Employment Law Lookout

Massachusetts Employers Must Post Notice: Domestic Violence Victims Entitled To Leave

Posted in Workplace Policies and Processes

By: Beth Gobeille Foley and Daniel B. Klein

Governor Deval Patrick has signed into law An Act Relative to Domestic Violence (the “ARDV”), which took effect on August 8, 2014.  The ARDV provides up to 15 days of unpaid leave per rolling 12-month period to victims of domestic violence, sexual assault, kidnapping, and/or stalking, and certain family members, for purposes directly related to the abuse.  Such purposes may include seeking legal or medical services, counseling, or victim’s services.  The ARDV applies to all employers with 50 or more employees, although it remains unclear whether those employees need to be within the Commonwealth or nationwide.  Covered employers must notify employees of their rights under the ARDV.

An employee may take ARDV leave for his or her own abuse, or due to the abuse of a covered family member, including his or her spouse, child, parent, grandparent, grandchild, or sibling.  Perpetrators of abuse are not entitled to ARDV leave.  It is unclear whether ARDV protections will apply in situations where two parties to a domestic relationship harm each other.

Before taking ARDV leave, an employee must exhaust all of his or her accrued paid time off, including but not limited to sick time, vacation days, and personal time.  Employees must provide advance notice of their need for leave whenever possible, but this requirement does not apply if the employee or a covered family member faces imminent danger to his or her health or safety.  In the event that an employee does not provide advance notice based on a risk of imminent danger, he or she must notify the employer within three business days that the time off was related to domestic violence.  If the employee cannot notify the employer, a family member may do so on his or her behalf.  The ARDV also permits certain counselors, clergy, and helping professionals to provide such notification.

The ARDV permits employers to require documentation supporting an employee’s claim to ARDV leave.  Such documentation can consist of a protective order or other court document, police report, police witness statement, documents reflecting the perpetrator’s conviction or admission of guilt, medical documents, and/or a victim advocate’s or other helping professional’s sworn statement.  In lieu of the documents listed above, an employee may also submit his or her own sworn statement signed under the pains and penalties of perjury.

Employees taking ARDV leave need not be paid for their time off.  They are, however, entitled to return to the same or a substantially equivalent position once their leave has ended.  Employers may not terminate or reduce employment benefits based on the use of ARDV leave, and the ARDV also includes an anti-retaliation provision.  Importantly, an employer cannot discipline someone for unauthorized absences if the employee provides documentation supporting the need for ARDV leave within 30 days of the last date absent.  All information related to an employee’s ARDV leave must be kept confidential.

The Attorney General will enforce the ARDV, and can seek injunctive and equitable relief against violators.  Employees may also bring private enforcement actions.  Because the ARDV falls within the Massachusetts Wage Act, prevailing ARDV plaintiffs may be entitled to mandatory treble damages and attorney’s fees.

Because the ARDV requires employers to notify employees of their rights under the Act, covered employers are best advised to develop and distribute written ARDV policies, or to post a notice of the ARDV in a prominent workplace location.

2014 May Be a Banner Year for ADA Title III Lawsuit Filings

Posted in Title III Access

By: Minh Vu, Kristina Launey and Susan Ryan

Employers need to be mindful that places of public accommodation (i.e., a business open to the public) are subject to Title III of the ADA, which brings a whole host of new issues and concerns to keep our readers awake at night.  Our colleagues who blog about Title III developments are recognized subject matters experts on these topics and can assist should you have questions about Title III issues that might pertain to you.  Please review their attached blog from earlier this month and watch that blog for ongoing developments in this increasingly visible area of the law.

If you had a suspicion that the Title III plaintiffs have been far more active in recent years, you were right.  Our review of the federal docket shows that there was a 9% increase in the number of lawsuits filed from 2012 to 2013. What’s more, the number of lawsuits filed in 2014 may increase by nearly 40% over 2013 if the current trend continues.

Nationwide, plaintiffs filed 2,719 ADA Title III lawsuits last year, as compared to 2,495 in 2012.  That’s an increase of slightly more than 9% year-over-year.

Where were the most complaints filed in 2013?  California (995 claims), Florida (816 claims) and New York (125 claims).  The high percentage of cases filed in California is no surprise because California has a non-discrimination law that provides for statutory minimum damages of $4,000.  Plaintiffs filing in California almost always include claims under California law because their remedies under the Title III of the ADA are limited to injunctive relief and attorneys’ fees.  (If you’re in Pennsylvania, beware: June 2014 saw a slew of physical accessibility class complaints filed by the same plaintiff, Christopher Mielo, and law firm, Carlson Lynch, against numerous businesses.)

