Transcript Document

ADA/FMLA UPDATE
Council of PR Firms, HR Roundtable
January 23, 2014
Jessica Golden Cortes
Partner
Labor & Employment Group
212.468.4808
[email protected]
[Presentation Title Goes Here – Type it in the Master Slide]
© 2014 Davis & Gilbert LLP
WHAT IS THE EEOC SEEING SINCE
THE ADAAA WENT INTO EFFECT?
» Prioritize “systemic enforcement” (broad impact)
- 300 systemic investigations in 2013 (by industry,
geographically, large multi-state employers)
- These can relate to disability claims too: late 2009,
EEOC settled class action against Sears Roebuck for
$6.2 million based on denial of reasonable
accommodations
» 3.5% increase in disability claims since the ADAAA
went into effect in 2009
- Approximately 5000 additional cases in 2012 as
compared to 2009
ADAAA REFRESHER:
“DISABILITY” DEFINED
a) A physical or mental impairment that
substantially limits one or more major life
activities
b) A record of such impairment, or
c)
Being regarded as having such an impairment
IS AN EMPLOYER REQUIRED TO
ACCOMMODATE AN ALCOHOLIC WHO
IS UNDER THE INFLUENCE AT WORK?
» No.
» Handbook prohibits being intoxicated on premises or while
performing job for the Company for safety of self and other
employees;
» Employee who returned to work after completing rehab for
alcoholism was not entitled to delay breathalyzer test as a
“reasonable accommodation” after appeared intoxicated at
work
» Employee terminated for violating “last chance agreement”
was legitimate non-discriminatory justification for
termination.
- Merkl v. Allied Bldg. Prods., Corp. (E.D.N.Y. Mar. 28, 2013)
THREATS OF VIOLENCE IN
THE WORKPLACE NEED NOT BE
ACCOMMODATED
» The ADA “does not require an employer to retain a potentially
violent employee. Such a requirement would place the
employer on a razor's edge — in jeopardy of violating the
[ADA] if it fired such an employee, yet in jeopardy of being
deemed negligent if it retained him and he hurt someone.”
» ADA does not protect employees who pose a “direct threat” to
health or safety of themselves or others in the workplace
» Consider a paid leave of absence while investigating the
matter.
» Termination for violation of workplace standard of conduct
supported by EEOC Guidance
» Sista v. CDC IXIS North America, Inc. et al (2d Cir. 2006)
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CAN AN “INDEFINITE” LEAVE BE A
“REASONABLE ACCOMMODATION”?
»Yes in New York City, according to a recent Court of
Appeals decision interpreting the New York City Human
Rights Law
»New York City employers have burden to show that a
leave for an “undetermined amount of time” is an undue
hardship
»After 5 month leave, employer inquired whether
employee “intend[ed] to return” or “abandon his
position”. Then fired employee who said that return
date was uncertain, but was not abandoning job.
» Romanello v. Intesa Sanpaolo, S.p.A.
(N.Y. October 10, 2013)
IS AN “INDEFINITE” LEAVE A
“REASONABLE ACCOMMODATION”?
»No in California, where the prevailing view is that only a
“finite leave” can be a reasonable accommodation,
provided it is likely that at the end of the leave, the
employee would be able to perform his or her duties.”
»“Reasonable accommodation does not require the
employer to wait indefinitely for an employee’s medical
condition to be corrected.”
»In Jackson, employee submitted 5 certifications every 2
months stating she was “totally incapacitated.”
- Jackson v. Regus Mgmt Group (Cal App. 2d
June 26, 2013) (citing Hanson v. Lucky Stores,
Inc. (Cal. App. 2d Dist. 1999) (emphasis added)
IS AN “INDEFINITE” LEAVE A
“REASONABLE ACCOMMODATION”?
» No in New Jersey, where courts have held that
“indefinite leave is not a reasonable
accommodation . . . . The Third Circuit has also
addressed the concept of indefinite leave as an
accommodation under the ADA and found it
wanting”.
-
Linton v. L'Oreal USA, 2009 U.S. Dist. LEXIS 25357
(D.N.J. Mar. 27, 2009).
