Wednesday, July 27, 2016

Preventing an Employee on Work Restrictions from Returning to Work While on FMLA Leave?

What is an employer to do when an employee who goes out on Family and Medical Leave Act ("FMLA") leave is ready to return prior to the expiration of their leave, but is not "100% cleared" to return to work?  A federal court in Florida recently addressed this issue.

Returning to Work After FMLA Leave

The FMLA grants eligible employees the right to leave in certain situations "and the right following leave 'to be restored by the employer to the position of employment held by the employee when the leave commenced' or to an equivalent position."  However, an employee does not have a right to restoration if after the FMLA-leave period the employee remains unable to perform an essential function of the position because of a physician or mental condition.  "Unable to perform the functions of the position" is defined as "the health care provider find[ing] that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position."

One way employers are able to determine whether an employee is able to perform the functions of their position, and thus whether the employee is entitled to restoration, is a fitness-for-duty certification.  The FMLA allows an employer, as part of a uniformly applied practice or policy, to condition an employee's right to be restored to her position on the employee "receive[ing] certification from the health care provider of the employee that the employee is able to resume work."  If an employee fails to provide a validly requested fitness-for-duty certification, they lose their right to restoration.

The FMLA regulations concerning fitness-for-duty certifications contemplate two types of certifications:  1)  one where the healthcare provider certifies that the employee is "able to resume work"; 2) one that "specifically address[es] the employee's ability to perform the essential functions of the employee's job."  In order to require either type of fitness-for-duty certification as a condition for restoration, the employer must advise the employee in its notice designating the employee's leave as FMLA-qualifying that it will require a fitness-for-duty certification for the employee to return to work.  The FMLA regulations are more demanding on an employer who seeks to require the second type of certification.  To require the second type of certification, the employer "must provide an employee with a list of the essential functions of the employee's job no later than " the time it gives notice of designation the employee's leave as FMLA-qualifying, and the designation notice itself must indicate "that the certification must address the employee's ability to perform those essential functions."    Regardless of which certification is required, an employer may request clarification of the certification from the healthcare provider.  "The employer may not delay the employee's return to work while contact with the health care provider is being made."

Sandra Dykstra v. Florida Foreclosure Attorneys, PLLC and Rick Felberbaum

In Dykstra, a federal district court in Florida was presented with a Motion to Dismiss for Failure to State a Claim (Rule 12(b)(6)) by the Defendants, a large Palm Beach County law firm with more than 50 employees and another lawyer, on plaintiff's FMLA interference, FMLA retaliation, and disability discrimination claims under both Title I of the Americans with Disabilities Act and Florida's comparable state law.

The plaintiff, Sarah Dykstra, was employed as the Information Technology Director for Defendants.  Due to a back injury, Dykstra took leave under the FMLA.  Approximately one month before the expiration of her FMLA leave, Dykstra told the defendants that she wanted to return to work and was able to do so.  Toward that end, Dykstra provided the defendants with a fitness-for-duty certification stating that she was medically cleared to return to work with light duty restrictions.  Defendants refused to allow Dykstra to return to work until she was "100% cured."  

A few days before Dykstra's FMLA leave was to expire, defendants informed Dykstra that she could not return to work unless she provided a medical certification confirming that she was medically cleared to return to work without any restrictions.  On the day Dykstra's leave expired, defendants informed Dykstra that her employment would be terminated if she could not return to work in two days "100% cured."  When Dykstra didn't do this, she was fired.  In her complaint, Dykstra alleged that she was "able to perform the essential functions of the IT Director position with light duty restrictions."

Court's Decision DENYING Defendants' Motion to Dismiss for Failure to State a Claim

In denying the defendants' motion to dismiss, the Court noted that Dykstra's complaint was silent as to which type of fitness-for-duty certification the defendants required, but based on the facts and rest of the allegations contained in the complaint, the Court concluded that the first, less onerous, type of fitness-for-duty certification was requested.  

Defendants argued that Dykstra failed to state a claim under the FMLA because her right to be restored to her position was conditioned upon her providing a satisfactory fitness-for-duty certification and that the "light duty restrictions" qualifier to Dykstra's fitness-for-duty certification rendered the certification inadequate and entitled them to refuse to restore Dykstra to her position and ultimately terminate her.  Thus, the Court stated, the question before them was whether an employee who provides a fitness-for-duty certification that she is able to return to work "with light duty restrictions" may state a cause of action under the FMLA when the lower threshold "able to resume work" certification is requested.  The Court held that the provision for such a fitness-for-duty certification does not foreclose an employee's FMLA claim.

The Court held that an employee may be "able to resume work" even if she is unable to perform all the essential functions of her job, depending on the specific facts of the case, which may be more dispositive in a motion for summary judgment.  In making this conclusion, the Court noted that if the ability to resume work and the ability to perform all the essential functions of the job were synonymous, the FMLA regulations would not reference two standards and mandate heightened requirements before the employer could insist on a more demanding "ability to perform essential functions" certification.  As it applies to Dykstra, all she was required to provide was a certification from her healthcare provider that she was able to resume work, "i.e., that she was not 'unable to work at all.'"  

