LEAVE, LEAVE AND MORE LEAVE! Tara Aschenbrand - - PowerPoint PPT Presentation

36 Offices in 17 Countries

www.squiresanders.com www.employmentlawworldview.com

LEAVE, LEAVE AND MORE LEAVE!

Tara Aschenbrand

tara.aschenbrand@squiresanders.com

Lew Clark

lew.clark@squiresanders.com

Traci Martinez

traci.martinez@squiresanders.com

February 15, 2012

www.squiresanders.com www.employmentlawworldview.com

Presenters

• D. Lewis Clark Jr.

lew.clark@squiresanders.com

Tara A. Aschenbrand

tara.aschenbrand@squiresanders.com

Traci L. Martinez

traci.martinez@squiresanders.com

www.squiresanders.com www.employmentlawworldview.com

Agenda

• Family Medical Leave Overview and

Update

• Military Leave Update
• Americans with Disabilities Amendments

Act Update

www.squiresanders.com www.employmentlawworldview.com

FMLA Regulations, Amendments and Case Update

www.squiresanders.com www.employmentlawworldview.com

Covered Employers

• All persons employing 50 or more employees for

20 or more calendar workweeks in the current or preceding calendar year.

www.squiresanders.com www.employmentlawworldview.com

Eligible Employees

• Employees are eligible for leave if they:

Worked for their employer at least 12 months; Worked at least 1,250 hours over the past 12 months; Work at a location where the company employs 50 or more employees within 75 miles.

www.squiresanders.com www.employmentlawworldview.com

Qualifying Reasons For Leave

• Eligible employees are entitled to 12 workweeks
• f leave for the following reasons:

birth and care of the employee’s newborn child; placement with the employee of a child for adoption or foster care; to care for the employee’s spouse, child, or parent with a serious health condition -- but not “in-laws”; when the employee is unable to perform the essential functions of the employee’s position because of a serious health condition.

www.squiresanders.com www.employmentlawworldview.com

Other Qualifying Reasons For Leave

• The amendments to the FMLA created two new

family military leave provisions:

• Qualifying Exigency Leave

Allows for up to 12 workweeks of leave

• Military Caregiver Leave

Allows for up to 26 workweeks of leave

www.squiresanders.com www.employmentlawworldview.com

What Is A Qualifying Exigency?

• Regulations provide a list of specific examples:

Short-notice deployment (7 days or less); Military events and related activities; Childcare and school activities; Financial and legal arrangements; Counseling (non-medical); Rest and recuperation (limited to 5 days for each instance); Post-deployment activities (for a period of 90 days following the termination of active duty status); and Additional activities (the employer and employee must agree to the timing and duration of such leave).

www.squiresanders.com www.employmentlawworldview.com

Employee Notice Requirements:

• Foreseeable Leave

Employees must give 30-days advance notice for foreseeable leave, or if that is not possible, notice must be given “as soon as practicable.”

• Unforeseeable Leave

When the need for leave is not foreseeable, an employee must provide notice “as soon as practicable.”

www.squiresanders.com www.employmentlawworldview.com

Certifications

• Employees must be given at least 15 calendar days to return a

complete and sufficient certification.

• If the returned certification is either incomplete or insufficient, the

employer must advise the employee in writing as to the deficiencies and give the employee at least 7 calendar days to cure the deficiencies.

• Employer may communicate directly with the healthcare provider
• nly to “clarify” or “authenticate” a certification form after

providing the employee with seven calendar days to cure any deficiencies.

• Contact must be made by a human resources professional, a

leave administrator, or a management official; but at no time may the employee’s supervisor contact the employee’s healthcare provider.

www.squiresanders.com www.employmentlawworldview.com

Recertifications

• Generally, employer may require recertification of a serious

health condition no more frequently than the duration of the prior certification or every 30 days, whichever period is longer.

