Navigating the FMLA and the ADA: What Every Employer Needs to Know - - PowerPoint PPT Presentation

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Navigating the FMLA and the ADA: What Every Employer Needs to Know - - PowerPoint PPT Presentation

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Navigating the FMLA and the ADA: What Every Employer Needs to Know April 15, 2014 Presented by: D. Lewis Clark Jr. lew.clark@squiresanders.com Tara A. Aschenbrand tara.aschenbrand@squiresanders.com 39 Offices in 19 Countries Agenda

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39 Offices in 19 Countries

Navigating the FMLA and the ADA: What Every Employer Needs to Know

April 15, 2014

Presented by:

  • D. Lewis Clark Jr.

lew.clark@squiresanders.com

Tara A. Aschenbrand

tara.aschenbrand@squiresanders.com

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Agenda

  • Americans with Disabilities Amendments

Act Update

  • Family and Medical Leave Act Overview

and Update

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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.

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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.
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Anxiety from Fear of Losing Job

Huiner v. Arlington School District, 2013 U.S. Dist. LEXIS 138318 (D.S.D. 2013)

  • Employee put on performance plan then developed severe

anxiety at prospect of losing job

  • Lost 30 pounds over nine months, difficulty caring for children, sleep

issues, etc.

  • Requested accommodations, some of which were granted
  • Court said employee met standards for showing that anxiety

constituted a disability under ADA

  • Partially based on new relaxed standards under ADAAA
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Disclosure of Medications & Safety

Stahly v. S. Bend Pub. Transp. Corp., 2013 U.S. Dist. LEXIS 721 (N.D. Ind. 2013)

  • Employee took medication and suffered anxiety attack, which led

to FMLA leave

  • Employer was aware of events
  • Employer also required that all employees disclose all

medications they were taking

  • Justified for safety reasons
  • Regarded employee as disabled, even if she really was not

disabled

  • Request for medications is not job related and violates the

proscription of certain inquiries of employees about disabilities.

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Interactive Process: Employer Inquiry

Kelley v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS 166534 (E.D. Wash. 2013)

  • Is employer required to ask if disability is causing poor job

performance if they don’t suspect it?

  • Employee suffered from migraines and other issues, took FMLA

leave and had modifications to work schedule

  • Put on performance plan and disciplined several times
  • Employee never notified employer of possible connection

between disability and job performance issues

  • Employer not obligated to affirmatively explore connection
  • Employer also not required to accommodate by allowing lowered

expectations when a uniform performance standard is required

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Dinse v. Carlisle Foodservice Prods., 2013 U.S. App. LEXIS 22513 (10th Cir. 2013)

  • Employee had multiple health issues, of which employer was

aware because of use of sick leave

  • Employee’s job performance continued to suffer, had several

meetings with employer

  • Employee informed employer of upcoming surgery and

requested a laptop so he could work from home and return more quickly

  • Employee was terminated several days later

Interactive Process: Employer Inquiry

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Interactive Process: Employer Inquiry

  • Did employer have obligation to enter into interactive process?
  • While employer was aware of disability, they were not aware that

disability was leading to poor job performance

  • Employer requires more than just awareness to trigger obligation
  • Even with accommodation, wouldn’t be able to meet essential

functions of position

  • Also, laptop was not an accommodation, it would only help him

return to work quicker, it would not help him meet essential functions

  • Employer’s obligation to engage in interactive process was not

triggered

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Reasonable Accommodation

Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013)

  • Employee had knee problem and requested accommodation of

free on-site parking space

  • Employer refused, said it would not help her perform essential

function of job

  • Court looked outside of ADA and to the EEOC for guidance on

definition of “reasonable accommodation”

  • “Reasonable accommodation” can also include actions that

enable a worker to “enjoy the benefits and privileges of employment

  • Which could include an on-site parking spot
  • Does not have to be a link between essential function of position

and request for reasonable accommodation

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Reasonable Accommodation

Santandreu v. Miami Dade County, 2013 U.S. App. LEXIS 5542 (11th Cir. 2013)

