By Sara Eber Fowler

Seyfarth Synopsis: Last minute scheduling change?  Want to make sure you have enough employees on stand-by to cover shifts?  In a growing number of areas around the country, that will cost you. 

Fair scheduling laws – sometimes referred to as “predictive” or “predictable” scheduling – are popping up in city councils and state legislatures across the nation. Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of “predictability pay” – such as one hour of pay for every four hours of scheduled work – if changes are made to an employee’s schedule on short notice.  These laws also tend to require predictability pay if employees are “on call” but not called in to work, and some restrict the ability to schedule employees for closing and opening shifts (“clopenings”).

San Francisco was the first to pass a law of this kind, which went into effect in July 2015. But in the past year, more states and cities have passed – or are considering – similar legislation.  In June, Oregon became the first state to pass a fair scheduling law (effective July 2018).  Emeryville, CA and Seattle enacted scheduling laws that went into effect July 1, 2017, and New York City’s recently passed ordinance will be enforceable as of November 26, 2017.

Other states and municipalities (including Congress) have introduced predictable scheduling legislation, including Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, and Washington, D.C. (Georgia, on the other hand, has taken the opposite approach, and passed a law that prohibits municipalities from passing a law that would require predictability pay.)

The theory behind these laws is that uncertainty in scheduling and last-minute scheduling changes wreak havoc on employees’ ability to plan for caregiving needs, hold second jobs or attend school, and plan their income. Several national retailers have already been forgoing “on-call” scheduling practices, irrespective of any legal mandate.

Retailers should be mindful of these new scheduling laws, particularly for those who have operations in affected jurisdictions. Bear in mind that each law varies.  In Seattle, for example, schedules must be posted 14 days in advance and employees are entitled to receive half-time pay for any shift they are “on-call” but not called to work.  New York City’s law, on the other hand, only requires schedules to be posted with 72 hours’ notice, but bans on-call scheduling altogether.

Many of the proposed and enacted laws also create an “interactive process” obligation – similar to the Americans with Disabilities Act – whereby employers are required to have a dialogue with employees about scheduling preferences and scheduling accommodation requests, and in some instances must grant such requests absent a bona fide business reason. They also generally prohibit retaliation against employees who request changes to their schedules.

Each statute also contains its own unique exceptions. Most do not require predictability pay if operational needs change due to natural disasters or other unforeseen changes, or if an employee requests a scheduling change, volunteers for a change, or swaps shifts.  Oregon’s law calls for the creation of a “voluntary standby list” of employees who may be called upon to work unexpected hours without receiving additional compensation.

Given the differentiation in these laws, employers with national retail operations should review their scheduling policies to ensure compliance with local laws and train management about the penalties associated with last-minute scheduling changes. For some, adopting a broad policy curbing on-call scheduling, providing advance notice of schedules, and creating voluntary “standby” lists may be helpful to comply with these varying laws with minimal interruption to business operations.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By Erin Dougherty Foley, Ashley K. Laken, and Craig B. Simonsen

Seyfarth Synopsis: According to the EEOC in this just filed lawsuit, a home care services provider in North Carolina violated federal disability rights law when it rejected telecommuting requests from an employee whose asthma and COPD “made her sensitive to workplace smells.” 

Earlier this month, the Equal Employment Opportunity Commission filed suit against a home healthcare company to “correct unlawful employment practices on the basis of disability.”  In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a “qualified individual with a disability,” with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.

According to the EEOC, Pennell was a case manager for patients requiring home services. As a case manager, Pennell was required to spend part of her day on telephone calls. In 2015, Pennell began to experience frequent asthma attacks and flare-ups of bronchitis.  After collapsing at work after a heavy bout of coughing, she was hospitalized where she was diagnosed with chronic bronchitis and COPD.

The complaint alleges that as a “consequence of asthma, bronchitis, and COPD, Pennell experiences wheezing, severe bouts of coughing, and asthma attacks,” and that Pennell’s physical impairments “substantially limit her in the major life activity of breathing. . . and constitute a disability under the ADA.” The EEOC alleges that scents and odors aggravate Pennell’s COPD and asthma, that she worked in a cubicle in close proximity to hundreds of other employees, and that she was therefore subjected to these types of irritants, including the smell of smoke on other employees’ clothes.

