When can an employer fire an employee for medical leave fraud?

Posted by Robin E. Shea on May 10, 2012

I was off enjoying the Florida sunshine last weekend while learning the latest techniques in pettifoggery and obfuscation (kidding!), but I hope I'll be making up for it today with a good case answering the musical question: "What does an employer do when it finds out that its employee on 'medical leave' is actually doing stuff?" You know, like working another job, or hanging out at the gun show, or raking leaves, or riding the Roundup at the amusement park . . . without even throwing up?

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This question has bedeviled more than one employer, but the U.S. Court of Appeals for the Sixth Circuit, which hears appeals from federal district courts in Kentucky, Michigan, Ohio, and Tennessee, has given us a good answer. But first, let's talk a bit about the employer's dilemma.

You have a policy saying that an employee can't work while on medical leave. Your policy probably doesn't cover recreational activities, but everybody knows you don't go to Six Flags or play golf or till the soil forAcrobats,_Sydney,_1930s_Sam_Hood_(3381347056).jpg your vegetable garden when you're sick or injured.

So you have an employee who goes out on medical leave, and somebody tells you that they saw Joe doing one of these things. Maybe you even heard that Joe had another job.

Can you fire him for fraudulent medical leave?

Not necessarily. First, it's a good idea to make sure the rumor is true, or at least "more likely than not" to be true. But even if you were the one who saw Joe doing cartwheels in his front yard during his leave for degenerative disc disease, you may not have caught him as "red-handed" as you think. (Well, maybe if he was doing cartwheels . . .) It could be that the employee's "recreational" activity, or even alternate employment, is within his medical restrictions while your job is not. In fact, most doctors would recommend that employees engage in some activity while on medical leaves. It can speed recovery and help to ward off depression by providing sunshine, fresh air, exercise, and even a little bit of money to help pay those doctor bills that you, as the employer, are not already paying.

I've seen this situation a time or two. Several years ago a client's full-time employee had to take leave under the Family and Medical Leave Act for stress. While he was on leave, somebody reliable saw him working in the men's department at a local shopping center. The company was ready to fire him for fraudulent FMLA leave, but I recommended caution because of the possibility that the job at the department store was within his medical restrictions while our client's job was not. The company investigated, and sure enough -- it turned out that the store job was part time, much less "stressful" than the employee's regular job, and completely within his restrictions.

So we ended up letting him continue to work at the store while on leave from the client.

On the other hand, we've caught (on video, which is always fun) a company nurse who supposedly couldn't work at all doing exactly the same work full time for a local doctor's office while out on workers' compensation leave from our client. We fired her and terminated her workers' comp. She threatened to sue, but gave up pretty quickly.

Other fishy real-life cases have included

*an employee out with a bad back who was seen at church wearing seven-inch stiletto heels and having no trouble getting around in them, even on the church's gravel parking lot.

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*an employee out for depression who spent an entire day manning a table at a gun show.

*an employee with a bad back who spent an entire day stocking and manning a booth at a fair, and then loading boxes into her van at the end of the day.

Our recommendation in all of these cases is to take a case-by-case approach, first making sure you have reliable information, and then considering the nature of the employee's illness or injury, the employee's restrictions, and the activity he or she was "caught" doing.

But how much investigation is enough? That's the question that's been answered by the Sixth Circuit. 

The plaintiff (we'll call him "Betelgeuse") absolutely, positively won't work, babe - he just won't - but then some co-workers saw him at an Oktoberfest, walking around and drinking bier andOktoberfest_woman.jpg flirting with frauleins. (I made the "flirting" part up, but the rest is true.) The employer did an investigation, interviewing the employees who had seen Betelgeuse at the fest. All but one said he seemed to be fine. One said that he seemed to be in pain. The employer also reviewed his medical and personnel records, and finally decided to fire him for taking fraudulent FMLA leave. Betelgeuse sued, alleging "interference" (not letting him have FMLA leave* he was entitled to) and retaliation (punishment for taking FMLA leave).

*Interference can also include discouraging an employee from taking FMLA leave.

The district court granted the employer's motion for summary judgment, and two judges on a three-judge panel at the Sixth Circuit affirmed. Although Betelgeuse claimed that the employer should have done a more thorough investigation, including talking to the witness who thought the employee seemed to be in pain and talking to BG's own physician, the majority said that an employer didn't have to be correct and didn't even have to conduct an "optimal" investigation. As long as it appeared that the employer honestly and reasonably believed that the employee had misrepresented his medical condition, it was ok for the employer to take action without being liable for FMLA violations.

It's obviously great news for employers that they (1) don't have to be right beyond a reasonable doubt, and (2) don't have to do an airtight investigation as long as they've done some reasonable investigation.

And, now that you're feeling all warm and fuzzy, a disclaimer - notice I said that two out of three judges reached this decision. That leaves one, who dissented. According to the dissenting judge, the employer should have followed up with the witness and the employee's doctor and its failure to do so created a "genuine issue of material fact" (requiring a jury trial) as to whether the employer's belief was reasonable and in good faith. Given the dissent, it's possible that the plaintiff will ask to have the appeal reheard by all of the judges on the Sixth Circuit, and the full Sixth Circuit may reach a different decision.

And in other news . . .

Yesterday I was honored to be part of a web radio interview hosted by Stephanie R. Thomas of The Proactive Employer with Lilly Ledbetter (yes, that Lilly Ledbetter!) on the subject of equal pay. The interview is posted on Stephanie's website, and you can listen to it at your convenience. Next Thursday at 3 p.m. EDT, Stephanie will be interviewing Patricia Shiu of the Office of Federal Contract Compliance Programs. Good stuff!

Also, I must send you to a great post by Jon Hyman talking about why we don't need new legislation to address pregnancy discrimination. Jon also provides a link to another excellent post by Suzanne Lucas ("the Evill HR Lady") on "Why you should stop attending diversity training." (Please note that Suzanne is not anti-diversity -- just "anti" most of the training that goes on these days. I happen to agree with her, but whether you do or not, I think you'll find her post thought provoking and worth your time.)

To all my fellow moms out there, have a wonderful Mother's Day weekend!

(Photos from Wikimedia Commons, public domain.)

Can an employer insist on regular attendance without violating the ADA? Maybe.

Posted by Robin E. Shea on April 13, 2012

Woody Allen once said, "80 percent of success is showing up." So true, so true!

The U.S. Court of Appeals for the Ninth Circuit* came out recently withWoody_Allen_-_statue.jpg a great decision on when "showing up" -- also known as "attendance" -- is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act.

*The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case (let's call her "Miss Ratched") was a nurse in a neonatal intensive care unit at a hospital in Oregon. As you probably know, the NICU is the part of the hospital where they take care of little babies -- and I really do mean little -- usually severely premature, and often having other serious health conditions. (And I'm not talking "FMLA-serious," which includes hangnails, the sniffles, and ennui. I mean the real thing.)

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Anyway, Miss Ratched had fibromyalgia and missed work a lot. The hospital -- we'll call it St. Patience for obvious reasons -- tried to accommodate her for years but eventually gave up. They finally told her she would have to move to another department where her attendance wasn't as critical. She said no. In my favorite part of the case, the hospital scheduled a meeting with her to discuss her attendance, and she was absent from the meeting. LOL! Eventually St. Patience fired her for bad attendance.

Pretty brave for an employer in the Ninth Circuit. Maybe our hospital's pseudonym should have been "St. George the Dragonslayer."

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Miss Ratched sued St. Patience under the ADA, claiming that she should have been allowed to stay in the NICU and "opt out" of the attendance policy.

And the Ninth Circuit sided with the hospital! Man bites dog!

