Relying on “chill theory,” a federal district court in Arkansas held recently that an employer who had granted the plaintiff her requested FMLA leave and had reinstated her when her doctor released her to return, nonetheless may have interfered with her FMLA rights when her supervisor called her weekly during the leave to ask when she was going to return to work. The plaintiff said she “felt pressured” by these calls. A month after plaintiff’s return to work, the employer terminated her for theft. In Terwilliger v. Howard Memorial Hospital, the court denied the employer’s motion for summary judgment on the FMLA interference claim, holding that a reasonable jury could conclude that the supervisor’s weekly calls “interfered with plaintiff’s exercise of her FMLA rights by discouraging or chilling her exercise of those rights.”

The court observed that “[p]laintiff had a right not to be discouraged from taking FMLA leave,” suggesting that the calls may have been discouraging, although nothing in the decision suggests plaintiff returned to work earlier than she should have as a result of the calls. Reconciling the employer’s right to communicate with an employee on FMLA leave with an employee’s right not to be discouraged by such communications could be tricky. When considering terminating an employee who is on or recently returned from an FMLA leave, an employer should consider the nature and extent of its communications with the employee to evaluate the FMLA interference claim. In Terwilliger, since the court had dismissed the plaintiff’s FMLA retaliation claim, the interference claim is the only issue proceeding to trial.

Who cares…..for a covered family member under the FMLA as opposed to merely providing much appreciated assistance? The distinction is critical because absences “to care for” are protected by the FMLA while absences to assist are likely not.

Recall our recent post 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” his mom. The court rejected his argument because no evidence connected his mother’s hepatitis with his urgent need to clean the basement.

A recent case also rejected a son’s “caring for” argument.  In Chappell v. The Bilco Company, the employee claimed he should not have been terminated for absenteeism because he was “caring for” his mother, who has diabetes, on some of the days he was absent. The plaintiff had taken 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 the plaintiff’s argument, noting that the changes in blood sugar were not a “serious health condition” and no evidence established “that he was needed to provide physical or psychological care for [his mother] as a result of her diabetes,” i.e., that the leave was medically necessary.

Another absence occurred on a day his mother had a medical appointment at 12:30 p.m. The plaintiff had an approved FMLA intermittent leave certification to transport his mother to and from doctors’ appointments.  His shift began at 6:30 a.m. The company had told him that he must report to work before and after the appointments, if possible.   On the day of the appointment, the employee did not report to work at all and explained that he made breakfast for his mother and  dressed her for the appointment. The court rejected the plaitiff’s argument that the conduct before transporting his mother to the appointment was “caring for” her, noting that his mother was able to dress herself and that plaintiff did not establish that it was medically necessary for him to make her breakfast.

“Who cares” and who does not is going to be decided on a case by case basis. In these two cases, the plaintiffs were unable to connect their assistance to their mothers’ serious health conditions. Other plaintiffs, in other circumstances, may be able to do so.

The EEOC reported a record number of private sector discrimination charges filed in FY 2010, nearly reaching the 100,000 mark.  99,922 charges were filed in FY 2010, an increase of 6,645 (7%) from FY 2009. The most frequently filed charges were retaliation (36%), race discrimination (35.9%), and sex discrimination (29.1%).

Disability discrimination charges increased more compared to FY 2009 (17.3%) than any other type of charge. More than 25,000 ADA charges were filed, which was about 25% of the charge total. During FY 2010, the EEOC resolved 24,401 ADA charges. More than 62% of them were resolved with a “no reasonable cause” finding. The nearly 2,600 settlements of ADA charges resulted in $76.1 million in monetary benefits to the charging parties, which is an average of more than $29,000 per settlement.

201 charges were filed under GINA. Nearly 68% of those were resolved with a “no reasonable cause” finding.

With new regulations to implement the ADA Amendments Act anticipated this year, and new GINA regulations effective January 2011, it is quite likely that this upward trend in the number of charges relating to workplace medical issues will continue in FY 2011  

 The "law" or "lore" requiring employers to accommodate employees by excusing absence has reshaped employer attendance and productivity expectations.  Some say the law, as interpreted by the Equal Employment Opportunity Commission, goes too far and creates an elusive and unworkable standard for managing employee attendance and productivity.　

To assist our clients and contacts in separating "law" from "lore" when analyzing and making these accommodation decisions, we have prepared a two part Special Report on excusing absence as a reasonable accommodation under the ADA. Part 1, published in May 2010, dealt with "blocks of leave. and can be found here. We recently published Part 2, which deals with the unpredictable "day here, day there" absences. As you will see from the discussion in Part 2, the cases involving　 unpredictable "day here, day there" absences are more favorable to employers than the "leave limits" cases we discussed in Part 1.

We received many positive comments about Part 1. We look forward to your comments on Part 2.

 

 

 Buried in the voluminous Health Care Reform Act is a requirement that employers provide reasonable break times and an appropriate place for nursing mothers to express breast milk for one year after the child’s birth.