MUST ACCOMMODATION BE
RELATED TO “ESSENTIAL JOB
FUNCTIONS”?
WHAT ABOUT PARKING SPOTS?
» No, according to a recent decision in the Fifth Circuit
» Employee need not show link between a requested
accommodation and an essential job function
because disabled employee should be able to “enjoy
equal benefits and privileges of employment” as nondisabled employees.
» Employee had osteoarthritis of the knee and
requested free on-site parking as an accommodation.
The Company refused and was found in violation of
the law.
•
Feist v. Louisiana (5th Cir. 2013)
NEW YORK COURTS SEEM
TO AGREE - COMMUTING
» The Second Circuit has held that “there is nothing
inherently unreasonable in requiring an employer to
furnish an otherwise qualified disabled employee with
assistance related to her ability to get to work,” despite
employer’s argument that commuting to work was
“outside the scope” of an employee’s job, and therefore
not protected by the ADA
-Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene (2d Cir. 2011)
- Case remanded to district court, which denied
employer summary judgment on issue of whether it
had to accommodate her request for a car and parking
permit.
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BUT THERE ARE STILL LIMITS TO
WHAT IS REASONABLE: COMMUTING
» A diabetic employee moved three hours away. Sixhour, round-trip commute aggravated her diabetes. She
no accommodation to perform her job functions at work.
She exhausted FMLA and extended medical leave and
was fired;
» The court upheld the termination because:
- the commute “created the need for an
accommodation” and thus the employee “became
unqualified to fulfill the functions of the job”
- Haynes v. The Community Hosp. of Brazosport (S.D. Tex. 2011)
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CAN ATTENDANCE BE AN
“ESSENTIAL JOB FUNCTION”?
» District Court in California recently upheld termination of
nurse with neurological condition who worked only 10/52
scheduled shifts and failed to provide requested, updated
documentation from her physician regarding her medical
need to be absent. Job called for excellent attendance
record.
» Nurse could not establish that she could perform
essential work function of being present at work, even
with accommodation; three years of “chronic
absenteeism” justified termination
»
McClelland v. Permanente Med. Group, Inc.,
(E.D. Cal. Mar. 22, 2013)
DO EMPLOYERS HAVE TO
ACCOMMODATE EMPLOYEES WHO
REQUEST A LEAVE BECAUSE THEY
MAY HAVE A DISABILITY?
» Maybe, according to a recent decision in the Third Circuit.
» Employee laid off 3 months after disclosing that she
might have cancer and would likely need time off work;
sued for retaliation under ADA
» Third Circuit accepted lower court’s assumption that
plaintiff “engaged in protected conduct when she
informed her employer” of possible diagnosis and need
for leave.
» Court ultimately affirmed summary judgment to employer,
who articulated legitimate, financial and performancebased reasons for layoff.
-
Davis v. Davis Auto, Inc.
(3d Cir. 2013)
FMLA: WHO IS ELIGIBLE?
»Employees who have been with the Company for
at least twelve months, and
»Have performed at least 1,250 hours of service in
twelve months, and
»Work in an office/worksite with 50 or more
employees, or that, combined with any other
Company offices or worksites within a 75-mile
radius, employs 50 or more employees
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WHAT ARE PERMISSIBLE REASONS
FOR FMLA LEAVE?
»Birth of employee’s child/care for such child within
one year of birth.
»Adoption of employee’s child or placement of
foster child within one year of placement.
»Employee’s own “serious health condition” that
renders employee unable to perform job.
»Care for an employee’s spouse, child, or parent
who has a serious health condition.
»Qualifying exigency arising from employee’s
spouse, son, daughter, or parent on military duty.
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“SERIOUS HEALTH CONDITION”
»an illness, injury, impairment, or physical or mental
condition that involves either an overnight stay in a
medical care facility, or continuing treatment by a
health care provider for a condition that either
prevents the employee from performing the
functions of the employee’s job, or prevents the
qualified family member from participating in
school or other daily activities.
»A “serious health condition” under FMLA is not
necessarily a “disability” under ADA
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MAXIMIZE EMPLOYEE PRIVACY
UNDER HIPAA
»Who can contact employee’s health care
provider?