(OK, sorry, Ninth Circuit. I'm done teasing you now.) The decision actually provides an excellent discussion about when absence from the workplace can be "accommodated" and when it cannot.

Regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it. But it's not an essential function in every case. Some jobs can be performed pretty well at home or on flexible schedules -- for example, writing a blog, and other jobs that entail a lot of computer or "paper" work.

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If so, and if telecommuting would help the employee perform the essential functions of the job, then most courts would say that the employer has to consider allowing it as a reasonable accommodation.

But there are a lot of other jobs that really can't be performed at home, duh:

*Where the employee must work "as part of a team."  

*Where the job requires "face time" with clients or co-workers.

*Where the employee must work with items or equipment that are on-site.

The Ninth Circuit said that Miss Ratched's job fell into all three of these categories. The NICU staff had to work as a team. Face time with supervisors, other staff, the babies, and the parents was an important part of the job, too. And, of course, NICUs are full of sophisticated equipment with beepers and flashing lights and such. In addition, the Ninth Circuit found, the nurse's job was not "fungible" -- working as an NICU nurse required training and expertise that was not readily available, even among the nursing population. That meant that it was often hard to find qualified substitutes for Miss Ratched when she called in sick, affecting the quality of the little ones' care. Not to mention the cohesiveness of the "team."

The court also found that St. Patience had gone to extraordinary lengths to work things out with Miss Ratched before it terminated her employment. And, even though the hospital already had a fairly generous time-off policy, the court said, that didn't mean it had to grant even more time off to Miss Ratched.

So, when you have an employee who wants time off or to be able to work from home as a reasonable accommodation, you could do a lot worse than starting with a look at this case. Even if you live in Illinois or New Hampshire or Alabama. Eighty percent of success really is showing up.

(Photos from Wikimedia Commons, public domain.)

10 reasons for employers to be jolly about the ADA (says the EEOC)

Posted by Robin E. Shea on December 09, 2011

The American Bar Association sponsored a webinar this week on the Americans with Disabilities Act, which was noteworthy for its inclusion of EEOC commissioners Chai Feldblum (Democrat) and Victoria Lipnic (Republican).

I'm usually such a doom-and-gloomer when it comes to the amended version of the ADA. Thumbs Up Santa.jpgBut 'tis the season to be jolly, so I have decided to be more positive (just this once, anyway). The EEOC commissioners raised a number of points that work in favor of employers.

Feldblum and Lipnic said that the EEOC is drafting new guidance on reasonable accommodation. The guidance may include what an employer can say to resentful co-workers who don't realize that the employee has a disability. Some realistic, practical advice in this area would be most welcome -- as it is now, confidentiality rules prohibit employers from saying anything, even if it might help co-workers understand and be more tolerant.

Regarding leaves of absence and the ADA, Lipnic recommended that the employer contact an employee who is at the end of a medical leave and ask whether the employee needs an accommodation to be able to return to work, or whether some additional leave (a limited amount, we hope) would allow the employee to return. Lipnic believes that this would probably satisfy the employer's obligation to avoid an "automatic" termination when the employee reaches the end of the leave.

Feldblum cautioned that "people who know about the ADA" should make termination decisions when employees reach the end of their medical leaves of absence rather than third-party administrators who may not have ADA expertise. 

All right, it's "happy time" now!!! Fa-la-la-la-la-la-la-la-la. Here are your rights as an employer under the ADA, straight from the EEOC's mouth:

1. You have the right to make reasonable accommodation decisions as you always have in the past. The ADA Amendments Act changed the definition of who is "disabled" but did not change the employer's reasonable accommodation obligations.

2. You have the right to make reasonable accommodation decisions on a case-by-case basis, and, indeed, you should. In some ways, this is a negative (because you can't just follow a flat policy in all cases), but in other ways it's positive for your business because you can and should consider the employee's job, the employee's specific medical condition, and the specific abilities and limitations of that employee.

3. You have the right to deny reasonable accommodation to an employee who claims only that he or she is "regarded as" having a disability. (Note, however, that a "regarded as" disability can overlap with an "actual" disability. You do have to consider reasonable accommodations for the latter.)

4. In accommodating a job applicant, you must remove barriers to the application process, but you still have the right to hire the most qualified candidate for the job. Yay!!!!

5. As Feldblum noted, an employee must "get the work done" notwithstanding the disability. Thus, even though the employer must "stop, think, and justify" work rules and make changes to the rules where needed, the employer does not have to forgo having the work performed.

6. In most cases, you have the right to do nothing until an employee or applicant makes an accommodation request. Generally, it is the employee/applicant's responsibility to request an accommodation unless the disability is obvious. However, the employee may make the request in "plain English" and does not have to specifically mention the "ADA" or "reasonable accommodation."

7. You have the right to request documentation before making a decision on a reasonable accommodation request. As Feldblum said, this is "absolutely legitimate" on the employer's part. In addition, Lipnic said, the employer has to have "a level of awareness" that the individual is requesting a reasonable accommodation. (But see #6.)

8. Although you may have to grant additional leave as a reasonable accommodation (in excess of what is required under the Family and Medical Leave Act, or even your own policies), you do not have to worry about compliance with the FMLA once the 12-week/26-week entitlement has been exhausted. Moreover, in determining whether additional leave would be an "undue hardship," any leave already taken -- including FMLA leave -- should be included.

9. You don't have to specify "essential functions" in a written job description, although it's a nice thing if you can do it. According to Feldblum, failure to put essential functions in writing is "not fatal," presumably because the EEOC and the courts give more weight to the way the job is actually performed, not what's on a sheet of paper.

10. You have the right as the employer to decide which job functions are "essential." (But don't forget that accommodation of "marginal" functions may require you to remove the function completely from the disabled employee's job.)

OK, I realize these are kind of weak, but they're the best we're gonna do. Strike the harp and join the chorus, man. Fa-la-la-la-la-la-la-la-la!

PHYSICIAN, HEAL THYSELF! Good lessons for employers from AMA case

Posted by Robin E. Shea on October 19, 2011

It could be that the purpose of your life is only to serve as a warning to others.

In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical Leave Act.300px-The_Anatomy_Lesson.jpg

The case is well worth a post-mortem because of what it teaches employers about "causation" in retaliation and protected concerted activity cases.

Names have been changed to protect the allegedly* guilty.

*Even though the AMA lost a battle with this decision, it has not lost the war. The court found that summary judgment should not have been granted, but that means that the case will be tried before a jury. A jury might side with the plaintiff, but it might also side with the AMA.

Here's what happened:

The AMA, like just about every other employer, suffered from the economic downturn in 2008, and a manager -- we'll call him Dr. Pepper -- was told to reduce costs. Eventually it was determined that he was going to have to eliminate one position.

(One more disclaimer before I go on. Despite my fictional "doctor" names, none of the individuals actually involved in this case were physicians, as far as I can tell.)

Dr. Pepper chose an individual to eliminate -- we'll call him Dr. Seuss -- and sent an email to his boss informing her that he had chosen Seuss, and the rationale for selecting him. The gist of the rationale was that most of Seuss's work was going away anyway, so it made the most sense to eliminate his position.

Dr. Pepper's boss -- we'll call her Dr. Scholl -- sent him a reply asking whether the plaintiff, Dr. Dre, should have been eliminated along with Seuss. Pepper replied no, because he did not think it would be wise to eliminate any more positions than absolutely necessary. Scholl apparently was cool with this answer. This all happened in late October 2008.

So, we get to November 20 at a conference. Dr. Dre was there with Dr. Pepper. Dre told Pepper that he was going to have surgery on his knee in January, would be out of work for a few weeks, and was going to apply for short-term disability.

I hope you've stayed with me, because now it gets interesting.