The EEOC claims that Pennell’s supervisor “ignored Pennell’s repeated requests to telework” and that teleworking would have allowed Pennell to be away from actual and potential respiratory irritants. The EEOC also claims that Pennell’s supervisor told her she would terminated if she could not return to work without restrictions.  The complaint alleges that Pennell could have performed the essential functions of her position with the reasonable accommodation of telework.  The EEOC also claims that as a consequence of Pennell’s disability, she had difficulty talking continuously for extended periods of time, and if she had been allowed to telework, she would not have been required to take inbound calls and therefore would have spent less time on the phone.

Employers should note that this scenario is somewhat unusual but that telecommuting has been an issue on the EEOC’s radar for the last several months (i.e., is working from home a reasonable accommodation?). Right how we only have the EEOC’s allegations and no response from the employer.  (We’ll be keeping an eye on this litigation to see how it plays out.)  However, the critical take away (regardless of how the employer responded) is the proper handling and response to employee accommodation requests.  Company policies and procedures as well as internal manager training systems for these sorts of requests and responses should be well set out and diligently followed.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By Rachel Hoffer, John P. Phillips and Mahek Bhojani

Seyfarth Synopsis: In a recent win for employers, the Fifth Circuit clarified that opened-ended or unlimited requests to work from home are unreasonable under the Americans with Disabilities Act (“ADA”) and may be rejected during the interactive process. In addition, the Court instructed lower courts to give preference over other factors to the employer’s judgment about what constitutes the “essential functions” of a particular job.

In today’s hyper-connected world, with more and more workers seeking to telecommute, the EEOC and plaintiffs’ attorneys often take the position that working from home should always be a viable and obligatory accommodation under the ADA. Employers, especially those who allow limited telecommuting, often find themselves defending failure-to-accommodate claims after rejecting requests for unlimited telecommuting.  Fortunately for employers, the Fifth Circuit recently ruled that in most cases employers do not have an obligation to allow telecommuting as a reasonable accommodation.  In addition, the Court reaffirmed that, in determining what job functions are truly “essential,” an employer’s judgment takes precedence over all other factors.

This case makes clear that open-ended telecommuting is rarely required under the ADA, and it also reassures employers that it is their call which functions their jobs require. Because it’s up to employers to determine the essential functions of employees’ jobs, employers should take the time to reexamine their job descriptions, make sure they are up to date, and ensure that they accurately reflect the requirements of the job.  This exercise will help employers navigate the interactive process when employees seek reasonable accommodations, and will assist employers in arriving at fair, reasonable, and defensible resolutions of disability-related issues.

Case Background

In Credeur v. State of Louisiana, Renee Credeur, a former litigation attorney for the Office of Attorney General for the State of Louisiana (aka the Louisiana DOJ), brought suit against her employer for allegedly failing to accommodate her inability to work in the office following a kidney transplant, and for harassment and retaliation, under the ADA and the Louisiana Employment Discrimination Law.

In May 2010, Ms. Credeur underwent a kidney transplant and was granted an accommodation to work from home for approximately six months. She then returned to work in the office full time but three years later began experiencing complications.  Starting in October 2013 and continuing through March 2014, because of ongoing medical complications, she was granted permission to work from home.  In March 2014, the Louisiana DOJ told her that she would not be allowed to work from home indefinitely and that she was required to work in the office at least 3-4 hours a day.  She did not return to work, however, but instead applied for and was granted FMLA and additional unpaid leave from April through August 2014.  When her leave ran out in early August 2014, the Louisiana DOJ again asked Ms. Credeur to return to the office and notified her that litigation attorneys could not work from home indefinitely.

Ms. Credeur subsequently brought suit against the State of Louisiana, claiming that she should have been allowed to work from home indefinitely and as long as her doctors recommended it because working in the office was not an essential function of her job. The district court granted summary judgment for the State of Louisiana.  On appeal, the Fifth Circuit affirmed the district court’s decision, holding that the ADA did not require the employer to allow Ms. Credeur to work from home indefinitely.

