A Little(r) Painkiller for Your FMLA and ADA...

A Little(r) Painkiller for Your FMLA and ADA Migraines

ACC CO Fall Frenzy

October 5, 2017

Presented By

Erin Webber

Al McLaughlin

Shareholder, Littler Denver

Office Managing Shareholder, Littler

Denver

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Rich Castleton

Senior General Attorney – Employment

Practices, Ball Corporation

© Littler Mendelson, P.C. | 2017 Proprietary and Confidential

• Disclaimer: The information in these slides and in this presentation is not

intended as a substitute for legal advice or for working with counsel as

specific situations arise. The techniques we will be discussing today may

present open legal questions and, generally speaking, require hands-on,

individualized involvement. And even then, many of the techniques in this

presentation are not for the faint of heart.

The Fine Print

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To position your organization to take some of the creative steps we will discuss today, the groundwork needs to be complete in the following areas:

• Job descriptions

• Hiring communications

• Pre-employment paperwork

• Good forms and letters

• Strong policies

• Attention to interaction among different policies

• Did we say job descriptions??

Employer Homework

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How BIG of a headache are FMLA and

ADA compliance issues for you and your

organization?

Question

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a) It gives me a migraine to even consider

b) I am the FMLA/ADA master and I eagerly

welcome each leave request and/or request for

accommodation

c) We have fewer than 50 employees so who

cares?

Answer:

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• Family and Medical Leave Act (FMLA)

– For employees who have worked for

employer for awhile

– Protected time-off

– Employees cannot be punished for

invoking their FMLA rights

– Fixed and inflexible

– Unpaid, job-protected leave up to 12

workweeks in a 12-month period

– Detailed eligibility criteria

– Reinstate/do not retaliate

Different Frameworks, Similar Challenges

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• Eligibility criteria

• Qualifying reasons

• Unpaid, job-protected leave

• Benefits continuation

• Reinstatement

• 12 workweeks (in a 12-month

period)—for medical only

• Block or intermittent/reduced

schedule leave

• No interference, no retaliation

• There is no undue hardship

FMLA = Protected Time

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• Americans with Disabilities Act and

its Amendments (ADA or ADAAA)

– This is for anyone—takes effect

before employment even begins

– It’s about employing and enabling

qualified employees to work

– Built on an interactive process

between employer and employee

– This is flexible

– Leave—with no set cap—is one

form of reasonable accommodation

Different Frameworks, Similar Challenges

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• The Americans with Disabilities Act

(and its amendments)

• Do not discriminate/retaliate

• Employers must reasonably

accommodate unless it poses an

undue hardship

• Individualized assessment and the

interactive process

• Takes effect before employment

even begins

• Confidentiality obligations

ADA Reminders

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1. The prohibitive piece – no discrimination

against those disabled, record of

disability, regarded as disabled

2. The affirmative piece – to reasonably

accommodate unless it creates an

undue hardship

ADA: What Has NOT Changed

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• Effective January 1, 2009

• Congress’s purpose to restore the

broad intent/coverage of the ADA

• Net result: much more likely that

employees qualify as “disabled” and

have rights under the ADA

• More focus on interactive process

What HAS Changed The ADA Amendments Act (ADAAA)

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• An employee’s own serious health condition

is one basis for leave under the FMLA

• If that serious health condition also

constitutes a disability under the ADA, that

employee may also be entitled to

accommodations

Remember: Employee Medical Conditions May

Trigger Both FMLA and ADA Obligations

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• Extensive case law under FMLA and ADA about what constitutes sufficient “notice”

• No magic words required

• Employee just has to provide enough information that employer knows a medical issue is interfering with a job requirement

– Simple statements like “I’m sick” = generally not enough

– Employees who miss multiple days of work for medical reasons = probably enough

– Employees who ask for modifications to their work arrangements and reference related medical issues = almost always enough

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News Flash! The Burden Remains on Employers


• 29 C.F.R. § 825.300(b) Eligibility Notice: Employers

must notify employees of their eligibility for FMLA within

5 business days of employee’s request or employer

notice.