Ten days after this conversation, on Sunday night of Thanksgiving weekend, Dr. Pepper sent an email to Dr. Scholl, apologizing for his "11th hour" change in decision, and telling her that he now wanted to eliminate Dr. Dre instead of Dr. Seuss. Among other things, Pepper said that they could more easily weather the loss of Dre because they were preparing for him to go out on disability anyway.

Poor Dr. Dre was terminated in January, and he hired a lawyer, and his lawyer sent a nasty letter to the AMA in February. The AMA's in-house attorney informed the organization's HR representative about the threatened litigation. We'll call the HR rep Dr. Bombay. (Nowadays, should that be Dr. Mumbai?)

It turns out that Dr. Bombay and Dr. Pepper had discussed the decision to terminate Dr. Dre back in November and that Bombay had taken handwritten notes. Upon learning of the threatened litigation the following February, Bombay typed up his notes and shredded his original handwritten notes, and he dated the typed notes "November 25, 2008," even though it was now February 2009.

Hmmmmm! Verrrrrrry interesting.

But, wait! There's more!

It turned out that Dr. Pepper's calendar didn't show a meeting with Dr. Bombay on November 25, and Pepper didn't remember having had one. Even worse, he testified that he didn't decide to eliminate Dr. Dre until after that date. All this made Bombay's backdating look even more dishonest.

In May 2009, the AMA eliminated about 100 more employees, including Dr. Seuss, the person Dr. Pepper had originally planned to eliminate. Apparently this was enough for a district court to grant summary judgment to the AMA. (I know! I'm not sure how that happened, either.)

But the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed, which means that Dr. Dre will be allowed to take his FMLA "interference" and retaliation claims* to trial.

*FMLA "interference" is simply a denial of FMLA leave to someone who is entitled to it, or doing something to discourage the individual from taking FMLA leave. It does not require a bad motive on the part of the employer and can even be based on a mistake or misunderstanding. In the case of FMLA retaliation, the employer "punishes" the employee for requesting or taking FMLA leave. Proof of the employer's unlawful motive is required for a retaliation claim.

So, let's make the usual Y-shaped incision and see what lessons can we learn from our "autopsy" of this case.

1. Timing is really, really important. On October 28, Dr. Pepper told his boss that Seuss should be eliminated, and he gave a good reason for the selection. He also told her that he thought it would be unwise to eliminate anyone else, and specifically Dre. On November 20, Dre informed Pepper that he would need to take FMLA leave in January. Within 10 days, Pepper reversed his RIF decision and recommended that Dre be eliminated instead of Seuss. Whatever Dr. Pepper's actual motive, this timing looks quite damning, doesn't it? The Seventh Circuit thought so, too.

2. Mentioning the FMLA leave in the poorly-timed email was not cool. In Dr. Pepper's "11th-hour" email, he said that the department could adjust easily to Dr. Dre's elimination because they were already preparing for his medical leave. Yes, I know there could be an innocent explanation for this: Pepper wasn't giving that as his motivation, he was simply giving his opinion about the effect of the decision. But this statement, especially when considered along with everything else, helps to make it look like the FMLA leave request was the reason for the selection.

3. Backdating documents is really not cool. Here's what I always tell clients: It's fine to document an event after the fact, even long after the fact, and I strongly recommend it if you didn't document at the time. But never, ever, ever, ever, ever, ever, ever in a million zillion years backdate it -- unless you are sure that the backdating is "transparent" (for example, drawing a line through the current date so that the original date is still visible, or saying something like "Created 10/22/11 based on event that occurred 6/1/11."). Any other kind of backdating looks dishonest and, as the Seventh Circuit noted, is more evidence that the employer may have had an unlawful motive and was trying to cover its tracks.

4. Destroying handwritten notes upon learning of threatened litigation (aka "spoliation") is the uncoolest of all. If you're not expecting litigation and don't have reason to expect it, then you can create a "draft" document and destroy the draft after creating the "final" version. But once you either become aware of litigation or have reason to expect it, your right to do this is gone. You must save all of your relevant documentation. Dr. Bombay, the HR representative who destroyed his handwritten notes after learning of the threat of a lawsuit, committed "spoliation," whether he realized it was wrong or not. As a result, when the case goes to trial, the judge may instruct the jury that the notes would have been favorable to Dr. Dre's case.

5. To err is human: be willing to cut your losses if you messed up, or if it will look like you messed up even if you didn't. In this case, it appears that Dr. Dre would have survived at the AMA only about 5 more months if Pepper had stuck with his original plan to eliminate Seuss in January. The undisputed evidence showed that the AMA had a massive reduction in May, and it probably would have included Dre if he'd still been around. Damages under the FMLA are limited to so-called "make-whole" relief (essentially, back pay, back benefits, costs and attorneys' fees, possibly doubled in the case of a willful violation). Even assuming the AMA might have been on the hook for a "willful" violation, it probably had a strong argument that it would not have owed much more than 10 months' pay to Dre, plus his costs and fees. Given that, it might have made economic sense for the AMA to have settled the case in mediation. (Please note that mediations are confidential, so it is very possible that the AMA tried to do just that.)

I was tempted to end this post with a rap about Dr. Dre, the AMA, the FMLA, the month of May, Dr. Bombay, and "anyway." Then I thought better of it. You're welcome.

11 Employer FAQs (No. 11): Are pregnant employees entitled to reasonable accommodation?

Posted by Robin E. Shea on September 09, 2011

Never . . . well, hardly ever. ("What, never? No, never! What, never? Well . . . hardly ever! He's hardly ever sick at sea . . .")

Our friends at the U.S. Equal Employment Opportunity Commission recently scored another big win in a pregnancy discrimination case -- actually got summary judgment against the employer, which is unusual. In this case, the employer apparently knew it had messed up and failed to contest the EEOC's motion with respect to two women's liability claims but did contest the liability claim of a third woman. The third woman's claim will be going to trial. 

The only federal anti-discrimination laws that require reasonable accommodation are the Americans with Disabilities Act, and Title VII as it applies to religious practices. (State laws vary, so be sure to check in your jurisdiction.)

Normal pregnancy is not a "disability" within the meaning of the ADA. Instead, pregnancy discrimination is governed by the Pregnancy Discrimination Act amendments to Title VII of the Civil Rights Act of 1964 and is considered a form of sex discrimination.

The law requires employers to treat pregnant employees the same as they treat other employees with temporary disabilities -- no better, and no worse.

If an employer does not offer light duty to anyone, then it does not have to offer it to employees whose pregnancies may be restricting them in the performance of their job duties.FAQ Round 11.jpg

However, if the employer offers light duty to employees with temporary disabilities (and many do), then the light duty would have to be offered on the same basis to pregnant employees. What about reasonable accommodations? (The answer after a word from our sponsor.)

Dear Readers: Today is the last day to cast your vote for the LexisNexis Top 25 Blogs list. Employment & Labor Insider is a nominee in the employment law category. If you have not already voted for us, we sure would appreciate it if you could do so now. Thank you as always for your support!

As we all know now, reasonable accommodation is not the same as light duty. For this reason, because pregnancy is viewed as a temporary condition, an employer would normally not have to offer reasonable accommodations for restrictions due to normal pregnancy. However, if the employer offered reasonable accommodations to employees with temporary disabilities . . . well, you know the drill. It would, of course, have to treat the pregnant employee the same way.

One more big "but": A woman who had a pregnancy with complications might become "ADA-disabled" because of the complications. If so, the employer would have to offer reasonable accommodations regardless of its light duty policy. Also, even "normal" pregnancy-related conditions -- including morning sickness and prenatal doctor visits -- qualify as "serious health conditions" under the Family and Medical Leave Act.

