Legal Corner

ADA
Circuit Court clarifies obligation of employers to reassign disabled workers

On September 7, 2012, the Seventh Circuit Court of Appeals (covering Illinois, Indiana and Wisconsin) issued its decision in EEOC v. United Airlines, Inc., clarifying the obligation to reassign disabled workers. For the first time, the court ruled that employers may be required to place a qualified disabled worker in a vacant position over a more qualified candidate unless it would create an undue hardship. A reassignment that would violate a collective bargaining agreement, or a seniority system, is likely to meet this standard but the court ruled that a policy of hiring the most qualified applicant is not enough.

Indefinite leave of absence not a reasonable accommodation under ADA

The Kansas Brown County employee had worked as supervisor of released adult offenders for ten years when she developed sacroiliac joint dysfunction. After a lengthy leave of absence, including the period authorized by the Family and Medical Leave Act ("FMLA"), Robert remained unable to perform all of her required duties, and she was terminated. She then sued, alleging ADA discrimination (failure to provide a reasonable accommodation) and FMLA retaliation.

The Tenth Circuit Court of Appeals found in favor of the employer because she did not provide an estimated date when she could resume her essential duties. The court concluded as such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions - an accommodation that is unreasonable as a matter of law.

Penalty to complete health assessment when a "term" of group health plan does not violate ADA

To boost participation in its wellness program, Broward County, Fla requires its employees to complete a health risk assessment and penalizes those who do not $20 per paycheck. An employee sued arguing that the penalty amounted to an end-run around the ADA's prohibition of compulsory medical examinations and disability-related inquiries.

The 11th Circuit Court of Appeals declared the penalty as protected under "safe harbor" provisions of the ADA that allow employers some flexibility in matters relating to risk-based benefit plans, such as group health care. The wellness program was part of a contract with a group health provider and, therefore, the wellness program was a 'term' of Broward's group health insurance plan.

FMLA
Cases addressing the notice employees must give to employers under FMLA

Lichtenstein v. University of Pittsburgh Medical Center involved a psychiatric technician who telephoned her employer shortly before her shift was scheduled to begin and explained that she was not coming in because her mother had been brought into the hospital via ambulance. A few days later she called to explain the situation and requested a leave of absence. However, the employer had already decided to terminate her for attendance and scheduling issues pre-dating this occurrence. She sued asserting FMLA interference and retaliation claims.

While a district court concluded that the notice was inadequate to trigger the FMLA's protections, the Third Circuit Court of Appeals reversed the decision.

The Third Circuit explained that, by notifying the employer that her mother had been taken to the emergency room by ambulance, the employee did not provide enough information for the employer to conclude that her mother necessarily had a "serious health condition," but did provide enough information for the employer to reasonably determine that her mother may have a "serious health condition" and the FMLA may, therefore, apply. According to the Court, once the employee's initial notice "reasonably apprises the employer that FMLA may apply, it is the employer's burden to request additional information if necessary."

Nicholson v. Pulte Homes Corp.,

involved an employee who was terminated after failing to meet goals set in a performance improvement plan. She sued, claiming she was fired to prevent her from exercising, or in retaliation for exercising, her FMLA rights to care for her ailing parents. On several occasions, she had mentioned her parents' serious health conditions and had received permission for time off to attend to her parents, but did not specifically request a leave.

The Seventh Circuit Court of Appeals concluded that there was not sufficient notice of a need for FMLA-qualifying leave. It held that a causal workplace conversation about aging parents does not notify an employer that an employee needs FMLA-qualifying leave, nor does an employee's comment on the possibility that she might need leave sometime in the future. Her requests for time off had followed usual and customary procedures for requesting non-FMLA leave and she never indicated that she needed time off to care for her parents.

Professional pointer: Although the decisions differ, when requesting FMLA leave to care for a family member, employees do not have to specifically refer to the FMLA, as long as they alert the employer to the seriousness of the health condition and indicate that leave is sought to care for a family member. Once the employee's initial notice "reasonably apprises the employer that FMLA may apply, it is the employer's burden to request additional information if necessary." The cases also act as a reminder that, when discharging employees, an employer should be sure to document its legitimate, non-discriminatory reasons to minimize the risk of some other basis for employees to allege that the decision was unlawful.