On December 21, 2010, the U.S. Department of Labor published a request for comment concerning the implementation of this requirement and its preliminary interpretation of it.  Responding to “several inquiries” concerning the relationship of the break time provision to the FMLA, the DOL stated that it “does not believe that breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee’s FMLA leave entitlement.” Under the FMLA, an employee may take time off to “care for” a newborn, which the FMLA regulations refer to as “bonding time.” In its recent notice, the DOL explained that it “does not consider expressing milk at work to constitute bonding with or caring for a newborn child.”  

The DOL also stated that if an employer treats employees who take breaks to express breast milk differently than employees who take breaks for other personal reasons, the nursing employee may have a claim for disparate treatment under Title VII. The DOL also stated that if an employer terminates a nursing mother employee because she takes breaks to express milk, the DOL may pursue such a claim on behalf of the employee.

In addition to addressing the interaction between the break time requirement and the FMLA, the DOL’s recent notice also discusses when such breaks must be paid, the length and frequency of “reasonable” break times, the type of place employers must provide, and the nature and scope of the undue hardship exemption.

To provide employees and employers with additonal information concerning workplace breastfeeding programs, the DOL has launched a new website on this specific topic.

Comments on the DOL’s preliminary interpretations of the break time and place requirement must be received by the DOL no later than February 22, 2011.

Congress confirmed last week President Obama’s recess appointments of two employee leave mavens as EEOC Commissioners as well as the EEOC Chair and General Counsel. The EEOC now has a full complement of members with confirmed appointments.

EEOC Commissioners Chai Feldblum, a former Georgetown University Law Professor, and Victoria Lipnic, a former U.S. Assistant Secretary of Labor, have been serving under recess appointments since April 2010.   Commissioner Feldbum was confirmed for a term expiring on July 1, 2013; Commissioner Lipnic’s term will expire on July 1, 2015.

Both Commissioners have been in the vanguard on employee leave issues. Commissioner Feldblum was involved in drafting and negotiating the Americans with Disabilities Act and the 2009 Americans with Disabilities Act Amendments Act. Also, while at Georgetown, Feldblum was the Co-Director of Workplace Flexibility 2010 , a public policy initiative which advocates for flexible work arrangements, including time off.

During Commissioner Lipnic’s tenure at the DOL, the agency proposed revised FMLA regulations, evaluated comments on that proposal and issued final revised regulations, which went into effect in January 2009. The FMLA entitles eligible employees to time off from work and these regulations define the parameters of that entitlement.

Congress also confirmed the nomination of Jacqueline A. Berrien to be Chair of the EEOC and David Lopez to be General Counsel. Ms. Berrien and Mr. Lopez had also been serving under recess appointments.

Leave and disability related issues will fare prominently on the EEOC’s 2011 agenda. The EEOC’s final regulations on GINA are effective in January 2011.  Disability and leave management attorneys eagerly await the EEOC’s final rule to implement the equal employment provisions of the ADA Amendments Act. The EEOC had stated in its recent Semiannual Regulatory Agenda that it “plans to issue a final rule by the end of December, 2010” subject to expedited review by the Office of Information and Regulatory Affairs. With but hours left in 2010, the EEOC has not yet published the final rule. Also, for FY 2009, the most recent period for reported statistics, the number of disability charges filed with the EEOC exceeded, 21,000, the most ever. Add to this the fact that courts are just now beginning to decide cases under the ADA Amendments Act and one can comfortably speculate that the challenges facing employers to manage workplace disability issues, including attendance and leaves, will grow in 2011.

Let’s start with the cats. The Supreme Court of the United States heard oral argument recently in Staub v. Proctor Hospital, a case involving an employer’s “cat’s paw” liability, a theory derived from  17th Century French tale about a conniving monkey who convinces a cat to knock chestnuts from a fire to the monkey; the cat uses her paw to do so. Translated to employment law, the theory is that a manager desiring to terminate an employee for discriminatory reasons (the monkey) manipulates another manager who does not have a discriminatory motive (the cat’s paw) to make the decision to terminate the employee. Absent a discriminatory motive, the termination could not be unlawful, the employer argues. In Staub, the plaintiff claimed his termination violated USERRA because his supervisor had an anti-military bias but a hospital administrator without any such bias—the cat’s paw–made the termination decision. In many ADA termination cases, the employer’s defense is that the decider did not know the plaintiff had a disability—although other managers may have known–so it could not possibly have terminated the employee for a discriminatory reason. The Staub decision will likely affect the scope of this defense.

Now the dogs. The ADA prohibits discrimination against dogs, service dog breeds to be more specific.   Some cities have outlawed certain breeds based on safety concerns, whether real or perceived. The U.S. Department of Justice’s recently issued final rule adopting accessibility standards states that the DOJ “does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks”  when assessing the rights of disabled individuals to use service dogs. Such deference would limit the rights of disabled individuals who use service animals “based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others,” according to the DOJ.

The class action wave seems to have come ashore for employers using financial incentives to drive participation in wellness programs.  Leveraging the uncertain legal environment we have discussed previously, a federal district court in Florida granted class certification to current and former employees charged a $20 bi-weekly surcharge for not participating in a "voluntary" wellness program requiring biometric testing (finger stick for glucose and cholesterol) and completion of an online health risk assessment.   

