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.

 A federal district court has upheld an employer’s restrictions on employee travel while on medical leave, affirming that employers can take reasonable steps to ensure that leave is used for its intended purpose. Pellegrino v. Communications Workers of America, Civ. No. 10-0098 (W.D. PA. May 18, 2011).

The Communications Workers of America provided its employees a wage replacement program which ran concurrently with FMLA leave. When receiving wage replacement, employees had to  remain in the “immediate vicinity of their homes” except to receive medical treatment or to attend “ordinary and necessary activities directly related to personal or family needs,” according to the court. An employee wanting to leave the immediate vicinity of her home needed the CWA’s written permission to travel.

Two weeks into her FMLA leave for surgery, plaintiff went to Cancun, Mexico for a week.   She had not sought permission to travel or request vacation for the trip. The CWA terminateded her for traveling to Cancun while on FMLA and disability leave in violation of CWA’s leave policies and work rules.

Plaintiff sued the CWA, claiming that it interfered with her right to FMLA by terminating her employment. After the lawsuit had begun, plaintiff’s physician submitted a letter stating that plaintiff was not able to return to work until weeks after she had returned from Cancun and that her trip to Cancun “was not inconsistent with her recovery or with any medical restrictions placed on her during that time,” according to the court.

The court upheld the wage replacement restrictions and granted the CWA summary judgment. Citing Third Circuit precedent, the court held that “there is no right in the FMLA to be left alone. Nothing in the FMLA prevents employers from ensuring that employees who are on leave from work do not abuse their leave…” 

This is the latest of a handful of cases upholding the right of employers to impose restrictions to make sure medical leave, including FMLA, is not abused. Employers seeking to actively manage FMLA to prevent abuse should consider the lessons from these cases.

 Wisconsin has become the first state to pass a law preempting local laws providing family and medical leave. Governor Scott Walker said the state needs to avoid a “patchwork” of different leave requirements in different parts of the state. Noting that “the provision of family and medical leave is a matter of statewide concern,” the law states that the enactment of any law providing such leave, whether paid or unpaid, by a city, village, town, or county would be “logically inconsistent with, would defeat the purpose of, and would go against the spirit of” that statewide concern. The statute voids Milwaukee’s Paid Sick Leave Ordinance, which allowed full time employees to accrue up to nine paid sick days per year.

The Wisconsin Family and Medical Leave Act provides eligible employees up to six weeks of leave on the birth or adoption of a child, two weeks to care for a parent, child or spouse with a serious health condition and two weeks for the employee’s serious health condition. While the leave is unpaid, an employee may elect to substitute any accrued paid leave.

Only San Francisco and Washington, D.C. require employers to provide paid sick days, although Denver, Seattle and Philadelphia are considering similar bills. A Connecticut bill requiring paid sick leave has passed the legislative Appropriations Committee and is awaiting action in the Senate.

An Ohio manufacturer has paid $120,000 to settle sex and disability claims with allegations of unlawful discrimination relating to an individual’s caregiver responsibilities. According to the EEOC’s press release, the EEOC had alleged in its 2010 lawsuit that The Timken Company had denied a part time employee a full time position because she was the mother of a disabled child and that one or more managers believed that the woman would be unable to work full time and care for her child.

The EEOC had alleged that the company had hired men with disabled children as full time employees and had discriminated against the part time employee due to her association with her disabled child.

In 2007, the EEOC had issued enforcement guidance on the “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” The EEOC stated then that the guidance was “not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability.” The allegations underlying the EEOC’s allegations against The Timken Company seem to track its guidance fairly closely.

The two year consent decree also required the company to provide anti-discrimination training to its managers, supervisors and employees at the facility where the incident occurred, post a notice and provide periodic reports to the EEOC on its hiring practices.

It seems anomalous for an individual to be both a former and current user of illegal drugs at the same time. But perhaps not so anomalous under the ADA, according to the Tenth Circuit’s recent decision in Mauerhan v. Wagner Corporation.

The ADA exempts from its protection those who are current users of illegal drugs, but protects those who have successfully completed a drug rehabilitation program and are no longer engaging in the illegal use of drugs. When an individual leaves a drug rehabilitation facility after completing a rehabilitation program, is the individual a current or former user of illegal drugs? The court held that there is no “bright line” to distinguish a current from a former user. The court held that an employee who had not used drugs during his one month inpatient rehabilitation program was nonetheless a current drug user under the ADA when he applied for his former position the day after completing the program. Contrary to what the terms may suggest, the distinction between current and former user “is not based solely on the number of days or weeks that have passed since an individual last illegally used drugs,” the court said. Rather, the test is based on the employer’s perspective: someone no longer using drugs may nonetheless be “currently engaging in illegal use of drugs” under the ADA if the use “was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.”

