Proceeding Through that Difficult Intersection: ADAAA, FMLA and Workers Comp

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1 Proceeding Through that Difficult Intersection: ADAAA, FMLA and Workers Comp REGINA C. WILLIAMS, J.D PA R K S T O N E H E I G H T S D R I V E, S U I T E A U S T I N, T X G I N R W I L L I A M S L AW. C O M

2 Sailors know the Bermuda Triangle as an area in the Atlantic Ocean in which an unusually high number of ships and planes have disappeared. Because the interplay of three major employment laws- the Americans with Disabilities Act as amended (ADAAA), the Family and Medical Leave Act ( FMLA) and the Texas Workers Compensation Act- is so complicated, many HR professionals refer to these three laws as the Bermuda Triangle of Employment Law.

3 Several recent initiatives of the EEOC make analyzing employee leave and termination issues in the context of these statutes even more difficult than before, akin to crossing a 5-way intersection during rush hour: DANGER: NO FAULT ATTENDANCE POLICIES UNDER FIRE DANGER: INFLEXIBLE DISABILITY LEAVE POLICIES CHALLENGED BY EEOC LAWSUITS

4 INTERPLAY BETWEEN ADAAA, FMLA AND TEXAS WORKERS COMPENSATION 1.EMPLOYER COVERAGE: ADAAA- 15 OR MORE EMPLOYEES FOR 20 WEEKS DURING CURRENT OR PRECEDING CALENDAR YEAR FMLA- 50 OR MORE EMPLOYEES WITHIN A 75 MILE RADIUS FOR AT LEAST 20 WEEKS DURING CURRENT OR PRECEDING CALENDAR YEAR TEXAS WORKERS COMP- APPLIES TO EVEN SMALL EMPLOYERS UNLESS EMPLOYER HAS OPTED OUT AND OBTAINED NONSUBSCRIBER STATUS UNDER STATE LAW

5 2. Employee Eligibility (con t) F M L A - A N E M P L O Y E E W H O H A S W O R K E D A T L E A S T 1 2 M O N T H A N D H O U R S P R I O R T O S T A R T O F L E A V E A N D A T W O R K S I T E W H E R E 5 0 O R E M P L O Y E E S W I T H I N A 7 5 M I L E R A D I U S F M L A F I N A L R U L E F E B R U A R Y 6, F E D E R A L R E G I S T E R, V O L. 7 8 N O. 2 5 N O I N T E R F E R E N C E I F E M P L O Y E E N O T E L I G I B L E but see, Pereda v. Brookdale Senior Living Communities, Inc. 666 F. 3d 1269(11 th Cir. 2012) ( holding FMLA protects an employee s pre-eligibility request for leave for birth six months away from interference by employer who allegedly harassed and then fired her) R E M E M B E R F M L A D O E S N O T H A V E T O B E M A G I C W O R D S U S E D B Y E M P L O Y E E T O T R I G G E R E M P L O Y E R S O B L I G A T I O N T O P R O V I D E P A P E R W O R K F O R L E A V E ALWAYS GIVE THE FORMS AND NOTICE OF RIGHTS

6 An Employee who has exhausted FMLA leave or who is not entitled to FMLA leave may still be entitled to leave or more leave under the ADAAA Avoid negative comments in s and to employees re taking leave to avoid an FMLA retaliation claim Ion v. Chevron, 2013 U.S. App. LEXIS 19761(5 th Cir. 2013) had this evidence of retaliatory motive: It looks like Mr. Ion is playing games with us I assume the paperwork for short-term disability comments means that he is looking for a doctor to give him some FMLA-qualified time off.

