Transcript AVOIDING THE LEGAL SNARES

AVOIDING THE LEGAL SNARES
WHEN NEGOTIATING THE
COMPLEX MAZE OF FMLA, ADA,
PDA & WORKERS’ COMP LAWS
Von E. Hays, Esq.
[email protected]
214.939.4959
Common Goal
ADA, FMLA and Worker’s Comp
Laws serve a common goal:
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To allow sick, injured or disabled
employees to take time away from
work without fear of losing jobs and
benefits.
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Different Approaches
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ADA: provides a right to work.
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FMLA: provides a right not to work.
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Worker’s Comp: provides
compensation to those who cannot
work.
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A Confusing Intersection
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While the ADA, FMLA and Worker’s Comp
Laws have common goals, the different
approaches create the potential for
confusion in their application, especially with
employers’ leave policies.
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What Does That Mean For You?
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The HR Professional is tasked with
mastering this “Bermuda Triangle” and
keeping the company out of trouble so ….
LET’S GET SOME PRACTICE
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“REAL-LIFE” CASE STUDIES OF THE TRICKIEST
OVERLAP ISSUES
Case Study Number 1
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Is Bob eligible for FMLA leave?
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Is Jennifer eligible for FMLA leave?
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How much FMLA leave is available to
Jennifer?
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Are there limitations on the amount of FMLA
leave that Jennifer and Bob can take
because they are husband and wife?
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Is Bob Eligible for FMLA Leave?
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Under the FMLA, an employee must have worked for the company at
least 12 months and have worked at least 1,250 hours in the preceding
12 months to be eligible for FMLA leave.
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Bob has worked for the company for well over a total of 12 months, but
he been in Iraq on military duty and only has 980 “hours worked” in the
last 12 months.
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DOL memorandum regarding the rights of re-employed military
veterans (July 26, 2002).
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—
DOL opined that returning military service members are entitled to
FMLA leave if the hours that would have worked had they not been
called to duty bring them up to the FMLA eligibility threshold of
1,250 hours.
—
Employers should calculate this by taking the employee’s work
schedule before he entered military service to gauge the amount
of time he was gone and add that time to the hours that the
employee has actually worked in the last 12-month period.
BOB IS ELIGIBLE FOR FMLA LEAVE.
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Is Jennifer Eligible for FMLA Leave?
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Jennifer has worked for the company at
least 12 months as she started in August of
2002 and it is now September of 2003.
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Jennifer has worked more than the 1,250
hours in the preceding 12 month period.
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Thus, Jennifer is eligible for FMLA leave.
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How Much FMLA Leave is Available to Jennifer?
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Jennifer has used 2 weeks of leave for prenatal
doctor’s visits, BUT only one week since she became
eligible for FMLA (after August 2003).
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Jennifer has indicated that she wants to take as
much leave as she can when the baby is born.
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Jennifer has remaining 11 weeks because she has
already used a week of FMLA leave for this 12 month
period.
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Are there Limitations on the Amount of FMLA Leave
that Jennifer and Bob can Take because They are
Husband and Wife?
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Possibly, depending on the reason(s) that underlies
the FMLA leave.
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29 C.F.R. Section 825.202 -- Limits a
husband/wife employed by the same employer to
a combined total of 12 weeks of FMLA leave if the
leave is being taken for:
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(1) for the birth, adoption or foster care
placement of a child or to care for the child
after the birth, adoption or placement; or
—
(2) to care for the employee’s parent with a
serious health condition.
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Are there Limitations …?
n
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Be cautious with Bob and Jennifer and don’t just assume that they
only get a combined total of 12 weeks of FMLA leave. Know the
specifics.
—
For example, if Jennifer’s doctor certifies that she will need 6
weeks to recuperate from the pregnancy, that leave is being
taken due to mom’s serious health condition and thus,
Jennifer would be taking 7 weeks off due to her own condition
of being pregnant (including prenatal visits) and she has 5
more weeks that she can then take for “bonding.”
—
Bob, if supported by the doctor’s certification, could take the
first 6 weeks off after the birth to take care of his wife
recuperating from her condition of being pregnant and then he
could take an additional 6 weeks off for “bonding time.”