The Court’s Analysis of the Failure-to-Accommodate Claim

The Fifth Circuit analyzed whether regular office attendance was an essential function of the litigation attorney’s job. Ms. Credeur argued it was not because she had successfully worked from home in the past, and that by crediting the DOJ’s statements and rejecting her testimony, the district court had engaged in impermissible credibility determinations at the summary-judgment stage. In reaching a contrary conclusion, the Court first reaffirmed that “regular work-site attendance is an essential function of most jobs.”  This is especially true, the Court continued, when the position is interactive and involves a significant degree of teamwork.

To determine what constitutes an essential function, the Court noted that the ADA itself mentions only the “employer’s judgment”—and any written job descriptions—on that issue.  The Court also referred to the EEOC’s ADA regulations, which identify several other factors, including the amount of time spent performing the particular function, the consequences of not performing it, and the work experience of past incumbents, among others.  Importantly for employers, the Court explained that “we must give greatest weight to the ‘employer’s judgment.’”  The Court further concluded that “[a]n employee’s unsupported testimony that she could perform her job functions from home” is insufficient to avoid summary judgment.

With respect to the specific position at issue, the Court reviewed contemporary emails from DOJ personnel and consistent testimony of Ms. Credeur’s supervisors to conclude that regular attendance in the office was an essential function of the litigation attorney job, that Ms. Credeur’s continued absence from the workplace created significant problems for her department and prevented her from executing her work effectively and efficiently, and that her request to work from home on an open-ended basis was not reasonable.

Takeaways for Employers

The Fifth Circuit’s decision joins an increasing number of courts holding that regular workplace attendance is an essential function. This decision also establishes that requests for unlimited or open-ended telecommuting in most cases is not a reasonable accommodation under the ADA.  In addition, the decision emphasizes that courts must give weight to the employer’s own judgment about what constitutes an essential job function.  While helpful, employers will not be able to take full advantage of the ruling unless they have accurate, up-to-date job descriptions that identify the essential functions of the job—including factors requiring regular attendance at the workplace.  Take this opportunity to examine and update your job descriptions.

 

By John P. Phillips

Seyfarth Synopsis: For several years now, employers and the EEOC have been at odds over whether employers must automatically reassign a disabled employee to an open position as a reasonable accommodation, or whether employers can maintain a policy of hiring the most-qualified individual for the position, by requiring a disabled employee to compete for open positions against other interested employees. Fortunately, in two recent decisions, the Eleventh Circuit and a Texas district court have helped clarify that an employer’s policy of hiring the most-qualified individual for a job does not violate the ADA.

Many employers post all open positions at their facilities and allow all qualified employees to bid on any job they desire. This allows the company to hire the right employee into the right position, and allows everyone to know that promotions and job opportunities are decided by merit.  These bidding policies help the employer promote open and fair policies, and they promote efficiency, performance, and trust in the workforce.

However, in recent years, the EEOC has challenged these policies, alleging that they discriminate against disabled employees. Accordingly to the EEOC, employers must automatically place even a minimally-qualified disabled employee into an open position as a reasonable accommodation, even if the employer would otherwise open the position to bidding by all employees and even if there are other better-qualified candidates who are interested in the job.

The EEOC’s position has naturally caused significant concern for many employers with open bidding policies. Fortunately, two recent decisions reinforce the right of employers to hire the best candidate for the job.

In December, the Eleventh Circuit Court of Appeals held that “the ADA only requires an employer to allow a disabled person to compete equally with the rest of the world for a vacant position” and does not require the employer to automatically reassign an employee without competition.

In that case, EEOC v. St. Joseph’s Hospital, Inc., the plaintiff was employed as a clinical nurse in the hospital’s psychiatric ward.  The plaintiff developed spinal stenosis, for which she required the use of a cane.  St. Joseph’s had significant safety concerns related to the presence of a cane in the psychiatric ward, and eventually determined that it was too dangerous to allow a cane in the ward.  The hospital gave the plaintiff 30 days to bid on another position at the hospital.  Although there were over 700 positions available, the plaintiff waited three weeks to apply for any jobs at all, and ultimately only applied for three jobs within the 30-day time period.  She was not hired for any of the positions and eventually was terminated.

