May 11, 2018
Employers must remember that an employee’s exhaustion of his or her Family and Medical Leave Act (“FMLA”) entitlement is not necessarily the “end of the road” for that worker.
May 11, 2018
Employers must remember that an employee’s exhaustion of his or her Family and Medical Leave Act (“FMLA”) entitlement is not necessarily the “end of the road” for that worker.
November 30, 2017
In one of his more pithy lines, Oscar Wilde wrote, “I can stand brute force, but brute reason is quite unbearable. There is something unfair about its use. It is hitting below the intellect.” Oscar Wilde, The Picture of Dorian Gray.
For employers dancing on the head of the ADA’s pin of reasonable accommodations, the Seventh Circuit’s two decisions holding that a multi-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act is like a tropical breeze in the dead of winter. The brute reason of the opinions is compelling, but will other circuits find the per se rules established in them simply too rigid?
In the first case, Severson v. Heartland Woodcraft, Inc., the employer granted an employee with a chronic back condition 12 weeks of leave under the Family and Medical Leave Act. Two weeks before the leave expired the employee informed the employer, Heartland, that he needed surgery on the date his leave was set to expire with a recovery period of at least two months. Heartland notified the employee that his employment would be terminated at the end of his FMLA leave, but that he could reapply for a position when he was medically cleared. The employee sued and the Equal Employment Opportunity Commission submitted an amicus brief on his behalf. The Seventh Circuit directly addressed and expressly rejected the EEOC’s position that a long term leave of absence can and should be considered a reasonable accommodation. In so ruling, the Court erected a monument to brute reason:
Perhaps the more salient point is that on the EEOC’s interpretation, the length of the leave does not matter. If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA. That’s an untenable interpretation of the term ‘reasonable accommodation.’
Just a few weeks later, the Seventh Circuit, in Golden v. Indianapolis Housing Agency, addressed the issue again, this time on particularly heartbreaking facts. The plaintiff had taken 16 weeks of leave due to ongoing treatment, including a mastectomy, for breast cancer. Despite the fact pattern that seemed to be undeniably sympathetic to the plaintiff, the Court followed its prior decision in Severson, holding:
While we sympathize with Golden’s plight, clear circuit precedent controls this case. Under Severson . . . an employee who requires a multi-month period of medical leave is not a qualified individual under the ADA or the Rehabilitation Act.
There was, however, a concurrence with the Court’s own brute reason. Judge Rovner concurred that the Court was bound by Severson, but argued:
The ADA, by its terms, is meant to be flexible and to require individualized assessments of both the reasonableness of an employee’s requested accommodation and the burden on employers. Holding that a long term medical leave can never be part of a reasonable accommodation does not reflect the flexible and individual nature of the protections granted employees under the Act.
Employers outside of the Seventh Circuit’s jurisdiction would be wise to pay careful attention to the concurrence in Golden and consider whether the views expressed by Judge Rovner may win the day in other circuits. Right now, the Severson/Golden majority decisions are only binding in the Seventh Circuit, and have no applicability to local disability statutes such as the New York City Human Rights Law which permits open-ended long term leaves as reasonable accommodations. In New York, employers must still engage in the interactive process with employees who request leaves beyond the FMLA period. Going through that process and being able to articulate an undue hardship that may result from granting a multi-month leave is still the law and best practice in New York.
September 29, 2016
May 24, 2016
November 13, 2015
May 14, 2015
November 11, 2014
Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes. While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion. The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner. Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis. When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation. While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question: Do any job protections exist for domestic violence victims? Answer: Yes. In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis. While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence. This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons. It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments. Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business. Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question: Is an employer required to provide victims of domestic violence time off from work? Answer: The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection. In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence. The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question: Is an employer obligated to ensure a safe workplace for domestic violence victims? Answer: The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions. Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee. Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees. An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question: What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence? Answer: New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor. At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds. This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission. If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime. In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation. Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action. Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused. If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection). If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record. In either situation, merely ignoring the problem is never a good strategy.
October 28, 2014
Two months ago, many Americans were unfamiliar with the term “Ebola." It’s amazing how quickly things can change. Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak. Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans. If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus. Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are: fever, fatigue, muscle pain, headache, and sore throat. As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to: nausea, vomiting, diarrhea, a rash, and impaired organ function(s). The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q: What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue. If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:
Q: May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA. Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard? The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so. As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present: (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q: To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored. In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus. Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q: May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances. In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others. Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk. The governing standard here is one of reasonableness. For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms. Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q: What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury. Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm. According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States. Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern. Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q: What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed. In other words, don’t panic. Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:
It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States. However, what is abundantly clear is that this situation is constantly changing. What may seem reasonable today may need to be modified tomorrow. As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.
October 14, 2014
July 23, 2014
June 7, 2013
On May 15, 2013, the U.S. Equal Employment Opportunity Commission ("EEOC") issued updated guidance documents on how the Americans with Disabilities Act ("ADA") applies to applicants and employees who have cancer, diabetes, epilepsy, and intellectual disabilities.
