“Severe obesity” is a disability under the ADA and a plaintiff need not prove an underlying physiological basis for it, according to a Louisiana federal court. The court denied the employer’s motion for summary judgment. EEOC v. Resources for Human Dev., E.D. La., 12/7/11).

Noting that there is no federal law prohibiting discrimination based on obesity, the court reviewed decisions by courts of appeals which had previously considered whether obesity is a disability under federal laws prohibiting discrimination on the basis of a disability. The Second and Sixth Circuits had held in ADA cases that morbid obesity was not an impairment, and thus not a disability under the ADA, except where the obesity related to a physiological disorder. The First Circuit had held in a Rehabilitation Act case that morbid obesity was a physical impairment.

The plaintiff oversaw a day care program for children. When hired, she weighed more than 400 pounds; when terminated eight years later, she weighed 527 pounds.  She died while her discrimination charge was pending; the EEOC filed this suit on behalf of her estate.

Whether a supervisor mistreated the plaintiff after he returned from his second leave of absence, causing him to need a third leave, is irrelevant to his FMLA retaliation claim because “[e]xacerbation is not a valid theory of liability under the FMLA” according to the Seventh Circuit.  Breneisen, Jr. and Lineweaver v. Motorola, Inc. (7th Cir. Sept. 2, 2011). The cause of a medical condition is irrelevant to whether an employee is entitled to FMLA leave, the court added.

The employee had exhausted his FMLA leave and had been granted a second leave for five months. The plaintiff alleged that when he returned, hissupervisor’s mistreatment caused him  stress, high blood pressure and stomach reflux, requiring him to take a third leave from which he never returned, which led to his losing his job.

The court rejected plaintiff’s claim, holding that the FMLA does not recognize “an exacerbation theory,” and that if an employee cannot work due to a serious health condition after exhausting FMLA leave, the FMLA no longer applies, regardless of the cause of the infirmity.

The plaintiff’s argument seems to be an attempt to juxtapose the standard for an employee to receive workers compensation benefits, i.e., has suffered an illness or injury out of or in the course of employment, onto the FMLA. Because the medical condition causing the need for leave arose out of or in the course of my employment, the plaintiff’s argument would go, the plaintiff is entitled to even more than 12 weeks of FMLA leave if necessary. The court’s rejection of this argument removes the negligence concepts of “cause” and “exacerbation” from FMLA analysis, at least in determining the amount of FMLA to which an employee is entitled.

A plaintiff who thought she had the swine flu, and thought she had an ADA claim when she was terminated after four days of absence for the flu, had neither. Lewis v. Florida Default Law Group,P.L. (M.D. FL Sept. 15, 2011).

The plaintiff was diagnosed with “seasonal flu” but “understood” she was diagnosed with the H1NI virus, the swine flu.  Her doctor testified that he never diagnosed her with H1N1. When she returned to work after the four days, the company terminated her because her absences were “just too much.”  She had “substantial attendance issues” prior to these four days, according to the court.

The plaintiff claimed she was terminated because she had or was perceived as having been infected with the H1N1 virus. The court rejected plaintiff’s claim that her flu, whether seasonal or swine, was an actual disability, noting that even if her symptoms were impairments, they were of short duration and, as a result, did not substantially limit any major life activity. 

The court also dismissed her “regarded as” claim because her impairments were transitory and minor. The symptoms of the 2009 H1N1 virus included fever, cough, sore throat, runny or stuffy nose, body aches, headache, chills, fatigue and, for some, vomiting and diarrhea, “specifically the type of impairments that the ‘transitory and minor’ exception’ was intended to cover,” the court added.

Whether particular flu strains are disabilities under the ADA has been an intriguing issue since the avian and swine flu outbreaks a few years ago.  The Lewis case is one of the few decisions to do this analysis.  

 

Add the Second Circuit to the chorus of circuits to apply the Supreme Court’s standard for Title VII retaliation claims to FMLA retaliation claims as well. In its 2006 Burlington Northern & Santa Fe Railroad Co v. White decision, the Supreme Court expanded the definition of “materially adverse employment action” for purposes of Title VII retaliation. The Supreme Court held that such an action is one that well might have dissuaded a reasonable employee from making or supporting a charge of discrimination. In Millea v. Metro North R.R. Co., the Second Circuit held that this same “materially adverse” standard applies to FMLA retaliation claims, citing similar determinations by the 3rd, 4th, 5th, 7th and 10th Circuits.