Following a jury trial, the EEOC argued on appeal that the ADA requires reassignment without competing against non-disabled employees. The Eleventh Circuit ruled against the EEOC.  The Court outlined a multi-part test to determine whether the requested accommodation—automatic reassignment to an open position without competing against non-disabled employees—was reasonable:

  1. The plaintiff must show that his or her requested accommodation is reasonable on its face, i.e., “ordinarily or in the run of cases.”
  2. If the plaintiff does so, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the facts of the particular case.
  3. If the plaintiff does not carry his or her burden at step one, the plaintiff can still prevail, provided he or she can show that there are special circumstances in that particular case making the accommodation reasonable.

The Eleventh Circuit affirmatively found that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’” Consequently, the Court found that where the employer has a merits-based selection policy, the ADA only requires the employer to allow a disabled person to compete equally for a vacant position.  And in that case, given that the plaintiff had not attempted to show any special circumstances that warranted requiring the hospital to ignore its best-qualified hiring policy, the Court found that the hospital had not violated the ADA by requiring the plaintiff to bid for an open position.

In March, in EEOC v. Methodist Hospitals of Dallas, the Northern District of Texas was faced with an almost identical fact pattern.  There, the Court noted that the Fifth Circuit had not directly addressed the issue, but found that “the weight of Fifth Circuit authority holds that the ADA does not entitle a disabled employee to preferential treatment.”  In making its holding, the Court adopted the reasoning in the Eleventh Circuit’s St. Joseph’s Hospital decision in full, and held that Methodist’s policy of requiring disabled employees to compete with non-disabled applicants in order to hire the best candidate does not violate the ADA.

Taken together, these two recent decisions should provide comfort to employers with open bidding policies. However, employers should be aware that despite these set-backs, the EEOC is not likely to agree that open bidding policies comport with the ADA.  The federal courts have not yet agreed uniformly on this issue, and the EEOC consistently cites to cases out of the Seventh Circuit, the Tenth Circuit, and the D.C. Circuit to support its position.  Although these cases have been distinguished by the Eleventh Circuit and the Northern District of Texas, employers in those districts should be especially alert when dealing with reassignment requests from disabled employees.

In addition, whenever presented with a request for accommodation, employers should not jump to any conclusions or make any rash decisions. It is always a best practice to refer all disability claims to HR, go through the interactive process, stay in communication with the disabled employee, and, above all, document, document, document.

Fortunately, these decisions strengthen employers’ ability to maintain merits-based selection policies, and will help companies continue to hire the right employee into the right position.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Absence Management and Accommodations Team, the ADA Title III Team, or the Workplace Counseling & Solutions Team.

 

By Bridget M. Maricich

Seyfarth Synopsis: Though only an informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation. Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.

Citing an increase in charges of discrimination based on mental health conditions during fiscal year 2016, the EEOC released a “resource document” on December 12, 2016, explaining “workplace rights” for individuals with mental health conditions under the Americans with Disabilities Act (ADA).  The resource document – Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights – is presented in a question and answer format intended for applicants and employees.  The informal guidance is a useful primer for understanding the EEOC’s expanding stance on employer obligations to provide reasonable workplace accommodations.

At first blush, the resource document is nothing new. In question 1, the EEOC reiterates that employers are prohibited from discriminating against applicants and employees because of a mental health condition.  The document also notes that employers do not have to hire or retain individuals who are unable to perform the essential functions of a job or who pose a direct threat. However, the Agency strongly caveats that employers must “rely on objective evidence,” “not myths or stereotypes,” that would indicate that an individual is unable to perform a job or poses a significant safety risk, even with a reasonable accommodation, before taking an adverse action against the individual.