- HR representative
- A benefits/leave administrator
- A management official
»Who cannot?
- Employee’s direct supervisor
»HIPAA authorization to communicate directly
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INTERPLAY OF STATE LEAVE LAWS
» New Jersey and California have state laws that also
provide eligible employees with job-protected time off
for generally the same reasons as FMLA
- except not including for employee’s own serious
health condition.
»Family leave benefits also available in these states
to supplement income of employee on such a
leave (up to a cap).
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PENDING FEDERAL LEGISLATION
» The Family and Medical Insurance Leave Act
(introduced December 2013)(known as FAMILY Act):
- Would create a national paid family leave insurance
program funded by employer and employee
contributions (similar to NJ and CA)
- Workers would collect 66% of typical monthly wages
up to a capped amount, for up to 12 weeks.
- Would be administered by Social Security
Administration.
- Would apply to all employers.
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REQUESTING FMLA LEAVE TO
“CARE FOR” A FAMILY MEMBER
»An employee requests FMLA leave to accompany
terminally ill parent on a trip to Las Vegas through
foundation that grants “final wishes” to the
terminally ill. While on the trip, employee
administers parent’s medication but also gambles,
sight-sees, goes shopping and dines out.
»Employer terminates employment after the trip for
violating for abusing FMLA leave.
»Who wins?
» Ballard v. Chi. Park Dist. (E.D. Ill. Sept. 29, 2012)
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IS IT LAWFUL TO TERMINATE AN
EMPLOYEE ON FMLA LEAVE?
»Employee terminated during approved FMLA
leave for violating the terms of non-compete:
employee was “working on the side” for a client.
»Employer learned of employee’s breaches during
this leave
»Termination did not violate FMLA, ADA or NYHRL:
» Decisionmaker unaware of employee diagnosis;
» Action not motivated by discriminatory animus
» Luckette v. F.M. Howell & Co. (W.D.N.Y. 2013)
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CAN A FULL-TIME EMPLOYEE
DEMAND TO RETURN AS A PARTTIME EMPLOYEE?
» Terminated full-time physical therapist with chronic
ankle injury requested to return from FMLA leave on
reduced schedule and gradually return to full time.
Employer rejected. She then proposed full-time return
with break every hour. Employer Rejected. Plaintiff did
not return to work and was fired.
» Alleged adverse action occurred post-ADAAA and court
found employee to be disabled at that time.
» Court held that request for temporary part-time could be
reasonable accommodation under the ADA
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FMLA: FULL-TIME TO PART-TIME?
(CONT.)
»But, caused her FMLA failure-to-reinstate claim to
fail:
- “Because Plaintiff conceded that she could not
return to her previous full-time position without
some form of accommodation, she was not
entitled to reinstatement under the FMLA.”
»FMLA only entitles you to reinstatement to the
same or an equivalent position you had before
leave.
» Fleck v. WILMAC Corp. (E.D. Pa. May 19, 2011)
22
CAN AN EMPLOYEE WHO WORKED
FROM HOME BE REQUIRED TO
WORK IN THE OFFICE?
» Terminated employee sued for FMLA interference after
she took time off to care for her husband suffering from
cancer.
» Employee argued that employer did not return her to
equivalent position because required her to work 40
hours in office; before she intermittently worked from
home;
» Employer argued that office work was required because
of poor performance and lack of urgency.
» Court allowed claim to proceed
» Brock-Chapman v. Nat’l Care Network, L.L.C.,
(N.D. Tex. Jan. 16, 2013)
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QUICK TAKE: NEW PREGNANCY
DISCRIMINATION LAW IN NYC
» New York City Human Rights Law pregnancy amendment
(2013). Employees are entitled to be free from discrimination
due to pregnancy, childbirth, and related conditions.
- Applies to employers with 4+ employees
- Independent contractors considered employees
- Employees are entitled to reasonable accommodation to
perform “essential requisites” of job, unless undue hardship
» Post and notice requirement to all employees and new hires
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QUESTIONS?
Jessica Golden Cortes
Partner
Labor & Employment
212.468.4808
[email protected]
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Moelis & Co. Employment Practices: Making Them Work