In essence, both Bob and Jennifer may be able to each take 12
weeks of FMLA leave as a result of the pregnancy and resulting
baby, depending on the specific reason for the leave.
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“REAL-LIFE” CASE STUDIES OF THE TRICKIEST
OVERLAP ISSUES
Case Study Number 2
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What action should you take, now that you
are aware of Fred’s need for assistance?
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What possible accommodations can you
think of that might assist Fred?
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What Action Should You Take Now That You Are
Aware of Fred’s Need for Assistance?
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The EEOC and the courts have determined that once an employer
becomes aware of an employee’s need for a possible
accommodation, the employer must engage in an “interactive
process” with the employee.
—
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See e.g., Shapiro v. Township of Lakewood, 292 F.3d 356 (3rd
Cir. 2002) (summary judgment for employer was inappropriate
where employer failed to engage in an interactive process with
the employee in response to the employee’s request for a job
modification or reassignment).
The concept of the interactive process is not complicated.
—
It means that the employer has an obligation to discuss and
explore possible accommodations with an employee once the
employer is on notice that the employee might need such an
accommodation to enable him to perform the essential functions
of the job.
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“Reasonable accommodation”
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“Reasonable accommodations” include …
— Modifications or adjustments to the work
environment, or to the manner or
circumstances under which the position
held or desired is customarily performed,
that enable a qualified individual with a
disability to perform the essential
functions of that position.
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“Reasonable accommodation”
CONTINUED
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Certain modifications and adjustments are
not “reasonable accommodations”,
including …
—
Eliminating an essential function of a
job.
—
Lowering production standards, whether
qualitative or quantitative.
—
Providing personal use items.
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The Interactive Process – Requesting
Reasonable Accommodation
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The interactive process: the informal
discussion between the individual and
the employer to identify the person’s
particular limitations and to establish
the actions, if any, that would
reasonably
accommodate
those
limitations.
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The Interactive Process – Requesting
Reasonable Accommodation
CONTINUED
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What notice is required?
—
That the person has a disability;
and
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That the person seeks assistance
because of that disability.
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The Interactive Process – Requesting
Reasonable Accommodation
CONTINUED
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The Substance of the interactive process
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What should you do?
1.
Know the essential functions of the job.
2.
Ask questions to elicit relevant information
about the precise job-related limitations
caused by the disability.
3.
Identify potential accommodations and
assess the effectiveness of each.
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The Interactive Process – Requesting
Reasonable Accommodation
CONTINUED
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What should you do?
4. If the disability is not obvious, ask
for reasonable documentation of
the individual’s disability and
functional limitations.
5. Respond promptly.
6. Document thoroughly.
7. Be nice!
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What Possible Accommodations Can You Think Of
That Might Assist Fred?
Think creatively
accommodations:
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consider
alternative
Working at home?
—
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and
EEOC fact sheet (February 3, 2003) -- Work-athome or telework may be a reasonable
accommodation.
Additional leave beyond that required by the FMLA?
—
The courts and EEOC continue to emphasize that
additional leave beyond the FMLA 12 week period
may be a reasonable accommodation that an
employer should consider.
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“REAL-LIFE” CASE STUDIES OF THE TRICKIEST
OVERLAP ISSUES
Case Study Number 3
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Is Susie in any protected classes?
What would Susie have to provide to prevail
on her gender discrimination claim?
What facts support the employer’s position
that the demotion was not related to Susie’s
pregnancy?
What does Susie have to show to prevail on
her FMLA claim?
Does a demotion equal an adverse
employment action?
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Is Susie In Any Protected Classes?
A female employee who is pregnant and
who is using available FMLA leave.
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A gender (pregnancy) discrimination claim.
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A FMLA retaliation claim.
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What Would Susie Have to Prove to Prevail on Her
Gender Discrimination Claim?
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Susie will have to show that the demotion was based on her being
a pregnant female.
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If Susie only succeeds in showing that she was treated the same
as other similar situated employees with similar performance
issues, then the employer will win.
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See Armstrong v. Systems Unlimited, Inc. (8th Cir. 9/8/03). (If
a pregnant female establishes that she was treated the same
although equally badly as similarly situated employees not in
the protected class, she cannot prevail on her pregnancy
discrimination claim.)