• Branham v. Delta Airlines, 184 F.Supp. 3d 1299

(D.Utah 2016): Employee’s statements insufficient

• Valdivia v. Township High School Dist., No. 16-C-

10333, 2017 WL 2114965 at **4-5 (N.D. Ill. May 15,

2017): Employee’s uncontrollable crying = constructive

notice

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News Flash! The Burden Remains on Employers


• The FMLA Regulations permit forced designation of FMLA

– “The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of

the designation to the employee as provided in this section.” 29 C.F.R. § 825.300(d)(1)

– “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the

employer must notify the employee as provided in § 825.300(d).” 29 C.F.R. § 825.301(a)

– “Disputes. If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave,

it should be resolved through discussions between the employee and the employer. Such discussions and the

decision [by the employer] must be documented.” 29 C.F.R. § 825.301(c)

– “Retroactive Designation. If an employer does not designate leave as required by § 825.300, the employer may

retroactively designate leave as FMLA leave provided [no] harm or injury to the employee.” 29 C.F.R. §

825.301(d)

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“But the Employee Doesn’t Want FMLA”


• Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014)

– “[A]n employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

– Chilling effect on employers’ willingness to involuntarily designate leave as FMLA

– Skrynnikov v. FNMA, No. 11-609 (D.D.C. Jan. 3, 2017) (applying Escriba to reject employer’s argument that employee who asked to use 1 week of vacation to recover from “rib injury” permitted employer to designate the time as FMLA/DCFMLA leave against employee’s wishes, while stating that the argument “defies logic.”

• Still reason to be careful about involuntary designations:

– For FMLA-qualifying reasons unrelated to the employee’s own serious health condition, employee can reverse course about the reason s/he is taking time off

– For FMLA due to employee’s own serious health condition, involuntary retro designations can be risky: possibility of harm caused by notice delays that are the employer’s fault

– At least attempt to document agreement about questionable designations

Flipping the Script on Escriba:

“Involuntary” FMLA Leave Designations

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• Courts’ possible misapplication of Escriba v. Foster Poultry Farms,

Inc., 743 F.3d 1236 (9th Cir. 2014)

• Be sure to document the designation and give employees time to

object (but absent FMLA, time may not be protected)

• Be sure you are only forcing time off that is medically necessary

• Paid sick leave laws can complicate this

Cautionary Notes to Forced Designations


• 29 C.F.R. § 825.122(c)(3): “Persons who are ‘in loco

parentis’ include those with day-to-day responsibilities to

care for and financially support a child, or, in the case of an

employee, who had such responsibility for the employee

when the employee was a child. A biological or legal

relationship is not necessary.” (emphasis added)

• In 2010, the DOL issued Administrator’s Interpretation No.

2010-3, which construed in loco parentis more broadly to

mean someone who has day-to-day responsibility to care

for a child or who financially supports a child.

We Better Be Asking the Right Questions Ex: FMLA and In Loco Parentis


• The in loco parentis concept under FMLA—for our employee-parents,

or employee-children

• Coutard v. Municipal Credit Union,

848 F.3d 102 (2d Cir. 2017)

– Coutard admitted he simply requested FMLA leave to care for his

grandfather, who had been hospitalized. Did not mention that his

grandfather had raised him from the age of three.

– Employer: FMLA leave denied because “the statute does not apply

to grandparents.”

– District Court: SJ for employer—they weren’t on notice

– Second Circuit: Reversed. Employer had affirmative duty to ask

if the grandfather was really his “parent”

– What this case really tells us

We Better Be Asking the Right Questions Ex: FMLA and In Loco Parentis


• Best Practice?

– Since neither a biological nor legal relationship is necessary, consider the following communication to employees who request FMLA leave to care for an individual who is not obviously a parent, spouse or child:

• “We have received notice that you may be in need of FMLA leave to care for an individual who does not appear to be your parent, spouse or child. If our understanding of your relationship with this individual is inaccurate, contact [INSERT] immediately. Also, the FMLA permits an eligible employee to take leave to care for: (1) an individual who stands in the place of the employee’s parent (or who did so when the employee was under age 18), or (2) an individual for whom the employee stands in the place of a parent. If you believe that standard may be applicable in your situation, contact [INSERT] immediately.”

The Broad Reach of In Loco Parentis Under FMLA

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What’s All the Fuss About Pregnancy All of a Sudden?

• Anecdotally, we are seeing lots of activity

• FMLA, ADA, PDA and state law protections

• What the EEOC has to say

– https://www.eeoc.gov/laws/guidance/pregnancy_guidance.

cfm (June 25, 2015)

• What the Supreme Court said in Young v. UPS

• What does this mean for you?


• Why these policies passed discrimination muster for so long

• Current EEOC activity and the position they are taking (somewhat different from

the position articulated in the Agency’s Enforcement Guidance on this issue)

• How this can be a PDA problem (you’ve already seen this)

• How this can be an ADA problem—gutting your “not reasonable” or “undue

hardship” arguments?

