Sometimes it is unclear whether the employee is requesting leave that might be covered by the FMLA. This is not one of those situations. In Kobus v. The College of St. Scholastica, Inc., when the plaintiff told his supervisor in November 2006 that he would need to take time off for “stress and anxiety,” the supervisor gave him FMLA paperwork and told him he could apply for leave. The plaintiff put the papers in his drawer without reading them, and told his supervisor he “didn’t’ need any leave. Not just FMLA; any leave” because he thought he “could handle” matters.

A few weeks later, the employer disciplined plaintiff for excessive absenteeism. In January 2007, in response to the plaintiff’s comment that he would need “mental health leave,” the supervisor told him again about the FMLA and that he would need to have a doctor sign the paperwork. The employee responded that he did not have a doctor, and asked “is there any other way I can go.”

Later that afternoon, the supervisor told him “there was nothing available for [him],” and offered him two weeks’ severance pay if he resigned. The next day, he submitted a letter of resignation.

The Eight Circuit rejected the plaintiff’s claim that the College unlawfully denied him FMLA leave, holding that the plaintiff had “failed to adequately state an intent to take FMLA leave” and that “[w]hen an employee is made aware of the procedures necessary to obtain FMLA leave and chooses not to seek FMLA protection, the employer does not violate the FMLA by terminating the employee for excessive absenteeism.” The court rejected the plaintiff’s argument that the College’s FMLA policy was unclear because it said medical certification “may” be required, as opposed to “must be submitted.” 

The Eighth Circuit rejected the plaintiff’s ADA claim as well, holding that the plaintiff did not request an accommodation, and rejecting his reliance on the EEOC’s ADA Enforcement Guidance that a request for time off because an employee is “depressed and stressed” is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. “None of our prior ADA notice cases cited the Enforcement Guidance as controlling. We apply the requirement in the regulations that an employee must “inform the employer that an accommodation is needed.”

This case illustrates the benefits of having supervisors trained to recognize potential requests for FMLA leave. The supervisor’s twice offering the plaintiff FMLA leave made rejecting the FMLA claim almost a foregone conclusion. The Court’s unwillingness to follow the EEOC Enforcement Guidance is a reminder that the Guidance does not have the force of law and does not expand the scope of the ADA itself.  

 

Cleaning mom’s flooded basement is not “caring for” mom under the FMLA, according to a Michigan federal district court. Because the three days of flood cleaning were not excused by the FMLA, the employer did not violate the FMLA by terminating plaintiff’s employment under its  absence policy, according to the court.

In Lane v. Pontiac Osteopathic Hospital, the plaintiff, who lived with his mother, had submitted an FMLA certification stating that his mother had diabetes, high blood pressure, weight loss and arthritis, and that he would need intermittent leave to provide her food and transport her to doctors’ appointments.  The company approved his leave request.

During the period covered by the certification, the company discharged the plaintiff under its absence policy. The plaintiff claimed the three flood cleaning days should be excused because his mother had hepatitis and the stagnant water was a “breeding ground” for the disease.

The court rejected the plaintiff’s argument, noting that flood cleaning was not encompassed by his FMLA paperwork, that he had not established that the basement had to be “immediately cleaned for her basic medical, hygienic or safety needs and that he had to do it because she could not,” and that he did not establish that his mother’s hepatitis was in danger of being aggravated if he did not clean the basement immediately.      

This decision indicates that the definition of “caring for” under the FMLA is not unlimited, though many courts have interpreted the phrase so broadly that employers often do not even explore the “caring” activities, let alone challenge them. Of particular interest is that the court seems to suggest that the potential harm to the family member if the care is not provided immediately, and whether the family member can do the “caring” activity his/her self are factors to consider in evaluating whether a particular “caring” is protected by the FMLA.

 

Complying with the myriad of laws affecting medical leave continues to be a significant and growing challenge for employers. Making the decision whether and when to terminate an employee on medical leave is perhaps the most challenging, and carries significant risk. The EEOC’s recent challenges to “inflexible” leave policies–which resulted in a “record-setting” $6.2 million dollar settlement—heightens the risk for employers trying to manage this challenge through “leave limits” policies.

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 put “law” and “lore” in perspective when analyzing and making these accommodation decisions, we are preparing a two part Special Report on excusing absence as a reasonable accommodation under the ADA. Part 1 deals with “blocks of leave.” Part 2 will deal with the unpredictable “day here, day there” absences. Part 2 will be sent automatically to all of our blog subscribers.