• More recertification possible when:

The employee requests an extension of the leave. The circumstances described by the previous certification have changed significantly. The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification.

www.squiresanders.com www.employmentlawworldview.com

Proper Standard of Proof in FMLA Interference Cases

Donald v. Sybra, Inc., Case No. 10-2153 (6th

• Cir. 2012)
• On January 17, 2012, nearly twenty years after the

introduction of the Family and Medical Leave Act (“FMLA”), the Sixth Circuit clarifies the proper standard of proof for FMLA interference claims by applying the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

www.squiresanders.com www.employmentlawworldview.com

Interference with FMLA Rights

Pereda v. Brookdale Senior Living Comm., Inc. 1/10/2012

• Employee alleged that the employer began harassing her after the

employer was advised that she was pregnant and would be requesting FMLA leave

• At the time the employee requested leave, she was not eligible for

FMLA protection because she had not worked the requisite hours and had not yet experienced a triggering event.

• Employee was terminated after 11 months for performance

issues.

• Employee sued alleging claims for interference and retaliation

under the FMLA.

www.squiresanders.com www.employmentlawworldview.com

Abuse of Medical Leave?

Pellegrino v. Communications Workers of America, 2011 U.S. Dist. LEXIS 54052 (May 18, 2011)

• Policy required employees who were on FMLA leave to remain in

the immediate vicinity of their homes.

• If an employee wanted to leave the immediate vicinity of his or her

home for travel, he or she needed written permission to do so.

• Employee on leave took a vacation to Cancun, Mexico, during her

FMLA leave and was terminated.

• The employee sued, claiming that the employer violated the

FMLA by terminating her employment.

www.squiresanders.com www.employmentlawworldview.com

Calculating FMLA Leave

Thom v. American Standard, Inc., 2012 FED

• App. 0016P (6th Cir. 2011)
• Employee took FMLA leave for a non-work related injury.
• Extended leave was granted until June 27 (beyond his remaining FMLA

leave).

• Employee was released to light duty beginning May 31 and to full duty on

June 13.

• Employer did not allow return to work on May 31 to perform light duty

because it was a non-work related injury.

• Employee did not show up on June 14 and turned in a doctor’s note on

June 18 that he was having unexpected problems.

• Employee was terminated for unexcused absence between June 13 and

18 and he was out of FMLA leave.

www.squiresanders.com www.employmentlawworldview.com

Out of FMLA Leave so no worries, right?

Hofferica v. St. Mary Medical Center, 2011 U.S.

• Dist. LEXIS 133810 (Nov. 18, 2011)
• Employee was advised of the date her FMLA would expire
• Employee attempted to notify the employer that her

physician had recommended extending her leave by one week.

• Employee did not return as scheduled and was terminated.
• Employee sued alleging retaliation.

www.squiresanders.com www.employmentlawworldview.com

Possible FMLA Changes Ahead?

• January 30, 2012: Department of Labor released a

proposed rule that implements the (FMLA) amendments made by the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act.

• Both laws enacted in 2009 entitle more employees to family

and medical leave under the federal FMLA.

www.squiresanders.com www.employmentlawworldview.com

ADA Amendments Act

www.squiresanders.com www.employmentlawworldview.com

Overview of the Americans with Disabilities Act

• The ADA protects qualified individuals with disabilities from

discrimination in employment.

• The ADA applies to employers who have at least fifteen

employees.

• An individual has a disability under the ADA if the person has a

physical or mental impairment that substantially limits one or more major life activity, has a record of such an impairment, or is regarded as having such an impairment.

• To be a “qualified” individual under this framework, the person

must be able to perform the essential functions of the job, with or without reasonable accommodation.

www.squiresanders.com www.employmentlawworldview.com

ADA Amendments Act of 2008 (ADAAA) Effective January 1, 2009

• After the ADAAA, the definition of “disability” has been

expanded and will encompass most medical conditions.

• Overturned several past U.S. Supreme Court decisions.
• The inquiry has shifted from whether a person is “disabled”

under the law to whether that person is “qualified” and can perform the essential functions of the job, with or without reasonable accommodations.

• EEOC issued final regulations

www.squiresanders.com www.employmentlawworldview.com

What is a disability?

