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Carlos Luna

The Worker Advocate

Sitting in a crowded legislative committee and listening to parties debate a bill inspired me to ask myself a very important question:  When all is said and done and my actions are measured, am I truly a worker advocate? The debate referenced above between bill...

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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
Ashlee Brennan

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.

Striking Down Migraine Headaches Before They Start
Anne Ahlman

Striking Down Migraine Headaches Before They Start

Reading about migraines is enough to give anyone a headache. Not only is migraine the sixth most prevalent non-fatal condition in the world and the second most common cause of disability (low back pain still tops the list),1 it ranks as the number one cause of years lived with disability (YLDs) in individuals under the age of 50.2  In the most recent Global Burden of Disease Study, migraine was found to account for nearly 76 million YLDs across 195 countries and territories, with prevalence on the rise.1

The World Health Organization has identified headache disorders as a major public health concern, citing the annual loss of 25 million workdays and school-days from migraine in the United Kingdom alone.3 And in the United States, migraine is thought to affect more than 20% of Americans in various ages and stages,4,5 and is responsible for an estimated $78 billion each year that encompasses the direct costs of treatment and the indirect costs of lost productivity.5 Yet, individuals with migraine are often confronted with being inadequately treated at best or disbelieved at worst, even when in the throes of a head-splitting attack. So what can be done?

Migraine treatment typically focuses on resting in a dark, quiet room for hours or days at a time while waiting for symptoms to pass naturally or respond to medications. But although prevention is key, long-suffering migraineurs have learned to manage dietary and lifestyle triggers such as food additives, caffeine, alcohol, inadequate exercise, altered sleep patterns, and secondhand cigarette smoke or perfume with limited success.

However, just in time for National Migraine and Headache Awareness Month this month, a new FDA-approved preventative migraine medication delivers a spark of hope. This novel approach uses monoclonal antibodies to block calcitonin gene-related peptide (CGRP) protein molecules that are involved in the onset of migraine in susceptible individuals.6 The once-monthly self-injectable medication helps zap migraines before they start, and will soon be accompanied by three more CGRP-blocking antibody medications currently undergoing clinical trials. At MDGuidelines, we will be watching these medications closely in hopes that they will provide individuals with migraines a flash of relief, enabling them to step back out into the light.

 

References:

1. GBD 2016 Disease and Injury Evidence and Prevalence Collaborators. Global, Regional, and National Incidence, Prevalence, and Years Lived with Disability for 328 Diseases and Injuries for 195 Countries, 1990-2016: A Systematic Analysis for the Global Burden of Disease Study 2016. Lancet. 390 10100 (2017) 1211-1259. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5605509/

2. Steiner, T.J., et al. Migraine is First Cause of Disability in Under 50s: Will Health Politicians Now Take Notice? J Headache Pain. 19 1 (2018): 17. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5821623/

3. Headache Disorders: Key Facts. World Health Organization. 8 Apr. 2016. WHO. 12 Jun. 2018. http://www.who.int/news-room/fact-sheets/detail/headache-disorders

4. Burch, R., P. Rizzoli, and E. Loder. The Prevalence and Impact of Migraine and Severe Headache in the United States: Figures and Trends From Government Health Studies. Headache. 58 4 (2018): 496-505. https://onlinelibrary.wiley.com/doi/full/10.1111/head.13281

5. Gooch, C.L., E. Pracht, and A.R. Borenstein. The Burden of Neurological Disease in the United States: A Summary Report and Call to Action. Ann Neurol. 81 4 (2017): 479-484. https://onlinelibrary.wiley.com/doi/full/10.1002/ana.24897

6. FDA Approves Novel Preventive Treatment for Migraine. FDA News Release May 17, 2018. https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm608120.htm

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
Ashlee Brennan

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
The Worker Advocate
Carlos Luna

The Worker Advocate

Sitting in a crowded legislative committee and listening to parties debate a bill inspired me to ask myself a very important question:  When all is said and done and my actions are measured, am I truly a worker advocate? The debate referenced above between bill...

read more