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.

 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.