Employers should also be aware that "pregnancy" under Title VII is interpreted broadly, and also includes childbirth and other conditions and procedures related to pregnancy and childbearing.

One more noteworthy development relating to women's health -- it was reported last week that the Equal Employment Opportunity Commission is suing Goodyear Tire & Rubber under the ADA for allegedly discriminating against a woman who had menorrhagia (heavy menstrual periods -- if you want to know more about that particular medical condition, you'll have to ask your parents).

According to the reports, the agency is not contending that menorrhagia is a "disability" but is alleging that Goodyear discriminated against the woman because it "regarded" her as being disabled, whether she was actually disabled or not. According to the lawsuit, Goodyear terminated the woman for fear that she would not be able to safely work near heavy machinery. (Menorrhagia apparently sometimes causes dizziness.)

Here ends the 11-part series on Employer FAQs. Thank you for reading! Here are the other ten:

FAQ No. 1: What exactly is this "interactive process" that we hear so much about?

FAQ No. 2: "What does 'right to work' mean?"

FAQ No. 3: When do I have to start saving electronic evidence?

FAQ No. 4: Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?

FAQ No. 5: Is there any difference between light duty and reasonable accommodation?

FAQ No. 6: We don't have a union. Do I still have to display that new NLRB poster?

FAQ No. 7: Should the "ugly" be protected from discrimination?

FAQ No. 8: May I send an employee to our doctor to verify the need for a reasonable accommodation?

FAQ No. 9: When must I pay a non-exempt employee for travel time?

FAQ No. 10: How can I guarantee that I'll get a sexual harassment suit?

Don't forget, if you vote for Pedro Employment & Labor Insider, all of your wildest dreams will come true. LAST CALL -- THANKS AGAIN!!

11 Employer FAQs (No. 8): May I send an employee to our doctor to verify the need for a reasonable accommodation?

Posted by Robin E. Shea on September 06, 2011

FAQ Round 8.jpgYou bet! You may, and it's strongly recommended unless you are comfortable with the opinion of the employee's doctor.

First, by sending the employee to the doctor, you can verify the need for the reasonable accommodation. (Honestly, this is not a big deal because challenging the existence of an employee's medical condition is a losing battle most of the time.)

Second, you can determine which types of reasonable accommodation are appropriate and have the best chance of working. This is a huge deal. Here are a few ways to make sure it works:

1. Make sure the doctor is an appropriate specialist. If the employee has a bad back, send her to an orthopedic surgeon, not an internist. If she has hypertension, send her to an internist, not an orthopedic surgeon. And so on and so forth.

2. Make sure the examination is "job related and consistent with business necessity." What does this mean? It means that if your employee is having, say, vision problems that are affecting his ability to do the job, you can't require him to get a complete physical or a colonoscopy. But you can require him to get an eye exam. And so on and so forth.

3. Make sure the doctor knows your workplace and knows what the employee's job entails. Written job descriptions are fine (although I think they're overrated). Even better are photos of the worksite, preferably with employees performing the job. Even better than photos are videos. Even better than videos -- if you think you will be using this doctor again, invite her to your workplace for an in-person tour. The more she knows your work environment and your jobs, the better her advice about reasonable accommodations will be.

4. Don't be chintzy. If you're going to require the employee to see your doctor, pay the bill. You have to, anyway. As the Equal Employment Opportunity Commission says (scroll down to Item 11), "If an employer requires an employee to go to a health care professional of the employer's choice, the employer must pay all costs associated with the visit(s)."

5. Be sure to provide the "safe harbor" disclaimer required by the Genetic Information Non-Discrimination Act. (Scroll down to the asterisk at the link for the full text of the disclaimer.)

6. Don't be worried that this violates the Family and Medical Leave Act, which requires that you usually accept the medical certification of your employee's health care provider. An examination to verify the need for reasonable accommodation under the Americans with Disabilities Act is not the same thing as an FMLA medical certification. Under the ADA, you have more flexibility to choose your own doctor. But the FMLA rule will still apply to certification of FMLA leave requests.

FAQ No. 1: What exactly is this "interactive process" that we hear so much about?

FAQ No. 2: "What does 'right to work' mean?"

FAQ No. 3: When do I have to start saving electronic evidence?

FAQ No. 4: Should I offer harassment training to rank-and-file employees? Isn't that just asking for trouble?

FAQ No. 5: Is there any difference between light duty and reasonable accommodation?

FAQ No. 6: We don't have a union. Do I still have to display that new NLRB poster?

FAQ No. 7: Should the "ugly" be protected from discrimination?

Don't forget to send me your own employer FAQs! And don't forget, if you vote for Pedro Employment & Labor Insider, all of your wildest dreams will come true.

Employment Law Roundup: Facebook wage rant, EEOC scores again, FMLA bereavement leave, gender gap narrows, Menorah House and the Sabbath, mini-horse as accommodation

Posted by Robin E. Shea on July 23, 2011

Cowboy.jpgOdds and ends from the employment law world this week:

Facebook rant about wages didn't create retaliation claim. Molly DiBianca of the Delaware Employment Law Blog reports on a decision from a federal court in Florida saying that a Facebook rant about an employer's alleged violations of the Fair Labor Standards Act overtime provisions was not "protected activity" that would trigger the FLSA's anti-retaliation protections. 

Cavalier about age discrimination? The EEOC reached a $1 million class settlement with Virginia's Cavalier Telephone, LLC, over allegations that the company used recruiters who made comments that showed age-based bias including that they did not want to hire anyone who was "over 40 and pudgy." The two class representatives also alleged that they were demoted and terminated after they complained. The EEOC is on a roll with this one and its recent $20 million settlement with Verizon, which resolved claims related to application of a no-fault attendance policy to employees with disabilities.

FMLA leave for death of a child? Sen. Jon Tester (D-Mont.) has introduced legislation that would expand the Family and Medical Leave Act to include job-protected leave for the death of an employee's son or daughter. The bill, which has no co-sponsors, is entitled the Parental Bereavement Act (S. 1358), and would apply to employers of 50 or more employees.

You go, girls! The federal Bureau of Labor Statistics reports that the wage gap between men and women narrowed slightly in 2010, with women now making 81.2 cents for every dollar that men earn. The "wage gap" statistics do not control for position held, years in workforce, educational level, or any other non-discriminatory reason that might explain the gap. 

How can this be? Jon Hyman of Ohio Employer's Law Blog reports that the EEOC has sued a nursing home called Menorah House for allegedly refusing to accommodate the need of an employee to observe the Sabbath. HUH? Granted, the employee is not Jewish but a Seventh-Day Adventist, but still!

Why couldn't the pony talk? It was a little horse. Eric B. Meyer of The Employer Handbook blog discusses whether a miniature horse can be a reasonable accommodation under the ADA. Inquiring minds want to know!

No-Fault Attendance? In light of the EEOC/Verizon settlement, what's the point?

Posted by Robin E. Shea on July 14, 2011

Shrugging baby.jpgAre no-fault attendance policies to go the way of the horse and buggy?

Employers would do well to ask themselves that question, in light of the recent $20 million settlement between the U.S. Equal Employment Opportunity Commission and Verizon Communications. First, let's debunk a few erroneous assumptions about the settlement:

*We can blame this on the overly-aggressive, anti-employer Obama Administration. Nope. Actually, the case began with a Commissioner's charge filed in the fall of 2008, when George W. Bush was still in office.

*Well, then, we can blame it on that horribly-liberalized Americans with Disabilities Act Amendments Act. Nope again. The ADAAA didn't take effect until January 1, 2009. The charge against Verizon was already pending by that time.