We look forward to your comments on Part 1. Please feel free to send them along.

The U.S. Department of Labor issued today an Administrator’s Interpretation of the FMLA Regulation defining "in loco parentis" relationships as part of the FMLA’s definition of "son" or "daughter".  Is this "big news" and, if so, why?  

One could always argue that individuals standing ‘in loco parentis" to a child covered under the FMLA could take FMLA leave for the birth or adoption of that child or to care for a child with a serious health condition.  So why is the DOL making such a big deal out of this and issuing a Press Release announcing this is a "win for all families no matter what they look like"?

As with most things FMLA, the devil (or should I say,"mischief") is in the details.  Under the guise of an "Administrator’s Interpretation", the DOL arguably re-writes an important provision of Section 825.122(c)(3) of the FMLA Regulations that became effective on January 16, 2009.  Specifically, Section 825.122(c)(3) of the FMLA Regulations defines "in loco parentis" as including those "with day-to-day responsibilities to care for and financially support a child."  In today’s Interpretation, the Administrator states, "the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child."  

So, according to the DOL Administrator, the word "and" should be interpreted to mean "or" in Section 825.122(c)(3) of the FMLA regulations.  Only time will tell if courts agree with such an interpretation. 

One other observation or nuance of the in loco parentis rule … absent a further interpretation by the DOL, individuals taking FMLA leave because they stand in loco parentis to a child are not subject to the FMLA rule in Sections 825.120(a)(3) and 825.127(d) of the regulations limiting the amount of leave to a combined total of 12 weeks (or 26 weeks in the case of care for an injured servicemember) of FMLA leave; those limitations apply only to a "husband and wife" working for the same employer.  Thus, for example, an employee who is the biological parent of a child and a grandparent or same sex partner standing in loco parentis to that same child each would be entitled to take the full complement of 12 workweeks of FMLA leave upon the birth or placement of the child.  Again, this nuance is not new, however, it may prove to create additional mischief under the DOL’s broader interpretation of in loco parentis. 

 

Some call obesity the next smoking, meaning that now that employers have had a multi-faceted attack on reducing health costs related to smoking, they will move on to obesity.  The CDC reports that about 40% of U.S. adults are obese, while about 20% of adults smoke. The rate of obesity has been growing rapidly, while the number of smokers has been declining. The annual healthcare costs related to obesity exceed that of smoking.  This focus on obesity leads ineluctably to concerns of “weight discrimination.

Michigan’s Elliot-Larson Civil Rights Act explicitly bans weight discrimination, but a recently filed case illustrates that weight discrimination does not necessarily have anything to do with obesity.

In Cassandra Marie Smith v. Hooters of Roseville, Inc. and Hooters of America, Ms. Smith alleged she was 5’8”, 145 pounds when Hooters hired her, but two years later, when she weighed 12 ½ pounds less, her employer advised her to join a gym “to lose weight and improve her looks so that she would fit better into the extra small-size uniform.” She alleges that she was placed on 30 day “weight probation” and was constructively discharged that same day “because she was unable to meet the Hooters’ discriminatory and illegal requirements of a ‘Hooters Girl’.”

Ms. Smith alleges that no one had medical training or other information upon which to base a decision to place her on “weight probation,” that her weight was within the medically acceptable range, and that no one explained the proper fit of the uniform or the degree of “thinness” which would satisfy her employer.

She claims that being told that she would lose her job because she was not the correct weight is “per se” weight discrimination and that the weight requirement for female employees is per se gender discrimination. She also claimed that her employer’s telling her co-workers that she had been placed on “weight probation” and “giving her an ultimatum to change her appearance and weight in an unrealistic manner,” among other things, intentionally caused her emotional distress,

The Smith case is an anomaly in that the handful of discrimination cases based on weight do not deal with a plaintiff “within range.” What Smith establishes is that weight discrimination and obesity discrimination are two different legal claims.

Citing research from the Centers for Disease Control and Prevention, on June 5, 2010, the New York Times reported that one in five women are obese when they become pregnant.  The article states "obesity might be contributing to record-high rates of Caesarean section and leading to more birth defects and deaths for mothers and babies." 

As well illustrated in the NYT piece, the impact on mothers and their families can be heart-wrenching.  But one back story may be the impact on health care costs.  These are pretty eye-opening statistics … the kind that often prompt employers to expand their commitment to wellness programs.  

