TRENDS IN FMLA, ADA AND DISCRIMINATION

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1 TRENDS IN FMLA, ADA AND DISCRIMINATION By Alyson C. Brown and Bryan C. Collins Clouse Dunn LLP The Family and Medical Leave Act of 1993 allows workers up to 12 weeks of leave: to take medical leave when the employee is unable to work because of a serious health condition; to care for an immediate family member (spouse, child, or parent) with a serious health condition; or pregnancy or adoption; or FMLA a qualifying exigency arising out of a military deployment for Reserve or National Guard 29 U.S.C. 2612(a) Up to 26 weeks to care for a service member (Military Caregiver Leave) SERIOUS HEALTH CONDITION Defined by the FMLA as an illness, injury or impairment that involves: Inpatient care in a hospital, hospice, or residential medical care facility; or Continuing treatment by a health care provider. 29 U.S.C. 2611(11). CONTINUING TREATMENT DOL regulations provide it includes a period of incapacity (i.e., inability to work, attend school, etc.) of more than 3 consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves a treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. 29 CFR (a)(2)(i)(B). A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic). 29 CFR (b). Can also be a chronic condition 29 CFR (a)(2)(iii). QUALIFYING EXIGENCY LEAVE Examples of qualifying exigencies: Issues arising from short notice of deployment; Military events and related activities; Childcare and related activities related to a call to active duty; Financial and legal arrangements Time to spend with a covered military member on short term R&R; and Attending post-deployment activities, such as arrival ceremonies. FMLA COVERAGE Employees are eligible if they have worked for a covered employer for at least one year Need not be continuous. Worked for 1,250 hours over the previous 12 months Must be at least 50 employees within 75 miles.

2 INTERMITTENT LEAVE PLANNED vs. UNPLANNED LEAVE Expressly provided by statute. 29 USC 2612(b). Can be taken for chronic flare ups. 29 CFR (c). Periods as short as time records allow, but no longer than an hour. 29 CFR (d). Employee cannot be required to use more FMLA leave than necessary. 29 CFR (d). For foreseeable leave, employee must provide at least thirty (30) days before event, or it not possible, as soon as practicable. Leave may be delayed if insufficient notice given. For unforeseeable leave, as soon as practicable. FMLA NOTICE PRESCRIPTIVE v. PROSCRIPTIVE An employee need not mention the FMLA by name the first time used, and need only advise of the need for leave. 29 CFR (b). Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 976 (5th Cir. 1998). What is practicable, both in terms of the timing of the notice and its content, will depend upon the facts and circumstances of each individual case. The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee s request to take time off for a serious health condition. Satterfield, 135 F.3d at 977. Adequacy of notice is normally a fact issue. Hopson v. Quitman County Hosp. & Nursing Home, Inc., 126 F.3d 635, 640 (5th Cir. 1997). Employer has burden of determining FMLA applicability. Under the FMLA, Employers have both prescriptive obligations they must grant employees substantive rights guaranteed by the FMLA Employers have a proscriptive obligation they may not penalize employees for exercising those rights. Chaffin v. John H. Carter Co., 179 F.3d 316, 319 (5th Cir. 1999), overruled in part on other grounds, McArdle v. Dell Prods., L.P., 293 Fed. Appx. 331, 339 (5th Cir. Tex. 2008). PRESCRIPTIVE VIOLATION Prescriptively, an eligible employee is granted the right, under certain circumstances, to take up to 12 work-weeks of leave in a 12-month period. 29 U.S.C. 2612(a)(1). Upon return from his or her FMLA leave, the employee is entitled to immediate restoration to the same position, or its equivalent, that he or she occupied prior to leave. Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004). If an employer should deny the employee these rights, the employer has violated the FMLA s entitlement provision, and recovery is permitted. Porch v. Dillard s, Inc., 2004 U.S. Dist. LEXIS 22723, 2004 WL at *6 (N.D. Tex. Aug. 12, 2004). PROSCRIPTIVE / DISCRIMINATION Look like regular discrimination suits. DOL regulations expressly provide: employers cannot use the taking of FMLA as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies. 29 CFR (c). Plaintiff may use the classic McDonnell Douglas framework.

