2016 Human Rights Symposium: - PowerPoint Presentation

2016 Human Rights Symposium:ADA/FMLA Intersection

Contact Information2 Grant T. Collins (612) 373-8519 gcollins@felhaber.com Penelope J. Phillips (612) 373-8428 pphillips@felhaber.com

Overlapping Standards and Protections3

Purpose: Provide eligible employees with a federally-protected right to take time off from work.Eligibility:50+ employees (75-mile radius)1,250 hours in preceding 12 months“Serious health condition”Employee Immediate family member FMLA 4

Serious Health Condition: Any condition that involves:Inpatient care;Continued treatment by provider (3+ days of incapacity and 2+ treatments);Incapacity due to pregnancy or prenatal care;Incapacity because of chronic health condition;Incapacity due to untreatable condition; orPeriod of absence to receive multiple. FMLA (cont.) 5

Purpose: Provide qualified disabled employees with access to work.Eligibility:Available from the onset of employment (and to applicants)Suffer from a “disability.”ADA6

Disability:A physical or mental impairment that substantially limits one or more major life activities; A record of such impairment; orBeing regarded as having such an impairment.ADA (cont.)7

Purpose: provide for payment of compensation and rehabilitation for workplace injuries and minimize employer liability.Workers’ Comp.8

Is it a Disability or Workers’ Compensation Injury?Key Question9

A physical or mental impairment that substantially limits one or more of the major life activities of such individual;Being regarded as having such an impairment; orA record of such an impairment.“Disability” under ADA(AA)10

Caring for oneself, Performing manual tasks, Seeing,Hearing,Eating, Sleeping, Walking, Standing, Lifting, Bending, “Major Life Activity” 11 Speaking, Breathing , Learning, Reading, Concentrating, Thinking, Communicating,WorkingSitting, Reaching,Interacting with others, and Major bodily functions (immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions).

An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the general population.An individual with a disability will usually be substantially limited in another major life activity, therefore generally making it unnecessary to consider whether the individual is substantially limited in working.”“Substantially Limited”12

Always start with the FMLA – It provides the greatest benefits to employees and the most restrictions to employers.Make sure that FMLA and/or state leave policies provide that FMLA leave and workers’ comp leave run concurrently.Practice Tip13

When an employee has medical restrictions (permanent or temporary) and/or returns to work following time off because of a workers’ compensation injury, employer’s must consider whether the ADA applies.Workers’ Comp. Injury14

When an employee has medical restrictions regardless of how the employee was injured, and the medical restrictions are as a result of an “impairment” which could be a disability under the ADA, the ADA requires that an employer consider reasonable accommodation.What Does the ADA Say About Employees With Restrictions?15

What is reasonable accommodation?When do you have to decide if the employee needs reasonable accommodation?Temporary versus permanent restrictionsMMI with permanent restrictionsWhat is light duty work and how does it differ from reasonable accommodation?Key Questions16

Under workers’ comp. statutes, an employer may “create” light duty work for an employee who has been injured at work and the positions may be temporary.An employer is not required under the ADA to create light duty work for an employee who has a disability that is not caused by a work-related injury. Light Duty Work17

There is no requirement that an employer provide “permanent” light duty work to an employee who has a disability because of a workers’ compensation injury.Exception: If an employer “reserves” light duty work for employees who have workers’ compensation injuries, the employer cannot refuse to provide a reserved light duty job to an employee who has a non-workers’ compensation injury that is also a disability.Light Duty Work (cont.)18

Affirmed dismissal of the plaintiff’s ADA claim where the plaintiff was terminated after exhausting light duty for a workplace injury.Held that the plaintiff’s request for indefinite light-duty status was “unreasonable” as a matter of law because the ADA does not require employers to create a permanent light-duty.Frazier-White v. Gee, (11th Cir. 2016)19

Even if plaintiff requested “reassignment,” court held that her accommodation claim failed because she lacked evidence there was a specific, full-duty vacant position she was qualified to perform given her medical condition.Court looked at plaintiff’s testimony during a medical hearing and her deposition where she testified she still could not work and was receiving permanent disability benefits.Frazier-White (cont.)20

Held that evidence of an employer policy or practice of providing light duty to a large % of non-pregnant employees while failing to provide light duty to a large % of pregnant workers might establish that the policy or practice significantly burdens pregnant employees.If the employer’s reasons for its actions are not sufficiently strong to justify the burden, that will “give rise to an inference of intentional discrimination.”Young v. UPS, Inc., (2015)21

