Medical leave as a reasonable accommodation

We often receive calls from employees and employers about unpaid medical leave from work. Callers want to know whether an employee who has a serious health condition under the FMLA, but who cannot return to work after 12 weeks of FMLA leave, has any additional legal protections. The answer is that it depends. Many court cases recognize that finite and short additional periods of unpaid medical leave beyond the 12 weeks afforded by the FMLA can be a reasonable accommodation under the Americans With Disabilities Act. Employers who receive requests for additional unpaid medical leave should ask appropriate questions to determine the length of additional leave the employee is seeking, the likelihood that the additional leave will enable the employee to return to work, and how other employees who require leave for reasons unrelated to health or disability are treated. In the run of cases, finite and short periods of additional medical leave are a reasonable form of accommodation, particularly when the prognosis for recovery is favorable. This means that in many situations, an employer will be required to grant the request for additional unpaid medical leave, provided it does not impose or create an undue hardship. Of course, every case depends on its unique facts.

Legal Rights for Pregnant Workers under Federal Law

If you are pregnant, have been pregnant, or may become pregnant, and if your employer has 15 or more employees, you are protected against pregnancy-based discrimination and harassment at work under federal law. You may also have a legal right to work adjustments that will allow you to do your job without jeopardizing your health.

1.  If my employer knows that I am pregnant or may become pregnant, could I get fired? 

Under the PDA, employers are not allowed to discriminate against you based on the fact that –

◦you are pregnant;
◦you were pregnant;
◦you could become pregnant, or intend to become pregnant;
◦you have a medical condition that is related to pregnancy; or
◦you had an abortion, or are considering having an abortion.

In general, this means that you cannot be fired, rejected for a job or promotion, given lesser assignments, or forced to take leave for any of these reasons. An employer does not have to keep you in a job that you are unable to do or in which you would pose a significant safety risk for others in the workplace. However, your employer cannot remove you from your job or place you on leave because it believes that work would pose a risk to you or your pregnancy.

2.  What if I am being harassed because of pregnancy or a pregnancy-related medical condition?

Harassment based on pregnancy or a pregnancy-related medical condition is not allowed under the PDA and ADA. You should tell your employer about any harassment if you want the employer to stop the problem. Follow your employer’s reporting procedures if there are any. If you report the harassment, your employer is legally required to take action to prevent it from occurring in the future.

3.  What if I am having difficulty doing my job because of pregnancy or a medical condition related to my pregnancy?

You may be able to get an accommodation from the employer that will allow you to do your regular job safely.” Examples include altered break and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions, and permission to work from home.

You may be able to get an accommodation under the PDA if your employer gives accommodations to employees who have limitations that are similar to yours, but were not caused by pregnancy.

You may be able to get an accommodation under the ADA if you have a pregnancy-related medical condition such as cervical insufficiency, anemia, sciatica, preeclampsia, gestational diabetes, or depression, that meets the ADA definition of “disability.” A condition meets the definition if it would, when left untreated, “substantially limit” one or more major life activities (e.g., lifting, standing, sitting, walking, reaching, bending, eating, sleeping, or concentrating) or major bodily functions (e.g., digestive, genitourinary, bowel, bladder, neurological, circulatory, or cardiovascular functions). A condition does not have to be permanent or severe, or result in a high degree of functional limitation, to be “substantially limiting.” It may qualify by, for example, making activities more difficult, uncomfortable, or time-consuming to perform compared to the way that most people perform them. If your symptoms come and go, what matters is how limiting they would be when present.

You don’t need to have a particular accommodation in mind before you ask for one, though you can ask for something specific. However, you should know that the ADA doesn’t require your employer to make changes that involve significant difficulty or expense. Also, if more than one accommodation would work, the employer can choose which one to give you.

4.  What if there’s no way that I can do my regular job, even with an accommodation?

First, if you are being told by a health care provider that you can’t do your job safely and, for example, need light duty or can’t do your job because of a limitation or restriction, you may want to make sure that it’s really true. Your health care provider may not have considered the possibility that an accommodation would allow you to do your regular job safely. (See Question 3 above.) Things like reduced workloads and temporary reassignments often come with reduced pay, but your employer is not allowed to reduce your pay because you need an accommodation to do your regular job.

If you really can’t do your regular job safely, even with an accommodation, you might be able to get altered job duties under the PDA. Depending on how your employer treats non-pregnant employees with similar limitations, the PDA might require your employer to reduce your workload, remove an essential function of your job, or temporarily assign you to a different position if the employer does those things for non-pregnant employees with limitations similar to yours.