—
See Smith v. Allen Health Systems, Inc.,302 F.3d 827, 833-34
(8th Cir. 2002) (employee bears burden of showing employer’s
justification is not credible. Evidence that employer had been
concerned about performance problems before employee
engaged in protected activity undercuts the significance of the
temporal proximity of the adverse decision to the protected
activity).
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What Facts Support the Employer’s Position that
the Demotion was not Related to Susie’s
Pregnancy?
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Susie’s ongoing performance problems brought to her
attention before she notified the company of her desire to
become pregnant.
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Six-month evaluation, which, although it was a “good”
rating, did document that start of the performance
problems.
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Executive Director had begun to investigate the employee
complaints prior to knowing of Susie’s pregnancy.
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Evidence of additional performance problems that were
discovered and additional employee complaints that were
raised after Susie went on leave.
Is it enough? Will employees stick by their complaints?
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What Does Susie Have to Show to Prevail on her
FMLA Claim?
Susie must demonstrate that her employer
intentionally discriminated against her in the form of
an adverse employment action for having
exercised an FMLA right.
—
Susie will likely claim that her employer interfered
with her substantive rights under the FMLA and
retaliated against her by not restoring her to her
position upon returning from leave, but rather
demoting her.
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What Does Susie Have to Show to Prevail on her
FMLA Claim?
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FMLA grants an employee the right to take leave and
reinstatement to the same or substantially equivalent position upon
return from leave. 29 U.S.C. Section 2614(a)(1)(A).
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The right to restoration, however, is not absolute.
—
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Employer may refuse to restore the employee if doing so
would confer any right, benefit, or position of employment
other than any right, benefit, or position to which the employee
would have been entitled had the employee not taken leave.
29 U.S.C. Section 2641(a)(3)(B).
With respect to its burden of proof, the company will again rely on
the same factual information discussed previously to show that the
demotion was based on Susie’s performance, not on her use of
FMLA leave.
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Does a Demotion Equal an Adverse Employment
Action?
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The EEOC and courts have routinely held that a demotion itself
may be an adverse employment action.
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And if Susie quits?
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A constructive discharge situation may also constitute an
actionable employment action for purposes of the federal
employment laws. See, e.g., Jennings v. Mid-American;
Fenney v. Dakota, Dakota, Minnesota & Eastern Railroad
Company, 327 F.3d 707 (8th Cir. 203).
—
Some courts have even extended the “constructive discharge”
concept to apply to a “constructive demotion.” See, Fenney;
Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876
(7th Cir. 1999); Sharp v. City of Houston, 164 F.3d 923, 933-34
(5th Cir. 1999). A plaintiff claiming constructive demotion must
show that he found the environment to be abusive and that an
objective person in his position would have felt that he had to
demote himself because of the discriminatory work conditions.
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“REAL-LIFE” CASE STUDIES OF THE TRICKIEST
OVERLAP ISSUES
Case Study Number 4
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Does Pat have an FMLA claim against his
employer?
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Does Pat have a disability for purposes of
the ADA?
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Assuming Pat has a disability, did the
employer violate the ADA when it terminated
Pat for excessive absenteeism?
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Does Pat Have an FMLA Claim Against His
Employer?
Issue:
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In an actual case involving a similar fact scenario, the court
disagreed and relied on the statutory language of the FMLA in
stating that an employer cannot modify the FMLA by adoption of its
more generous leave policies. See Panto v. Palmer Dialysis
Center, 8 Wage & Hour Cas. 2d (BNA) 1072 (E.D. Pa. 4/7/03).
—
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Pat used all his FMLA leave, but argues the company
extended the FMLA protections to 6 months by its medical
leave policy.
The Panto court’s analysis is also consistent with the United
States Supreme Court’s ruling in Ragsdale v. Wolverine
Worldwide, Inc. 535 U.S. 81 (2002).
Contractual obligation? -- May depend on the state law and the
language of the employee handbook.
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Does Pat Have a Disability for Purposes of the
ADA?
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Just because the employer is aware that the employee has
a medical condition does not establish that the employee
has a disability.
The employee’s impairment must substantially limit the
employee’s ability to perform at least one major life activity.
