Monday, March 25, 2013

Federal Paid Sick Leave Reintroduced in House and Senate

On March 20, 2013 Senator Tom Harkin (D-IA) and Representative Rosa DeLauro (D-CT) reintroduced legislation, the Healthy Families Act (H.R. 1286, S. 631), that would require employers to provide paid sick leave to employees.  The legislation, as proposed, is incredibly generous.  Specifically, the legislation would:

  • Allow employees to earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually;
  • Employees could take this leave to attend to their own or a family member’s illness, or use the paid time off for preventative care such as medical appointments; 
  • The bill provides leave for employees who are the victims of domestic violence, stalking or sexual assault. Employers with 15 or more employees would be covered by the law.
  • Employees would be entitled to avail themselves of sick leave – which begins accruing from the first day of employment under the bill – after 60 days; 
  • Paid sick leave would carry over from year to year, but may not exceed 56 hours unless the employer permits additional accrual;
  • The Act would require medical certification if more than three consecutive days are taken off;
  • If an employee leaves his or her job and is rehired within 12 months, that employee would be entitled to the accrued leave already earned and would be entitled to take sick leave immediately
The first attempt at this type of legislation first occurred in 2004 and has been attempted a few times since but hopefully this time is the charm though I expect some of the above provisions to not survive.

Wednesday, March 20, 2013

CVS Implements Controversial Policy Requiring Employees to Disclose Weight, Body Fat and Other Vital Statistics

This week much buzz was made surrounding CVS' new policy requiring its employees to submit detailed health profiles to their insurance company or pay a monthly fine to continue receiving health coverage.  Specifically, all employees must submit their weight, body fat levels, blood glucose levels and other vital statistics before May 1, 2014, or face a monthly $50 fine — $600 per year.

The move is obvious to employers who want to save on insurance cost of employees with poor health and do little-to-nothing to improve their health but the move is also shocking and insulting to employees and begs the question of whether this is lawful as this policy is even more intrusive than popular wellness programs that have been popping up lately.  The lawfulness of this policy will probably be tested against the Americans with Disability Act's (ADA) provision on unlawful "medical inquiries."

A medical or disability-related inquiry is a question or series of questions that is likely to elicit information about a disability.  Medical inquiries under the ADA are addressed at three stages: pre-offer, post-offer, and during employment.  CVS' policy obviously applies to the during employment stage.  At this stage, the ADA provides that an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.  It is arguable that this is a disability-related inquiry because the disclosures could elicit information about someone being diabetic, having a weight problem considered a disability under the ADA, has a heart condition, etc.  

What does "job-related and consistent with business necessity mean, exactly?  

The EEOC's enforcement guide on medical inquiries states that "[o]nce an employee is on the job, his/her actual performance is the best measure of ability to do the job. When a need arises to question the ability of an employee to do the essential functions of his/her job or to question whether the employee can do the job without posing a direct threat due to a medical condition, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination."  Further, the EEOC states that a medical inquiry may be made, once an employee is on the job, "when an employer 'has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.'"  Under this guidance, CVS is arguably making unlawful medical inquiries because they are required of ALL employees without any reasonable belief, based on objective evidence of any of the two items listed above.  Further troubling is the penalty associated with an employee's refusal or neglect to provide the required information.

It will be interesting to see how this policy pans out and it seems fairly certain the policy will be tested in Court.

March Edition of the Employment Law Blog Carnival is Live!

Stephanie R. Thomson, Ph.D. over at "The Proactive Employer" blog hosted this month's edition of the employment law blog carnival and did a great job.  The carnival can be viewed here!

Tuesday, March 12, 2013

Re-Visiting Leave as a Reasonable Accommodation Under the Americans with Disabilities Act

Attorney Ellen Girard Giorgiadis of Quarles & Brady wrote a nice brief discussion about leave as an accommodation under the Americans with Disabilities (ADA) and the Equal Employment Opportunity Commission's (EEOC) continued attack on employers with strict attendance policies upheld against individuals who may need more than the 12-week leave provided under the Family and Medical Leave Act (FMLA).

