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.
 

“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.