FMLA back-pay award can include overtime

The 1st Circuit Court of Appeals upheld an award, including overtime wages, to a Walgreens assistant manager in Puerto Rico who claimed that the company violated the FMLA by firing him in retaliation for taking a heart-related medical absence. The FMLA allows a prevailing plaintiff to recover "other compensation denied or lost" as a result of an employer's violation, and, the appellate court ruled, this provision encompasses lost overtime pay. In calculating the award the court used an average of the plaintiff's weekly hours during the four months preceding his termination rather than a 12-month average for determining how much overtime the plaintiff would have worked had he not been terminated.

Employee who attended college on FMLA leave was properly terminated

An employee received FMLA leave two days a week to care for her daughter who suffered from asthma. When coworkers complained of a prior pattern of calling in sick on the same two days, the employer retained an outside surveillance company to monitor the employee's Internet activity and conduct surveillance on her home. The employee admitted she went to the library or ran personal errands on FMLA leave days and later it was determined she was attending a college during working hours while on FMLA leave. After the company terminated her she sued and alleged that the company interfered with her use of FMLA leave. The Court held that an employer is under no obligation to reinstate an employee who misuses disability leave. The Court further noted that FMLA leave allowed her to use it only for the care of her daughter.

Workers' Compensation
Worker who tested positively for cocaine in injury probe entitled to back pay - Iowa

A worker who was diagnosed with carpal tunnel worked for a company that had a policy, which provided that the employer could conduct a drug test of an employee involved in a workplace "accident" resulting in medical treatment. The test results showed cocaine and led to her termination; she then sued for wrongful termination and violation of Iowa's law on workplace drug tests, arguing that the employer improperly applied its drug policy. Among other findings the appeals ruled that "in applying its drug testing policy, the employer ignored the statutory requirement that there be an accident" and awarded back pay and attorney fees.

Expert testimony on "Sick Building" syndrome not admissible - Maryland

A Maryland appellate court recently reversed a trial court's decision that would have allowed testimony by a physician related to claims by various employees that they had sustained an accidental injury or occupational disease, known as "sick building syndrome," as a result of their alleged work-related exposure to water damaged buildings. The court found that the methodologies the employees' expert was using to establish the building as the cause of the employees' health problems were not reliable. Applying an earlier case, under Maryland law it is required that "before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field.

Untaxed tips must be included in Workers' Comp calculation - Nevada

A bartender injured his back when he slipped and fell in the kitchen of a sports bar. While the bartender consistently reported his tips to his employer, the employer did not include the tips on his paycheck for tax purposes and the employee did not report the tips to the IRS. The claim was accepted but wage calculations did not include tips. On appeal, the Nevada Supreme Court ruled that the law requires a workers comp insurer to include tip income in an average monthly wage calculation if the employee reported it to his or her employer.

Workers' Comp settlement cannot be reopened for medical bills - Pennsylvania

An injured worker settled his case by executing a Compromise and Release Agreement. Sometime after the settlement, the injured worker learned he had outstanding bill for over $37,000 from his treating doctor. Since the appeal period had passed, the worker argued there was a "mutual mistake of fact," so the settlement should be reopened, but was denied. The Commonwealth Court affirmed the denial noting no evidence showed, nor did the Compromise & Release Agreement state, that the injured worker expected any medical bills (past or future) to be paid as part of the settlement.

Stripper denied Workers' Compensation for gun shot wound - South Carolina

A stripper was hit by gunfire while dancing in a club and suffered serious injuries. The club did not have insurance so the South Carolina Uninsured Employers' Fund defended the case. At the core of the argument was the Fund's assertion that Lewis was an independent contractor. Evidence showed that the club did not pay her that night and her only income was from gratuities. While she argued that the club controlled when she danced and what to dance to, the court found she was an independent contractor and, therefore, not entitled to benefits under the Workers' Compensation Act.