The assessment of the employee’s condition must be done
on an individualized basis based on particular objective
facts about that employee’s abilities and limitations.
Pat’s condition appears to be substantially limiting in that
he has a flare-up every month or two which lasts for
several days and during that time Pat is confined to bed
and cannot perform many of the daily life activities, such as
caring for himself and working.
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Assuming Pat has a Disability, did the Employer
Violate the ADA when it Terminated Pat for
Excessive Absenteeism?
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According to the EEOC, additional leave beyond that allowed
under the FMLA may be a reasonable accommodation.
—
n
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See Wood v. Green, 2003 WL 1090412 (11th Cir. 2003)(The
court indicated that it is not a reasonable accommodation to
request a leave of indefinite duration.)
Pat’s additional leave has not exceeded the 6 months of medical
leave that the employer allows under its own policy, so assess
whether there is an undue hardship if further leave is granted.
If there is no undue hardship, the ADA may even require leave
beyond what is offered by the employer’s policy.
—
See Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638
(1st Cir. 2000) (Because no showing of undue hardship,
employer may be required to provide leave beyond what
policy allows. In this case, secretary with cancer who took 15
months of disability leave asked for an additional two months
of leave and was terminated.)
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“REAL-LIFE” CASE STUDIES OF THE TRICKIEST
OVERLAP ISSUES
Case Study Number 5
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Were you correct in granting the leave of
absence?
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In responding to the civil rights complaint,
can you question whether Mary has a
disability?
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Has the employer complied with its
reasonable accommodation obligations?
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Where You Correct In Granting The Leave of
Absence?
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It appears that Mary’s injuries are work-related and
the company doctor has recommended a leave of
absence.
Depending on your state’s workers’ compensation
laws, Mary may be entitled to workers’ compensation
benefits during the 4-week leave.
Additionally, if Mary is eligible for FMLA leave, you
also should designate this 4-week leave as part of
her FMLA leave. It is still recommended that you
notify Mary in writing that you are counting the leave
as FMLA even after the U.S. Supreme Court decision
in Ragsdale v. Wolverine Worldwide, Inc.
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In Responding to the Civil Rights Complaint, Can
You Question Whether Mary Has A Disability?
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ABSOLUTELY!
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That is almost always an issue that is open to
questioning.
—
You may find yourself at a disadvantage if you do not
raise the issue early – waiver.
Also consider questioning what major life activities are
substantially impaired?
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If Mary claims that she is limited in her ability to perform
manual tasks, remember that they need to be manual
tasks that are central to most people’s daily lives. See
Toyota Motor Mfg. Kentucky Inc. v. Williams, 534 U.S.
184 (2002).
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Has The Employer Complied With Its Reasonable
Accommodation Obligations?
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Assuming that Mary may have a disability, a smart
employer should consider whether it has met its reasonable
accommodation obligations and should spell those efforts
out:
—
Steps taken with respect to engaging in an interactive
process;
—
Describe what reasonable accommodations were
provided to Mary:
—
—
—
—
—
The ergonomic evaluation
The exercise brochure
The gel pad
The leave of absence
Ordered the ergonomic chair.
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Has The Employer Complied With Its Reasonable
Accommodation Obligations?
What about the delay?
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There are federal court decisions on both sides of this
argument.
—
In Danielson v. AT&T Corp., 2003 WL 225360 (Minn.
App., April 29, 2003) a Minnesota court concluded that
the delay in providing accommodations to an employee
did not rise to the level of a failure to accommodate.
—
A Maryland court, however, held that a delay in and of
itself could be unreasonable and amount to a failure to
accommodate. See Cohen v. Montgomery County
Dept. of Health and Human Services, 817 A.2d 915
(Md. Ct. App. 2003).
The delay in Cohen was more significant than the delay in
Danielson, which may help explain the different rulings.
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Useful FMLA Links
FMLA Statute:
www.dol.gov/dol/esa/public/regs/statutes/whd/fmla.htm
FMLA Regulations:
www.dol.gov/dol/allcfr/Title_29/Part_825/toc.htm
FMLA Compliance Guide:
www.dol.gov/dol/esa/public/regs/compliance/whd/1421.htm
FMLA Poster:
www.dol.gov/dol/esa/public/regs/compliance/posters/fmla.htm
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