Question 2 addresses the right of an applicant or employee to keep a mental health condition private. The EEOC notes that under the ADA, employers are only permitted to ask questions about the medical or health information of an applicant or employee when (1) an individual requests a hiring process or workplace accommodation; (2) when the employer requests medical information or testing post-offer, but pre-employment, provided everyone entering the same job category is subject to the same requirement; (3) when the employer is engaging in affirmative action for persons with disabilities; and (4) when there is “objective evidence” that the employee may not be able to do his or her job or poses a safety risk in the workplace because of his or her condition.

Questions 3 through 6 respond to hypothetical questions about when a reasonable accommodation may be required, how to request one, and the employer’s obligation to respond, even when no accommodation exists that permits an employee to fulfill the essential functions of a position. The EEOC’s responses here reveal the breadth of the Agency’s interpretation of the ever-vexing question of what constitutes a reasonable accommodation.  In the first instance, in response to Question 3, the EEOC, without using the word “disability,” states that an individual is entitled to a reasonable accommodation for “any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity.’”   The EEOC notes that the mental health condition need not be either permanent or severe to constitute “substantially limiting” and that conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should “easily qualify.”

The answer to Question 3 also provides broad, if imprecise, definition of reasonable accommodation, defining it as simply “some type of change in way things are normally done at work” and providing standard examples such as altered break and work schedules, quiet office space, changes in supervisory methods, along with some more controversial recommendations, such as choice of specific shift assignments and permission to work from home. And in Question 6, the Agency re-states the EEOC’s vague standard that an employee who is unable to perform the essential functions of his or her position, even with an accommodation, may be entitled to an indeterminate amount leave – independent of FMLA leave – that “will help you get to a point whether you can perform those functions.” The document also notes that failing leave, if an employee is “permanently” unable to perform his or her job, he or she may be entitled to job reassignment.  Importantly, the Agency does not caveat here that any request for reasonable accommodation must be fundamentally intended to facilitate the employee’s performance the essential functions of the job. Rather, the document implies that by virtue of having a mental health condition an individual or employee may be entitled to ask for some “change in the way things are normally done at work.”

Questions 4 and 5 fortunately return to well-worn ADA principles. The EEOC directs employees who need a reasonable accommodation to ask for one and encourages employees to do so before workplace difficulties arise because “an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.” The EEOC also notes that  employers are entitled to ask for health care provider documentation verifying the employee has a mental health condition and requires a workplace accommodation because of it.  The document provides the link to what it terms the “companion document” –The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work .  The EEOC suggests that individuals provide the document to their health care providers when seeking medical documentation in relation to a request for a reasonable accommodation.  The document also reminds that if a reasonable accommodation, justified by relevant medical provider documentation, would help an employee do his or her job, the employer must implement it barring “significant difficulty or expense.”

Though only informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation.   What does that mean for employers? Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.  In light of this guidance, however, employers should strongly consider seeking trusted legal counsel before denying a requested accommodation or taking adverse action against an employee who has or is seeking an accommodation.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By Annette Tyman, Lawrence Z. Lorber, Jaclyn W. Hamlin, and Brent I. Clark

 

Seyfarth Synopsis: The first of several anticipated challenges to Executive Order 13673, “Fair Pay and Safe Workplaces,” has resulted in a preliminary injunction staying the implementation of some – but not all – aspects of the Executive Order and its implementing regulations. In a significant victory for the government contracting community, the Associated Builders and Contractors of Southeast Texas won an injunction staying the application of the reporting and disclosure requirements, as well as the prohibition on entering into mandatory pre-dispute arbitration agreements.  The Judge left the paycheck transparency provisions in effect, however, and as a result, government contractors must still plan for compliance with those requirements.

Introduction

For our readers that are interested in occupational safety and health topics, we are blogging our colleagues “Management Alert” below, with this introductory note. OSHA citations are covered among the labor laws covered by the Executive Order 13673 (Blacklisting Order). The way the Blacklisting Order reads is that the covered violations include citations which are not final, which are being contested by the employer, and which may ultimately be withdrawn through settlement or by a Judge once the employer has had a chance to present its defense.  The Blacklisting Order is another example of the government’s “guilty until proven innocent” approach to regulating businesses and employers.

