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The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the 12-month period immediately preceding the start of the leave). Not so fast, said the 11th Circuit in Pereda v. Brookdale Senior Living Cmtys., Inc., which opened the eligibility door a crack back in 2012. And more recently, on April 13, 2017, a federal district court in Oregon nudged that door open just a bit wider when it issued the decision in Johnson v. Jondy Chemicals, Inc., 2017 WL 1371271 (D. Or. 4/13/2017).

For those of you who don’t have the Pereda case at your fingertips, a quick refresher: In Pereda, the employee notified her employer she would be taking FMLA leave for the birth of her child on or about Nov. 30, 2009. At the time of her request, she had not yet met the eligibility requirements to take FMLA leave, but she would have become eligible by her due date. The court held that “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” Thus, an employee can maintain an FMLA interference claim even though at the time of the termination, she was not an “eligible employee” with respect to the 12-month employment requirement.

The Johnson case present us with the intersection of another wrinkle. Recall that if an employee becomes FMLA-eligible during a leave (by meeting the 12-month requirement), the beginning of the leave must be designated as non-FMLA leave while the portion of the leave after the employee meets FMLA eligibility requirements would be designated as FMLA. 29 C.F.R. § 825.110(d). The Johnson case combines the prescience of the Pereda case with the hindsight of this provision to create a new animal: in some circumstances–despite the fact that the employee is not eligible for FMLA at the time of the request or at the time the leave is to begin–an employee’s request for leave could trigger FMLA protections if, at some point in time during the leave, the employee will meet the 12 months of employment eligibility requirement. The Court considered this hypothetical and concluded “the fact that an employee’s treatment commences pre-eligibility…does not, in and of itself, bar the employee’s rights in subsequent FMLA leave for the same treatment during the same contiguous absence…” The court held that an employee who notifies the employer of the need for treatment that will extend into a period of time in which the employee will be FMLA-eligible is entitled to FMLA-protected leave for that period. Therefore, any adverse treatment based on the leave request could be grounds for the employee to claim the employer interfered with his right to FMLA leave.

In the case at hand, the Court was not so sure that the employee had demonstrated that FMLA would have applied to a portion of the leave, because the claim did not specify whether the leave would have extended beyond the employee’s FMLA-eligibility date. As a result, the Court dismissed the claim; leaving open the possibility the employee could refile with more facts to support the claim.

Concerned about navigating your way through complex leave administration issues? Reed Group has options. We offer both outsourced and software solutions for clients with complex and/or multi-state employee populations. To learn more about ReedGroup’s products and services visit reedgroup.com.

Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether the requested accommodations were reasonable. The third focuses on overcoming the hurdle of establishing that an employee is, in fact, disabled under the ADA. All three cases resulted favorably for employers.

In Whitaker v. Wisconsin Dep’t of Health Servs., No. 16-1807, 2017 WL 745600 (7th Cir. Feb. 27, 2017), Whitaker worked as a corrections officer for the Wisconsin Department of Health Services, eventually transitioning into other positions due to a back injury. Her most recent position relevant to her case was that of an economic support specialist in the Department’s Income Maintenance Program. In this role, Whitaker’s job duties included processing applications for benefits, answering phone calls, and general case management, all requiring regular attendance.

Whitaker exhausted her available FMLA leave for her medical condition as well as a 30-day unpaid leave to care for her father and due to her own personal illness. Whitaker was informed by the Department that if she failed to return to work upon the conclusion of the 30-day leave, the termination process would begin. Whitaker did not return to work on her expected date but did submit notes from her doctor requesting additional time off for a medical leave. The notes did not provide any detail on her condition, course of treatment, or estimated recovery. Whitaker continued to assert she was unable to return to work and the Department terminated her employment. Whitaker sued, claiming the Department should have considered her request for an accommodation of unpaid leave rather than terminate her.