The Burlington Northern standard is a much broader standard, more favorable to plaintiffs, than the definition of “adverse employment action” applicable in non-retaliation cases. This expanded definition has contributed to an increasing number of retaliation charges. During the EEOC’s most recent fiscal year, more than one third of all charges filed with the agency included a retaliation claim.

A drug testing protocol for both legal and illegal drugs was an unlawful medical examination, and the follow up questions about lawful drug use were unlawful disability-related inquiries, according to a federal district court in Tennessee. Bates v. Dura Automotive Systems, Inc., (Aug. 29, 2011). The court rejected the company’s motion to set aside a jury verdict for the plaintiffs. The jury had found that the examination and inquiries were not “job-related and consistent with business necessity,” as required by the ADA.

Rejecting Dura’s arguments that the punitive damage award should be set aside, the court cited testimony that “the most likely explanation” for the policy was that the company “was attempting to ‘run off’ older employees with higher medical and prescription drug costs;” that the company refused  to consider individual circumstances or medical authorizations stating that the plaintiff could work safely while on the prescription medications; and that a plaintiff who failed the initial panel test was allowed to continue working on an important project but was terminated after failing a random test following completion of the project.

A test to determine the illegal use of drugs is not a medical examination under the ADA and inquiries concerning current use of illegal drugs are not unlawful inquiries. An employer who ventures beyond the “illegal use” parameter must establish that  its examinations and inquiries are “job related and consistent with business necessity.” An employer should ensure its drug testing protocol tests for illegal drugs only and that its drug testing vendor is following that protocol.                     

Recall the incontinent court reporter. She had a steady assignment compatible with her medical condition until the chief judge required court reporters to rotate through all courtrooms.  In the lawsuit challenging the court reporter’s termination, the court held that rotating was an essential function of the court reporter’s job and because she could not do this with or without an accommodation, she was not a qualified individual with a disability. Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th and 22nd Judicial Circuits (April 7, 2010).

Now consider the bridge worker for the Illinois Department of Transportation, Miller, who developed acrophobia, or fear of heights. Bridge workers have various responsibilities, some of which are performed at significant heights. Initially, the employer allowed other members of his team to do the bridge work at heights.  Assigned to change a bulb while standing on a bridge beam wearing a lifeline, Miller had a panic attack. IDOT denied his request that he be excused from working on bridge beams and other extreme places over 20-25 feet. When discharged for an unrelated reason, Miller sued, claiming that IDOT failed to accommodate his disability. The district court granted IDOT’s motion for summary judgment, holding that working at heights above 25 feet was an essential function of Miller’s job. The Seventh Circuit reversed and remanded the case for trial. Miller v. Illinois Dep’t of Transportation (May 10, 2011).

Why did the acrophobic bridge worker fare better than the incontinent court reporter? The key is how work was assigned. The court required all court reporters to rotate through all positions and the ability to do so was an essential function. But the bridge workers worked as a team, reassigning tasks among themselves according to abilities, preferences, and limitations. The court held that a reasonable jury could conclude that while some members of the bridge crew needed to be able to work at heights in exposed or extreme positions so that that bridge crew—as a unit—could do its job, each member of the bridge crew did not have to be able to do every task.

The message from this case is clear: if an employer believes that an employee’s ability to do all of the tasks involved in a position is essential, the employer should communicate this requirement, and then enforce it.  Conversely, if employees work as a team, it may not be essential that each member of the team be able to perform each assignment.

When an employee complains of harassment, the employer response is to investigate and take appropriate remedial action. In Kagawa v. First Hawaiian Bank/Bancwest Corp., the employer responded accordingly and is now a defendant in an ADA “regarded as” claim.

The plaintiff, a Senior Credit Analyst, alleged that she is a mystic, hears God’s voice directly, and had a dream in which God told her that another bank employee had romantic feelings for her. She alleged that after she told that employee about her dream, her supervisors told her that the employee felt harassed by her comments. The company told the mystic not to have any contact with the other employee, directed her to read the company’s sexual harassment policies and ordered her to seek counseling “under threat of termination.” The company placed her on administrative leave.

The plaintiff attended a counseling session and alleged that the counselor told her to see a doctor, which she refused to do because she was not willing to pay for the appointment. The bank terminated her employment.

The plaintiff’s lawsuit includes numerous discrimination claims. The employer moved to dismiss the ADA claim. Calling it a “close case,” the Court denied the motion, noting that: the bank ordered her to go to counseling or be fired; the manager’s statement on the counseling report that she ““hears a voice” and would do whatever the voice told her to do.” could be misleading since the mystic claimed she hears God’s voice, and “not just any voice” like “some insane person”; and the counselor told her to see a doctor, which the court understood to mean a psychiatrist of psychologist. Taken together, the court said, the plaintiff has plausibly alleged that the bank regarded her as having some kind of mental illness.