  • Employee took leave for several health issues. Leave was

extended several times. After fifteen months of leave, employer terminated employee when additional leave was requested

  • ADA does not require an employer to provide leave for an

indefinite period of time

  • Employee was still unable to show when he would be able to

return to work and perform essential functions of position

  • No bright line rule – depends on situation, employer’s leave rules

and employer’s needs

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Essential Functions

Scott-Bolton v. State of Alabama Bd. of Pardons & Paroles, 2013 U.S. Dist. LEXIS 40942 (N.D. Ala. 2013)

  • Probation officer suffered from multiple sclerosis and unable to

pass weapons requalification test

  • Weapons skills rarely used, but qualification was statutory component
  • f job description
  • Requested permanent transfer to desk job
  • Held that essential function of job does not have to be done

frequently in order to be considered essential

  • Employer also not required to create desk-only job where one did not

previously exist

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Disability: Overweight

Powell v. Gentiva Health Servs., 2014 U.S. Dist. LEXIS 17709 (S.D. Ala. 2014)

  • Salesperson selling hospice services. Performance review

noted: “would not even discuss her weight”.

  • “However, plenty of people with an 'undesirable' physical

characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for

  • weight. An overweight sales representative may have difficulty

making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a 'physical or mental impairment' within any rational definition of the phrase.”

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Disability: Overweight

  • Court notes that there are situations in which weight could be

physical impairment

  • i.e. job requirement of climbing a ladder or climbing flights of stairs
  • But that is not the case here
  • The fact that the employee may have believed that “customers

did not want to buy hospice services from an overweight salesperson is no more a perception of an impairment than a belief that customers do not want to buy hospice services from a salesperson with a brightly colored, rebellious hairstyle.”

  • Held in favor of employer as there was no evidence that

employer perceived employee to have an impairment

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Credit Information

  • For those you who require CLE or HRCI credits please note the

following states have been approved, California, Ohio and Texas; as well as Arizona, New York, and New Jersey through state reciprocity laws. CPD and COE have also been approved. If you require credit in a jurisdiction not pre-approved we can assist.

  • Tomorrow you will receive an email with a link to an online
  • affidavit. Open this link and complete the form. Don’t forget to

include the affirmation code on the form. Once completed, PDF a copy of the signed form to Robin Hallagan at robin.hallagan@squiresanders.com

  • Remember to complete the webinar survey immediately following

the end of this presentation. You are required to complete this evaluation before receiving a certificate of attendance.

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Family & Medical Leave Act

  • 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.

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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;

  • qualifying exigency
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DOMA Ruling

  • U.S. v. Windsor, 133 S. Ct. 2673 (2013)
  • Definition of “spouse” under Defense of Marriage Act that “refers only

to a person of the opposite sex who is a husband or wife” declared unconstitutional

  • 2009 Department of Labor FMLA regulations
  • Define “spouse” as “husband or wife as defined or recognized under

State Law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized”

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FMLA & Spouse

  • For FMLA, focus is where employee resides, not where

employer is located, where employee works or where marriage

  • ccurred
  • Same sex marriage lawful:
  • California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois

(June 1, 2014), Iowa, Massachusetts, Maine, Maryland, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont and Washington

  • FMLA leave for same-sex spouse in residing state where not

recognized, leave would not reduce 12 week allotment

  • Leave would not qualify under FMLA definition of “spouse”
  • If FMLA leave granted to employee, still need to provide full

allotment if requested in future, otherwise, could be interference claim

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Eligible Employee

Basden v. Professional Transportation, Inc., 714 F.3d 1034 (7th Cir. 2013)

  • Employee was discharged after accruing too many absences
  • Employee claimed absences related to her multiple sclerosis
  • Court found employee did not show that she was protected by

FMLA

  • Employer terminated employee’s employment before she had

been employed for 12 months

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Notice of Leave

Hurley v. Kent of Naples, Inc., 2014 U.S. App. LEXIS 5259 (11th Cir. 2014)