Note also that the Blacklisting Order will be applicable under:

  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act of 1970 (including OSHA-approved State Plans equivalent to State Laws)
  • The Migrant and Seasonal Agricultural Worker Protection Act
  • The National Labor Relations Act
  • 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act
  • 41 U.S.C. chapter 67, also known as the Service Contract Act
  • Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity)
  • Section 503 of the Rehabilitation Act of 1973
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1972 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974
  • The Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • The Americans with Disabilities Act of 1990
  • The Age Discrimination in Employment Act of 1967
  • Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors)

In a significant victory for the government contracting community, a federal judge sitting in the U.S. District Court for the Eastern District of Texas partially stayed the implementation of Executive Order 13673, “Fair Pay and Safe Workplaces,” referred to in the government contracting community as the “Blacklisting Order.”  As discussed in more detail here, the Blacklisting Order would:

  1. Require government contractors to disclose “labor law violations” under fourteen different statutes and Executive Orders when bidding for or modifying contracts;
  2. Prohibit employers from entering into mandatory pre-dispute arbitration agreements with employees; and
  3. Require certain disclosures to independent contractors and employees concerning their employment status and information related to wages and hours worked.

When the White House issued the Executive Order, the government contracting community expressed concerns about the substantial burdens it would impose on businesses and noted that the Order seemed to exceed the limits of Executive power.  Judge Marcia Crone, a federal judge in Texas, agreed.  Late on October 24, 2016, Judge Crone issued a preliminary injunction blocking: (1) the labor law violations disclosure requirements and (2) the prohibition against entering into mandatory pre-dispute arbitration agreements.  The preliminary injunction applies to all federal contractors subject to the Executive Order and it blocks all aspects of the requirements and the implementing regulations, except the paycheck transparency provision.

The Plaintiffs, an association of government contractors in Texas, argued that the Executive Order and its implementing regulations and guidance exceeded Executive power and would impose irreparable harm on their businesses.  Judge Crone found the Plaintiffs’ arguments compelling with regard to the reporting and disclosure requirements and arbitration clause prohibitions, and stayed the implementation of those requirements.

In her decision, the Judge addressed several of the arguments raised by the contracting community Plaintiffs and the government Defendants.

  • The Judge found that the Executive Order and its implementing regulations and guidance likely exceeded the limits of Executive power.
  • She noted that fourteen statutes and Executive Orders of which the Blacklisting Order requires contractors to publicly disclose “violations” all have their own detailed enforcement mechanisms and penalties.
  • The Judge noted that under the Blacklisting Order, a contractor could face debarment or disqualification even if it was contesting a violation or over nothing more than the issuance of a citation by an individual government agency official.
  • Judge Crone also found persuasive the Plaintiffs’ arguments that the provisions of the Executive Order and Final Rule which restrict or prohibit certain mandatory pre-dispute arbitration agreements are in violation of the Federal Arbitration Act and the government’s general policy in favor of arbitration.
  • The Judge found the reporting and disclosure requirements to be “compelled speech” that likely violates the contractors’ First Amendment rights and also agreed that the Executive Order likely violates contractors’ Due Process rights by “compelling them to report and defend against non-final agency allegations of labor law violations without being entitled to a hearing at which to contest such allegations.”
  • Judge Crone found that the Executive Order is likely arbitrary and capricious “in view of the complex, cumbersome, and costly requirements . . . which hamper efficiency without quantifiable benefits.”

Although the contracting community’s victory is substantial, it was not complete, as Judge Crone left the paycheck transparency provisions to take effect on their regular schedule (starting on January 1, 2017).  The paycheck transparency provisions require that contractors with procurement contracts of $500,000 provide their employees with a document disclosing “the individual’s hours worked,  overtime hours, pay, and any additions made to or deductions made from pay.” For exempt employees, the document may omit information concerning overtime hours worked so long as the individual has been informed of his or her exempt status.  Covered contractors in states with equivalent paycheck transparency laws, such as New York and California, are deemed to be in compliance with the Executive Order’s requirements so long as they comply with their state’s paycheck transparency law.  Contractors should also be aware that there is always a possibility that the preliminary injunction may be lifted – whether by the Fifth Circuit or another federal court – and in that event, the reporting and disclosure requirements could be reinstated.  For that reason, covered contractors may wish to continue to collect data in case they find themselves once again subject to the reporting and disclosure obligations.