The pregnancy/obesity risk raises some interesting questions.  First, to effectively combat the risk, it would seem as though wellness efforts would need to target women of child-bearing age.  Such a program does not appear to raise risks under HIPAA or the Americans with Disabilities Act because the program would not be based on a factor related to health.   Rather, it would be based on a combination of age and gender. Would this distinction open the door to claims of age or gender discrimination?  

It might depend on how a program was structured.  Ideally, employers would provide "incentives" or "rewards" for women of child-bearing age if they maintained a healthy weight.  This would seem to dodge the gender discrimination issues that drove the Supreme Court’s landmark decision in UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).  In Johnson Controls, the Court held that Title VII, as amended by the Pregnancy Discrimination Act, forbids sex-specific fetal-protection policies.  But Johnson Controls involved a policy of refusing to employ all women, except those whose infertility was medically documented, in jobs creating potential serious health risks to any fetus carried by a female employee.  Wellness programs properly implemented would provide more favorable treatment to women in this category.

Something for employers to think about as they search for programs that address important social issues that also impact their bottom lines.

When a law, such as the ADA, restricts an employer’s rights to take reasonable, measured steps to promote workplace safety, it ought to be re-examined.  Years ago, Justice Souter observed that preventing employers from considering "risk to self," an ADA rule many disability rights advocates had sought, would have put the ADA at "loggerheads" with federal OSHA policy requiring employers to ensure the safety of  "each" and "every" worker.  Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 85 (2002).

I have always thought that to be the case with the EEOC’s exceedingly narrow interpretation of the ADA rule that employee medical inquiries be "job-related and consistent with business necessity." As interpreted by the EEOC, that requirement invalidates employee medical evaluations or monitoring that are either: a) not grounded in individualized, fact-based concerns about an employee’s ability to perform essential job functions safely and successfully; or b) required by federal law or regulation.  In its Enforcement Guidance on Disability-Related Inquiries and Medical Examination of Employees under the ADA, the EEOC says periodic testing and medical monitoring of employees would be permissible in positions affecting public safety; but the Guidance limits those positions to firefighters and those involved in law enforcement and security.  It also narrowly construes the permissible breadth of such evaluations.  In an informal opinion letter issued on September 10, 2004, the EEOC declined to apply the exception to off-shore oil workers. Recent events in the Gulf illustrate the dangerous nature of oil rig work, as well as the impact on public safety should operations go awry.  

The Labor and Employment Law Blog reports that a California federal district court granted summary judgment in May to a security officer terminated after he refused to complete a medical questionnaire.  The court found the employer’s inquiries in the questionnaire were too broad to meet the ADA’s standard of being "job-related and consistent with business necessity."  In thinking about the decision, I couldn’t help but wonder whether a more narrowly tailored inquiry would be acceptable to the EEOC in most cases (perhaps in the case at hand, Scott v. Napolitano, a more narrowly-tailored questionnaire would have received EEOC approval because, as noted above, the EEOC seems to be okay with allowing narrowly-tailored monitoring of at least some security personnel).

It’s time to give greater consideration to the very real safety risks employees face everyday, and the moral and financial hazards employers face if they do not have effective tools to address them.  The EEOC’s presumption that  employers use employee medical information to discriminate is not as employee friendly as some might think.  Yes, some employers might misuse employee medical information but the ADA,  and state and local law, provide ample deterrence and remedies for doing so.  And the inability of employers to take reasonable, measured steps to proactively identify employee medical risks has its costs. Just ask yourself, what’s a worse outcome for an employee –being the victim of disability discrimination (for which he/she has a remedy) or suffering a potentially career or life-ending workplace injury?  

I say it’s in the vast majority of employees’ interests to interpret this ADA provision more broadly — to allow employers to verify an employee’s physical or mental ability to perform essential job functions safely and hold them accountable if they misuse or abuse that right.  The EEOC has the ability to interpret the standard of "job-related and consistent with business necessity" broader than it has to date.  It’s time to do so … let’s put an end to ADA-OSHA "loggerheads."   

 

A no-fault attendance program is the epitome of equal treatment—the employer does not judge whether an absence is for a good or bad reason and gives all employees the same number of absences.

But then the FMLA came along and guaranteed eligible employees certain time off and prohibited an employer from interfering with that entitlement. Employers with no-fault programs responded with somewhat of an oxymoronic anomaly—everyone still gets the same number of absences but absences covered by the FMLA do not count.

