Category Archives: Family Medical Leave Act

Seventh Circuit Holds that Multiple-Month Extended Leaves Are Not Reasonable Accommodations Under the ADA

Contributed by Allison P. Sues, September 27, 2017

Because not all recoveries from medical conditions come in neat twelve-week packages, employers commonly need to address employees’ requests for additional leave after they have exhausted all leave afforded under the Family Medical Leave Act (“FMLA”) or company policy.

Clock and StethoscopeThe U.S. Equal Employment Opportunity Commission has long taken the position that terminating an employee who has exhausted FMLA leave, but is still not able to return to work, may violate the Americans with Disabilities Act (“ADA”). For instance, the EEOC guidance, issued on May 9, 2016, opined that providing additional leave may be necessary as a reasonable accommodation.

The Seventh Circuit Court of Appeals recently issued a decision running contrary to this EEOC guidance and the prevailing precedent in other circuits, holding in Severson v. Heartland Woodcraft, Inc., that an employee is not entitled to extended leave as a reasonable accommodation under the ADA.

In this case, employee Severson took a twelve-week medical leave from work under the FMLA to deal with serious back pain (the statutory maximum). Shortly before this leave expired, Severson notified his employer that he was scheduled to undergo back surgery, and requested an additional two to three months of leave to recover from surgery. The company denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging a failure to reasonably accommodate his disability—namely, a three-month leave of absence after his FMLA leave expired.

The Seventh Circuit affirmed the district court and clarified that a medical leave spanning multiple months is beyond the scope of a reasonable accommodation. Finding that the employer did not violate the ADA by refusing to provide the additional leave, the Seventh Circuit explicitly stated that an employee, who cannot not work or perform their job’s essential functions, is not a “qualified individual” under the ADA.  Further highlighting its position, the Court distinguished between the FMLA, which it held was intended to provide long-term medical leave for those who cannot work, while the ADA is meant to require accommodation only for those “that can do the job.”

Before employers in Illinois, Wisconsin and Indiana reinstate strict Maximum Leave Policies and No-Fault Termination policies, whereby employees are automatically terminated if they cannot return to work when FMLA or other awarded leave is exhausted, several limitations to Severson should be noted.

Severson’s holding is limited to “medical leave[s] spanning multiple months.” The Court acknowledged that finite extensions of leave for shorter durations – described as “a couple of days or even a couple of weeks”, but less than multiple months – may still be deemed a reasonable accommodation.

The Court further acknowledged that intermittent leaves of short duration may constitute reasonable accommodations in the same way a part-time or modified work schedule may be a reasonable accommodation for employees dealing with medical flare-ups. Moreover, employers should be cautious about maintaining 100% Healed Policies, whereby an employer requires employees to have no medical restrictions whatsoever when their leave ends.

At any time employees have exhausted their leave, but are not fully cleared to return to work, the employer should engage in the ADA’s interactive process and consider the following before deciding to terminate employment:

  • Whether the employee’s current medical restrictions affect the employee’s ability to perform the essential functions of the position;
  • If the restrictions do impact the employee’s ability to perform the essential functions, are reasonable accommodations available that would enable the employee to perform these functions;
  • Whether vacant positions exist that the employee would be qualified to perform and could be reassigned into;
  • Whether the employer has a policy of creating light-duty positions for employees who are occupationally injured and whether this benefit could be extended to the employee without posing an undue hardship; and
  • Whether the employee’s request for additional leave is definite in time and of a short duration, and if this extended leave could be provided without posing an undue hardship.

 

Responding to Violence in the Workplace – A “Catch 22” for Employers

Contributed by Michael Wong, August 10, 2017

Workplace investigation

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

  1. Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”
  2. Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?
  3. Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?
  4. Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?
  5. Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

Is Your Holiday Cheer Being Intermittently Dampened by Concerns of FMLA Abuse?