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“Light Duty for Workers’ Comp Only”

Policies Under Attack


• “In general, an employer may require that employees comply with the employer’s usual and customary policies for requesting leave, unless unusual circumstances prevent the employee from doing so.” DOL “The Employer’s Guide to the FMLA,” p. 14 (April 2016) (emphasis added); see also 29 C.F.R. §§ 825.302(d), 825.303(c)

– Great case law on “unusual circumstances”

• Examples include:

– Requiring employees to call a designated number. 29 CFR §§ 825.302(d), 825.303(c)

– Requiring employees to call a specified person. 29 CFR §§ 825.302(d), 825.303(c)

– Requiring employees to speak to a supervisor, rather than leave a message. See, e.g., Chappell v. Bilco Co., 675 F.3d 1110 (8th Cir. 2012)

– Requiring employees, even on unforeseeable intermittent FMLA, to timely notify management and request the time off as FMLA. Acker v. General Motors, No. 16-11174, 2017 WL 1323518 (5th Cir. Apr. 10, 2017)

– Much to DOL’s chagrin, dual reporting finally gets some support! Acker and others

Some Good News You Can Enforce Reasonable Call-In Procedures


• Burdensome or even apparently reasonable procedures for original notice may not pass muster under FMLA or ADA

– See above Coutard case

– EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, No. 915.002 (10/17/02) (requests for accommodation do not need to be in writing)

– Courts are regularly rejecting arguments of employers that no accommodation was owed because the employee “didn’t do it right.”

• And…your policies can’t be ridiculous

– Boadi v. Center for Human Development, Inc., 2017 WL 886972 (D. Mass. Mar. 6, 2017) (ruling against the employer who terminated a mentally ill employee when her son called in on her behalf instead of her reporting the absence herself)

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Limits on Enforcement of Internal Procedures


• Employers cannot have it both ways—are you letting employee’s “make up” their FMLA time? (consider light duty,

telecommuting, working outside of business hours)

• Employers and employees can agree—but then it’s not FMLA

• Cases recognize that “fielding occasional calls about one’s job” while on FMLA leave does not violate the FMLA, nor does

asking the employee to participate in an investigation. See, e.g., Krause v. Eihab Human Services, Inc., 2015 U.S. Dist.

LEXIS 101820 (E.D.N.Y. 2015)

• Courts distinguish between an employer’s intermittent, non-disruptive communications and requiring an employee to

produce substantive work product. Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149 (8th Cir. 2016)

• But employees cannot substantively work during FMLA!

– Carlin v. Geauga Sav. Bank, No. 1:11-CV-1418, 2015 WL 3767678 (N.D. Ohio June 16, 2015). Court denied

summary judgment for employer who asked employee to work from home and participate in phone calls during FMLA

“Working” During FMLA


• 29 C.F.R. § 825.216(e): If an employer has a uniformly-applied policy governing

outside employment, that policy may continue to apply to an employee on FMLA

leave. An employer that does not have such a policy may not deny benefits to

which an employee is entitled under FMLA on this basis unless the FMLA leave

was fraudulently obtained.

• Ibewuike v. Johns Hopkins Hospital, WMN-15-1630, 2017 WL 2131842 at *4

(D. MD. May 17, 2017): plaintiff’s discharge for working another job while on

FMLA leave was not unlawful because it violated a company policy prohibiting

the taking of paid employment while on a leave of absence without first obtaining

management’s approval.

Policies Prohibiting Moonlighting

What You Suspect, But Can’t Yet Prove...


• Employees have a statutory obligation to make a reasonable effort to schedule intermittent leave for planned medical

treatment so as not to unduly disrupt the employer’s operations. 29 C.F.R. § 825.203 (emphasis added)

• The irony of an employer’s transfer rights under the FMLA (we know, we know, it makes no sense...)

– Employers may transfer employees who are using intermittent leave for planned medical treatment to positions that

better accommodate their need for intermittent leave. 29 C.F.R. § 825.204

– Employer groups came out in droves before the 2009 changes took effect—please let us transfer people for

unforeseeable/unscheduled intermittent leaves

– DOL says NOPE—reading the statute narrowly and precisely, and also defining “planned medical treatment” narrowly

– Transfers are also permitted when employers voluntarily permit intermittent or reduced schedule leave for bonding

(not much solace here...)

Intermittent Leave Hassles Transfers Under the FMLA


• No prohibition on transfer as reasonable accommodation (subject to the standard discrimination analysis)

• It’s generally okay to arrive at a new deal—including job duties, compensation, hours, etc. if options in current position have been exhausted

– But don’t let the FMLA issue pass you by (ex: employee asks for a modified schedule, but you cannot accommodate—what now?)

• Reassignment

– Affirmative assistance required?

– Competitive reassignment permitted?

– EEOC’s position

– Fifth Circuit’s position

– Other circuits?

