The ADA and FMLA collided in two cases recently and, whenever that occurs, accident reconstruction, so to speak, is in order. In Wisbey v. City of Lincoln, NE, emergency dispatcher Wisbey was granted intermittent FMLA leave for the "next 6 months or longer" because of depression and anxiety. Her FMLA paperwork prompted the City to question whether she could do her job at all. The City terminated Wisbey after a psychiatrist concluded that Wisbey was not fit for duty. The Eighth Circuit affirmed summary judgment for the City on Wisbey’s ADA and FMLA claims, but the significance of this case is in the court’s blending of FMLA and ADA concepts: 

  • "the FMLA does not provide an employee ….with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implied that she is not qualified for a position where reliable attendance is a bona fide requirement (citation omitted);" 

 

 

COMMENT: The FMLA allows, indeed entitles, eligible employees to take up to 12 weeks of intermittent, unforeseeable leave, requiring only as much notice as is practicable, at least according to the DOL regs. Many cases have held that, under the ADA, an employee with substantial, unscheduled, unpredictable absences is not a qualified individual with a disability. 

 

 

  • "Because Wisbey requested ‘intermittent leave’ for ‘six months or longer’ she did not have a right to FMLA leave."  

 

 

COMMENT: While "six months or longer" may suggest a request for indefinite leave, the FMLA entitles an employee to such leave up to the 12 weeks per year cap. Perhaps the court was thinking that a request for indefinite leave is not a request for a "reasonable" accommodation under the ADA. 

 

 

In Carmona v. Southwest Airlines Company, the ADA and FMLA collided once again. For seven years, Carmona, a flight attendant, was granted FMLA leave to excuse absences related to psoriatic arthritis. Since he did not work enough hours to renew his FMLA in 2005, his absences were unexcused and he was terminated for excessive absenteeism.

The Fifth Circuit rejected Southwest’s argument that Carmona was not a "qualified individual with a disability" under the ADA because he could not meet the essential function of regular attendance. and held that because Southwest "tolerated [Carmona’s] FMLA-approved absences for seven years," which permitted him to miss over half of each month without notice, regular attendance was not an essential function. The court said "if Southwest had denied Carmona’s request for intermittent FMLA leave [i.e., violated the FMLA], it might have had a strong argument that as a matter of law Carmona was not qualified to work as a flight attendant." Following this logic, regular attendance will not be an essential function of a job for anyone who has taken FMLA leave, since the employer tolerated that legally required leave.

The outcome of these two ADA-FMLA collisions? While Wisbey understates (if not misstates) the FMLA leave entitlement, Carmona punishes an employer in an ADA case for complying with the FMLA! The message from these two cases is clear: When your analysis brings you to the intersection of these two laws, proceed with extreme caution!

 

Emerging technology clashes with ADA accessibility requirements, as the U.S. Department of Justice and U.S. Department of Education warn colleges and university about requiring classroom use of electronic readers. In an open letter to college and university presidents, the federal departments "express[ed] concern" that some electronic book readers "lack an accessible text-to-speech function," making them inaccessible to students who are blind or have low vision. The letter warns that requiring use of inaccessible readers is discrimination under the ADA and Rehabilitation Act unless disabled students are "provided accommodations or modifications that permit them to receive all the education benefits provided by the technology in an equally effective and equally integrated manner."

The letter comes soon after the DOJ entered into settlement agreements with numerous colleges and universities that participated in a pilot program to use Amazon’s Kindle DX in the classroom. In those agreements, the universities agreed not to require or recommend use of any dedicated electronic book reader unless it is fully accessible to individuals who are blind or have low vision, or the universities provide reasonable accommodation to enable student to acquire the same information, engage in the same interactions and enjoy the same services as sighted students with substantially equivalent ease of use.

 

Reassigning an employee to a “vacant” position is a form of reasonable accommodation under the ADA. Determining whether a position is “vacant” is usually pretty easy, but not always, as illustrated by recent decisions by the Tenth and District of Columbia Circuit Courts of Appeals.