5.  What if I can’t work at all because of my pregnancy?

If you can’t work at all and you have no paid leave, you still may be entitled to unpaid leave as an accommodation. You may also qualify for leave under the Family and Medical Leave Act, which is enforced by the United States Department of Labor. More information about this law can be found at www.dol.gov/whd/fmla. Some states and localities have passed laws that provide additional protections

6.  What should I do if I need an accommodation, light duty, or leave because of my pregnancy?

Start by telling a supervisor, HR manager, or other appropriate person that you need a change at work due to pregnancy. You should inform your employer if the source of your problem at work is a pregnancy-related medical condition, because you might be able to get an accommodation under the ADA. An employer cannot legally fire you, or refuse to hire or promote you, because you asked for an accommodation, or because you need one. The employer also cannot charge you for the costs of an accommodation. Because employers do not have to excuse poor job performance, even if it was caused by a pregnancy-related medical condition, it may be better to ask for an accommodation before any problems occur or become worse.

Under the ADA, your employer may ask you to submit a letter from your health care provider documenting that you have a pregnancy-related medical condition, and that you need an accommodation because of it. Your health care provider might also be asked whether particular accommodations would meet your needs. You can help your health care provider understand the law of reasonable accommodation by bringing a copy of the EEOC publication Helping Patients Deal with Pregnancy-Related Limitations and Restrictions at Work to your appointment.

7.  What should I do if I think that my rights have been violated?

Contact legal counsel immediately.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Employer short on direct threat defense

scholasticnews_indepth_images_minerThe district court in Pollard v. Drummond Co., Inc., No. 12-03948 N.D. Al. (Sept. 15, 105) found a fact question on whether a coal miner using methadone to control back pain was a direct threat under the ADA. A “direct threat defense must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Chevron, 536 U.S. at 86. An employer may reasonably rely on medical evidence to make its employment decisions, but this reliance must “be reasonably based on particularized facts.” Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001). An employer may not rely upon the recommendation of a physician who conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations. Lowe, 244 F.3d at 1309 (denying summary judgment where a physician recommended restrictions for a double amputee based on a cursory examination of him and a general assumption that all double amputees have the same limitations). Furthermore, an assessment based on the known possible side effects of a medication, as opposed to an individualized inquiry into a patient’s present ability to perform his job functions, is insufficient. Haynes v. City of Montgomery, No. 2:06-CV-1093-WKW, 2008 WL 4495711, at *4-5 (M.D. Ala. Oct. 6, 2008). The employer’s doctors could only speculate about the effects and side-effects of the methadone. They did not perform an individualized assessment of the employee. Moreover, the employee had worked for many years using methadone in the mines and had no significant infractions or safety issues during that time.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

EEOC has good day on ADA case in Fifth Circuit

ADA_signingPresident George H.W. Bush signing the landmark Americans with Disabilities Act in 1990.  24 years later, in EEOC v. LHC Group, Inc., 12/14/14, the Fifth Circuit revived a significant ADA case finding that the questions whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role were questions for a jury.

Tthe employee provided home health care to patients; she also spent “a couple of hours” traveling between patients. In March 2009, her supervisor decided to promote her to a team leader position, though the parties disputed whether she was actually promoted or simply training for the position. Team leaders manage patient care, communicate with doctors and pharmacists, schedule field nurses, and fill in when nurses are absent.

On May 26, the employee had a grand mal seizure at work and was taken by ambulance to the hospital. Her doctor released her to work two days later. On June 1, the employee discussed her medical condition with her supervisor and the director of nursing (DON). They gave her a copy of the team leader job description and asked for a release from her neurologist. He reviewed it, added a note to it stating “no driving x 1 year, no working on ladder,” and released her for work. She discussed the limitations with her supervisor and the DON; the three agreed that she would get rides to work from a coworker who lived next door to her.

The employee’s anti-seizure medicine made her “very tired” and she had memory problems. When she returned to work, she asked her supervisor for extra help with the computer-related requirements of her job, including remembering passwords and using the scheduling software. According to the employee, the supervisor simply walked away. On June 7, the employee worked a shift as a field nurse; her mother drove her, with the DON’s approval. During the next week, she continued to struggle with several team leader duties. The court found the record unclear on the degree of the employee’s difficulties and whether she was aware of her shortcomings.

On June 19, the supervisor and the DON met with the employee, pointing out several problems with her computer skills, errors with patients, and communication and scheduling problems. They set a target date of July 31 for her to “master” the team leader duties. The supervisor also allegedly told her that if her disability manifested again at work, the company would be in “trouble.” The next Monday, the employee missed work without approval to take a child to the doctor. The same day, the employer received a complaint from a patient who asked that the employee not be sent back to her home. The employee was soon terminated. The HR rep said nothing about her performance but simply stated that she was being let go “because you’re a liability to our company.”

The EEOC filed suit on behalf of the employee and the district court granted summary judgment for the employer on its ADA claims.

On appeal, the Fifth Circuit held that the proper causation standard in an ADA case is whether the employee was “subject to an adverse employment decision on account of his disability.” Turning to the merits, tt was undisputed for purposes of the motion that the employee had a disability. To show that she was qualified, the EEOC had to show she could perform her job’s essential functions with or without a reasonable accommodation. In the court’s view, the district court correctly held that driving was an essential function of the field nurse position and the employer could not have provided a reasonable accommodation that would have enabled her to perform this function.

