[Presentation Title Goes Here – Type it in the Master Slide]

ADA/FMLA UPDATE

Council of PR Firms, HR RoundtableJanuary 23, 2014

Jessica Golden Cortes

PartnerLabor & Employment Group212.468.4808jcortes@dglaw.com

© 2014 Davis & Gilbert LLP

WHAT IS THE EEOC SEEING SINCE THE ADAAA WENT INTO EFFECT?

» Prioritize “systemic enforcement” (broad impact)

- 300 systemic investigations in 2013 (by industry, geographically, large multi-state employers)

- These can relate to disability claims too: late 2009, EEOC settled class action against Sears Roebuck for $6.2 million based on denial of reasonable accommodations

» 3.5% increase in disability claims since the ADAAA went into effect in 2009

- Approximately 5000 additional cases in 2012 as compared to 2009

ADAAA REFRESHER: “DISABILITY” DEFINED

a) A physical or mental impairment that substantially limits one or more major life activities

b) A record of such impairment, or

c) Being regarded as having such an impairment

IS AN EMPLOYER REQUIRED TO ACCOMMODATE AN ALCOHOLIC WHO IS UNDER THE INFLUENCE AT WORK?

» No.

» Handbook prohibits being intoxicated on premises or while performing job for the Company for safety of self and other employees;

» Employee who returned to work after completing rehab for alcoholism was not entitled to delay breathalyzer test as a “reasonable accommodation” after appeared intoxicated at work

» Employee terminated for violating “last chance agreement” was legitimate non-discriminatory justification for termination.

- Merkl v. Allied Bldg. Prods., Corp. (E.D.N.Y. Mar. 28, 2013)

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THREATS OF VIOLENCE IN THE WORKPLACE NEED NOT BE ACCOMMODATED

» The ADA “does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor's edge — in jeopardy of violating the [ADA] if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone.”

» ADA does not protect employees who pose a “direct threat” to health or safety of themselves or others in the workplace

» Consider a paid leave of absence while investigating the matter.

» Termination for violation of workplace standard of conduct supported by EEOC Guidance

» Sista v. CDC IXIS North America, Inc. et al (2d Cir. 2006)

CAN AN “INDEFINITE” LEAVE BE A “REASONABLE ACCOMMODATION”?

»Yes in New York City, according to a recent Court of Appeals decision interpreting the New York City Human Rights Law

»New York City employers have burden to show that a leave for an “undetermined amount of time” is an undue hardship

»After 5 month leave, employer inquired whether employee “intend[ed] to return” or “abandon his position”. Then fired employee who said that return date was uncertain, but was not abandoning job.

» Romanello v. Intesa Sanpaolo, S.p.A. (N.Y. October 10, 2013)

IS AN “INDEFINITE” LEAVE A “REASONABLE ACCOMMODATION”?

»No in California, where the prevailing view is that only a “finite leave” can be a reasonable accommodation, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.”

»“Reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.”

»In Jackson, employee submitted 5 certifications every 2 months stating she was “totally incapacitated.”

- Jackson v. Regus Mgmt Group (Cal App. 2d June 26, 2013) (citing Hanson v. Lucky Stores,

Inc. (Cal. App. 2d Dist. 1999) (emphasis added)

IS AN “INDEFINITE” LEAVE A “REASONABLE ACCOMMODATION”?

» No in New Jersey, where courts have held that “indefinite leave is not a reasonable accommodation . . . . The Third Circuit has also addressed the concept of indefinite leave as an accommodation under the ADA and found it wanting”.

- Linton v. L'Oreal USA, 2009 U.S. Dist. LEXIS 25357 (D.N.J. Mar. 27, 2009).

MUST ACCOMMODATION BE RELATED TO “ESSENTIAL JOB FUNCTIONS”? WHAT ABOUT PARKING SPOTS?

» No, according to a recent decision in the Fifth Circuit

» Employee need not show link between a requested accommodation and an essential job function because disabled employee should be able to “enjoy equal benefits and privileges of employment” as non-disabled employees.

» Employee had osteoarthritis of the knee and requested free on-site parking as an accommodation. The Company refused and was found in violation of the law.

• Feist v. Louisiana (5th Cir. 2013)

NEW YORK COURTS SEEM TO AGREE - COMMUTING

»The Second Circuit has held that “there is nothing inherently unreasonable in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work,” despite employer’s argument that commuting to work was “outside the scope” of an employee’s job, and therefore not protected by the ADA

-Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene (2d Cir. 2011)

- Case remanded to district court, which denied employer summary judgment on issue of whether it had to accommodate her request for a car and parking permit.

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BUT THERE ARE STILL LIMITS TO WHAT IS REASONABLE: COMMUTING

»A diabetic employee moved three hours away. Six-hour, round-trip commute aggravated her diabetes. She no accommodation to perform her job functions at work. She exhausted FMLA and extended medical leave and was fired;

»The court upheld the termination because:

- the commute “created the need for an accommodation” and thus the employee “became unqualified to fulfill the functions of the job”

- Haynes v. The Community Hosp. of Brazosport (S.D. Tex. 2011)

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CAN ATTENDANCE BE AN “ESSENTIAL JOB FUNCTION”?

» District Court in California recently upheld termination of nurse with neurological condition who worked only 10/52 scheduled shifts and failed to provide requested, updated documentation from her physician regarding her medical need to be absent. Job called for excellent attendance record.

» Nurse could not establish that she could perform essential work function of being present at work, even with accommodation; three years of “chronic absenteeism” justified termination

» McClelland v. Permanente Med. Group, Inc., (E.D. Cal. Mar. 22, 2013)

DO EMPLOYERS HAVE TO ACCOMMODATE EMPLOYEES WHO REQUEST A LEAVE BECAUSE THEY MAY HAVE A DISABILITY?