  • Employee submitted schedule for eleven weeks of vacation over

next two years

  • Suffered from depression, which was cause for leave
  • While an employee has to provide notice of leave when it is

foreseeable, leave still has to qualify for protection

  • Notice of unqualifed leave does not trigger FMLA, otherwise

FMLA would apply to every leave request

  • Leave was not for a period of incapacity and could not predict

any future periods of incapacity

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Notice of Leave

Giarrizzo v. Mount Air Casino & Resort, 2013 WL 5924806 (M.D. Pa. 2013)

  • Leave to care for father
  • Notified supervisor
  • When employee had to leave early and could not find his head

supervisor, he gave notice to an immediate supervisor

  • Employee was suspended for an investigation into his early

departure and terminated a week later

  • Court found that the employee previously informed a supervisor
  • f his father’s medical condition, had specifically mentioned his

father’s safety when he left work early, and conveyed the same message to his head supervisor through phone messages.

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Employee Choice

Escriba v. Foster Poultry Farms, Inc., 2014 U.S. App. LEXIS 3571 (9th Cir. 2014)

  • Employee failed to follow attendance policy when missed work to

take care of sick parent in Guatemala

  • Employee can choose not to use FMLA time even if FMLA

qualifying event

  • Employer has obligation to ascertain whether FMLA leave is

being sought

  • Employee could need time off but intend not to use FMLA, they

could be saving it for future use

  • Employer could face liability for forcing FMLA leave on unwilling

employee

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Care for a Family Member

Ballard v. Chicago Park District, 741 F.3d 838 (7th Cir. 2014)

  • Issue -- Is leave to take vacation with FMLA qualifying relative to

whom employee provides support a violation of FMLA?

  • Employee took leave to care for ailing mother. During leave,

went on vacation with ailing mother to Las Vegas. Employer terminated employee for unauthorized absences.

  • Employee still provided medical, hygienic and nutritional needs

to mother while on trip

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Intermittent Leave

Graham v. BlueCross BlueShield of Tennessee, Inc., 521

  • Fed. Appx 419 (6th Cir. 2013)
  • Intermittent leave for migraine headaches
  • Certification: 1 episode per month, 3 – 4 days per episode
  • Absences exceeded original estimate
  • Requested modified certification
  • Physician could not give clear frequency or duration
  • Granted leave for 6 month period, subject to additional

certification/recertifications

  • Employee missed 28 days
  • Requested recertification
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Restoration Rights

Haskell v. CentraCare Health Sys.—Long Prairie, 952 F. Supp. 2d 838 (D. Minn. 2013)

  • Duties changed during leave
  • Employee stated she would not return to work

Rivera v. FedEx Corp., 2013 WL 6672401 (N.D. Cal. 2013)

  • Duties changed during leave
  • Selected for reassignment because of his seniority and not because of

his FMLA leave

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Poor Performance

Ion v. Chevron USA, 731 F.3d 379 (5th Cir. 2013)

  • Employee was granted custody of child in divorce and led to lack
  • f focus at work
  • Filed FMLA leave request due to “too much stress”.
  • Included angry outburst when asked to sign medical release
  • Employer learned from co-worker that employee had he

intended to fake a mental breakdown so he would not have to

  • work. Employee terminated for reasons leading to suspension

and for faking mental breakdown and failing to return to work after suspension

  • Employer previously disciplined him for transgressions and

never investigated the fake mental breakdown claim.

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Joint Employer Liability

  • Miller v. Nordam Group, Inc., 2013 WL 6080268 (ND Okla.

2013)

  • Temporary staffing agency placed employee on Oct 6, 2010
  • Became permanent employee on July 18, 2011
  • Employee requested FMLA on October 20, 2011
  • Court found that the employee was an eligible employee under

the FMLA

  • Both temporary agency and employer exercised control over the work

and working conditions of the employee

  • Employer had discretion over work, working hours, evaluating her

work and power to discharge

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39 Offices in 19 Countries

Navigating the FMLA and the ADA: What Every Employer Needs to Know

April 15, 2014

Presented by:

  • D. Lewis Clark Jr.

lew.clark@squiresanders.com

Tara A. Aschenbrand

tara.aschenbrand@squiresanders.com