The request for – and subsequent partial granting of – a preliminary injunction staying the implementation of certain provisions of the Blacklisting Order is only the opening salvo in what is likely to be a long fight between the contracting community and the federal government.  As we discussed in our previous alert on the topic, multiple court challenges are possible, and the Blacklisting Order’s provisions may appear before Congress at some point.

Meanwhile, thanks to Judge Crone’s preliminary injunction, the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements are enjoined until further notice, while we continue to closely monitor developments.  Preliminary injunctions typically remain in effect at least until the conclusion of the underlying litigation.  The Plaintiffs may petition the court for the preliminary injunction to become permanent, blocking the government from enforcing the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements (unless the injunction is overturned).  Or the government Defendants may appeal to the U.S. Court of Appeals for the Fifth Circuit, perhaps paving the way for an ultimate ruling by the U.S. Supreme Court.  The ultimate resolution of the contracting community’s concerns about the Blacklisting Order remains to be seen.  One thing is clear, however: while government contractors should be pleased with their victory in Texas, they must still plan to comply with the paycheck transparency provisions.  The contracting community has won the first battle, but the war over blacklisting continues.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OFCCP & Affirmative Action Compliance Team, the OSHA Compliance, Enforcement & Litigation Team, or the Workplace Policies and Handbooks Team.

By David J. Rowland

Seyfarth Synopsis: A divided panel of the Eighth Circuit recently decided that an employer may be required to assume or infer from the circumstances that an employee is seeking a reasonable accommodation – even when no affirmative request is made.

The courts and the Equal Employment Opportunity Commission (EEOC) have made clear for decades that an employer’s obligation to engage in the interactive process under the Americans with Disabilities Act of 1990 (ADA) is not triggered until the employee seeking reasonable accommodation actually requests assistance.

To quote a recent case decided by the EEOC: “generally an individual with a disability must request a reasonable accommodation by letting the [employer] know the individual needs an adjustment or change at work for a reason related to a medical condition” Adina P. v. Brennan, 2016 EEOPUB LEXIS 336 (EEOC 2016).  To be sure, no “magic words” have been required and no court would expect each employee to ask for a “reasonable accommodation” by those words, but, until now, courts have uniformly required that an employee at least indicate that she wants help or assistance because of a disability.

Earlier this month, though, a divided panel of the Eight Circuit Court of Appeals, lowered the bar substantially and held that a jury should determine whether an employee requested a reasonable accommodation by simply notifying her supervisor that she could not obtain a required CPR certification until after she completed physical therapy. See Kowitz v. Trinity Health, et al., Case No. 15-1584 (8th Cir. October 17, 2016). The employee never asked to be given extra time to complete the certification, nor to be transferred to another position that did not require CPR certification.  Still, the majority held that a reasonable jury could find that the employer “understood” the employee’s communications to be a request for accommodation. Id. at p. 9, n. 1.

The dissenting judge reiterated the point that virtually every employer would assume to be true: “an employee who wants additional assistance cannot ‘expect the employer to read her mind and know she secretly wanted a particular accommodation and then sue the employer for not providing it” Id. at p.12 (citation omitted).

Blurring a Bright Line

Thus, what was a bright line rule has been blurred, but, as usual, the particular facts of the case may have driven the majority to this hand-scratcher of a result.

The plaintiff was a respiratory therapist with cervical spinal stenosis, She had undergone surgery, and had returned to work on October 19, 2010 with the restriction of a reduced schedule until November 29, 2010 (yes, the dates may be important).   In the meantime, on November 19, 2010, her supervisor posted a memo directing all of the respiratory therapy department’s employees to provide updated copies of their basic life support (BSR) certifications by November 26 and added :”If you are not up to date you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BSR class”.