What happens when an employee returns to work with permanent restrictions?When an employee is released to return to work following a workers comp. injury, the ADA requires reasonable accommodation, which may be different than workers’ compensation obligations. Reasonable accommodation requires an interactive process.Reasonable Accommodation22

What it is: A good faith effort in consultation with the disabled individual to identify and make a reasonable accommodation.A defense later: No compensatory or punitive damages.Unchanged by the ADAAAEEOC says: Should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.Interactive Process23

EEOC’s Suggested Steps:Determine the job’s “essential functions”;Consult with disabled individual to determine job-related limitations;Identify potential accommodations and assess effectiveness of each; Consider preference of disabled individual; andSelect the accommodation that is most appropriate for both the employer and individual.Interactive Process (cont.)24

What types of accommodation might be required if an employee has a disability as a result of a workers’ compensation injury? Permanent modification of job duties if the modifications are a “reasonable accommodation.”What is not reasonable? Any modification that changes / alters / removes the essential functions of the job.Reasonable Accommodation25

If the employee cannot return to their pre-injury job, reasonable accommodation under the ADA may require reassignment to a vacant position for which the employee is qualified. If there is no vacant position available, an employer should consider placing the employee on leave.Accommodation (cont.)26

FMLA: an eligible employee is entitled to a maximum of 12 weeks of leave per 12 month period.ADA: no per se rule (2 months to 17 months)Must be “reasonable” and not impose an “undue hardship.”Employee entitled to “effective” (not preferred) accommodation.“Leave” under ADA and FMLA27

(Some) factors to consider when determining whether an accommodation would pose an undue hardship: Nature and cost of the accommodation;Overall financial resources of the facility making the reasonable accommodation (number employees; impact on facility)Undue Hardship28

Overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity)Impact on operations on the facility Undue Hardship (cont.)29

Guidance released on May 9, 2016.Key ProvisionsEmployers must grant equal access to leave under any leave policy.Unpaid leave must be considered as an accommodation (unless undue hardship).All requests for leave must be treated as a request for a reasonable accommodation.New EEOC Guidance re: Leave as an Accommodation30

Key Provisions (cont.)“Automatic termination” provisions are unlawful.Requiring employees to return to work “without restrictions” or “100% healed” is unlawful.Engaging the employee in the interactive process is essential. EEOC Leave Guidance (cont.)31

Key Provisions (cont.)Reassignment to a vacant position must be considered (as a “last resort”).“Undue hardship” considerations include: (i) the amount and/or length of leave required, (ii) the frequency of the leave, (iii) flexibility regarding the days on which leave is taken, (iv) whether need is predicable, and (v) the impact on customers and coworkers.EEOC Leave Guidance (cont.)32

Guidance states that employers may ask the health care provider to respond to questions designed to enable the employer to understand: (1) the need for leave; (2) the amount and type of leave required; and (3) whether reasonable accommodations other than (or in addition to) leave may be effective for the employee (perhaps resulting in the need for less leave). EEOC Leave Guidance (cont.) 33

If an employee requests an extension, the employer should request:Medical documentation specifying the amount of the additional leave needed;The reasons for the additional leave;Why the initial estimate of a return date proved inaccurate; andInformation relevant in determining whether the requested extension is an undue hardship.EEOC Leave Guidance (cont.)34

EEOC and Inflexible Leave Policies35CompanyDateAmount Policy Princeton HealthCare System July 2014 $1.35 million Limiting employees to 12 weeks of leave and requiring return without restrictions. Interstate Distributor Co.Nov. 2012$4.85 millionTerminating employees who were not 100% healed and able to return to work full time/full duty at end of the medical leave, and limiting leave to 12 weeks VerizonJuly 2011$20 million Failing to make exceptions to “no fault” attendance plans for individuals with disabilities as an ADA accommodation

Inflexible Leave Policies (cont.)36CompanyDateAmount Policy Supervalu, Inc., Jewel Food Stores, Inc., etc. Jan. 2011 $3.2 million Terminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence rather than considering return to work with a reasonable ADA accommodation Sears, Roebuck and Co.Sept. 2009$6.2 millionTerminating employees following exhaustion of workers’ compensation leave without engaging in the interactive accommodation process to consider workplace accommodations or leave extension as an accommodation

Court Decisions re: Leave37

The plaintiff was hired by KSU under a 1 year contract to teach 3 academic terms—Fall, Spring and Summer.Before the Fall Term began, the plaintiff was diagnosed with cancer. She requested, and was granted, a 6 month paid leave of absence to obtain treatment.When spring approached, the plaintiff’s doctor advised her that she needed more time off.Hwang v. Kansas State University,(10th Cir. 2014) 38