*OK, whatever. But this still isn't any big deal. I've read all those articles about how employers need to be flexible with their leave policies, and I'm trying to do that now. Great! But that isn't what the Verizon case was about. The case was about charging absences under a no-fault attendance policy to employees who missed work because of medical conditions that were "disabilities" within the meaning of the ADA. It does not appear* that medical leaves were at issue. Exempting ADA conditions from no-fault attendance policies is a huge deal.

*Facts are sketchy because the parties reached an agreement before the EEOC actually filed suit. The lawsuit and the proposed consent decree that will settle the lawsuit were filed at the same time.

*Yawn. The Family and Medical Leave Act already says you can't charge no-fault absences against someone who's out for an FMLA-qualifying reason. True. But the EEOC's interpretation of the ADA(AA) means that no-fault absences shouldn't usually be charged if the absence is due to a disability even if the employee does not qualify for FMLA leave -- whether it's because she hasn't been employed for 12 months or 1,250 hours, or because he's exhausted his entitlement already.

*Well, anyway, the EEOC is a big dog and gets settlements like this all the time. Not true. This is the biggest settlement in the EEOC's history, according to the agency.

*Well, then, Verizon is a great big wimp. Maybe yes, and maybe no. I vote no, although I can't help wishing that Verizon had put the EEOC to the test. The threatened litigation was against 24 subsidiaries nationwide on behalf of employees represented by the Communication Workers of America (who, by the way, has an iPhone app -- they don't call 'em "Communication Workers" for nothing!), and in addition to the Commissioner's charge, charges were filed by the CWA and individual employees. Litigation of this scale brought by an agency of the federal government promised to be astoundingly expensive and disruptive, even if Verizon were to eventually win. As part of the settlement, Verizon got a pretty good deal (considering) on how to apply its attendance policy in the future. The proposed consent decree (see paragraph 20.03) at least allows the company to consider whether the employee or designee followed the company's procedures, whether the absences have been or are expected to be "unreasonably unpredictable, repeated, frequent or chronic," and whether excusing the absences would be an undue hardship. 

You digress. What about your original question? Oh, yeah. Sorry. In my opinion, employers should seriously reassess the utility of no-fault attendance policies. The FMLA has prohibited charging of no-fault absences for a long time. Most employers I know voluntarily refrain from charging no-fault absences to employees who are out because of work-related injuries or illnesses. Now, it appears that the EEOC's position is that exceptions have to be made for "disabling" conditions, and with the ADAAA, that means a lot of conditions. So, with all these exceptions, an employer has to ask: Is there any point to having a "no-fault" attendance policy?

In the old days before no-fault policies, certain types of absence were treated as "excused," and other types of absences were treated as "unexcused." There were lesser or no penalties for excused absences but fairly severe penalties for unexcused absences. Most employers abandoned these policies at least 20 years ago, before the FMLA and the ADA were gleams in a Congressman's eye, because it took too much effort to police them, and it made sense to treat employees as adults. In light of the Verizon settlement, employers may want to consider returning to the more-paternalistic "fault-based" attendance systems.

What do you think? Talk amongst yourselves.

The EEOC's 5 warnings about medical leaves and the ADA

Posted by Robin E. Shea on June 10, 2011

The U.S. Equal Employment Opportunity Commission held a public hearing this week on leave of absence as a reasonable accommodation under the Americans with Disabilities Act.

This is a smokin' hot subject, particularly in light of the ADA Amendments Act and its regulations, which Danger sign.jpgexpand the ADA's coverage to a dramatically larger population, the "new," more activist EEOC under Chair Jacqueline Berrien, and two recent multi-million-dollar settlements in leave-of-absence lawsuits brought by the EEOC against Sears, Roebuck & Co. and Supervalu, Inc. (Jewel-Osco).

John Hendrickson, the EEOC's Regional Attorney for Chicago, said that these settlements contained five lessons for employers, and that's what I'd like to talk about today because Hendrickson's points are consistent with warnings we've been giving to employers for quite some time.

1. An "inflexible period" of leave will not satisfy ADA requirements. Most of the employers I've worked with have very generous leave of absence policies -- one employer I know offers up to two years of leave for a single medical condition (and possibly more, if the employee contracts a new condition). However, many policies provide for "automatic" termination if the employee's leave exceeds the designated period of time.

Nunh-unh, no can do, says the EEOC.

If the employee needs, say, two years plus two weeks, but then will be able to return to work, you have to consider granting that additional two weeks.

Or, if the employee can come back but needs reasonable accommodations (including reassignment to a vacant position), you have to consider allowing the employee to come back in the new capacity.

And when I say "consider," I mean, seriously. I mean, if you decide to say no, you'd better have a darned good reason.

Your next question may be, Well, if our leave is so generous and we still have to do all this when an employee has been out of work (and probably receiving disability benefits or workers' compensation), then why on earth do we want to offer so much leave in the first place? And my answer to that would be, Good question, and a point that was made by an employers' lawyer who testified at the EEOC hearing. You can shorten the "maximum leave" under your policy, as long as you comply with the requirements of the Family and Medical Leave Act. (You should check applicable state laws, as well.)

2. "Appropriate leave" requires an "individualized assessment" when the designated leave period expires, if not before. See #1. The "individualized assessment" would include determining whether the employee needs additional leave beyond the official company maximum, and whether the employee can come back to work with a reasonable accommodation.

Many employers still require employees returning from medical leaves of absence to be "100 percent recovered," or able to return to work without restrictions. These requirements have arguably violated the ADA from the get-go (in my opinion, they have), but there is no question that they should be scrapped in our modern era. If an employee has restrictions, the employer is supposed to assess whether the employee can return to work with a reasonable accommodation. If not, then it may be ok to terminate. But if so, then the employer should allow the employee to return to work.

And, have I mentioned that "reasonable accommodation" includes reassignment to a different vacant position?

3. Keep your friends close, and your leave administrator and ADA decisionmaker closer. Many employers outsource leave administration to a third party. Meanwhile, the person making decisions on ADA accommodations is usually someone in Human Resources, in consultation with the employee's supervisors and managers, and possibly legal counsel.

This is a fine arrangement, as long as the leave administrator stays in close contact with HR or legal counsel, and knows how to identify potential ADA issues. (Which should be a cinch now that virtually everyone on an extended medical leave qualifies for ADA coverage.)

That said, third party administrators, or even in-house leave administration "specialists," should almost never be the ones to terminate an employee for hitting the maximum allowable leave. A best practice would be for the leave administrator to refer these employees to Human Resources or legal counsel for an ADA assessment. The decision to terminate, extend leave, or bring back to work with or without reasonable accommodations should be made by HR/Legal in consultation with the appropriate operations management.

4. Ya gotta talk to the employee. The reasons for this rule are too numerous to mention. From a pure morale standpoint, it's always good to stay in touch with an employee on medical leave because it makes the employee feel that she's still "part of the family" and makes return to work that much easier. But just in case these warm and fuzzy reasons aren't enough to satisfy you, allow me to use more persuasive methods. (Imagine Dr. Evil laugh here. Mwahahaha.)

Many jurisdictions require that the employer and employee conduct an "interactive process" when discussing possible ADA accommodations, and the EEOC takes this position as well. The "interactive process" is fancy-lawyer-talk for having a discussion with the employee (ideally, face-to-face, but phone or email will suffice if the employee can't come in) about possible reasonable accommodations. In these jurisdictions, the failure to engage in the interactive process is an ADA violation in itself.

Even in jurisdictions like mine, which do not require an interactive process, failing to engage in the process means that the employer "assumes the risk" if there is an accommodation that might have worked but was missed because the employer didn't talk to the employee.

For these reasons, I strongly recommend that all employers, no matter where they are located, discuss directly with employees their reasonable accommodation options and get the employee's suggestions. (Employers with unions will, of course, have to include the union representatives in these discussions.)