While it may be hard for some people to imagine that an employer may be found to have violated the ADA for not allowing an employee to be off work for more than 12 weeks, the EEOC and some courts have found this to be a reasonable accommodation and several cases the EEOC has prosecuted have resulted in multi-million dollar settlements:

  • In EEOC v. Sears Roebuck, filed in Chicago in 2004, the parties were embattled in a discovery war until 2009 when the case was resolved with a $6.2 million consent decree covering more than 250 claimants who had been separated under Sears’ 12-month leave policy.
  • In EEOC v. Denny’s, filed in Baltimore in 2006, the parties were embroiled in extensive discovery until 2011 when the parties entered into a $1.3 million consent decree covering 33 claimants who were separated pursuant to Denny’s maximum leave policy.
  • In EEOC v. Supervalu, filed in Chicago in 2009, the parties engaged in a fast-tracked discovery battle until 2010 when they entered into a $3.2 million consent decree covering more than 100 claimants who had been separated under Supervalu’s 12-month leave policy.
  • In EEOC v. Verizon, filed in Baltimore in 2011, the EEOC simultaneously filed a $20 million consent decree providing relief to 800 claimants who were disciplined or terminated under Verizon’s no-fault attendance and leave policies.
Back in August 2011, the EEOC had a panel discussion on the topic which prompted an article in the Wisconsin Law Journal on Wisconsin's case law on leave as a reasonable accommodation.  Then, back in April 2012, the 9th Circuit decided a case that held the plaintiff's attendance was an "essential job function" and that adjusting an employer's attendance policy was an unreasonable accommodation for purposes of the ADA--though it is important to keep in mind this was a fact-specific case.

Until Courts provide more guidance for employers to follow, it is best to be flexible and engage in the good 'ol interactive process when attendance becomes an issue for a disabled employee.  

NLRB to Seek U.S. Supreme Court Review of Case Holding Recess Appointments Invalid

The National Labor Relations Board (NLRB) announced today that it will not seek an en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid.  The Board does intend, however, in consultation with the Department of Justice, to file a petition for certiorari with the United States Supreme Court for review of that decision.  The petition for certiorari is due on April 25, 2013. 

Wednesday, March 6, 2013

7th Circuit Holds Light Duty is NOT a Right Employee Can Assert Under FMLA

Carris James was an employee of the Hyatt Regency Chicago since 1985 when he took a leave of absence in April 2007 due to an eye injury that occurred outside of work when he was involved in an altercation where he was punched in the eye.  When James applied to work for the Hyatt, he noted on his application that he had a vision problem that is correctable with eyeglasses and magnifying glasses. Hyatt was aware that James was nearsighted and accommodated him by increasing the print size of his work assignments and schedules.  In April 2007, James underwent corrective surgery and had to miss work in order to recuperate.

Hyatt's Human Resources Department learned that James' absence was attributable to a medical issue, and provided him with information regarding FMLA leave. As required under the FMLA, Hyatt's policies provide for twelve weeks of job-protected leave for eligible employees. On April 24, 2007, James provided Hyatt's Human Resources Coordinator with a note from his doctor, Dr. Scott, stating that James could return to "light duty" on May 10, 2007. The note did not list any specific restrictions, nor did it say how long James must remain on light duty. The next day James requested FMLA leave; the request was granted and Hyatt applied FMLA retroactively to cover James' absence prior to his submission of the certification form.