However, the parties disputed whether the employee had actually been promoted to team leader. The EEOC offered evidence that the employee was a field nurse. Contrary to the court below, the appeals court found triable issues on whether driving was an essential function of the team leader position. The job descriptions for both jobs require a driver’s license, insurance, and access to a dependable vehicle, and they stress that significant portions of daily assignments require travel. However, the deference given an employer’s judgment on what functions are essential is not absolute. The employee estimated that, as a field nurse, she spent a “couple” of hours during her eight-hour day driving, but team leaders drove far less often. And the DON testified that many team leader tasks were performed in the branch office.

The appeals court also found questions of fact on whether the employer could have reasonably accommodated the employee’s inability to drive in the team leader role. While none of the options offered by the EEOC (public transportation, van services, rides from the employee’s mother) would have been a feasible solution as a field nurse because driving was central to that role, those options might have enabled a team leader to perform her duties. Indeed, the team leader job description stated that travel can be done “via car or public transportation.” Thus, there were triable issues on whether driving was essential as a team leader and, if so, whether the employee’s inability to drive could have been accommodated in the team leader role.

The Fifth Circuit also found questions of fact on whether the employer could have reasonably accommodated the employee’s difficulties with the essential computer and communications duties of a team leader. It first noted that the parties disputed the extent to which her disability precluded her from doing computer-related tasks. The EEOC conceded that she struggled, but contested the employer’s assertion that her difficulties predated her seizure. Plus, the employee asserted that her limitations were largely due to an unusually high dosage of anti-seizure medication, which she was in the process of tapering.

In the court’s view, if the employee was “unable to perform her essential computer-based tasks, then LHC had a duty to work with her toward a reasonable accommodation.” She expressly reached out to her supervisor, indicating she wanted temporary help using computer programs and remembering passwords due to her medication levels but her supervisor kept silent and walked away. On this record, a jury could find that the employee was denied an interactive process, the court concluded.

To show a nexus between the employee’s disability and her discharge, the EEOC highlighted that her supervisors criticized her performance only after her seizure and it claimed the criticisms were “exaggerated, unfounded, or fabricated.” It also pointed to the supervisor’s remark that the employer would be in “trouble” if her disability manifested again and the HR rep’s remark that she was fired because she was a “liability” to the company because of her disability. To the appeals court, the lower court erred in ruling that these statements on the EEOC charge were hearsay. They were made by employees speaking on behalf of the company and fell under Fed. R. Evid. 801(d)(2). In addition, the statements were not offered for the truth of the matter asserted. In light of all of this evidence, then, the appeals court found a triable issue on whether there was a nexus between the employee’s disability and the adverse employment decision. The EEOC therefore made out a prima facie case of discriminatory termination.

The court also found questions of fact on whether the employee’s termination for poor performance and inability to perform essential functions was pretextual. Several portions of the record supported the inference that discrimination was a motivating factor in the decision, including the comments about her being a liability for the company and about the company being in trouble if her disability manifested again on the job. For all of these reasons, summary judgment was reversed on the discriminatory discharge claim.

OFCCP Rule Strengthens Disability Protections

On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire IWDs, and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.

The Final Rule was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.

Highlights of the Final Rule:

Utilization goal: The Final Rule establishes a nationwide 7% utilization goal for qualified IWDs. Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.

Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.

Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website.

Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.

Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.

Prescription medications in the workplace

An Ohio company has been fined $50,000 by the EEOC after firing an employee who tested positive for a prescribed medication for her bipolar disorder. The agency accused the company of violating the Americans with Disabilities Act. Chassity Brady was a quality control lab technician in the Braselton, Ga. facility of Dayton Superior Corporation, a concrete and masonry construction company, according to the EEOC. After Brady had an adverse reaction at work to a drug prescribed to her to treat her bipolar disorder, Dayton Superior forced her to take a drug test. Even though the only thing she tested positive for was the bipolar drug, the employer fired her. The EEOC filed a lawsuit on Brady’s behalf in September. Under the settlement announced Jan. 4, Dayton Superior agreed to pay Brady $50,000 and to complete training, report to the EEOC, and post relevant notices.

Employers are never supposed to make hiring and firing decisions based on disabilities – including those that are only indicated by a prescription, and employers must be careful before firing someone for taking medically indicated prescription medications. In another case, the employer had an actual policy and practice of drug testing employees for not only illegal drugs but also a group of perfectly legal prescription medications. In that case, the EEOC fined a Tennessee employer $750,000. The EEOC said Dura Automotive Systems required employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications. Dura also said employees could only keep their jobs if they stopped taking their meds. “Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications,” said the EEOC.

If your employer utilizes any such policy, talk to a lawyer or consider filing a charge with the EEOC. Making employment decisions on the basis of stereotypical assumptions about disability-based medications is one of the problems the ADA was designed to combat.

Some tips for expecting moms and new moms

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent significant difficulty or expense. The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

Harassment because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth is a no-no. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.