5. Better get used to being sued by the EEOC. The agency believes that private plaintiffs' attorneys will not usually have the resources to be able to pursue these "systemic" discrimination cases involving automatic terminations at the end of medical leaves. 

So, to paraphrase all those spam email jokes that we love so much, you may be a defendant in an EEOC lawsuit if

*You have a "100%-recovered/no restrictions" requirement for return from a medical leave of absence;

*You automatically terminate employees who reach their maximum leaves without making "individualized assessments";

*You delegate all of your medical leave terminations to your third-party administrator, or your benefits administrators; or

*You don't engage in "the interactive process" before automatically terminating employees who reach their maximum leaves.

(Sorry that wasn't the least bit funny. Hey - just like the spam email jokes!)

Generally speaking, the EEOC is a formidable plaintiff. Unlike private plaintiffs' attorneys, the agency does not have a strong economic motivation to settle cases early and inexpensively. They'll serve you with aggressive written discovery and requests for documents, and they'll want to take everybody's deposition. They'll file motions and fight every motion that your side wants to file. They dig "systemic" cases, where they can get large verdicts or settlements that they can post on their "Newsroom" web page. This is not to say you can't beat them, but most employers will prefer being in compliance to being a test case.

Forewarned is forearmed, as they say.

9 signs that you'll lose your age discrimination case

Posted by Robin E. Shea on May 20, 2011

My internet friend and worthy adversary Donna Ballman, an employment lawyer who represents plaintiffs, had a good and sad post this week on AOL this week entitled "Nine Signs of Age Discrimination." The comments were especially depressing, from a number of people who said that they'd experienced age discrimination either in losing their jobs, or in their attempts to find jobs.

I've heard a lot "on the street" about the difficulty older workers are having in finding jobs, and I posted a while back on some of the non-discriminatory reasons that might be accounting for thatWoman Sad Older.jpg.

I don't know whether there is an epidemic of age discrimination (I sure hope not), but I would like to present the "defense side" of Donna's nine points. So here are my "9 signs that you'll lose your age discrimination case." Many of these will apply to other types of discrimination cases as well.

Sign No. 1: The person who fired you is the same person who hired you not too long ago. We call this the "same hirer/firer" rule. The courts presume that if, say, Supervisor Mary hired you when you were 58 years old and then fired you when you were 60, your age was probably not the issue -- otherwise, she would never have hired you at age 58 in the first place. (On the other hand, if Mary hired you when you were 35 and then fired you when you were 60, you might have a case. Also, an employee can present evidence to rebut the "same hirer/firer" presumption.)

Sign No. 2: You have been a victim of unfair treatment that is legal. The world is an unfair place, but our legal system can't "redress every wrong," as the judges like to say. In the workplace, things like nepotism, favoritism, consensual workplace sexual affairs, you name it, are definitely NOT COOL but usually not illegal. So, if you lost out on that promotion because your boss wanted his 22-year-old daughter who just graduated with a C+ average from Priscilla Vanderbilt's Finishing School for Rich Young Ladies Who Aren't Smart Enough to Get Into Four-Year Colleges instead of you, a superbly qualified, well-loved and respected, and professional person with 30 years' directly applicable work experience, you probably don't have an age discrimination case.

Sign No. 3: You don't know all the facts. In any decent workplace, personnel information is not shared with employees who don't have a need to know. That's a good thing, but it causes people to sometimes feel that they've been singled out when in fact they have been treated exactly the same as their so-called "similarly-situated" co-workers. Unfortunately, they don't always find this out until they are in the thick of the discovery process in a lawsuit that the employer will win. Once an employer has been sued and backed into a corner, it will have no choice but to trot out all the evidence that, just as it fired you for failing to generate new business, it fired 10 other sales reps for the same reason, many of whom are in their 20's and 30's. And those people who were younger who you thought were being treated more favorably? Lo and behold, they actually had better numbers than you did. Or they didn't, but only because they were on job-protected FMLA leave for part of the relevant time period. Or they didn't, but they are in the performance improvement process, too, just like you were -- and can be expected to meet the same fate as you if their numbers don't improve. You get the idea.

Sign No. 4: Your boss is a dirty, rotten creep. (This is related to Sign No. 2, above.) Your boss may just be a dirty, rotten creep. That's a bummer, but it's not illegal as long as he's a creep to everybody. On the other hand, if he's sweet to the whippersnappers but rotten to everybody over the age of 50, you might have a case.

Sign No. 5: You are a dirty, rotten creep. Before rushing off to file a discrimination charge against your employer, it's not a bad idea to take an unsentimental, high-definition, fluorescent-light look at yourself. How do you get along with the people you work with? Do they like you? Are you known as "high-maintenance" if not a DRC? If you filed a charge or lawsuit against your employer, would anyone at work side with you? (And, when considering that, be sure to remember that even the current employees whom you counted among your friends are going to be reluctant to get involved.) Or, do you think there is a good chance you could be subjected to sitting through deposition after deposition in which your co-workers testify under oath about what an incompetent jerk you were, and how relieved everyone was when you were finally fired, and how much better your replacement is? (This really happens, and, when it does, it's no fun for the plaintiff.)

Sign No. 5: Your sweet, kind-hearted, easy-going boss has been replaced with a Master of the Universe. Maybe you got outstanding performance reviews (plus home-baked cookies) for 20 years while you reported to Mrs. Santa Claus. Then Mrs. Santa Claus retired, and was replaced by Gordon Gekko. Suddenly, you can't do anything right, and you're on a 6-month Performance Improvement Plan with termination in your immediate future. But surely this is age discrimination, because I had outstanding reviews for 20 years and now that I'm 60, I'm suddenly on a PIP! Nuh-uh. The courts say that Gordon has the right to have his own performance standards, even if they are dramatically different from Mrs. Claus's standards. As long as Gordon requires everyone to conform to his tougher standards, he's acting legally.

Sign No. 6: Your employer made a business judgment that you don't agree with. You have been an awesome bookkeeper/accountant for your employer for 20 years, and your associate degree in business from the local community college, coupled with your work experience, has served you well. Suddenly your employer tells you that the company has decided to upgrade your position to Chief Financial Officer and put a CPA in the position, and can't afford both a CPA and you. So, you're now in the unemployment line, while 25-year-old Numbercruncher, who just graduated from a remote outpost of the state university with a C+ average and passed the CPA exam, is in -- as CFO!! How unfair! You know you are smarter and better at what needs to be done than Numbercruncher. It doesn't matter. Your employer has the right to make this type of decision, even if it's a stupid decision, as long as it's not based on age or some other illegal reason. As the courts like to say, "We do not sit as super-personnel committees, second-guessing employers' business decisions."

Sign No. 7: Your employer honestly believes you committed a termination offense, even if you didn't. What? Yes, it's true -- "guilty beyond a reasonable doubt" applies only when you've been charged with a crime. In the workplace, the employer is allowed to terminate (or discipline) employees based on nothing more than an honest, reasonable belief. So, when you are falsely accused of sexual harassment by a couple of colluding co-workers, it's not illegal for the employer to fire you (assuming it did not know about the collusion), even if the employer cannot say for a fact that you are guilty, and even if, a year, later, during her deposition, one of your accusers breaks down and admits that the accusation was a total scam. In your age discrimination lawsuit, the courts will not look at your guilt or innocence but whether your employer, at the time of the termination, had reason to honestly believe that you had committed a termination offense.