Want to avoid ADA Title III lawsuits?  Open your business in Alaska, Idaho, Montana, Nebraska, North Dakota and Vermont where no ADA Title III cases were filed in 2013.

Our research also shows that ADA Title III case filings may reach more than 3800 cases in 2014 — a whopping increase of 40%.  Already, we saw approximately 1939 ADA Title III cases filed in the first six months of the year.  We say “approximately” because the federal docket system, PACER, lumps Title II and Title III cases together under the category of “Americans with Disabilities — Other.”  We obtained the 1939 number by assuming that 86% of the ADA Title II and Title III cases reported were actually ADA Title III cases.  The 86% is based on our research department’s manual review of the 2012 and 2013 case filings to separate out the Title II and Title III cases.  That review showed that 85-87% of the total cases reported by PACER in 2012 and 2013 were Title III cases.

If you want to drill down on our methodology, here goes:  We ran a PACER search in federal district courts for nature of suit code 446, which covers non-employment ADA cases.  We then went through the resulting list of case names, eliminating those that were clearly filed against public entities that would fall under Title II.  What we had left were the Title III complaints for 2012 and 2013.  We did not undertake a manual review of the 2014 numbers but, as explained above, applied the findings from the 2012-2013 review to the 2014 numbers.

We do want to give a few of caveats about these numbers.  First of all, not all plaintiffs code their claims correctly.   For example, some of the cases we checked to determine if they were Title II or Title III claims turned out to be Title I claims that were given the wrong nature of suit code.  Secondly, there are some plaintiffs whose complaints are, to put it mildly, opaque in their intent.  We decided not to count these as Title III claims, but someone else might have reached a different conclusion.

While our approach may not be bullet proof, we can safely say that the number of ADA Title III lawsuits are on the rise, propelled by cases concerning the accessibility of new technologies and the internet.

NIOSH Draft Bulletin: Promoting Health and Preventing Disease and Injury Through Workplace Tobacco Policies

Posted in OSHA Compliance, Workplace Policies and Processes

By Craig B. Simonsen and Erin Dougherty Foley

The National Institute for Occupational Safety and Health (NIOSH) has just announced the availability of a draft Current Intelligence Bulletin (CIB) entitled Promoting Health and Preventing Disease and Injury through Workplace Tobacco Policies, for public comment.

NIOSH had previously published two Current Intelligence Bulletins devoted to tobacco use. The first one CIB 31: Adverse Health Effects of Smoking and the Occupational Environment, Publication Number 79–122, outlined several ways in which “smoking interacts with other workplace exposures to increase risk of disease and injury among workers.” The second, CIB 54: Environmental Tobacco Smoke in the Workplace, Publication No. 91–108, focused on secondhand smoke in the workplace as a cause of cancer and cardiovascular disease. That document recommended “eliminating tobacco smoking in the workplace as the best preventive approach.”

According to NIOSH, the draft CIB reflects a “strategy integrating occupational safety and health protection with health promotion to prevent worker injury and illness and to advance health and well-being.” NIOSH notes that smoking rates among “blue-collar workers have been shown to be consistently higher than among white‐collar workers.” Among blue‐collar workers, those exposed to higher levels of workplace dust and chemical hazards are more likely to be smokers. “Also, on average, blue‐collar smokers smoke more heavily than white‐collar smokers.”

The draft CIB indicates that smoking prevalence varied widely by industry, “ranging from about 10% in education services, to more than 30% in construction, mining, and accommodation and food services. Smoking prevalence varies even more by occupation, ranging from 2% among religious workers to 50% among construction trades helpers.”

In the employment context, specific toxic chemicals associated with work processes in some workplaces are also present in tobacco products and tobacco smoke, increasing exposure to those chemicals among tobacco‐using workers and workers exposed to secondhand smoke. “The overall effect of these combined exposures can be additive…, or, in some cases, synergistic.” Even without environmental exposure to tobacco and secondhand smoke, or the causing of explosion or fire, “any form of tobacco use may result in traumatic injury if the worker operating a vehicle or industrial machinery is distracted by tobacco use.”

For employers, the CIB reminds that employer responsibilities established in federal, state, and local laws and regulations, as well as health and economic considerations, can motivate employers to establish workplace policies that prohibit or restrict tobacco use in the workplace. For example, “the general duty of employers to provide safe work environments for their employees can motivate employers to prohibit smoking in their workplaces, thereby avoiding liability for exposing nonsmoking employees to secondhand smoke.”