The federal court complaint, filed on August 10, 2010, sought a class of all current and former employees who are/were enrolled in Broward County’s health insurance plan since the inception of its 2009-2010 "voluntary" wellness program, approximately 5,000 individuals.  Alternatively, the complaint sought a class of 267 current and former employees who, in addition to being enrolled in the applicable health plan, paid the $20 bi-weekly surcharge.  In addition to declaratory and injunctive relief and attorneys’ fees, the complaint initially sought to recover damages for the 267 class members who allegedly paid surcharges and emotional distress damages for an unidentified portion of the larger 5,000 employee class who allegedly participated in the "voluntary" wellness program out of fear of losing $20 from their pay each and every week on a go-forward basis.    

In its December 6, 2010 Order, the Court grants class certification for the smaller class of individuals who allegedly were enrolled in the health plan and paid the $20 surcharge, finding that plaintiff had satisfied both Rule 23(a) and Rule 23(b)(3) requirements for class certification.  The Court’s Order does not discuss whether a class could have been certified under Rule 23(a) or (b) for the larger class referenced in the complaint.  Apparently, the sole named plaintiff, Bradley Seff, voluntarily withdrew his claims for declaratory and injunctive relief after Broward County claimed he resigned his employment and, therefore,lacked standing to seek such relief on behalf of the class.    

As the Court noted in its Ruling, the crux of the case is whether Broward’s "voluntary" wellness program is voluntary within the meaning of the ADA.  In discussing Rule 23(a) requirement of "commonality", the Court wrote, "[b]ecause Broward’s policy applied to all employees who enrolled in the health benefits program, and the class is limited to those employees who incurred a charge, it is likely that these issues can be resolved without individualized factual or legal inquiries."

Many employers believe reasonable incentives, whether framed as premium discounts or surcharges, do not violate the ADA’s requirement that medical inquiries be either voluntary or "job-related and consistent with business necessity."  While such programs pass muster under HIPAA, unfortunately, the absence of caselaw continues to create uncertainty over the legality of such programs under the ADA. 

It will be interesting to see whether the Broward County case moves to a ruling on the merits.  it would be nice to have a court weigh in on whether reasonable surcharges violate the ADA.  Until employers receive such guidance, uncertainty will continue to hover over these very valuable programs.

If it is any comfort to private sector employers, when it comes to managing an employee’s entitlement to time off under a myriad of legal requirements and internal personnel policies, the federal government, as an employer, faces similar challenges. On December 3, the Office of Personnel Management issued final regulations addressing the use of sick leave for exposure to a communicable disease, a new “advanced sick leave” policy, and substitution of sick leave for FMLA to care for a seriously injured or ill covered service member. Twenty pages of discussion precede the two pages of new regulations, which illustrates what all employers have come to know—to state each entitlement is the easy part; to determine how the various laws applicable in a particular situation work together is the real challenge.

The discussion is proof that the most fundamental requirement to being successful in managing employee leaves, to making sure that employees receive their “entitlements” under both internal policies and the ever-increasing number of leave laws, is to have “peripheral vision,” to know all the various laws and policies that may apply in a given situation, to be able to weed out those that do not apply, to administer the leave to satisfy the requirements of those that do, and to defend any legal claim that might arise with confidence and documentation.    

The OPM’s table of the five sources of entitlements for federal employees to care for a family member or covered servicemember illustrates that the federal government, as an employer, is focused on peripheral vision as well. The examples of the interaction between sick leave and FMLA leave in the discussion  apply that vision to situations which private sector employees face regularly.  

So at least on this topic, do both the private sector and the federal government, as an employer, have the same challenges? Well, not quite. The private sector has the additional challenges of state and local leave laws.

We posted recently about GINA’s prohibiting an employer from “actively” listening to conversations between colleagues in which they discuss their genetic information, including family medical history, and how it will limit an employer’s internet searches of applicants and employees. Add casual conversations, sometimes referred to as "water cooler" conversation, to the list of workplace activities curtailed by GINA.

Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. This general prohibition does not apply where an employer “inadvertently” requests genetic information of the individual or the individual’s family member. Is acquisition of such information about an individual obtained from that individual or third parties during a casual conversation inadvertent?

It depends on the nature of the questions asked, according to the recently issued EEOC regulations.  Suppose an employee or employee’s family member was just diagnosed with cancer. A supervisor or manager may make a “general health inquiry” such as “How are you?” or “Did they catch it early?” or “How does your [family member] feel today?” or “Will your [family member] be OK?,” according to the regulations. If the supervisor or manager stops there, there is no GINA violation.

But if the supervisor or manager follows up those general inquiries “with questions that are probing in nature, such as whether other family members have the condition, or whether the individual has been tested for the condition,” the supervisor or manager has crossed that line into illegal requesting because these questions “are likely to result in the acquisition of genetic information.”  

Illegal internet searches. Illegal listening. Illegal casual conversations. GINA is about much more than just DNA.  This nuanced inquiry distinction gives employers a strong reason to train supervisors and managers to make sure their "water cooler" conversations do not include illegal requesting!