Contributed by Michael Wong

Have you noticed that an employee’s requests for leave tend to occur on a Friday or Monday?  Is an employee suddenly unable to work immediately before or after holidays? It is not unusual for employers to experience FMLA abuse, especially around the holidays. The following are a few practices that can help you combat FMLA abuse:

  1. Be Vigilant and Be Aware – Having a system that tracks when employees take FMLA leave can help you identify patterns of abuse and act quickly to investigate and address them appropriately.
  1. Control Scheduling – FMLA regulations require that absences for planned medical treatments be scheduled in a way that least disrupts employers’ operations. When dealing with an employee’s request for FMLA leave for treatment, therapy or doctor visits, you should contact the employee regarding the frequency, hours of the health care provider and ways that the schedule can be modified to decrease disruptions to your operations.
  1. Question the Employee – It is important to understand that the FMLA allows employers to require employees to keep them informed about his/her plans – which can include:
    1. Questions regarding the need for FMLA leave and anticipated On Holidayreturn date;
    2. Requiring employees to call in to verify that absences are FMLA-related;
    3. Calling an employee at home as a means of verification;
    4. Requiring written certification from employee attesting that leave is/was FMLA-related. (IMPORTANT – Employers cannot require a doctor’s note, unless it is being treated as a recertification.)
  1. Request Recertification – Employers can generally only request recertification once every 30 days. However, employers may request recertification more often if the following occurs:
    1. An extension of leave is requested by the employee;
    2. Circumstances have changed significantly since prior certification – i.e. prior certification states 1-2 days per absence and employee has taken 4 days for past two absences or a pattern of FMLA leave that coincides with holidays/days off;
    3. Employer has information that creates an honest belief that employee’s stated reason for leave is improper – i.e. employee is recovering from knee surgery, but is still playing in the company softball league.
  1. Investigate – Employers are able to monitor patterns of suspected leave misuse to ensure that an employee’s leave is legitimate, including questioning the employee, reviewing social media and even surveillance. (NOTE – Information from coworkers about an employee’s actions while on leave must be verified, to avoid allegations that the coworker was lying.)
  1. Confront the Employee – After an investigation is done, if there is evidence of FMLA abuse, confront the employee with the evidence and provide the employee an opportunity to explain what occurred. While the employee may deny the abuse, they could surprise you and admit to it.

These tips won’t entirely eliminate the problem of employees trying to take advantage of FMLA leave and intermittent FMLA, but they will help decrease FMLA abuse.

Employee States FMLA Claim Despite Never Having Taken Qualifying Leave

Contributed by Suzanne Newcomb

Last week a Federal District Court ruled a disgruntled former employee could proceed with her interference and retaliation claims under the FMLA even though she never actually took any FMLA-qualifying leave. The case serves as a reminder of just how easily an employee triggers the statute’s broad protections.

out of office signThe former employee submitted completed FMLA paperwork relating to a chronic condition and the employer approved her request to take intermittent leave, as needed, in the future. She never actually took leave under the statute and, in fact, she did not even ask for any leave after her employer approved her request for intermittent leave. Yet, when she was terminated some time later, she sued claiming her employer interfered with her FMLA rights and retaliated against her for exercising her FMLA protected rights. Her employer argued it could not have “interfered with” her FMLA rights or retaliated against her for taking FMLA leave, because she had never actually taken or asked to take leave under the statute. The Court disagreed and allowed her claims to proceed.

The FMLA requires employees to provide advance notice of their need for leave whenever possible and therefore, the court reasoned, it is only logical that the statute’s employee protections trigger as soon as the employee takes any action that invokes her rights under the statute. The retaliation claim is even more straight-forward. The plain language of the statute clearly prohibits retaliation against an employee who exercises or attempts to exercise her FMLA rights. An employee is not required to actually take leave in order to activate the statute’s protections.

This and other similar decisions serve as a reminder that an employee exercises her protected FMLA rights, and therefore triggers the statute’s protections, by simply putting her employer on notice of her possible need for a leave that may qualify under the Act. This could be by requesting, completing or submitting FMLA paperwork, but it does not have to be so formalized. In fact, an employee is not required to say “FMLA” or even “medical leave” in order to trigger the FMLA’s protection. Anything that puts the employer on notice that an absence could be FMLA-qualifying or that an employee may need leave for a qualifying reason at some point in the future, could trigger the employer’s FMLA obligations and the notice requirements.