The draft states that some employers have taken action to extend restrictions on tobacco use by their employees beyond the workplace, by “prohibiting smoking by workers during their workday breaks, when away from the workplace, including during lunchtime.” It suggests that several large employers have even barred the hiring of smokers. Such wide‐ranging policies generate substantial controversy and may be illegal in some jurisdictions based on state-specific “off-duty conduct” statutes.

In the draft CIB, NIOSH recommends that employers:

  • Establish and maintain tobacco‐free workplaces for all employees, allowing no use of any tobacco products, including but not limited to cigarettes, cigars, pipes, and smokeless tobacco products by anyone at any time in the workplace;
  • Assure compliance with current OSHA and MSHA regulations prohibiting or limiting smoking, smoking materials, and/or use of other tobacco products in work areas characterized by the presence of explosive or highly flammable materials or potential exposure to toxic materials;
  • Provide information on tobacco‐related health risks and on benefits of quitting to all employees and other workers on a regular basis;
  • Provide information on employer‐provided and publically available tobacco cessation services to all employees and other workers on a regular basis;
  • Offer and promote more comprehensive tobacco cessation support to all tobacco‐using workers and, where feasible, to their dependents;
  • Become familiar with available guidance before developing, implementing, or modifying tobacco‐related policies, interventions, or controls;
  • Develop, implement, and modify tobacco‐related policies, interventions, and controls in a stepwise and participatory manner—with input from employees, labor representatives, line management, occupational safety/health and wellness staff, and human resources professionals; and
  • Make sure that any differential employment benefits policies that are based on tobacco‐use or participation in tobacco cessation programs are designed with a primary intent to improve worker health and comply with all applicable federal, state, and local laws and regulations. Even when permissible by law, these differential employment benefit policies, as well as differential hiring policies based on tobacco use, should be implemented only after serious consideration is given to ethical concerns and possible unintended consequences, including the potential for adverse impacts on individual employees (e.g., coercion, discrimination, and breach of privacy) and the workforce as a whole.

Public comments on the draft CIB may be submitted to docket number CDC-2014-0013, and are due on September 15, 2014.

New Jersey Joins “Ban the Box” Movement and Chris Christie Safeguards Employers

Posted in Background Screening, Workplace Policies and Processes

By: Christopher Lowe and Alnisa Bell

On Monday, Governor Chris Christie signed the Opportunity to Compete Act (A1999) into law, which is designed to restrict employers from asking about prior criminal convictions on job applications.  Christie enthusiastically hailed New Jersey as “a state that believes every life is precious” and stated, “everyone deserves a second chance . . . Today, we’re banning the box!”

The law, which becomes effective March 1, 2015, applies to employers with 15 or more employees [1] over 20 calendar weeks and who do business, employ persons, or take applications for employment within the state of New Jersey.  The law prohibits employers from asking any questions (whether oral or written) about an applicant’s criminal record during the initial application process, unless the employment is for a position in law enforcement, corrections, the judiciary, homeland security, emergency management, or any other employment position where a criminal history check is required by law, rule or regulation, or where, by law, rule or regulation an arrest or conviction would preclude the person from holding such employment, or for a position designated by the employer as part of program to encourage employment of persons with arrest or conviction records. [2]

In short, subject to the limited exceptions outlined above, employers may inquire into criminal history only after the first interview has been conducted, whether in person or by other means.  Employers may then refuse to hire an applicant based on criminal history properly uncovered, unless the criminal record or relevant portion thereof has been expunged or erased through executive pardon.  Of course, an employer’s rejection of an applicant must be consistent with other applicable laws, rules and regulations.

Furthermore, an employer is prohibited from publishing any advertisement for employment that explicitly provides that the employer will not consider persons who have been arrested or convicted of one or more crimes or convictions.  Notwithstanding, this does not apply to an advertisement that solicits applicants for positions exempted under the law, as discussed above.

Most importantly, perhaps, the law provides strong protections for employers.  Specifically, it creates no private right of action, sets no standard of care or duty for employers with respect to other laws, and deems inadmissible any evidence that an employer violated the law, except in an action by the Commissioner of Labor and Workforce Development to enforce the law.

An employer who violates this law shall be held liable for a civil penalty not to exceed $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.