• The ADA defines “disability” as:

A physical or mental impairment that substantially limits

• ne or more major life activities;

Having a “record” of such an impairment; or Being “regarded as” having such an impairment.

www.squiresanders.com www.employmentlawworldview.com

Record of a Disability

• Employee no longer must show that employer relied on

some type of record of a disability (e.g. medical or other records that list the person as having a disability).

• Employer’s knowledge or lack of knowledge of an

individual’s past disability goes only to whether the employer engaged in discrimination, not to whether the individual has a “record of” a disability.

www.squiresanders.com www.employmentlawworldview.com

Regarded as Disabled

• An individual is ‘‘regarded as’’ disabled if the individual is

subjected to an action prohibited by the ADA because of an actual or perceived disability (e.g., discriminatory failure to hire, termination, demotion, etc…).

• Impairments that are both transitory (expected to last for six

months or less) and minor are not disabilities.

www.squiresanders.com www.employmentlawworldview.com

Regarded as Disabled (cont’d)

• No requirement to show that the impairment (or perceived

impairment) substantially limits (or is perceived to substantially limit) a major life activity.

• Employers have no obligation to provide reasonable

accommodations to individuals who are not actually disabled, but are only “regarded as” disabled.

www.squiresanders.com www.employmentlawworldview.com

“Major Life Activities”

• Caring for oneself

Breathing Seeing

• Concentrating

Sleeping Eating

• Communicating

Walking Hearing

• Standing

Lifting Learning

• Bending

Speaking Thinking

• Performing manual tasks

Reading Working

• Interacting with others

Reaching Sitting

www.squiresanders.com www.employmentlawworldview.com

“Major Bodily Functions”

• Immune system

Digestive Bladder

• Normal cell growth

Respiratory Bowel

• Circulatory

Reproductive Brain

• Neurological

Endocrine Skin

• Special sense organs

Lymphatic Genitourinary

• Cardiovascular

Musculoskeletal Hemic

www.squiresanders.com www.employmentlawworldview.com

Impairments Consistently Meeting Definition

• f Disability
• Cerebral palsy

Blindness Diabetes

• Missing limbs

Multiple sclerosis Epilepsy

• Schizophrenia

Bipolar disorder Cancer

• Muscular dystrophy

Deafness HIV/AIDS

• Major depression

Autism PTSD

• Obsessive compulsive disorder
• Mobility impairments requiring a wheelchair
• Intellectual disability (formerly termed mental retardation)

www.squiresanders.com www.employmentlawworldview.com

Impairments That May Be Disabling

• Asthma
• High blood pressure
• Learning disabilities
• Hyperthyroidism
• Back & Leg impairments
• Carpal tunnel syndrome
• Psychiatric impairments (e.g., panic disorder, anxiety

disorder, minor depression)

www.squiresanders.com www.employmentlawworldview.com

Impairments Usually Not Considered Disabilities

• Common cold or influenza
• Seasonal allergies
• Sprained joint
• Appendicitis
• Minor and non-chronic gastrointestinal disorders
• Broken bone that is expected to heal completely

www.squiresanders.com www.employmentlawworldview.com

Why is this important?

• Administrative relief for disability charges

increase 36% in 2011

$103.4 million in 2011 $76.1 million in 2010 Source- http://www.eeoc.gov/eeoc/statistics/enforcement/ada- monetary.cfm

www.squiresanders.com www.employmentlawworldview.com

Should You Assume All Impairments are a Disability?

Allen v. Southcrest Hospital, No. 11-5016 (11th

• Cir. Dec. 21, 2011)
• Plaintiff had to show that: (1) she had an impairment and

(2) that the impairment substantially limited one or more major life activities

• Allegation that her migraines caused sleep disturbance was

not sufficient

www.squiresanders.com www.employmentlawworldview.com

Inflexible Policies Can Violate the ADA

EEOC v. Sears Roebuck & Co., No. 04 C 7282 (N.D. Ill.)