7 TEXAS WORKERS COMP IF THE EMPLOYER IS COVERED: An employee who has an injury arising out of or in the course of employment with exceptions possible for willful misconduct or intentional self-inflicted injuries, intoxication from alcohol or illegal drugs or willful disregard of safety rules is covered

8 3.LENGTH OF LEAVE HOW MUCH MUST AN EMPLOYER GIVE? A DA- N O S P E C I F I C L I M I T S T A T E D I N T H E A C T O N T H E A M O U N T O F L E A V E T H A T M U S T B E P R O V I D E D B Y E M P L O Y E R A S A R E A S O N A B L E A C C O M M O D A T I O N S O L O N G A S I T D O E S N O T C R E A T E A N U N D U E H A R D S H I P B U T E E O C S A Y S : INFLEXIBLE DISABILITY LEAVE IS INSUFFICIENT TO SATISFY AN EMPLOYER S DUTY TO ACCOMMODATE ADA CASES HAVE AUTHORIZED LEAVES OF FAIRLY LONG TIME PERIODS FAVORABLE CASELAW THAT AN EMPLOYEE REQUEST FOR INDEFINITE LEAVE REQUEST IS AN UNDUE HARDSHIP ANTICIPATE HOW YOU WILL DEFEND UNDUE HARDSHIP

9 FMLA- 12 WEEKS IN THE 12 MONTH PERIOD AS DEFINED BY THE EMPLOYER AND UP TO 26 WORKWEEKS TO CARE FOR COVERED SERVICE MEMBER WITH SERIOUS INJURY IF ELIGIBLE EMPLOYEE IS COVERED SERVICE MEMBER S SPOUSE, CHILD, PARENT OR NEXT OF KIN 29 US.C. 2612; 29 CFR

10 FMLA ALLOWS INTERMITTENT LEAVE Intermittent or reduced schedule leave for serious health condition Intermittent or reduced schedule leave for birth or placement of a child only if employer agrees, unless newborn or mother has serious health condition related to birth in which case employer s agreement not required Qualifying exigency (military) leave can be intermittent Intermittent leave is the most problematic of all for employers

11 NO SPECIFIC LIMIT ON AMOUNT OF LEAVE INJURED WORKER MAY HAVE UNDER STATUTE WORKERS COMPENSATION- BUT CASELAW PREVENTS EMPLOYERS FROM EXCESSIVELY SHORT RETURN TO WORK POLICIES PRIOR TO TERMINATION AS RETALIATION UNDER SECTION 451 OF TEXAS LABOR CODE EMPLOYERS CAN REQUIRE FMLA AND WORKERS COMP LEAVE TO RUN CONCURRENTLY

12 4. RESTRICTED OR LIGHT DUTY: ADA: A S L O N G A S I T D O E S N O T C R E A T E A N U N D U E H A R D S H I P O N T H E E M P L O Y E R I T I S R E Q U I R E D T O B E O F F E R E D A S A R E A S O N A B L E A C C O M M O D A T I O N A S L O N G A S M E D I C A L E X A M C O N C L U D E S E M P L O Y E E C A N P E R F O R M E S S E N T I A L F U N C T I O N S O F J O B F M L A : L I G H T D U T Y C A N N O T B E R E Q U I R E D W O R K E R S C O M P : O U G H T T O B E O F F E R E D A S I T E L I M I N A T E S E M P L O Y E E S E N T I T L E M E N T T O W A G E R E P L A C E M E N T B E N E F I T B U T N O T R E Q U I R E D T O B E O F F E R E D

13 5.REINSTATEMENT A D A : T O P R E V I O U S J O B U N L E S S U N D U E H A R D S H I P A N D I F T H A T, A S S I G N M E N T T O V A C A N T P O S I T I O N A S C L O S E T O O R I G I N A L O N E A S P O S S I B L E F M L A : R E I N S T A T E M E N T T O S A M E O R E Q U I V A L E N T J O B S E C T I O N 451: P R O T E C T I O N A G A I N S T R E T A L I A T O R Y D I S C H A R G E U N L E S S E M P L O Y E R I S A N O N S U B S C R I B E R O R E M P L O Y E R H A S A D O P T E D A N D E N F O R C E D N E U T R A L L E A V E O F A B S E N C E P O L I C Y

14 DANGER: INFLEXIBLE DISABILITY LEAVE POLICIES CHALLENGED BY EEOC LAWSUITS Sears: $6.3 million consent degree Supervalu: $32.3 One Year fixed leave policies in both cases!!!! No additional leave offered as potential reasonable accommodation caused EEOC to bring class action suits