As you may be aware, the new law underwent several major revisions before being signed it into law.  Earlier versions placed more burdensome restrictions on employers, including, among other things, requiring employers to consider in good faith additional factors (e.g. accuracy of the criminal record, rehabilitation efforts, the nature of the offense, and the duties and settings of the job sought or held) before making an adverse employment decision; and outlining certain offenses/crimes that an employer could/could not consider when making an adverse employment decision.   Employers should be mindful that such requirements still exist in other states, as well as under the federal law.


[1] The law is not clear as to whether the employer has to have 15 or more employees within the State of New Jersey.  However, a reasonable reading of the statute, along with court interpretations of similar language in other NJ statutes, suggests that the employer need only have 15 employees in any state(s) to be covered.

[2] Employers are entitled to make inquiries should the applicant voluntarily disclose his/her criminal background.

 

“Schedules That Work Act” Seeks to Legislate Retail and Service Industries Facing Sporadic Work Schedules

Posted in Absence Management & Reasonable Accommodation, Workplace Policies and Processes

By Giselle Donado, Kevin A. Fritz, and Craig B. Simonsen

According to Democrats on the Committee on Education & the Workforce (“CE&W”), its proposed “Schedules That Work Act” (H.R. 5159) will provide relief to workers who face irregular and unpredictable schedules.

We previously blogged about President Obama’s Presidential Memorandum on Enhancing Workplace Flexibilities and Work-Life Programs. 79 Fed. Reg. 36625 (June 27, 2014). The President announced that “it is the policy of the Federal Government to promote a culture in which managers and employees understand the workplace flexibilities and work-life programs available to them and how these measures can improve agency productivity and employee engagement. The Federal Government must also identify and eliminate any arbitrary or unnecessary barriers or limitations to the use of these flexibilities and develop new strategies consistent with statute and agency mission to foster a more balanced workplace.”

Now, only a few political moments later, Congress is proposing to extend the same sorts of “flexibilities” to the private sector.  According to the CE&W bill, introduced on July 22, 2014, it would:

  • Protect employees from retaliation for requesting a more flexible, predictable, or stable schedule.
  • Create a process for employers to consider requests that are “responsive to the needs of both employees and employers.” Employees who make requests because they have caregiving duties, are dealing with a health condition, are pursuing education or training courses, or need to meet the demands of a second job “must be granted the schedule change, unless the employer has a bona fide business reason for denying it.”
  • Compensate retail, food service, and cleaning workers for at least four hours of work if an employee reports to work when scheduled for at least four hours, but is sent home early.
  • Provide that retail, food service, and cleaning employees receive work schedules at least two weeks in advance. Though schedules may later be changed, one hour’s worth of extra pay would be required for schedules changed with less than 24 hours’ notice.
  • Provide workers an extra hour of pay if scheduled to work split shifts, or non-consecutive shifts within a single day.

Not surprisingly, the American Federation of Labor and Congress of Industrial Organizations immediately came out in support of the Schedules That Work Act, saying “scheduling problems are particularly glaring in some of the fastest-growing and lowest-paying industries in the United States, including retail, food service and janitorial work.”  In further commentary, the group noted that “if you ask a worker in the retail industry what improvements can be made to their job, the response is likely to include scheduling.”

In contrast, the U.S. Chamber of Commerce sees the proposed bill differently. Marc Freedman, Executive Director of Labor Law Policy at the Chamber, said in an email to the authors, “this bill is extraordinarily intrusive in how it would direct employers to run their operations.  It will not create new jobs, open up opportunities, nor spur economic growth. In fact one potential consequence is that employers will cut back on the number of part time and other non-full time employees they carry.”

For more information on this topic, please contact the blog authors or your Seyfarth attorney.

 

OSHA and the Federal Motor Carrier Safety Administration Agree to Coordinate Responses to Whistleblower Complaints By Private Commercial Motor Vehicle Drivers

Posted in Whistleblower

By Ada W. Dolph and Craig B. Simonsen

Since 2010, OSHA has made a concerted effort to coordinate enforcement of whistleblower complaints with affiliated agencies. (See our past blog about OSHA’s coordination with the FDA here).  OSHA continues in this effort, recently announcing that it has entered into a Memorandum of Understanding (MOU) with the Federal Motor Carrier Safety Administration (FMCSA) to coordinate enforcement of the Surface Transportation Assistance Act (STAA)’s whistleblower anti-retaliation and anti-coercion provisions, found at 49 U.S.C. §§ 31105, 31136(a)(5).