The plaintiff asked the University to extend her leave through the end of the Spring Term, but the University refused on the basis it only provides employees with a maximum of 6 months leave.The University, however, did arrange for the plaintiff to receive long-term disability benefits. The University then effectively terminated the plaintiff’s employment.Hwang (cont.)39

The plaintiff filed suit claiming the University failed to accommodate her and fired her because of her disability.The District Court dismissed the complaint and the plaintiff appealed.The 10th Circuit found that the 6 month leave the plaintiff was provided was beyond a reasonable amount of time, and that the ADA did not compel an employer to hold onto “a non-performing employee” for any longer.Hwang (cont.)40

The 10th Circuit did caution that it was not suggesting “inflexible leave policies are categorically immune from attack.”The 10th Circuit stated that policies providing unreasonably short sick leave periods, for example, may not provide accommodation enough for employees who are capable of performing their jobs’ essential functions with just a little more “forgiven absence.”Hwang (cont.)41

The Court also stated that if it turns out that an employer’s supposedly inflexible sick leave policy is really a sham and other employees are routinely granted dispensations that disabled employees are not, an inference of discrimination will naturally arise.Hwang (cont.)42

Minter suffered from sarcoidosis and arthritis related to her condition. In Sept. 2006, Minter inquired about reducing her schedule, but she suffered an injury causing her to take time off in December and Jan. and, in Feb. 2007, to stop working.From Feb. to May, employer sent letters requesting an update, but Minter did not respond.Minter v. District of Columbia, ( D.C. Cir . 2015 ) 43

Minter sent her employer a “disability certificate” signed by her doctor stating she was “totally disabled” and she would remain so “indefinitely.”Minter, however, stated that she “hoped” to return to work in September 2007.Employer terminated her employment.Minter (cont.)44

Court dismissed Minter’s ADA claim because her employer provided her a reasonable amount of leave (i.e., 3 months), and she could not provide a reasonable estimation of her return to work.Court cited EEOC guidance stating that “six months is beyond a ‘reasonable amount of time’ to retain a non-performing employee.” Minter (cont.)45

Rednour had Type I diabetes and worked as a paramedic.After two low-blood sugar incidents, the FD gave her a fitness-for-duty.The medical director concluded that she could return to work with limited duties and workplace accommodations. FD declined to implement these recommendations and instead fired Rednour.Rednour v. Wayne Twp., (S.D. Ind. 2014) 46

FD declined to implement these recommendations and instead fired Rednour.Rednour sued and won $223,500 at trial for lost wages, benefits, and emotional distress (the parties later settled for a total award of $725,000).Rednour (cont.)47

In 2006, Aston suffered a heart attack and received 26 weeks of leave.In May 2010, Aston suffered a second heart attack and received 12 weeks of FMLA and 14 weeks of STD leave.In November 2011, Aston was terminated.Aston was scheduled for heart surgery in Jan. 2011, and was certified as disabled until Jan. 1, 2011.Aston v. Tapco Int’l Corp., (6th Cir. 2015)48

Held that holding Aston’s job open until January 1, 2011 would impose an undue hardship because the employer reasonably questioned whether Aston would be able to return to work in January 2011, or ever.When “an employer has already provided a substantial leave, an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”Aston (cont.)49

Plaintiff injured his back and subsequently became addicted to pain killers. He began in-patient treatment on March 23, 2009.On April 27, his employer sent a letter stating plaintiff would exhaust his FMLA on May 8, so he was expected to return to work on May 11. Letter explained that if he could not return, he should HR as soon as possible.Employer sent a follow-up letter on May 11 stating he needed to respond by May 26. Dee v. Board of Regents, (D. Ga. March 30, 2016)50

Plaintiff also claimed that the employer’s “no-fault” leave policy violated the ADA. While the court acknowledged that EEOC guidelines establish that an employer may need to amend “no-fault” policy as a reasonable accommodation, court held that “this requirement is only triggered when a plaintiff has established that he is entitled to additional leave as a reasonable accommodation and a no-fault policy would otherwise prevent additional leave.” Dee (cont.)51

FMLA:If medically necessary, intermittent leave is available regardless of any hardship its use may impose on the employer.Intermittent Leave52

ADA:Employer is entitled to deny leave if it would pose an undue hardship.Employer is also entitled to provide an accommodation other than leave (e.g., a part-time or modified work schedule, or telework), as long as the accommodation would allow the employee to meet his or her needs related to a disability.Intermittent Leave53