3 ADA 42 U.S.C , et seq. Americans with Disabilities Act prohibits discrimination against disabled individuals. Requires a reasonable accommodation for qualified individuals with a disability. ADA AMENDMENTS ACT Final EEOC regulations published March 25, Broadens the scope of the ADA and overturns claimant-unfriendly Supreme Court cases Specifies major life activities and eliminates consideration of mitigating measures Expect fewer coverage disputes and more litigation about alleged discriminatory acts Expect more regarded as disabled claims DISABLED INDIVIDUAL An individual with a disability is a person who: Has a physical or mental impairment that substantially limits one or more major life activities; Has a record of such impairment; or Is regarded as having such an impairment. But, no reasonable accommodation is required for employees simply regarded as disabled. DEFINITION OF REGARDED AS Old: Impairment must be perceived as substantially limiting a major life activity. New: This means that the individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both transitory and minor (g)(1)(iii) MORE ON REGARDED AS Where an individual is not challenging a covered entity s failure to make reasonable accommodations and does not require a reasonable accommodation...the evaluation of coverage can be made solely under the regarded as prong, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment (g)(1)(iii). DEFINITION OF REGARDED AS DISABLED Proposed: A prohibited action based on an actual or perceived impairment includes, but is not limited to, an action based on a symptom of such impairment, or based on medication or any other mitigating measure used for such an individual. (1630.2(1)(2)). New: Deletes that statement. Preamble says final regulations do not address the issue of discrimination based on symptoms or mitigating measures under the regarded as prong because the issue is too complex. But notes that no negative inference should be drawn from removal of statement. (Fed. Reg )

4 MODIFIED OR PART-TIME SCHEDULE Must an employer allow an employee with a disability to work a modified or part-time schedule as a reasonable accommodation, absent undue hardship? YES. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. An employer must provide a modified or part-time schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA. 22, 24. REASONABLE ACCOMMODATION Is it a reasonable accommodation to modify a workplace policy? YES. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual s disability-related limitations, absent undue hardship. But, reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other schedule when required as a reasonable accommodation, absent undue hardship, even if it does not provide such schedules for other employees. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA. MEDICAL LOA AS REASONABLE ACCOMMODATION Medical leave of reasonable duration can be a reasonable accommodation. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 2003)(request by employee suffering from depression for leave to allow doctor to design an effective treatment could be reasonable) Rascon v. U.S. West Communications, 143 F.3d 1113 (10th Cir. 1998)(four month leave to address PTSD reasonable) LEAVE POLICY What is the employer s leave policy? Generous leave policy impacts the undue burden inquiry. Cisneros v. Wilson, 226 F.3d 1113 (10th Cir. 2000)(if the employee shows the leave is independently reasonable and within the policy limit, then employer will be unable to show undue burden ) INDEFINITE LEAVE Courts reject a request for indefinite leave as unreasonable. Duckett v. Dunlop, 120 F.3d 1222 (5th Cir. 1997) Conners v. Spectrasite Commc ns, Inc., 465 F. Supp.2d 834 (S.D. Ohio 2006)(open-ended unpaid leave after a significant medical leave of absence is an objectively unreasonable accommodation) PROSPECTS? Employee need not prove with certainty the leave will solve the problem. Employee need only show the leave of absence could plausibly be successful in resolving the medical condition. Humphrey v. Memorial Hosps Ass n, 239 F.3d 1128 (9th Cir. 2001)

5 PAST DISABILITY EEOC regulations allow an individual with a record of disability to receive a reasonable accommodation if needed and related to the past disability. For example, when time is needed to attend follow-up or monitoring appointments with a health care provider. 29 CFR (k)(3) RETURN TO WORK Employee returning from leave is normally entitled to return to the same position unless holding that position open would create an undue hardship for the employer. EEOC Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 18. In cases of undue hardship, the employer must consider reassigning the returning employee to an equivalent vacant position. Id. at Question 19. ESSENTIAL FUNCTIONS An accommodation that requires an employer to eliminate a job s essential functions is not a reasonable accommodation. Thus, if attendance is an essential function, then frequent or extended periods of leave may not qualify as a reasonable accommodation under the ADA. Samper v. Providence St. Vincent Medical Center, F.3d, (9th Cir. April 11, 2012). An accommodation that would allow Samper to simply... miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law... [is] not reasonable on its face. RELATION TO FMLA If employees are eligible for a modified schedule under the FMLA, an employer must grant the schedule modification, even if doing so would constitute an undue hardship under the ADA EEOC Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 23. GENETIC INFORMATION NONDISCRIMINATION ACT Employment provisions of GINA became effective November 21, 2009 Regulations were issued November 9, 2010 and became effective January 10, 2011 GINA prohibits employers from intentionally acquiring genetic information from applicants and employees, and prohibits discrimination Practical effect on employers is not yet clear RETALIATION Title VII s anti-retaliation provisions prohibit adverse employment actions against employees who engage in protected activities. Following Burlington Northern, unlawful retaliation occurs when a reasonable worker might be dissuaded from engaging in protected activity by the Employer s actions. Title VII s anti-retaliation provision now prohibits adverse employment actions against third-parties who did not themselves engage in protected activity. Thompson v. N. A. Stainless, 131 S. Ct. 863 (2011)

6 EEOC DEVELOPMENTS During fiscal year 2010, a record number of charges were received: 99,922 Monetary recoveries also reached the highest level in the EEOC s 45-year history: $319M Disability charges increased by 17% Retaliation charges increased by 8% Race charges increased by 7% WARNING!!! Like the DOL, increased funding has led to more EEOC enforcement activity and the hiring of more investigators. Expect more cause findings and EEOC litigation aimed at broadening Title VII, FMLA and the ADA.