The STAA protects private-sector drivers of commercial motor vehicles (CMVs) and individuals who directly affect CMV safety or security from discharge, discipline, or discrimination for engaging in “protected activities,” which include:

  • Filing a complaint or beginning a proceeding related to a violation of a CMV safety or security regulation, standard, or order, or testifying in such a proceeding;
  • Refusing to operate a vehicle because the operation violates a regulation, standard, or order of the United States related to CMV safety, health, or security, or the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition;
  • Accurately reporting hours on duty;
  • Cooperating with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or
  • Furnishing information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any federal, state, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with CMV transportation.

The STAA’s anti-coercion provisions preclude a motor carrier, shipper, receiver, or transportation intermediary from coercing a driver to operate a CMV in violation of CMV safety regulations, CMV driver regulations, or hazardous materials transportation regulations.

New coordination efforts include that upon receiving a whistleblower complaint, the FMCSA will inform the complainant that “a personal remedy for retaliation is available through OSHA, rather than FMCSA, and that the individual should personally contact OSHA,” within 180 days of the alleged retaliation.  In turn, OSHA will notify FMCSA of any complaint alleging STAA retaliation, including in instances where the complaint has been withdrawn because of a settlement.  OSHA will also provide complainants who raise FMCSA-specific safety allegations (such as willful disobedience of “the hours of service rules”) with the FMCSA hotline number and email address.  The agencies also agree to share information in their respective databases upon request and within just two (2) business days.

CMV employers should be on alert because increased coordination between OSHA and the FMCSA will likely result in an increase in whistleblower and coercion complaints.

For more information, please contact a member of the Whistleblower team or your Seyfarth attorney.

Does Your Handbook Need Help? — Why All Employers Need to Be Aware of the NLRB’s Ever Increasing Scrutiny of Employee Handbooks

Posted in NLRB, Workplace Policies and Processes

By Taron K. Murakami

Employees will not make “negative comments about our fellow team members” and will not “engage in or listen to negativity or gossip.”[1]

Company prohibits “discourteous or inappropriate attitude or behavior to passengers, other employees or members of the public,” and “disorderly conduct during working hours.”[2]

“Gossip is not tolerated at [the Company].  Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action.”[3]

Dissemination of confidential information within the Company, such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination.[4]

Do these policies look familiar to you?  Perhaps you have them, or similar versions, in your company’s employee handbook.  Employers often put in writing the expectations for its employees’ conduct, with the “standard language” that violation of those policies can lead to discipline up to and including termination of employment.  Employers may be surprised to learn, however, that the National Labor Relations Board (“NLRB”) recently found each of the above policies to be unlawful under the National Labor Relations Act (“NLRA”).

An employer’s maintenance of an overly broad rule or policy can be held to interfere with the rights of employees to engage in activity protected by Section 7 of the NLRA, which gives employees the right to form, join or assist unions, bargain collectively through representatives and engage in other “concerted activities.”  Although some employers assume that Section 7 protects only conduct engaged in during union organizing activity or in an already union workplace, the NLRB applies these protections to non-union workplaces as well as those where the employees may have no interest in unionizing.

The NLRB’s determination of whether a policy or rule violates the Act typically turns on a showing of one of the following:

  • Employees could reasonably construe that the language prohibits Section 7 activities;
  • The rule is promulgated in response to union activity; or
  • The rule has been applied to restrict the exercise of Section 7 rights.

The NLRB found that each of the above policies was overbroad and could reasonably be construed by employees to prohibit protected concerted activity under Section 7.

In another example, earlier this year, an NLRB administrative law judge found unlawful several policies that related to providing service to customers. [5]  Specifically, the ALJ found that a restaurant’s policies prohibiting “insubordination to a manager or lack of respect and cooperation with fellow employees or guests” and “disrespect to guests including discussing tips, profanity or negative comments or actions” interfered with protected rights.  It is hard to believe that an employer, particularly one in the service industry, could not establish a policy that requires its employees to treat its customers with respect, but, that is exactly what happened here.  This case is more fully discussed here.

Further complicating things for employers is the lack of clarity in the NLRB’s many different decisions striking down these so-called “overbroad” handbook policies, making it difficult to predict whether a given rule or policy will be deemed lawful or not.  Even worse, the NLRB has been scrutinizing employer policies even when its investigation arose from employee complaints that have nothing to do with the employer’s policies in the first place.  The result in many cases is that an employee can get the NLRB to issue a complaint asserting that the employee’s termination violates the NLRA, leaving the employer facing expensive and time-consuming litigation against an employee with free legal representation through the NLRB’s General Counsel office.