The court found that Whitaker was unable to establish that she was an “otherwise qualified” employee as required by the ADA as she provided no proof that she could fulfil the requirement of regular attendance, even with an accommodation. Whitaker argued that if she had been given additional leave as an accommodation, she could return to work on a regular basis. Consistent with other cases we have seen, the Seventh Circuit did not find this argument persuasive. Rather, the court found this accommodation to amount to an open-ended leave request, which was not reasonable and would have imposed an undue burden on the department.

Like Whitaker, Bagwell v. Morgan Cty. Comm’n, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017), analyzes an employee’s essential job functions and whether an employee’s request to accommodate those essential job functions is reasonable.

Bagwell was a County groundskeeper whose essential job functions included tasks necessary to maintain and upkeep city parks, such as traversing uneven and wet surfaces, standing, and walking. Due to stamina and endurance issues caused by a leg injury, she was unable to safely perform these functions consistently, even with the assistance of an accommodation. It was established that Bagwell could only tolerate walking and standing for one-third of her shift. Although some equipment accommodations would reduce related difficulties, Bagwell was unable to perform the essential job functions of the position, with or without accommodations; thus, the court found that Bagwell was not an “otherwise qualified” employee. Additionally, the court found that if the County were to consider an accommodation, it would be a significant one, requiring a co-groundskeeper or hiring a third-party service to complete the work. Finding in favor of the employer, the court held that this type of accommodation would be unreasonable as it was the duty of the groundskeeper to perform such work.

Two employer tips stand out in these cases:

  1. Be sure to keep your job descriptions up to date and accurate. Regular attendance is often an essential job function and the courts rely heavily on employers’ job descriptions to establish the essential functions of a job.
  2. The courts continue to side with employers when an employee is requesting indefinite leave under the ADA, which is considered unreasonable and burdensome to the employer.

The third notable ADA case of 2017 brings us to Alston v. Park Pleasant, Inc., No. 16-1464, 2017 WL 627381 (3d Cir. Feb. 15, 2017). In 2011, Park Pleasant hired Alston to be the Director of Nursing at an adult care facility; one year later, Alston was having significant performance issues. Shortly after meeting with her HR director to discuss these issues, Alston missed work to have a biopsy and was diagnosed with early-stage DCIS (a form of breast cancer). Alston’s performance continued to be in question and she was terminated in early August 2012. Upon termination, Alston sued, claiming employment discrimination under the ADA.

To establish a claim for discrimination under the ADA, Alston was required to demonstrate that she was a disabled person within the meaning of the ADA. The court relied on 29 C.F.R. § 1630.2(j)(1)(iv) in concluding that the determination of whether an employee is disabled under the ADA requires an individualized assessment to analyze whether the employee’s impairment ‘substantially limits a major life activity.’ Throughout the case, Alston failed to provide enough evidence to prove she had a disability. The court did note that cancer generally would qualify as a disability; however, based on the individualized assessment for Alston, there was no argument or proof that this condition limited any of her major life activities. Therefore, the court found that Alston failed to establish she was disabled under the ADA and dismissed her discrimination claim.

This case goes back to the basics, but it reminds employers that an individualized assessment of each employee and his or her ailment(s) or condition(s) is required to establish whether the employee is considered disabled under the ADA and thus entitled to the protections afforded by the act.

It’s evident that ADA discrimination cases continue to be brought by disgruntled employees. To avoid potential risks in litigation:

  • make sure your job descriptions are specific and in writing;
  • follow the interactive process; and
  • evaluate employees on an individual basis.

Outsourcing to a third-party administrator that specializes in ADA management, such as ReedGroup, will keep you ahead of the curve and compliant on all ADA matters. For more information, check out our solutions here.

Telecommuting – Is an Employer Required to Allow it?
Lori Welty

Telecommuting – Is an Employer Required to Allow it?

Telecommuting – working from home – is an option more and more workers are choosing as technology bridges the gap between home and office. Of course, not all roles lend themselves to telecommuting, and not all employers are amenable to it. When it comes to accommodations under the American with Disabilities Act, however, an employer may not have a choice in the matter.