James' twelve week FMLA leave ended July 13, 2007. The collective bargaining agreement between his union and Hyatt, however, entitled James to remain on jobprotected leave for up to one year from his original absence. On August 2, 2007, James submitted to Hyatt a release from Dr. Scott that stated that James was allowed to return to work on August 5, 2007, with the restriction of being "visually impaired." James testified that Hyatt's Human Resources Coordinator told him that he could not return to work with restrictions. James did not return to work on August 5, and then continued to submit paperwork from Dr. Scott representing that James was incapable of working in any capacity. Forms provided by Dr. Scott stated he was "not sure" when James could return to work (May 11, 2007 and June 14, 2007 forms), that James would be unable to work until August 20, 2007 (June 1, 2007 form), and that James would be disabled until August 5, 2007 (August 2, 2007 form). Based upon James' request, and Dr. Scott's representations of James' condition, Hyatt completed all necessary disability paperwork.

Then, in late September 2007, a new physician faxed the Hyatt a note indicating that James could return to work with the restrictions of "no heavy lifting or excessive bending."  Hyatt then attempted to contact James in September, and again in December, to seek additional information as to the specifics behind his restrictions and the conflicting paperwork he was submitting. However, months went by and James offered Hyatt no further clarification of his condition.  Hyatt then directly contacted James' physician inquiring about James' medical condition, a meeting was scheduled with James and it was concluded that James would be granted two weeks of paid leave then return to work, which he did in February 2008.  

James testified that he felt he was treated fairly during the FMLA application process and that no one at Hyatt has said anything negative to him regarding his leave, eye surgery, or visual impairment. Nonetheless, James filed suit in 2009, alleging claims of retaliation and interference with his rights under the FMLA and discrimination and retaliation under the ADA. Ultimately, the district court found that James failed to present a genuine issue of material fact as to any of his claims, and granted summary judgment to Hyatt. 

Essentially, James claimed that he was "left on FMLA leave for too long" as his physicians repeatedly provided the Hyatt with releases to work.   


This was somewhat of an unusual claim since James requested, was granted and was out for the full 12-week period afforded under FMLA.  However, James argued that his benefits were nevertheless interfered with because it did not promptly reinstate him to his position when he presented the April 24 doctor's note that released him to "light duty" starting on May 11, 2007.  In rejecting this argument, the 7th Circuit noted that an employer has no duty under the FMLA to return an employee to his or her position, if that employee cannot perform an essential function of the job. See 29 C.F.R. § 825.214(b).  The Court then further cited previous case law that held, "[t]here is no such thing as `FMLA light duty'" Hendricks v. Compass Group, USA, Inc., 496 F.3d 803, 805 (7th Cir. 2007). See 29 C.F.R. §§ 825.220(d) and 825.702(d) (providing that an employee may take "light duty" under workers' compensation or may continue with unpaid FMLA leave).  


James' theory under this claim was that he suffered an "adverse employment action" when Hyatt refused to reinstate him after the submission of his April 24 doctor's note.  Here, James shot himself in the foot, so to speak, when he ignored Hyatt for weeks at a time while Hyatt reached out to him, as cited in the facts above.  This is why the Court shot this claim down, along with the reasons cited in the interference claim.  


James argued that by rejecting his requests to return to work via his doctor's "releases," Hyatt violated the ADA by failing to accommodate James' vision problems, with the same accommodations they have provided him for the past twenty years of employment. The Court noted that it is well established under the ADA, that an employee begins the accommodation "process" by informing his employer of his disability; at that point, an employer's "liability is triggered for failure to provide accommodations."Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996).  However, the Court noted that Hyatt did not receive notification as to the true state of James' medical condition until Hyatt proactively reached out to James' physician in January 2008 for clarification. Prior to that point, James was simultaneously submitting conditional doctor releases, along with paperwork indicating he was completely incapable of working—all while failing to respond to Hyatt's requests for clarification as to the true nature of his condition. James argues that the conflicting medical documentation he submitted creates a materially disputed fact as to whether or not James could return to work. The Court found that circular reasoning does not establish a prima facie case showing Hyatt failed to accommodate him.  The Court also noted that the physicians' notes from James showed he could not perform the essential functions of his job.

The case is James v. Hyatt Regency Chicago (7th Cir. 2/13/13)