Sign No. 8: Your employer discriminated against you, but not because of your age. Frequently plaintiffs will have a number of theories as to why they were terminated -- if they're 40 or older, they'll think it's their age; if they're female, they'll think it's their sex; if they're a member of a racial or ethnic minority, they'll think it's their race or national origin; if they're white guys, they'll think it's reverse sex and reverse race discrimination; if they filed a workers' compensation claim, they'll think it's workers' comp retaliation, etc., etc. A good plaintiff's lawyer will encourage the client to narrow these ideas down to one or two strong ones that are supported by some evidence, and to let the other ones go. Although it is possible for an employer to discriminate against an employee for more than one reason (for example, women frequently claim that TV stations discriminate against older women -- but not older men -- as news anchors), it's tough to claim that you, a 40-year-old African-American, were discriminated against because of your age when all the evidence shows that your boss was really on a campaign to get rid of African-Americans, no matter what their ages.

Sign No. 9: Your replacement is as old as you, or older. This does not automatically defeat an age discrimination claim, but it is a pretty strong sign that your age is not the reason you lost your job.

As you can see, our legal system tolerates a lot of unfairness, meanness, mistakes, and stupidity. This is true outside the employment law world, too -- if someone cuts you off in traffic and flips you a bird while doing it, that is without question rude, and you will probably be justifiably furious for at least 15 minutes, but you will not be able to sue that person for intentional infliction of emotional distress, even if you managed to get their license plate number. It's a cruel world, and we need to think about that before rushing to the courthouse.

What do Will & Kate, "birthers," and ADAAA/FMLA coordination have in common? Nothing, really.

Posted by Robin E. Shea on April 29, 2011

Woman reading newspaper screaming.jpgWhew - what a week! Try as I might, I could not think of a way to tie in the Royal Wedding and the release of President Obama's long-form birth certificate with employment law.

(But, aren't the bride and groom adorable? I love Kate's dress!)

(And, you know that birth certificate is a big fake. I'm kidding, I'M KIDDING!)

OK, enough of that -- back to work.

I actually have a serious topic today, which is the effect that the Americans with Disabilities Act Amendments Act will have on the Family and Medical Leave Act.

In subsequent posts, I'll talk about the effect of the ADAAA on the Genetic Information Non-Discrimination Act, the Occupational Safety and Health Act, the HIPAA privacy rule, and workers' compensation laws, and then I'll try to sum up with a comprehensive recommended approach to all of these laws.

As most of you already know, the ADAAA has dramatically expanded the class of people who are considered "disabled" within the meaning of the Americans with Disbilities Act. And, as most of you also know, Congress keeps passing laws affecting employees with medical conditions with very little apparent regard for already-existing laws and very little effort to coordinate. As a result, employers are continually having to learn the new laws, while trying their best to figure out for themselves how to comply with new Law E without simultaneously violating existing Laws A, B, C, and D.

(Remember the good old days when all we had to worry about was coordinating the "old" ADA, the FMLA, and workers' comp? And we thought that was hard! If we'd only known . . .)

The overwhelming majority of the workforce was not "disabled" within the meaning of the "old" ADA. On the other hand, the Wage and Hour Division of the U.S. Department of Labor, which enforces the FMLA, determined that "serious health condition" for purposes of FMLA leave could include conditions that were anything but -- in addition to covering truly serious conditions like heart disease, cancer, and multiple sclerosis, it also covered things like morning sickness, substance abuse treatment, and a sore throat if accompanied by one visit to a doc-in-the-box and a 10-day course of antibiotics.

This used to infuriate me because the FMLA statute doesn't require this expansive a view, but I have been beaten into submission and don't think about it any more.

When advising employers about FMLA issues, I would normally first ask whether the ADA might be implicated as well. It almost never was, which meant that the employer could give the employee his 12 weeks of FMLA leave per 12-month period -- if necessary, running concurrently with workers' compensation or short-term disability leave, let him come back to work or not, and be done with it, with no lingering ADA issues. It really was not that big a deal most of the time.

I am sorry to say that this is about to change.

Because of the vastly-broadened definition of who is "disabled" within the meaning of the ADA, I predict that we will rarely be able to rule out ADA issues when considering FMLA leaves. In other words, the expanded definition of "disability" in the "new," amended ADA is much more like the inflated definition of "serious" health condition in the FMLA. Here is what that means (at least, I think this is what it means -- because the ADAAA is so new, this is a work in progress):

*"Old" ADA guidelines, which have not been changed by the ADAAA, provided that an extension of FMLA leave might be required as a reasonable accommodation to an employee with a disability. So, now, employers "might" have to extend FMLA leaves beyond the 12 weeks as reasonable accommodations in many cases. I don't think it's clear whether these reasonable accommodation "extensions" of FMLA leave have to include job protection, but until we get some clarification I would err on the side of continuing the job protection as well as the leave.

*Assuming an employee is unable to return to a "substantially equivalent" job at the end of the 12-week FMLA leave period because of her medical condition, the employer will have to examine the possibility of reasonable accommodation (including, possibly, alteration to the "substantially equivalent" job, or restoration to a job that is not "substantially equivalent") rather than simply extending the leave or terminating the employee.

*It will be very dangerous for smaller employers to terminate employees whose 12-week FMLA leave expires, even though the employers may not be able to offer any other types of medical leave. Before terminating an employee in this situation, the employer should make sure that all reasonable accommodation options (including, possibly, an extension of FMLA leave) have been considered. (Remember that if you already meet the 50-employee threshold for FMLA coverage, you automatically also meet the 15-employee threshold for ADA coverage.)

*Likewise, it will be very dangerous for employers of any size to terminate employees who are not yet eligible for FMLA leave, or who have exhausted their FMLA leave, because of absences due to non-work-related injuries or illnesses. (Just about every employer I know allows employees to stay out with some level of job protection if the injury is work-related.) The ADA, unlike the FMLA, applies to all employees, regardless of length of service. Again, no employee should be terminated for a medical-related reason unless the employer has fully considered all reasonable accommodation options first.

*One ray of sunshine: although it is illegal to discriminate against someone based on her "association" with a person with a disability, there is no right to reasonable accommodation under these circumstances. What this means is that all of the points I've made above apply only when the employee needs FMLA leave for his or her own serious health condition. If the FMLA leave is for the serious health condition of the employee's spouse, parent, or child, or (in the case of the 26-week "military" FMLA leave) for the serious injury or illness of the employee's covered family member, only the FMLA would apply and not the ADA. (With the exception of adult children, discussed below.)

*This is an esoteric point, but some clients have raised it over the years, so I think it's worth addressing. Because many, if not most, people with "serious health conditions" will now also be "disabled" within the meaning of the ADA, employers will have to grant FMLA leave to more parents who seek the leave to care for adult children.

Let me explain. The FMLA generally does not allow employees to take leave "to care for" a child over the age of 18 who has a serious health condition. The only time an employee is entitled to FMLA leave in such circumstances is when the adult child has both a serious health condition as defined in the FMLA regulations, and a "disability" within the meaning of the ADA. (I am oversimplifying the standard, but this is the gist of it.)

What this meant under the old ADA was that parents were almost never allowed to take FMLA leave for the serious health conditions of their adult children. (For what it's worth, I have always recommended that employers allow leaves for this reason, even though the leaves would not be FMLA-covered.)

For example, an employee's 35-year-old daughter might have a complicated pregnancy and childbirth. The complications would qualify as a serious health condition under the FMLA, but almost never as a "disability" under the "old" ADA unless the effects were long-term as well as severe. Under the amended ADA, it is very possible that this 35-year-old daughter would be considered "disabled," and therefore the mother would be entitled to take FMLA leave to care for her. 

Those are all of the ADAAA/FMLA coordination issues I've been able to think of. If you have more, or if you disagree with mine, please comment. Next week, I'll talk about the ADAAA and GINA, unless more pressing news intervenes.

Workplace (aka "fake") spouses -- a lot of hype, but here's how to avoid problems.