» Maybe, according to a recent decision in the Third Circuit.

» Employee laid off 3 months after disclosing that she might have cancer and would likely need time off work; sued for retaliation under ADA

» Third Circuit accepted lower court’s assumption that plaintiff “engaged in protected conduct when she informed her employer” of possible diagnosis and need for leave.

» Court ultimately affirmed summary judgment to employer, who articulated legitimate, financial and performance-based reasons for layoff.

- Davis v. Davis Auto, Inc. (3d Cir. 2013)

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FMLA: WHO IS ELIGIBLE?

»Employees who have been with the Company for at least twelve months, and

»Have performed at least 1,250 hours of service in twelve months, and

»Work in an office/worksite with 50 or more employees, or that, combined with any other Company offices or worksites within a 75-mile radius, employs 50 or more employees

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WHAT ARE PERMISSIBLE REASONS FOR FMLA LEAVE?

»Birth of employee’s child/care for such child within one year of birth.

»Adoption of employee’s child or placement of foster child within one year of placement.

»Employee’s own “serious health condition” that renders employee unable to perform job.

»Care for an employee’s spouse, child, or parent who has a serious health condition.

»Qualifying exigency arising from employee’s spouse, son, daughter, or parent on military duty.

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“SERIOUS HEALTH CONDITION”

»an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.

»A “serious health condition” under FMLA is not necessarily a “disability” under ADA

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MAXIMIZE EMPLOYEE PRIVACY UNDER HIPAA

»Who can contact employee’s health care provider?

- HR representative

- A benefits/leave administrator

- A management official

»Who cannot?

- Employee’s direct supervisor

»HIPAA authorization to communicate directly

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INTERPLAY OF STATE LEAVE LAWS

»New Jersey and California have state laws that also provide eligible employees with job-protected time off for generally the same reasons as FMLA

- except not including for employee’s own serious health condition.

»Family leave benefits also available in these states to supplement income of employee on such a leave (up to a cap).

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PENDING FEDERAL LEGISLATION

»The Family and Medical Insurance Leave Act (introduced December 2013)(known as FAMILY Act):

- Would create a national paid family leave insurance program funded by employer and employee contributions (similar to NJ and CA)

- Workers would collect 66% of typical monthly wages up to a capped amount, for up to 12 weeks.

- Would be administered by Social Security Administration.

- Would apply to all employers.

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REQUESTING FMLA LEAVE TO “CARE FOR” A FAMILY MEMBER

»An employee requests FMLA leave to accompany terminally ill parent on a trip to Las Vegas through foundation that grants “final wishes” to the terminally ill. While on the trip, employee administers parent’s medication but also gambles, sight-sees, goes shopping and dines out.

»Employer terminates employment after the trip for violating for abusing FMLA leave.

»Who wins?» Ballard v. Chi. Park Dist. (E.D. Ill. Sept. 29, 2012)

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IS IT LAWFUL TO TERMINATE AN EMPLOYEE ON FMLA LEAVE?

»Employee terminated during approved FMLA leave for violating the terms of non-compete: employee was “working on the side” for a client.

»Employer learned of employee’s breaches during this leave

»Termination did not violate FMLA, ADA or NYHRL:

» Decisionmaker unaware of employee diagnosis;

» Action not motivated by discriminatory animus» Luckette v. F.M. Howell & Co. (W.D.N.Y. 2013)

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CAN A FULL-TIME EMPLOYEE DEMAND TO RETURN AS A PART-

TIME EMPLOYEE?

»Terminated full-time physical therapist with chronic ankle injury requested to return from FMLA leave on reduced schedule and gradually return to full time. Employer rejected. She then proposed full-time return with break every hour. Employer Rejected. Plaintiff did not return to work and was fired.

»Alleged adverse action occurred post-ADAAA and court found employee to be disabled at that time.

»Court held that request for temporary part-time could be reasonable accommodation under the ADA

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FMLA: FULL-TIME TO PART-TIME? (CONT.)

»But, caused her FMLA failure-to-reinstate claim to fail:

- “Because Plaintiff conceded that she could not return to her previous full-time position without some form of accommodation, she was not entitled to reinstatement under the FMLA.”

»FMLA only entitles you to reinstatement to the same or an equivalent position you had before leave.

» Fleck v. WILMAC Corp. (E.D. Pa. May 19, 2011)

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CAN AN EMPLOYEE WHO WORKED FROM HOME BE REQUIRED TO

WORK IN THE OFFICE?

»Terminated employee sued for FMLA interference after she took time off to care for her husband suffering from cancer.

»Employee argued that employer did not return her to equivalent position because required her to work 40 hours in office; before she intermittently worked from home;

»Employer argued that office work was required because of poor performance and lack of urgency.

»Court allowed claim to proceed» Brock-Chapman v. Nat’l Care Network, L.L.C.,

(N.D. Tex. Jan. 16, 2013)

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QUICK TAKE: NEW PREGNANCY DISCRIMINATION LAW IN NYC

» New York City Human Rights Law pregnancy amendment (2013). Employees are entitled to be free from discrimination due to pregnancy, childbirth, and related conditions.

- Applies to employers with 4+ employees

- Independent contractors considered employees

- Employees are entitled to reasonable accommodation to perform “essential requisites” of job, unless undue hardship

» Post and notice requirement to all employees and new hires

Moelis & Co. Employment Practices: Making Them Work 26

QUESTIONS?

Jessica Golden Cortes

PartnerLabor & Employment212.468.4808jcortes@dglaw.com