericise of Congressional authority under the Commerce Clause, a plaintiff may obtain equitable relief, even if not money damages. 

Employers challenged with scheduling modifications due to reasonable accommodation requests under the ADA, intermittent leave requests under the FMLA, and paid sick leave requests in some jurisdictions, but looking to increase their profitability, might want to keep an eye on H.R. 4106, the Working Families Flexibility Act (WFFA).

Introduced in the House of Representatives on February 29, 2012, WFFA gives employees the right to make an annual request to change his or her work schedule (both number of hours and work times), where the employee works, and the amount of notice an employee receives of work assignments. The employee does not need to give the employer any reason to justify the request.

While the bill imposes what appears to be the benign obligation that an employer merely “consider” such requests, the bill includes procedural requirements for that consideration process, akin to the interactive dialogue under the ADA, and penalties for interfering with, restraining or denying the exercise of rights under the law, or discriminating or retaliating against an individual who has exercised rights under the law.

According to the bill, giving employees the right to request changes in their work hours, times and place will improve the employer’s business. One of the bill’s “findings” states that flexible work arrangements “improve the bottom line” for businesses “by helping businesses to attract and retain key talent, increase employee retention and reduce turnover, reduce overtime and absenteeism and enhance employee productivity, effectiveness, and engagement.”  

While flexible work schedules may be practical in some workforces, some employers struggling to manage schedules under FMLA, ADA, and PTO or sick leave policies may see this as adding to that challenge.

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.

The circuit courts have split on whether an individual with a disability is entitled to that vacant position or must compete for it. The Tenth and D.C. Circuits have held that an individual is entitled to it. The Seventh and Eighth Circuits have held an employer may require the disabled employee to compete for it. In 2007, the United States Supreme Court agreed to review an Eighth Circuit decision on the issue, but the Court dismissed the case when the parties settled their dispute. Huber v. Wal-Mart (8th Cir.2007).

 In 2009, the EEOC sued United Airlines over its policy which required individuals with a disability to compete for a vacant position. Likely seeking a favorable venue and perhaps to avoid Seventh Circuit precedent, the EEOC sued in San Francisco but that court granted United’s motion for a change of venue to Illinois. The EEOC urged the Seventh Circuit to reverse its position. Rejecting the EEOC’s argument, the Seventh Circuit panel reiterated, yet again, that a policy requiring a disabled employee to compete for a vacant position does not violate the ADA, but urged the EEOC to request an en banc review. EEOC v. United Airlines, Inc. (7th Cir. 3/7/12).

Eventually, this issue will percolate up to the Supreme Court again. Until then, circuit matters.

In 2011, an EEOC Commissioner noted that one aim of the ADAAA was to have the parties “stop obsessing about coverage”, i.e., about who is “disabled,” and move to the merits of the substantive claim.

A Tenth Circuit decision suggests that there is still value in obsessing about ADA coverage. In Allen v. SouthCrest Hospital (10th Cir. 12/21/11), a medical assistant claimed her migraine headaches substantially limited her ability to care for herself and to work. Her employer argued that she was not disabled and the court agreed.

The plaintiff had claimed that she would “crash and burn” when she got home from work with a headache by taking medication and going to sleep, rather than caring for herself. Rejecting this argument, the court held that plaintiff did not present any evidence about how her need to “crash and burn” compared to the average person’s ability to care for herself after work or that will permit a comparison of the effects of her sleep disturbance to those experienced by the average person.

 Also, since plaintiff said her migraines only affected her ability to do her job for one doctor, the court rejected her claim that she was substantially limited in working because her impairment did not prevent her from working in a class or broad range of jobs.

Courts have struggled to determine who “cares for” a covered family member under the FMLA and who seeks leave for compassionate reasons which fall short of the “caring for requirement. See, e.g., Who Cares, Where? ; Who Cares? And Who Merely Assists Under the FMLA? The Sixth Circuit has held that an employee who sought leave to go to the hospital to decide with his sister whether his mother should continue on life support was “caring for” his mother under the FMLA. The Court cited the FMLA regulation which states that family members are entitled to leave “to make arrangements for changes in care….”   Romans v. Michigan Dep’t of Human Services (6th Cir. February 16, 2012).

In reversing summary judgment for the employer, the Court also rejected the district court’s holding that because plaintiff’s sister was at the hospital caring for the mother, the plaintiff was not entitled to FMLA leave as well. The Court stated that "[t]o be sure, [deciding whether to remove the mother from life support] is the kind of decision…that few people would relish making without the help of other family members, and the regulations do not force them to do so.”

 A terminated employee who had made a “pre-eligibility request” for a ”post-eligibility leave” can pursue FMLA interference and retaliation claims, according to the United States Court of Appeals for the Eleventh Circuit. The Court reversed the district court decision, which had dismissed both claims because the plaintiff was not FMLA-eligible at the time of her termination.   Pereda v. Brookdale Senior Living Communities, Inc., (1/10/12).

Eight months into her employment, the plaintiff told her employer she was pregnant and would need FMLA leave for her child’s birth, which would occur after she had met the FMLA eligibility requirements. The employer discharged plaintiff before she had completed 12 months of employment.

The Eleventh Circuit held that because the FMLA requires notice prior to leave, employees are protected from interference prior to the occurrence of the triggering event such as the birth of a child. If it were to  hold otherwise, the Court said, the advanced notice requirement “becomes a trap for newer employees.” The court added that because “ a full term pregnancy takes nine months to complete, not affording pre-eligible expecting parents any protection would leave them exposed to adverse action by their employer.”

The Court also held that a pre-eligible request for post-eligible leave is protected activity sufficient to support an FMLA  retaliation claim.  Quoting an Oklahoma federal district court decision, the Court noted that “if courts were to read the FMLA to allow employers to dismiss ineligible employees who give advance notice of their need for FMLA leave, it would open a large loophole in the law…”

An employee must arbitrate his FMLA claim where the labor contract governing his employment waived his right to pursue employment claims in court, according to the United States Court of Appeals for the Eighth Circuit. Thompson v. Air Transport Int’l LLC (12/28/11). The Court relied on the Supreme Court’s 2009 decision in 14 Penn Plaza LLC v. Pyett, which held that a mandatory arbitration clause in a labor contract required an employee to arbitrate his age discrimination claim.