Posted by Robin E. Shea on February 23, 2011

This February ("Valentine's Month"), there was a lot in the news about "workplace spouses." Last week, I was interviewed about this by Denis and Shelli of WSBT radio in South Bend, Indiana.

My own opinion is that the "workplace spouse" phenomenon is an overhyped way to put a new spin on the very old problem of sexual attraction in the workplace. (Sexual harassment and workplace dating are so '90's.)

workplace spouses.jpgWhat is a workplace spouse? The news accounts define it as a closer-than-normal relationship between two co-workers. But for the term to have any real meaning, it has to apply to co-workers who at least have the possibility of becoming sexually attracted to each other. For example, two heterosexual girlfriends who spend a lot of time together and talk about everything may be BFFs, but they are never going to be faux "spouses."

I have long held the view that extramarital affairs at work are the number one cause of sexual harassment lawsuits against men. They have an affair, she wants to get married, he chickens out, and she's angry and wants revenge. I'm not saying that every sexual harassment complaint fits this scenario (by no means!), but just about every lawsuit I've been involved in did. Because workplace "spouse" relationships can lead to extramarital affairs, folks need to be very careful not to let these relationships escalate. 

How can you have a close friendship with a co-worker without letting it destroy your marriage or your career? Here are a few tips:

1-Create a dividing line that you won't cross. Be friends if you must, but don't talk to your fake spouse about things like your sex life or your marital problems ("My wife doesn't understand me"). Your fake spouse shouldn't know anything about you that your real spouse doesn't know (unless you're telling your fake spouse about the awesome gift you purchased for your real spouse for a birthday or anniversary). Nor should you violate your real spouse's privacy with your fake spouse.

2-Don't idealize your fake spouse. At work, we are all clean, groomed, fragrant, dressed nicely, and well-behaved. (Most of us, anyway.) We may or may not be so at home, and none of us are able to be that way all the time. Your fake spouse probably looks just as bad first thing in the morning as your real spouse does, also has "issues," and burps and watches bad TV shows. Remind yourself of that as often as needed.

3-If you're single and your fake spouse is married, respect the marriage. If you sense that a "crush" is developing (either from your end or his/hers), start distancing: talk about the real spouse and kids frequently (in a positive way), refer to your own boyfriend/girlfriend, etc., etc. If necessary, limit your contact with your workplace "spouse."

4-Be sensitive to your co-workers' feelings. One big risk involved in "workplace spouse" relationships is the perception of co-workers that you are being cliquish. If one party to the fake spouse relationship is a supervisor, even worse -- there may be perceptions of favoritism or discrimination. Even if your fake spouse is your "favorite," include your co-workers in conversations and activities as much as you can. The presence of co-workers will also help you with Tips 1 and 3.

5-Be sensitive to your real spouse's feelings. Just about every article on workplace spousehood mentions that real spouses are uncomfortable with these relationships. Why wouldn't they be? If your real spouse feels jealous or threatened, BACK OFF! Your real spouse ought to come first. Even though some articles suggest that you and your workplace "spouse" and your real spouses can get together as a foursome, even that is risky if there is already a strong attraction between you and the workplace "spouse."

NEWSWORTHY NUGGETS . . .

Here are some legal developments from the past week. 

Defense of Marriage Act no longer defensible, Obama Administration says. Attorney General Eric Holder has said that the Administration no longer intends to defend challenges by legally married same-sex couples against the Defense of Marriage Act, which interprets "marriage" for purposes of federal law as being between one man and one woman. The Administration, which contends that the DOMA violates the equal protection clause of the Fifth Amendment to the U.S. Constitution, does intend to continue complying with the law, however. The new position (and future evolutions) should be closely watched by employers because it will have an impact on the definition of "spouse" for purposes of the Family and Medical Leave Act and the Genetic Information Non-Discrimination Act, as well as many other laws.

In a related development, the Wall Street Journal Law Blog reported yesterday that the State of Hawaii has legalized same-sex civil unions.

Mea culpa. I closed last week's post with a snide remark about Madison, Wisconsin, school teachers calling in sick so that they could protest Governor Scott Walker's budget initiatives. I felt (and, honestly, still feel) that the teachers should be willing to make some concessions to help keep the state from going under. But this week, I saw that some attorneys are now charging an obscene $1,000 an hour for their services, so as an attorney (though not a $1,000-an-hour one), I feel bad for picking on the teachers.

Nagging employee about return to work from FMLA leave is not cool, court says. A federal judge in Arkansas recently denied summary judgment to an employer on an "interference" claim under the Family and Medical Leave Act. The employee was out of work for back surgery (apparently legitimate), but her supervisor called her once a week to ask when she was going to return. At one point, the employee allegedly asked whether her job was at risk, and the supervisor allegedly responded, "You need to come back as soon as you can." Worried about her job, the employee returned to work a week early but was terminated a short time later for suspected theft. (The court found in the employer's favor on the termination, however, saying that there was plenty of evidence to support the employer's good-faith belief that the employee had stolen or tried to steal from a co-worker.) Hat tip to ABA Journal Weekly Newsletter.

Bad PR. Monique da Silva Moore has filed a putative class action against international public relations firm Publicis Groupe and its U.S. public relations affiliate, MSL Group, for systemic sex discrimination. Ms. Moore's suit alleges that the work force is approximately 70 percent female but that only 15 percent of its leadership positions are held by women. The suit also alleges that women are paid less than similarly situated men. The suit has just been filed, so the defendants have not had a chance to respond yet.

Doctor's note for all sick calls? Here are 5 reasons I wouldn't.

Posted by Robin E. Shea on February 18, 2011

One common employer practice that I have never liked is requiring employees who call in sick to bring in a doctor's note. I'm not talking about extended or recurring absences that would be covered by the Family and Medical Leave Act, or time off that would be covered under a short-term or long-term disability policy, or requests for reasonable accommodation under the Americans with Disabilities Act.

Sick girl.jpgI'm talking about garden-variety, short-term absences for things like colds, sore throats, tummy bugs, or the flu.

And I am feeling so validated right now because I see that Cynical Girl and most of her commenters (presumably Human Resources people) agree with me.

Here are five reasons why I think it's not a good idea:

1-It screams to the employee "I don't trust you." Sure, there are some employees you don't trust, but why treat them all like abusers? Even employees who use a lot of sick time or paid time off may have legitimate reasons -- they may have genuine chronic health problems, or they may have young kids who get sick (my sons are grown now, but I certainly remember the days when our family was a veritable tag team of illness), or they may have been incredibly unlucky, or they may be expectant mothers with morning sickness. 

2-It is a hassle to the employee and may actually retard recovery. I may legitimately have a miserable cold or sore throat, and I may get over it in 24 hours if I can sleep it off. But if I have to waste half of my sick day driving my sorry body over to the nearest walk-in clinic, waiting 2-3 hours with other sick, contagious people, to see a doctor who prescribes (surprise!) bed rest, and driving my sorry body back home, I may not get over it quite so quickly.

3-It is a hassle to our poor, overburdened health care providers. It's bad enough that these poor souls have to deal with the FMLA and HIPAA privacy, and now try to make some sense out of the "safe harbor" language under the Genetic Information Non-Discrimination Act. Do we really need to add to their grief by requiring them to see patients who are sick with illnesses that nothing can be done about anyway?

4-It is a hassle to HR and supervisors. Even though having employees out sick is a hassle, it is also an administrative hassle to parse every single request for a sick day. 

5-It encourages sick, infectious people to come to work and make everyone else sick. 'Nuff said.

On the other hand, employers may want to request doctor's notes when there is good reason to be suspicious of a request for sick time. For example, if your employee is a teacher in the Madison, Wisconsin, public school system, you might want to ask for a doctor's note.