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Transfer and Reassignment Under the ADA


Accommodations to Get People To Work in the First Place What the Courts are Saying

• Does it matter that this isn’t assisting them in actually performing an essential function of their job? Many courts say “no”

• Affirmatively assisting in the commute likely not required (though at least one court disagreed and required a transfer to a location closer to employee’s home)

• Parking requests should be considered/evaluated carefully—usually expected if doable

• Schedule modifications associated with the commute—cases are all over the place—proceed with caution


• Defining the issue

• How are you treating absences that we should have captured as FMLA, but missed?

• Absences protected under ADA?

– 2011: A record-breaking $20M EEOC settlement involving a major cellular

provider for rigid application of an attendance points policy (largest ADA

settlement in EEOC history)

– Started a trend of EEOC enforcement in this arena that continues today

– Multiple class action lawsuits on this issue ongoing

• What this all means for you

Attendance-Based Discipline and Terminations


But Isn’t Attendance an Essential

Function of Every Job?

• Sadly, no

• Two potential legal arguments/issues for employers

– Whether the employee is qualified in the first place

– Whether the accommodation is reasonable/poses an undue hardship

• General Theme = some judicial deference to the employer’s business judgment

• But there is unfavorable case law, and technology seems to be making this worse


• So you tell me I may have to provide

leave as an accommodation... but

when is enough FINALLY enough?

Question

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a) Never

b) When I have forgotten what said employee

looks like

c) After three reasonable extensions of time

Answer:

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• ADA leave is THE primary issue when FMLA

leave is exceeded or not available

• Leave from work is one form of reasonable

accommodation (this is not new)

• There is no set period of time that will always

be enough because the ADA requires an

individualized assessment of the employee’s

circumstances and requested leave

• Clearly defined lines are frowned upon by the

EEOC—and no level of generosity gets you a

free pass

(The Real Answer): Let’s Start With the Bad News

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• ADA leave is the primary issue when FMLA leave is exceeded or not available

• Leave from work is one form of reasonable accommodation (this is not new—but huge area of enforcement now)

• No set period of time will always be enough—the ADA requires individualized assessment of the employee’s circumstances and the requested leave

• Clearly-defined lines are frowned upon by the EEOC—and no level of generosity gets you a free pass

• See the EEOC’s Recent “Resource Document,” Employer-Provided Leave and the ADA, issued May 9, 2016, available at https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

ADA/FMLA Interplay Leave Under the ADA When FMLA Does Not Apply

https://www.eeoc.gov/eeoc/publications/ada-leave.cfm




• Echevarria v. AstraZeneca Pharmaceutical LP, No. 15-2232 (1st Cir. May 2, 2017) – request for additional 12 months of leave after almost 5 months of leave deemed not “facially reasonable.”

• Minter v. D.C., 809 F.3d 66 (D.C. Cir. 2015) – good “enough is enough” case citing EEOC’s 2002 Enforcement Guidance re: six months is more than a “reasonable amount of time” for an employer to retain a nonperforming worker

• Severson v. Heartland Woodcraft, Inc., 2015 U.S. Dist. LEXIS 153872 (E.D. Wis. Nov. 12, 2015) – employee who needed two more months after FMLA leave to recover from back surgery was not able to perform essential functions of his job

• Robert v. Board of County Commissioners, 691 F.3d 1211 (10th Cir. 2012) – a reasonable leave of absence is one where the estimated date of return is in the near future

The Courts Show Some Sympathy


• Hwang v. Kansas St. Univ., 753 F.3d 1159 (10th Cir.

2014) (emphasis added)

“By her own admission, [plaintiff] couldn't work at any

point or in any manner for a period spanning more than

six months. It perhaps goes without saying that an

employee who isn't capable of working for so long isn't an

employee capable of performing a job's essential

functions — and that requiring an employer to keep a job

open for so long doesn't qualify as a reasonable

accommodation. After all, reasonable accommodations

— typically things like adding ramps or allowing more

flexible working hours — are all about enabling

employees to work, not to not work.”

Pushing Back on Extended Leaves


• “[I]t's difficult to conceive how an employee's

absence for six months — an absence in

which she could not work from home, part-

time, or in any way in any place — could be

consistent with discharging the essential

functions of most any job in the national

economy today. Even if it were, it is difficult to

conceive when requiring so much latitude

from an employer might qualify as a

reasonable accommodation.”

More from Hwang…


• FMLA: No undue hardship, no operational argument, no flexibility—if an

employee qualifies for the leave, he/she gets it

• ADA:

– Leave is just one form of reasonable accommodation

– Other accommodations may be effective—and employees don’t get to

just dictate their preferred accommodation

– The employee has asked for leave—but will other accommodations

enable him/her to return (ex: modified schedule, modifying non-essential

job duties, etc.)?

