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At about the time the company rescinded Broadway’s last termination, the company laid off a number of employees, including Broadway.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.

The U.S. Department of Justice announced recently that it settled claims alleging failure to comply with Title II of the ADA with Des Moines, Iowa, the 188th settlement under its Project Civic Access initiative. Title II prohibits discrimination against individuals with disabilities by state and local governments and has very specific requirements to ensure that programs and services are accessible to individuals with disabilities. For example, a government entity must conduct a self-evaluation of its services, policies, and practices; notify applicants, participants, beneficiaries, and other interested persons of their rights and the city’s obligations under Title II and the Department’s regulation; designate a responsible employee to coordinate its efforts to comply with and carry out the city’s ADA responsibilities; establish a grievance procedure for resolving complaints of violations of Title II; and operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities.

 The Department of Justice has been doing compliance reviews as part of its Project Civic Access since 1999. In addition to physical access, the compliance reviews focus on access to such services as 9-1-1 emergency calling, websites and web-based services. The Department stated that it initiates most of the compliance reviews and that, in selecting a municipality for review, proximity of a university or tourist attraction has sometimes been a factor. 

The settlement agreements are available on the DOJ’s website.

The termination of an employee who, after leaving work to deal with his mother’s medical emergency, failed to respond to his supervisor’s fifteen calls over the next eight days or otherwise contact the company, did not violate the FMLA, the Seventh Circuit held recently.

Affirming summary judgment for the employer in Righi v. SMC Corporation of America, the court held that plaintiff’s failure to respond to these calls “dooms” his FMLA claim, noting that the FMLA does not authorize employees to “keep their employers in the dark about when they will return” from leave.

The day following his sudden departure, the plaintiff emailed his supervisor that he needed “the next couple of days off” to make arrangements for his mother’s care. He also noted that “I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time.”

Noting that “it does not take much for an employee to invoke his FMLA rights,” the court said that the email was sufficient to alert his employer that the plaintiff might need FMLA leave but because the request was equivocal, the employer had a duty “to make further inquiry…using informal means” to determine whether the plaintiff was seeking FMLA leave. The supervisor’s repeated calls satisfied the employer’s duty, according to the court.

The court noted that the plaintiff had also failed to comply with his employer’s internal leave policies and procedures concerning notice. This failure is another reason to dismiss plaintiff’s FMLA claim, according to the court.

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.