Wisbey was employed by the City of Lincoln as an 911 dispatcher.Wisbey was required to handle emergency situations and was expected by the City to remain calm, cool and collected under substantial pressure, so she could think and act quickly and rationally in emergency situations.Wisbey v. City of Lincoln,(8th Cir. 2010)54

The medical certification that Wisbey submitted to support her leave request stated that she suffered from recurring cycles of depression and anxiety that interfered with, among other things, her sleep, energy and concentration.The medical certification also stated that it was necessary for her to take time off on an intermittent basis over a period of 6 months or longer.Wisbey (cont.)55

The City required Wisbey to undergo a fitness-for-duty examThe fitness-for-duty exam concluded that she suffered from chronic depression that interfered with her ability to do her job The City then terminated Wisbey as being unfit for dutyWisbey sued under the FMLA.Wisbey (cont.) 56

“[T]he FMLA does not provide an employee suffering from depression 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 implies that she is not qualified for a position where reliable attendance is a bona fide requirement.”Wisbey (cont.)57

The case provides support for the proposition that an employer can terminate an employee where it could be argued that employee will be taking continuous, unpredictable leave from work, assuming the employer could establish that regular attendance is an essential function of the job.Wisbey (cont.)58

And, the FMLA provides leave with the expectation that when the employee returns s/he can perform the essential functions of the job with or without reasonable accommodation.Wisbey (cont.)59

Santiago worked for the Department of TransportationThis position required him to work considerable overtime during the snowy winter months In 2000, Santiago was diagnosed as suffering from “cluster headaches,” which are more intense than a migraine attack Santiago v. DOT,(D. Conn. Sept. 25, 2014)60

His treating physician concluded that his excessive work schedule – defined as periods during which plaintiff was required to work more than eight hours per day or forty hours per week – was one of the main factors that triggered his cluster headaches and led to his inability to perform his job duties Santiago (cont.)61

Santiago requested the ability to take intermittent FMLA leave whenever mandatory overtime was assigned The employer said if Santiago was suffering from cluster headaches, he would need to take sick leave for an entire day, not just for the required OT and he could be subject to discipline for refusing OT during snow and ice season or for excessive sick usage Santiago (cont.)62

The employer argued that Santiago was not entitled to FMLA leave as he was seeking to be relieved of any overtime for the remainder of his employment Santiago (cont.)63

Court examined “the novel question of whether [the plaintiff] could use his yearly FMLA leave allotment to essentially permanently change his position into one in which he was no longer required to work overtime.” Santiago (cont.)64

The FMLA provides that employers cannot require employees to take "more [intermittent] leave than is necessary" and thus employees can take leave in increments of an hour Employees can use their yearly allotment of 12 weeks of FMLA leave to significantly alter their schedules Santiago (cont.)65

“As the [defendant] has noted, the statutory entitlement to 12 weeks of FMLA leave per year translates into 480 hours of per year based on a 40 hour work week or 9.2 hours per week or 1.8 hours per work day “Santiago (cont.)66

“[B]ecause [the plaintiff’s] position requires overtime only during periods of snow, the yearly leave entitlement under the FMLA would be sufficient to relieve [plaintiff] from all of the overtime required for his position except perhaps in the most severe of winters. Thus, under this scenario, the FMLA could be used to essentially create a new position for [the plaintiff] that does not involve overtime”Santiago (cont.)67

Held that the employer cannot deny the request because:DOL knew this might happen (unanticipated consequence)There is no undue hardship defense under the FMLA.Santiago (cont.)68

“To the extent that [the plaintiff] is able to use his FMLA leave to essentially obtain an accommodation that might not be available under the ADA, this is a result that is permitted by the statute and been considered by the DOL since the statute’s inception.”Santiago (cont.)69

To determine whether an employee’s absence was “non-chargeable” Verizon was required to conduct an individual case-by-case basis whether each of the following is satisfied:Whether the individual has a disability?Whether the absence was caused by the disability?Whether the individual (or designee) requested time off from work due to a disability?Verizon Consent Decree70

“Non-chargeable” (cont.):Whether the absences have been unreasonably unpredictable, repeated, frequent or chronic?Whether the absences are expected to be unreasonably unpredictable, repeated, frequent or chronic?Verizon Consent Decree71

“Non-chargeable” (cont.):Whether Verizon is able to determine a definite or reasonably certain period of time off that the individual would need because of a disability?Whether the need for time off poses a significant difficulty or expense for Verizon’ s business?Verizon Consent Decree72