The Court’s denial does not mean the plaintiff has won; the case moves to the next stage of litigation. However, the denial is a reminder that whenever an employer talks to an employee about counseling, whether it be a voluntary or mandatory referral, whether it be with an altruistic motive or as part of disciplinary action, the possibility of an ADA “regarded as” case looms. As this case illustrates, that risk exists even when the counseling is part of the “appropriate remedial action” taken in response to a complaint of harassment.

Reversing summary judgment for the employer, the Second Circuit said that “in certain circumstances, an employer may have an obligation to assist in an employee’s commute” to work as a reasonable accommodation.  The Court cited its observation in an earlier decision that “there is nothing inherently unreasonable…in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” Nixon-Tinkelman v. NYC Dep’t of Health and Mental Hygiene (Aug. 10, 2011).

At least four other circuit courts have taken the opposite view and held that the commute is not part of the work environment that an employer is required to reasonably accommodate.  The EEOC also said in a 2001 informal discussion letter that “it is the employee’s responsibility to arrange how s/he will get to and from work” and that the ADA does not require an employer to provide commuting assistance as a form reasonable accommodation. 

The Second Circuit remanded the case and directed the district court to consider whether defendants could have reasonably accommodated plaintiff’s needs by transferring her back to her prior worksite or another closer location, allowing her to work from home, or providing a car or parking permit. The Court provided a non-exclusive list of factors for the district court to evaluate in making this determination. They included the number of employees employed by the defendant, the number and location of its offices, whether other available positions existed for which plaintiff showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening the defendant’s operations, and the reasonableness of allowing her to work without on-site supervision.

Employers within the Second Circuit and in other Circuits which have not addressed the issue should be cautious when presented with a request for commuting assistance. While this conflict in the circuits may wend its way to the United States Supreme Court, that may take years and until then, the law of the circuit in which the case is pending applies.

Connecticut has become the only state to require employers to provide paid sick leave to  employees. On July 1, 2011, Governor Dannel Malloy signed into law Public Act No. 11-52, An Act Mandating Employers Provide Paid Sick Leave to Employees.   

Beginning January 1, 2012, a covered employer must provide paid sick leave annually to each of its service workers in Connecticut at a rate of one hour of paid sick leave for each 40 hours worked, accrued in one-hour increments, to a maximum of 40 hours per calendar year. For service workers hired after January 1, 2012, the accrual begins on the service worker’s date of employment. The law also bars covered employers from retaliating against any employee for taking sick leave under this law or under the employer’s own paid sick leave policy.

We have analyzed the law through a series of Questions and Answers. The law leaves many questions unanswered. They include the integration of this law with the ADA, the FMLA, the Connecticut FMLA, and Connecticut law prohibiting disability discrimination.

Recall our recent posts about an employee who took the day off to clean his mother’s flooded basement and argued his absence was protected under the FMLA because he was “caring for” her, and about an employee who took two days off to provide “comfort and support” to his mother after she attended a friend’s funeral because she was emotionally distraught and was having problems regulating her blood sugar. The court rejected both FMLA “caring for” claims because the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions.

Add to the list of rejected FMLA “caring for” claims that of a plaintiff whose daughter was injured while on a family vacation in Honduras and was airlifted to Miami for surgery. The employee was granted FMLA from March 20 through May 5 to care for his daughter. On April 12, the employee returned home to Texas while his wife remained in Miami with the daughter.  The plaintiff said he returned home because his neighborhood association had complained about his untended yard, his house needed to be cleaned, and he needed to add padding to the sharp edges in the home to protect his daughter upon her return. He said he was in frequent telephone contact with his wife and daughter until their return to Texas on April 29. Between April 12 and May 5, the plaintiff neither reported to work nor told his employer that he had returned to Texas.

The Fifth Circuit affirmed summary judgment for the employer, holding that FMLA leave may be used “only where the employee is in physical proximity to the cared-for person,”  and that the plaintiff did not remain “in close and continuing proximity” with his daughter during his FMLA leave. Baham v. McLane Foodservice, Inc. 

In rejecting the plaintiff’s claim, the Court held that the plaintiff was not with his daughter between April 12 and April 29; that mowing the lawn, cleaning his house, and padding the furniture is not “caring” under the FMLA; and that frequent telephone contact does not meet the “caring for” requirement.

“Who cares” and who does not is going to be decided on a case by case basis. However, a growing number of cases suggest that “being there,” physically with the family member needing care, is a requirement for FMLA leave.