• Class action lawsuit regarding the retailer’s policy of

terminating employees on leave due to workers’ compensation injuries in excess of the company’s one-year maximum leave period

• $6.2 million settlement against Sears, Roebuck & Co.

www.squiresanders.com www.employmentlawworldview.com

Extended Leave As Reasonable Accommodation

• EEOC v United Road Towing Inc., No. 10-cv-06259 (N.D. Ill.) (failure to

provide reasonable accommodations by terminating disabled employees after exhausting 12 weeks of Family and Medical Leave Act (FMLA) leave and refusing to re-hire employees once they were finally released to return to work);

• EEOC v. IPC Print Services, No. 10-886 (W.D. Mich.) (failure to provide

reasonable accommodations by terminating an employee rather than granting him a part-time schedule because he had exceeded the maximum hours of leave allowed under company policy);

• EEOC v. Princeton HealthCare System, No. 10-4216 (D. NJ) (failure to

provide reasonable accommodations by terminating employees after either seven days or 12 weeks, depending on eligibility for FMLA);

• EEOC v. UPS, Case No. 09-5291 (N.D. Ill) (failure to provide reasonable

accommodations by terminating an employee for exceeding 12-month leave policy);

• EEOC v. Denny’s, Inc., No. 06-2527 (D. Md.) (failure to provide reasonable

accommodations by terminating a nationwide class of disabled employees at the end of the company’s pre-determined maximum leave limit).

www.squiresanders.com www.employmentlawworldview.com

Extended Leave As Reasonable Accommodation

• How long is reasonable?
• June 2011 EEOC Meeting on Leave As a

Reasonable Accommodation

www.squiresanders.com www.employmentlawworldview.com

Regular Attendance As An Essential Function

• Fisher v. Vizioncore, Inc., 429 Fed. Appx. 613 (7th Cir. 2011).

“courts endorse the right of employers to control when employees can telecommute.” “the ADA does not protect persons who have erratic, unexplained absences, even when those absences are the result of a disability.” plaintiff’s requested accommodation was “an open-ended schedule with the privilege to miss workdays frequently and without notice, and to telecommute without manager approval.”

• Valle-Arce v. Puerto Rico Ports Authority, 2011 U.S. App. LEXIS 13937 (1st Cir.

2011). Trial court found that the Plaintiff was not able to perform the essential functions of her job when she was absent for “six months in a 16-month period”. The court of appeals reversed. Plaintiff been granted reasonable accommodations she could have attended work more frequently.

www.squiresanders.com www.employmentlawworldview.com

One Strike Policy

• Lopez v. Pacific Maritime Association, 657 F.3d 762 (9th Cir. 2011).

“one-strike policy”

• ne-strike rule was adopted for a legitimate purpose, which was safety.

www.squiresanders.com www.employmentlawworldview.com

Employer’s Duty to Create/Transfer Positions

• White v. Interstate Distribution Co., 438 Fed. Appx. 415

(6th Cir. 2011).

Maintenance truck/trailer tech 1 exhausted his FMLA leave Returned with restrictions Requested position was not a full-time job and was only done on an ad hoc, temporary basis.

• McFadden v. Ballard Spahr Andres & Ingersoll, LLP,

611 F.3d 1 (D.C. Cir. 2010).

A reasonable accommodation may include reassignment to a vacant position Plaintiff was unable to perform the essential functions of her job.

www.squiresanders.com www.employmentlawworldview.com

Interactive Process

• Lowe v. Ind. Sch. Dist. No. 1 of Logan County,

363 Fed. Appx. 548 (10th Cir. 2010).

No response to employee’s list of accommodations Employer cannot ignore a request

36 Offices in 17 Countries

www.squiresanders.com www.employmentlawworldview.com

LEAVE, LEAVE AND MORE LEAVE!

Tara Aschenbrand

tara.aschenbrand@squiresanders.com

Lew Clark

Lew.clark@squiresanders.com

Traci Martinez

traci.martinez@squiresanders.com

February 15, 2012