Given the current NLRB landscape, all employerseven those likely to never be unionizedshould review carefully their employee policies and handbooks to assess their compliance with current NLRB case law.  This, in turn, will allow companies to gauge their risk tolerance or make appropriate changes in the increasingly difficult effort to balance control of their workplace and compliance with the NLRA.  For further guidance and assistance, contact the author or your Seyfarth Shaw attorney.

More Burden For Federal Contractors Courtesy of The President’s July 31, 2014 Executive Order

Posted in Uncategorized

By: Paul Kehoe and Larry Lorber

Please see the recent One Minute Memo (here) from our colleagues in Washington D.C.  In this piece, the authors analyze the real world implications of President Obama’s recent Executive Order entitled “Fair Pay and Safe Workplaces” that, among other directives, requires prospective federal contractors to disclose “any administrative merits decision, arbitral award or decision, or civil judgment” to the contracting agency under fourteen federal statutes, Executive Orders and all equivalent state labor laws addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights protections.

 

 

 

 

 

Only a Week Left to Vote! – Employment Law Lookout in the Running for ABA’s Top 100 Legal Blogs

Posted in Uncategorized

As previously blogged about, the American Bar Association is holding its annual competition for the 100 best legal blogs and Seyfarth’s Employment Law Lookout Blog is in the running.

Whether you are an avid reader of our timely legal and news updates, enjoy our complimentary webinars, or simply utilize our legal resources page, we would greatly appreciate your support in helping our blog make the ABA’s top 100 list.

You can cast your vote at http://www.abajournal.com/blawgs/blawg100_submit/.

Hurry, the deadline to vote is August 8, 2014.

Thank you for your support.

When New Management Policies Sweep Too Broadly and Trash Existing Accommodations

Posted in Workplace Policies and Processes

By: Kelsey P. Montgomery

When new management moves in to an organization, sweeping changes to standing company policies often result.  The intention may be to signal a changing of the guard, to shake things up, or to simply update or improve internal processes.  Whatever the reason, common sense must guide implementation of such broad changes (especially if made before new managers are familiar with the employees under their supervision).  Don’t forget, things may have been done a certain way historically for a good (compliance) reason!

A federal district court in Illinois recently addressed such a situation.  A new manager’s priorities resulted in a policy change, purportedly to align company practices and apply policies even-handedly.  The change had the unintended effect, however, of eliminating an employee’s existing Americans with Disabilities Act (“ADA”) accommodation.  The plaintiff in Isbell v. John Crane, Inc., Dkt. No. 11-C-2347 (N.D. IL. March 21, 2014) took medications in the morning to manage her Adult Attention Deficit and Bipolar Disorders.  Although the plaintiff’s regular shift began at 8:30 a.m., her medications “did not kick in until several hours after she awoke.”  Historically, the employee reported to work at 10 a.m. without objection from her supervisor as long as she completed her assigned tasks.

The employer accommodated this late arrival for over two and half years.  The employee’s supervisor, however, in response to a “heightened emphasis on attendance” from his new boss, abruptly established inflexible work hours that applied to every employee in the same way, including the plaintiff and despite her prior accommodation.  In response to Plaintiff’s renewed requests for a reasonable accommodation, her start time was moved to 9:15 a.m.  Plaintiff was unable to arrive to work at the designated time and continued to submit medical documentation to her employer supporting her requests for a 10:00 a.m. start.  After months of tardiness and no change in her start time, Plaintiff was terminated for violating Defendant’s attendance policy.  In response, the employee brought a failure-to-accommodate claim under the ADA.

In granting the plaintiff’s motion for summary judgment, the court stated that “[n]o real reason has been proffered by [the employer] as to why a new management broom…should be entitled to start by subjecting [plaintiff] to a one-size-fits all timing sweep.”  For the Court, the issue was not whether allowing plaintiff to report to work late was a reasonable accommodation, but rather whether “it was reasonable for [her employer] to withdraw that existing accommodation” abruptly through a unilateral policy change.  The Court also considered whether continuing that accommodation created an undue hardship for the company – something its management should have considered before implementing the new policy.

This case signals to employers that, despite a changing of the guard, managers seeking to implement new policies or change outdated ones should take care to carefully consider any potential ADA implications before altering a covered employee’s standing accommodation.