As Humpty Dumpty told Alice in Through the Looking Glass: “When I use a word…it means just what I choose it to mean – neither more nor less.” And under the ADA, when it comes to users of illegal drugs, former may mean current.   

Employers who use financial incentives to motivate employees to complete health risk appraisals as part of their group health plans can breathe a little easier.  Relying on the ADA’s "safe harbor" for insurance practices, a Florida federal district court has rejected a class action lawsuit challenging Broward County’s use of a $20 surcharge to motivate completion of a health risk appraisal. 

As we previously reported, this case is extremely important for many employers.  Health risk appraisals often are the cornerstones of wellness programs and financial incentives are critically important tools to drive employee participation and, in turn, outcomes.

Because the Court found that the employer’s actions were protected by the ADA’s safe harbor provisions, it did not decide the employer’s alternative argument that the wellness program was a voluntary wellness program under the ADA. 

Michael Broadway’s employer gave him 18 disciplinary warnings for absenteeism during a 3 ½ year period.  According to the court in Broadway v. Sypris Technologies, Inc., the company either terminated or threatened to terminate Broadway three times, only to relent when Broadway produced doctor’s notes for his absences. 

At about the time the company rescinded Broadway’s last termination, the company laid off a number of employees, including Broadway.  A few weeks later, the company sought to recall him by leaving him a message and sending him a certified letter, which he did not pick up at the post office. When the company did not hear from Broadway, it terminated his employment.   

Broadway claimed that his termination was in retaliation for taking FMLA leave, among other reasons. He pointed to his employer’s requiring him to produce medical documentation as a condition of not terminating him on one occasion, and by assessing an attendance point for an FMLA-covered absence. The court rejected Broadway’s FMLA claim, noting that he offered no evidence to cast doubt on his employer’s legitimate business reason for termination, i.e., Broadway’s failure to return from layoff.

This straightforward case demonstrates some basic FMLA principles in action. The first is that an employer may terminate an employee who has taken FMLA for legitimate business reasons unrelated to the FMLA leave. Second, an employee who has taken FMLA leave and is terminated for unrelated reasons is likely to be able to plead a retaliation complaint. Third, merely pleading that complaint is enough to get an employer to court, but not enough to prevail; a plaintiff must establish a “causal connection” between taking FMLA leave and the termination, which Broadway was unable to do.  When assessing the risk of terminating an employee who has taken FMLA leave recently, an employer should review these three principles from Broadway.

Nuance is important in legal analysis. A recent 6th Circuit case dealing with employer policies requiring an employee returning from sick leave to provide a doctor’s note illustrates the point.  

In Lee v. The City of Columbus, the 6th Circuit held that the Columbus Police Department’s requirement that the doctor’s note include the “the nature of the illness” was not an unlawful, disability-related inquiry under the Rehab Act.

In 2003, the Second Circuit held  in Conroy v New York State Dep’t of Correctional Services, that the employer’s requirement that employees submit a doctor’s note with a “general diagnosis” was an unlawful disability-related inquiry under the ADA because it “may tend to reveal” a disability.

Is there a difference between the “nature of an illness” and a “general diagnosis”? The 6th Circuit said that the former is “less specific” than the latter. Merriam Webster would likely agree. It defines “nature” as “a kind or class usually distinguished by fundamental or essential characteristics.”  It defines “diagnosis” as a statement or conclusion from “an analysis of the cause or nature of a condition…” Thus, it seems that from the broader “nature” comes the more specific “diagnosis.” But that hardly explains why the “general diagnosis” statement is an unlawful disability-related inquiry because it is likely to reveal a disability, while a statement of the “nature of the illness” is not. 

Many employers have attendance policies requiring an employee to produce a doctor’s note in defined circumstances. In light of the Lee and Conroy cases, employers with such policies should review the wording of the requirement carefully because, as we know, nuance is important.

The EEOC has released an unofficial version of the much-awaited Final Regulations implementing the ADA Amendments Act (ADAAA). The official version, published in the Federal Register, will be released tomorrow. The Final Regulations become effective 60 days from March 25, 2011, the day they will be published in the Federal Register, The EEOC also has posted Questions and Answers and a Fact Sheet on the Final Rule. Our Disability, Leave and Health Management Practice Group is reviewing the Final Regulations and will analyze the practical implications they will have for ADA compliance and defense strategies. Stay tuned.