The Court went on to clarify that the FMLA does not require an employer who fails to properly request an "ability to perform essential functions" certification to retain an employee who is unable to perform the functions of the position.  If an employer fails to request an "ability to perform essential functions" certification," the employer may still require medical examination of the employee to ensure that she is able to perform the essential functions of her position.  In Dykstra, the Court was only addressing whether Dykstra complied with her FMLA regulatory obligation to provide a satisfactory fitness-for-duty certification.  If it is later discovered that Dykstra is in fact not able to perform the essential functions of her position, she would not be entitled to reinstatement.

Because the Court found Dykstra satisfied her obligations under the FMLA with respect to supplying a proper fitness-for-duty, her claims will be allowed to proceed.  The Court also allows Dykstra's ADA and FCRA claims to proceed as the Court found she sufficiently plead that she had a "disability," as those terms are defined under the ADAAA.

The case is Sandra Dykstra v. Florida Foreclosure Attorneys, PLLC and Rick Felberbaum, Case No. 15-81275-CIV-MARRA (S.D. Florida, April 26, 2016).

Tuesday, July 19, 2016

EEOC Files Suit Against North Carolina Hospital for Its Mandatory Flu Vaccine Policy

The Equal Employment Opportunity Commission ("EEOC") has filed suit against a hospital in North Carolina alleging violation of Title VII for their mandatory flu vaccine policy, which did contain a process by which an employee can object to receiving the vaccine based on religious beliefs or medical concerns (e.g., an allergy to the vaccine's ingredients).  (I had previously written about mandatory flu shot policies here).

From the news article on the suit:
In August 2010, the hospital introduced a staff immunization policy (SIP) that requires employees to receive a flu vaccination no later than December 1 of each year. Under the hospital's SIP, an employee may request a religious exemption to the flu vaccine. The SIP provides that a religious exemption request must be made by September 1 of the year the vaccination is required or it may be denied. 
Once an employee makes a request for a religious exemption, the hospital determines whether to approve or deny the request. The hospital's manager of HR processes requests for exemption from the SIP that are based on employees' religious beliefs. According to the EEOC, the hospital failed to accommodate several employees who had a variety of religious beliefs.
The EEOC uncovered at least 4 employees who appeared to have legitimate reasons to be excluded from this vaccine policy but were denied and either reprimanded or terminated, which the EEOC alleges violates the religious accommodation component under Title VII.  The lawsuit asks the court to award back pay and compensatory damages to the terminated employees. It also seeks court orders requiring the hospital to discontinue its allegedly discriminatory practices and comply with the reasonable accommodation requirements of Title VII of the Civil Rights Act of 1964. 

7th Circuit Dismisses Professor's Section 1981 Retaliation Claim Against Colleague for Failure to State a Claim

In somewhat of an unusual case, the Court of Appeals for the 7th Circuit upheld dismissal of a plaintiff's suit for failure to state a claim when she sued one of her colleagues--who was also apparently her treating rheumatologist--under 42 U.S.C. section 1981 alleging retaliation for her complaining about anti-Jewish discrimination in the workplace (i.e., because she had an active lawsuit against her employer, Rush University Medical Center).

The plaintiff, Susan Shott, first sued Rush in 1994 claiming religious and disability discrimination where her religious claim was defeated but she was awarded $60,000 for her disability discrimination claim.  Shott then sued Rush again in 2011 alleging, among other things, that Rush administrators refused to increase her salary or promote her to full professor in retaliation for her earlier lawsuit.  The district court granted summary judgment and the 7th circuit affirmed.

While Shott's second lawsuit against Rush was pending, Shott then sued the current defendant, Robert S. Katz, "whom she had occasionally helped with statistical analysis."  Shott sued Katz alleging that, in retaliation for her ongoing litigation against Rush, Katz impeded her career advancement by rebuffing her invitations to collaborate on research articles.  Shott also accused Katz of retaliating against her by refusing to respond in timely fashion to her requests for prescription refills.

The lower court dismissed Shott's complaint for failure to state a claim, explaining that Katz's alleged withholding medical treatment did not state a claim for retaliation under section 1981 because Shott had not alleged that Katz's medical care affected her employment and also that Shott failed to allege a sufficient "nexus" between Katz's refusal to collaborate and her career advancement at Rush.  The lower court gave Shott 14 days to file an amended complaint, but she chose to appeal to the 7th circuit instead.

To state a retaliation claim under section 1981 based on events occurring in the workplace, an employee must show that she suffered a materially adverse action because she engaged in protected activity.  Furthermore, "individual employees can be held liable under Section 1981 if they 'participated' in the retaliatory conduct."  Shott argued that the lower court construed section 1981 too narrowly when they required her to allege that Katz's acts of retaliation were related to an adverse employment action.  The 7th circuit agreed with Katz but found this to be nevertheless unhelpful for her as Shott did not allege Katz was under any obligation to work with her or that he discouraged anyone else from working with her and that even if Katz's refusal to collaborate with her was in any way motivated by her litigation against Rush, it would not be actionable under section 1981.  Moreover, Katz's decision about what research projects to pursue-and with whom-are protected by the 1st Amendment.

Regarding Shott's allegations that Katz retaliated against her by requesting to examine her every 6 months as a condition of continuing her prescription, the court was rather blunt:

"If she was not willing to comply with that obviously reasonable condition, she should have tried to find a new doctor, not filed a federal civil rights lawsuit against Katz."

The case is Susan Shott v. Robert S. Katz, Case No. 15-3528