Each of the publications addresses the expansive definition of "disability" under the ADA Amendments Act ("ADAAA"), and provides that an individual with any one of the four specified conditions "should easily be found to have a disability" under the ADAAA. For instance, individuals with diabetes are substantially limited in the major life activity of endocrine function and individuals with cancer are substantially limited in the major life activity of normal cell growth. The publications also reiterate that because the determination of whether an impairment is a disability must be made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin or some other medication controls a person's blood glucose levels.
The publications, which are provided in a Q&A format, include some general background information on each of the four specific disabilities and provide much of the same information in each guidance. The updated guidance documents provide employers with some important reminders. For example, an employer may not ask an applicant who has voluntarily disclosed that he/she has cancer or some other medical condition any follow-up questions about the disability, its treatment, or its prognosis unless the employer reasonably believes that the applicant will require an accommodation to perform the essential functions of the job. Thus, questions during the interview/application process should be focused on the requirements of the particular job, not the applicant’s medical condition. At the pre-offer stage, an employer is also prohibited from asking a third party (such as a job coach, family member, or social worker attending an interview with an applicant who has an intellectual disability) any questions that it would not be permitted to ask the applicant directly.
The publications also tackle issues such as: (1) when an employer may obtain medical information from applicants and employees; (2) when an employer may ask an applicant questions about his/her disability and potential reasonable accommodations; and (3) steps an employer should take to prevent and correct disability-based harassment. The publications refer employers who may be trying to identify reasonable accommodations for a specific disability to the website for the Job Accommodation Network ("JAN"), which provides information about many types of accommodations for various disabilities, including intellectual disabilities, diabetes, cancer, and epilepsy.
Finally, the publications address two notable issues concerning diabetes and epilepsy: (1) if another federal law prohibits an employer from hiring a person who uses insulin or who has had a seizure within a certain period of time for certain jobs, the employer will not be liable under the ADA for not hiring that individual, unless the other federal law includes an applicable waiver or exemption; and (2) employers are entitled to obtain periodic updates that an employee is still able to perform his/her job safely if the employee is in a safety-sensitive position.
April 22, 2013
As e-mail and the Internet became staples of daily life, both employers and employees began to recognize the benefits of working in one’s home with the aid of a telephone and computer connections – an arrangement commonly referred to as “telecommuting” or, alternatively, the “virtual office.” Telecommuting is, of course, attractive to employees because of its many conveniences, but it has more than its share of benefits for employers as well. It can, among other things, reduce office expenses, increase morale, and give employers access to the services of individuals who might be unavailable if forced to work in a more traditional environment.
While telecommuting may no longer be considered a novel concept, Yahoo’s recent ban on all work-from-home arrangements, including those that had previously been granted, put telecommuting back in the national spotlight. The significant media attention that has been given to Yahoo’s ban may make it an appropriate time to review some of the various legal issues involved in deciding whether or not telecommuting arrangements should be allowed.
Despite its obvious attractions, telecommuting presents employers with a host of potential legal pitfalls. For the most part, traditional employment laws are no less applicable to the “virtual office” than to the traditional office. The unique nature of telecommuting, however, makes legal compliance an often challenging enterprise. In the absence of careful planning, employers’ inability to closely monitor home-based employees and control their working environments can give rise to significant legal exposure.
For example, telecommuting makes it more difficult for employers to ensure compliance with applicable wage and hour laws, such as the Fair Labor Standards Act (“FLSA”) and comparable state statutes. This is particularly true where the employees do not fall within one of the several exemptions to the FLSA’s minimum wage and overtime requirements. Employers must make sure to develop appropriate procedures for non-exempt telecommuting employees to report their hours worked each week, and must keep adequate records to demonstrate that those employees were paid appropriate straight time and overtime compensation.
Additionally, decisions concerning telecommuting privileges may be subject to scrutiny under the anti-discrimination laws. Employers should make sure that their telecommuting policies are applied to their employees in a non-discriminatory manner, so that employees cannot allege that they were denied telecommuting privileges because of their sex, age, race, or some other protected category.
Employers should also be aware of reasonable accommodation issues that may arise for employees who become unable to work in the office due to a disability, but are able to work at home. The Equal Employment Opportunity Commission has opined that telecommuting is, in fact, a reasonable accommodation under the Americans with Disabilities Act ("ADA"), as long as the employee can perform the essential functions of the job and the accommodation would not cause the employer undue hardship. Consequently, a blanket rule against all telecommuting arrangements -- without exceptions to comply with the employer's obligations under the ADA and state disability discrimination statutes -- may be subject to scrutiny.
As noted above, there are many factors that employers must consider in determining whether to allow telecommuting, under what circumstances telecommuting will be permitted, and what positions are appropriate for telecommuting arrangements. This post only highlights some of the more common issues and challenges involved with telecommuting arrangements. Employers are advised to become familiar with all of the potential risks and work with counsel when developing and applying telecommuting policies.