EEOC Guidance

In 2017, the EEOC updated the Work At Home/Telework as a Reasonable Accommodation Fact Sheet. According to the EEOC, there are a few factors an employer should consider in assessing whether it must allow an employee to work from home. Some include:

  • If an employer does offer telework, it must allow employees with disabilities an equal opportunity to participate in such a program and may be required to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.
  • Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.
  • This determination should be made through a flexible “interactive process” between the employer and the individual. While the employer and employee may wish to discuss other types of accommodations that would allow the person to remain full-time in the workplace, in some situations, working at home may be the only effective option for an employee with a disability.

Current Job Descriptions Are Crucial

Recent case law analyzing this issue illustrates that it is often the subtle nuance of a workplace that will dictate the outcome. In February, the 6th Circuit in Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018), considered an attorney who sought to telecommute while she was required to be on bedrest due to pregnancy complications. While the company didn’t have a formal telecommuting policy, employees – including the plaintiff – often telecommuted. In this case, however, her employer refused the request, concluding that her physical presence was an essential function of her job. While the court acknowledged that there was some evidence showing that in-person attendance was an essential function of her job, there was enough conflicting evidence to allow her to go to trial, including:

  • Several fellow employees and outside counsel testified that she could perform all of her essential functions working from home;
  • She personally never tried cases in court or conducted depositions during her 8 years of employment with the company, despite the fact that her job description contained those tasks; and
  • Her job description was based on a 20-year-old questionnaire and did not reflect changes in the job that resulted from technological advancements since that time.

But Don’t Update the Job Description During the Process!

The more recent case of Imam v. Cumberland Cty., 2018 WL 5305539 (E.D.N.C. Oct. 25, 2018) explores telecommuting and reminds employers to beware of any actions that could be viewed as retaliating against an employee with a disability who seeks an accommodation. In this case, the employee was a systems programmer in an IT department. Prior to his disability, the role had not previously included on-site duties, and the employee often telecommuted.

In August 2016, the employee, Imam, was diagnosed with deep vein thrombosis (DVT) and his doctor advised him to avoid driving for several weeks. He requested a two-week telecommuting schedule which was granted. After the telecommuting schedule ended, his employer proposed a change to his job description, adding operational duties which would require him to be on-site.  Imam objected, arguing that the new duties would exacerbate his DVT and were excessive in light of other responsibilities that had recently been added to plaintiff’s job description.

Shortly after, the employee’s doctor provided a letter recommending that he avoid driving for an additional two to three months. Again, Imam requested a telecommuting schedule, but this time, the employer refused, concluding that the new operational duties would require Imam to be on site daily.

Imam sued claiming discrimination and retaliation under the ADA. The Court found that on-site attendance was not required when Imam was first diagnosed with DVT and did not exist at the time plaintiff first requested (and received) a telecommuting schedule.  While the court acknowledged that the 4th Circuit (which includes Maryland, North Carolina, Virginia, and West Virginia) has not definitively determined whether telecommuting is a per se reasonable accommodation that employers must provide under the ADA, in this instance, Imam had sufficiently demonstrated that permitting him to work remotely would have been a reasonable accommodation.  In addition, and perhaps most importantly, the court found that Imam had made credible allegations that his employer retaliated against him because of his disability by adding extra responsibilities to his job description.

Employers being faced with an employee’s request to telecommute should consider the following factors:

  • How current is the employee’s job description? Keeping an accurate, up-to-date job description is vital in assessing whether telecommuting is a reasonable accommodation.
  • Beware of changing the job description during the course of an employee’s disability, if the change might negatively impact the employee. Doing so may be considered retaliation.
  • Does the employer allow other employees with similar job functions to telecommute, regardless of whether it is for a health concern or not? If the employer has a practice of permitting telecommuting, it will be hard-pressed to refuse it for an employee with a disability.
  • Always, always, always follow the interactive process! There may be circumstances where an employer and employee can come up with at-work accommodations that can meet the employee’s needs, but only with a thorough interactive process can the parties discover the options that may exist.
The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the...

read more
Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether...

read more