In Duvall v. Georgia Pacific, the plaintiff sought reassignment to a position occupied by temporary contract workers. Is a position filled by a temp “vacant”? The Tenth Circuit held that since the position filled by the temp was not available to a similarly situated, non-disabled employee, it was not “vacant” and was not available to the plaintiff.

Three weeks after Duvall, in McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, the D.C. Circuit relied more on Webster’s Dictionary and, without articulating the Duvall analysis, ended up in pretty much the same place. The plaintiff sought reassignment as the receptionist, claiming the position was vacant because a temp was filling in for the regular receptionist, who was on medical leave. The Court concluded that the regular receptionist “held, filled or occupied” (words from Webster’s) the receptionist position, so that it was not “vacant.” The Court’s discussion suggested that it also recognized that the employer had not made the receptionist position available generally. The Court said that the employer had not sought a replacement for the regular receptionist, had not posted a job listing, and had not “otherwise acted as though it considered the position vacant.”

According to the EEOC’s Guidance, a position is “vacant” if it is available when the employee asks for reasonable accommodation or a position that the employer knows will become available within a reasonable period of time.

Other issues can complicate an employer’s responsibility to consider reassignment to a vacant position as a reasonable accommodation, such as: Must an employer train the employee to be reassigned, or provide a period of familiarization? How long after the request for reassignment does the obligation to identify vacancies end? And of course, the significant issue that the Supreme Court had agreed to hear, and then dismissed as moot when the parties settled their dispute: whether a disabled employee seeking a vacant position as an accommodation, and who meets the minimum qualifications of the position  is entitled to it, i.e., receives a mandatory preference, or must compete with others for the position.

 

 

We readily conceded that our recent post concerning the Hooters waitress placed on “weight probation” was “not your typical weight discrimination” case. Here is a more typical one, which also addresses whether an employer may consider the “worst case scenario,” so to speak, in determining whether an employee is a qualified individual with a disability.  In Wilkerson v. Shinseki, the employer’s doctor concluded that the plaintiff, a 338 pound boiler plant operator with “largely uncontrolled and uncontrollable diabetes” who worked at the Cheyenne Veteran Affairs Medical Center, failed his annual fitness exam based on the doctor’s concern about plaintiff’s ability to perform challenging physical tasks. His employer reassigned him to a housekeeping position, which paid $9 per hour less than the boiler operator position. 

In affirming summary judgment for the employer on the Rehabilitation Act claim, the Tenth Circuit Court of Appeals held the plaintiff was not a qualified individual with a disability, noting that the VA’s safety guidelines excluded those with uncontrolled or poorly controlled insulin-dependent diabetes from boiler plant operator positions and that an operator must be able to react instantly to any dangerous situation with some degree of physical agility, which might include climbing ladders and going up and down stairs quickly. The Court said that the plaintiff “would pose a danger to himself and others should he fall from a ladder” and also cited the testimony of plaintiff’s supervisor that if a boiler were to explode, “the force would bring down the entire building that houses them.”

The plaintiff minimized the dangers of his working as a boiler operator, noting that nearly all of his work was “light duty,“ that he climbed a ladder only occasionally, and had worked in this position for two years without incident.

The Court held that an employer can “set standards not only for the mundane work but also for the exceptional” and can consider the “potentially disastrous effects” if plaintiff cannot respond to that exceptional situation safely and efficiently, so long as the need to perform in an emergency is a “realistic component of the job.” This is especially so, the Court noted, where the physical safety of others may be at risk.

An employer seeking to ensure an employee can respond safely and efficiently to the exceptional situation with potentially disastrous effects should consider including such an explicit requirement in the job description. Challenges to such requirements are likely to come from individuals excluded from the position, whether due to a disability or any other reason. The Wilkerson case establishes that such requirements will be upheld so long as responding to the “worst case scenario,” so to speak, is a “realistic component” of the job.

 

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.