ADAExaminations and inquiries must be job relatedMust be limited to determining whether the employee can perform the job with or without a reasonable accommodationEmployer can seek medical advice regarding potential accommodations Medical Documentation 73

FMLAEmployee requesting leave may be given certification paperworkEmployee has 15 days to return the paperworkEmployer may request follow up information if necessarySecond/third opinions are availableMedical Documentation (cont.) 74

ADA: must be “job-related and consistent with business necessity,” including to: (1) determine if the employee is covered by the ADA; (2) determine if the employee can perform the essential functions of the job (including resolving reasonable safety or health concerns); or (3) identify an effective accommodationFitness-for-Duty Exams75

FMLA: employer may have policy requiring return-to-work certification.“An employer may not require that an employee submit to a medical exam by the employer's health care provider as a condition of returning to work.”But, does not supplant exams consistent with ADA.Fitness-for-Duty (cont.)76

Employee requested an LOA due to “severe anxiety.” She provided a note from her primary care doctor, stating she was “under care of psychiatrist and therapist.” Employer requested a “new” certification from her “treating psychiatrist” and, at the conclusion of the leave, requested that she provide a fitness-for-duty certification from the same psychiatrist.Employee later resigned and sued. Bento v. City of Milford , (D. Cont . Sept. 30, 2016)77

Initial CertificationRequiring that the certification come from the treating psychiatrist did not violate FMLA.The employer clearly laid out for the specific actions needed to cure the deficiencies in her original certification and gave the employee ample time to obtain the information. Bento (cont.) 78

Fitness-for-Duty and Delayed Return to WorkThe fact that the employee’s RTW was delayed 6 days did not violate the FMLA.As long as notice is provided at the outset, employers can require a fitness-for-duty certification and the employer may “delay restoration to employment” until a proper certification is provided.Bento (cont.) 79

Officer took leave after a period of exhibiting erratic behavior and poor judgment following death of a family member.Returned to work without restrictions; restored to payroll and “assigned to work from home”; told she had to be evaluated by a physician of the County’s choosing. Argued that she was entitled to RTW based on her doctor’s certification. White v. County of Los Angeles, (Cal. App. 2d Dist. 2014) 80

The court found that she had been returned to work in accordance with the FMLA.“[T]he employer may, consistent with the ADA, require a medical exam at the employer's expense after the employee has returned to work from FMLA. . . . The employer cannot, however, delay the employee's return to work while arranging for and having the employee undergo a medical examination.” White (cont.) 81

“Given the relationship between the FMLA and the ADA, even if [Plaintiff] had requested and been granted FMLA leave and obtained a FMLA certification to return to work, defendants still had every right to require that she undergo an ADA evaluation before reinstating her.”Doby v. Sisters of St. Mary of Or. Ministries Corp., (D. Or. Aug. 11, 2014)82

Held that an employer lawfully requested a fitness-for-duty exam under the ADA based on the information provided by the employee pursuant to her FMLA medical certification.The employee, a 911 dispatcher, submitted FMLA paperwork stating that her medical condition affected her concentration and motivation – essential functions of her job.Wisbey v. City of Lincoln,(8th Cir. 2010) 83

Employee alleged retaliation under the FMLA after her employer require her to undergo a fitness-for-duty examination 2 months after she requested intermittent FMLA. Court found that employer’s reasons were a pretext based on the employer’s course of hostile conduct towards the employee’s intended use of FMLA and its shifting reasons for the exam.Gordon v. U.S. Capitol Police, (D.C. Cir . 2015 ) 84

Prohibits employers from collecting genetic information, including “family medical history”Safe Harbor29 C.F.R. § 1635.8(b)(1)(i)(B). In June 2016, the DOL added “safe-harbor” language to its medical certification forms.GINA Concerns85

Prohibits on collection of genetic information applies to medical exams, such as fitness-for-duty exams. 29 C.F.R. § 1635.8(d).No exceptionsIn comments to the regulations, DOL refused to allow federal agency doctors to inquire about family history of psychiatric disorders.GINA (cont.)86

FD required firefighters over 40 to submit to a physical examination, including a medical history questionnaire with a question about family history of heart disease.Because FD failed to use “safe harbor” language directing provider not to collect genetic information, and because the questionnaire requested genetic information, the FD violated GINA. Lee v. City of Moraine Fire Dep’t,(S.D. Ohio Mar. 3, 2015)87

QUESTIONS?Thank you.88Questions?