So is the ADA Just More FMLA?

Pushing Back When FMLA is Over

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• Reassign essential job duties

• Create new jobs

• Provide indefinite leaves of absence

• Change an employee’s supervisor

• Bump another employee from his/her position

• Reduce conduct or performance expectations when the employee is at work

• Furnish items for an accommodation primarily for the employee’s personal use

(hearing aids, glasses, service animals, etc.)

• Excuse misconduct, even if caused by the disability

• Maintain equivalent pay if assigned to a different job

Not EVERYTHING is Reasonable...

Employers Still Generally Do Not Have To:

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• Temporal proximity between FMLA leave and disciplinary action does not always

lead to a successful legal claim.

• Germanowski v. Harris, 854 F.3d 68 (1st Cir. 2017):

– Plaintiff was discharged 3 days after she called in stating she would be out

sick for the week and that she was scheduled to see her doctor.

– Plaintiff did not provide notice that she was seeking FMLA when she called in

to report her absence.

– Ruling: The court dismissed plaintiff’s complaint finding that she failed to set

forth a plausible theory of causation connecting her attempt to exercise FMLA

rights and her termination. Her claim was further undercut by the fact that the

employer consistently accommodated her illness-related absences when she

was unable to work in the past.

Timing Isn’t Everything

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• Numerous successful defenses of terminations based on an “honest belief” of leave abuse

• Sharif v. United Airlines, Inc., 841 F.3d 199 (4th Cir. 2016):

– Employee fraudulently used intermittent FMLA leave to cover his shift, claiming anxiety made

him unable to work. Investigation revealed that he had not made arrangements to travel home

day of shift.

– Ruling: The court affirmed summary judgment for the employer under McDonnell Douglas,

explaining: “it seems perfectly logical for UA to conclude that Sharif did not want to interrupt his

Cape Town vacation to come back for one day of work.”

• Rowe v. United Airlines, Inc., 608 Fed. Appx. 596 (10th Cir. 2015)

– Flight attendant terminated when employer’s investigation revealed that with regard to a day on

which she claimed a migraine and was unable to fly, she never even attempted to purchase a

timely return flight

“Honest Belief”—The Hits Keep On Comin’


• Capps v. Mondelez Glob., LLC, 847 F.3d 144 (3d Cir. 2017)

– Employee takes intermittent FMLA, goes to a bar at end of day, gets drunk and gets arrested for

DUI on the way home. Terminated for misuse of FMLA, relying on criminal court docket

indicating that arrest date and court dates coincided with reported FMLA days

– Fantastic facts—wife out of town, he couldn’t cook, needed food, went to bar, blood alcohol at

arrest was .339

• Tibbs v. Admin. Office of the Ill. Courts, 860 F.3d 502 (7th Cir. 2017):

– Plaintiff was suspended the day she returned from FMLA leave for several incidents of

misconduct from the previous year and was later discharged after refusing to attend a

disciplinary meeting.

– Ruling: The court affirmed summary judgment for the employer on plaintiff’s FMLA retaliation

claim. It explained that plaintiff has the burden of establishing that the employer’s proffered

reason for her discharge “w[as] or could reasonably be found honest” and “where an employer

has multiple reasons for discharging an employee, the employee “faces a greater challenge.”

“Honest Belief”—The Hits Keep On Comin’


• Jones v. Gulf Coast Health Care of Delaware LLC, No. 16-11142, 2017

WL 1396165 (11th Cir. Apr. 19, 2017). Two visits to Busch Gardens and a

trip to St. Martin (pictures on Facebook) not enough when leave is for

recovery from rotator cuff surgery

• Brady v. Bath Iron Works Corp., No. 2:16-CV-4-NT, 2016 WL 3029948

(D. Me. May 25, 2016). Drinking a beer on your way home for an

intermittent FMLA day due to your anxiety and depression, which is

triggered by your work environment, was not “a situation where an

employee has been caught ‘red-handed’ engaging in an activity clearly

inconsistent with the intended purpose of the leave.”

• The “vacation cases” (e.g., employee on mental health leave posts

pictures from her cruise)

But Don’t Get Cocky About Your “Honest Belief...”


• The conduct has to truly be inconsistent with the reason for leave

• Conduct a proper investigation

• Confrontation is key

• Don’t play doctor

Tips to Remember Before Acting on Suspected Abuse

VIDEO

A Reasonable Request?

This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute.

Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of any decision or principle of law should be verified by counsel.

Thank You!

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A Little(r) Painkiller for Your FMLA and ADA...

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