As the Seventh Circuit’s recent decision in Bailey v. Pregis Innovative Packaging, Inc. illustrates, merely adding the FMLA exception does not insulate a policy from an FMLA challenge. Under Pregis’ policy, an employee received a point for each non-FMLA absence and the point was removed after 12 months of work. The plaintiff claimed that since FMLA leave is not included in calculating the 12 months of work, the policy retaliates against FMLA-leave takers because it takes longer for them to “wipe the slate clean” than it would take for a non-FMLA-leave takers.

The Seventh Circuit affirmed the district court’s rejection of the plaintiff’s argument. The FMLA states that taking leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced” but the FMLA does not entitle an employee to the “accrual of any…employment benefits during any period of leave.” Judge Posner concluded that “wiping a point off the absenteeism slate” is “an employment benefit” but that it does not accrue until 12 months after an absence. “Absenteeism forgiveness,” like seniority, is a reward for working, he said. 

          All employers with no-fault attendance policies should heed the messages from this case—just excepting FMLA-covered absences from the policy does not insulate the policy from challenge, and any aspects of the policy that might be construed as adversely affecting FMLA-leave takers must be for the purpose of rewarding employees for their commitment to work, and not punishing employees for taking FMLA leave.

 

The reminders of the FMLA challenges facing multi-state employers in complying with state leave laws are frequent and the risk grows regularly. This time, the challenge came from Connecticut. Connecticut’s Family and Medical Leave Act (CFMLA) applies to employers with 75 employees. Is that 75 employees in-state or nationwide?   

In 2001, the state Department of Labor, which enforces the law, held that only in-state employees are counted to determine whether an employer has 75 employees. On May 14, 2010, in Velez v. Patricia Mayfield, a Superior Court held that the DOL’s view was not reasonable, and that there are no geographic limitations in counting employees under the CFMLA. As a result, multi-state employers with less than 75 employees in Connecticut—those with even a single employee in Connecticut–but more than 75 total employees must comply with the CFMLA for its in-state employees. And compliance is not just a matter of adding “Connecticut” to your federal policy. CFEPA varies significantly from the federal FMLA. For example, it has different forms, different eligibility requirements, grants eligible employees 16 weeks of leave every 24 months, does not have a small worksite exception, does not recognize the “key employee” exception and prohibits consideration of CFMLA time in determining whether an employee is eligible for a bonus, to name just a few.

What’s a multi-state employer to do? To manage risk, constant vigilance and on-the-ground resources are required. Monitoring new state laws is not enough. The challenge here came from a Connecticut trial court. And there’s no way to predict where the next challenge will come from.

 

As the ADA’s 20th anniversary nears, let’s revisit one of its lofty goals: to place a sweeping federal blanket over the patchwork of state and federal laws that protects individuals with disabilities.

A recent Second Circuit opinion leaves no doubt that the patchwork lives on  In Spiegel v. Schulmann, decided on May 6, 2010, a karate instructor claimed his employer fired him because he was obese due to a medical condition. According to the decision, he weighed 300 pounds and his employer told him that he was not be a good role model due to his weight.

The plaintiff sued for disability discrimination under the ADA, the New York State Human Rights  Law, and the New York City Human Rights Law.  The Second Circuit affirmed summary judgment for the employer on the ADA claim. The district court had held that even if obesity were an impairment under the ADA, plaintiff did not produce any evidence to suggest his obesity makes him “unable to perform a major life activity or significantly restricts the condition, manner or duration in which he can perform a major life activity.”  

The New York Human Rights Law protects those with conditions which prevent “the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques,“ a definition broader than the ADA’s. The Second Circuit affirmed summary judgment for the employer on the state claim, holding that weight is not a “disability” under that law unless the plaintiff produced evidence that he was medically incapable of meeting the employer’s weight requirements, which the plaintiff here did not produce.  

The New York City Human Rights Law’s definition of “disability” is even broader than the state’s, defining disability as “any physical, medical, mental or psychological impairment” of any system of the body. Since no state appellate court has decided whether obesity is a disability under the NYCHRL, the Second Circuit remanded the case to make this determination. 

One termination, three disability laws, three “disability” definitions and three different analyses…. sounds like the patchwork is alive and well. Employers assessing disability discrimination risk must consider all pieces of this patchwork to identify state and local laws offering broader protection than the ADA..