15 CHALLENGES TO FIXED LEAVE POLICIES VS. AVOIDANCE OF WORKERS COMP RETALIATION LAWSUITS BY ADOPTION OF NEUTRAL LEAVE OF ABSENCE POLICY Denny s settled with EEOC for $1.3 million: Company policy required automatic discharge after either 12 or 26 weeks of medical leave with no additional leave offered as a potential reasonable accommodation Conflict between Section 451 neutral leave defense under

16 EMPLOYERS STILL AWAITING NEW FORMAL GUIDANCE June 8, 2011 EEOC Hearings Additional Leave as a Reasonable Accommodation EEOC ENFORCEMENT GUIDANCE :WORKERS COMPENSATION AND THE ADA July 6, 2000 (an employer may not discharge an employee who is temporarily unable to work because of disability-related injury where it would not impose an undue hardship to provide leave as a reasonable accommodation) Attendance is an essential function of every job so if individual cannot meet attendance standards the individual is unqualified under the ADA Crews v. Dow Chemical Co.287 F. App x ( 5 th Cir. 2008) ( relying on the documentation submitted by the plaintiff s physician that the plaintiff could not return to work in the foreseeable future as evidence that the plaintiff could not perform the essential function of her job and was not a qualified individual with a disability)

17 Indefinite leave is not a reasonable accommodation Amsel v. Tex. Water Dev. Bd., 464 F. App x 395, 400 (5 th Cir. 2012) Reasonable accommodation does not require an employer to wait indefinitely for the employee s medical conditions to be corrected Rogers v. Int l Marine Terminals, Inc., 87 F.3d 755, (5th Cir. 1996)

18 DANGER: NO FAULT ATTENDANCE POLICIES UNDER FIRE Don t count FMLA absences as occurrences Don t act too hastily if you treated non-disabled employees differently Carmona v. Southwest Airlines Co., 604 F.3d 848 (5 th Cir. 2010) Because leniency had been granted to similarly situated employees who were not disabled, termination of disabled employee when he reached the end of a points policy allowed jury to conclude true reason for discharge was disability

19 Verizon consent decree of $20 million in ADA lawsuit brought by EEOC in July 2011 EEOC charged that Verizon s no fault attendance policy violated ADA because policy failed to recognize any exceptions for chargeable absences caused by an employee s disability 7 step analysis for determining whether employee s absence is nonchargeable required as part of consent decree

20 WHAT S AN EMPLOYER TO DO??? Green v. Medco Health Solutions of Texas LLC, 2013 U.S.Dist. LEXIS (N.D.Tex 2013) ( granting employer s motion for summary judgment on ADA claim where Plaintiff had accumulated an excessive amount of unexcused absences in violation of attendance policy- but plaintiff had two months of absences beyond limit) Carmona v. Southwest Airlines Co., 604 F.3d 848 (5 th Cir. 2010) Because leniency had been granted to similarly situated employees who were not disabled, termination of disabled employee when he reached the end of a points policy allowed jury to conclude true reason for discharge was disability.; employer bears burden of proving affirmative defense that policy violation was but-for cause of termination. How do you handle additional chances as accommodation?

21 Intermittent Leave/FMLA : Bell v. Dallas County 432 F. App x. 330 ( 5 th Cir. 2011) Employer revoked intermittent leave because of problematic absences and full-time leave would allow County to plan for proper staffing Bell writes back no need to exhaust his FMLA leave at this time County writes back and said since he did not need to use his FMLA leave, all future absences would be considered unexcused After 5 more absences County terminates Bell s employment for violation of the attendance policy; Bell sues for FMLA retaliation Fifth Circuit upheld employer s decision because Bell s non FMLA absences exceeded 102 and were a clear violation of County s attendance policy

22 2004 DOL FMLA LEXIS 2 ( May 25, 2004): A pattern of Friday/Monday absences can constitute information that casts doubt upon the employee s stated reason for the absence Thus allowing an employer to request recertification more frequently than every 30 days.

23 Regina C. Williams, J.D Parkstone Heights Drive, Suite 350 Austin, TX