On November 30, having already passed the written component of the BSR test, the employee wrote a letter to her supervisor indicating that she “will not to be able to do the physical part of the BSR” until cleared by her doctor, with whom she had an appointment on December 2 and also thanked the supervisor “for understanding [her] condition”. On December 2, the employee’s doctor opined that she could not take the physical portion of the BSR test until she had completed at least four additional months of therapy.  The employee left a voicemail with the supervisor that evening.  The very next day, December 3, she was terminated for failing to provide the certification.

This sequence of events (and perhaps the seemingly harsh and abrupt decision to terminate) lead the majority to conclude that the employee’s written notification of the need for clearance and her follow-up communication about needing four months of therapy “could readily have been understood to constitute a request for reasonable accommodation”. Id. at 9.

Bad facts often make for bad law, and many employers in the same circumstances would have taken the logical step of engaging the employee in an interactive dialogue. But, as the dissent rightly noted,  the idea that there can be such a thing as an implied or understood  request for accommodation generates “regrettable uncertainty” by “eliminating the requirement of a clear request for accommodation”.  Id. at 13.

Employers take heed: a request for reasonable accommodation may be implied by the circumstances in some instances.  As a result, it is more dangerous than ever to ignore the warning signs that an employee is seeking help.

For more information on this topic, please contact the author, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

By Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: Recently decided court case finds that motor vehicle carriers may lawfully require overweight drivers to submit to a medical examination testing for obstructive sleep apnea.

We had previously blogged about the U.S. Department of Transportation’s Advance Notice of Proposed Rulemaking on the “Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea.” 47 Fed. Reg. 12642 (March 10, 2016).  The American Journal of Industrial Medicine, with the National Institute for Occupational Safety and Health (NIOSH), had found that U.S. long-haul truck drivers were twice as likely to be obese compared to the adult working population, as well as more likely to smoke and suffer from other risk factors for chronic disease. “Obesity and Other Risk Factors: The National Survey of U.S. Long-Haul Truck Driver Health and Injury” (Jan. 2014).

An interesting Eighth Circuit Court of Appeals case, Parker v. Crete Carrier Corp., et al., No. 16-1371 (8th Cir. Oct. 12, 2016), delves into the underlying issues related to these previous blogs. Notably, the oral argument in front of the Court is available for listening.

Crete Carrier Corporation (Crete) required its truck drivers with a Body Mass Index (BMI) of 35 or greater to submit to medical examinations to determine whether they had obstructive sleep apnea. Drivers found to have obstructive sleep apnea were placed in a treatment regimen. One driver, Robert J. Parker, refused to submit to the examination. In response, Crete stopped giving Parker work. Parker then sued Crete, alleging it violated the Americans with Disabilities Act (ADA) by requiring the examination and discriminating on the basis of a perceived disability. The District Court granted summary judgment to Crete. Parker appealed.

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) requires commercial vehicle drivers to get medical examinations every two years to ensure they are physically qualified to operate commercial vehicles. The exam measures height and weight, assesses health history, tests vision, hearing, blood pressure and urine, and physically examines body systems.  Two advisory committees, the Medical Review Board and the Motor Carrier Safety Advisory Committee, have recommended that FMCSA amend its certification standards to reduce the risks from drivers who have obstructive sleep apnea.

When analyzing Parker’s claim against Crete, the court noted that an employer requiring a particular class of employees to get a medical exam must show that the exam is job-related and that it is a “business necessity.” To constitute a “business necessity,” there must be a reasonable basis for concluding that the class of drivers required to be examined poses a genuine safety risk. Moreover, the employer’s exam requirement must enable the employer to reduce that risk.

The Eighth Circuit concluded that Crete’s suspension of Parker was not a violation of the ADA because Parker refused to submit to a lawful medical examination. Crete factually established that “untreated obstructive sleep apnea tends to impair driving skills, increasing the risk of motor vehicle accidents by 1.2- to 4.9-fold.”  Moreover, “a sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis.”  Because obesity and BMIs above 33 are closely linked to obstructive sleep apnea and seeking treatment for sleep apnea decreases the risk of motor vehicle accidents, the Court found that the sleep study requirement for overweight drivers was a business necessity.

In light of the findings on sleep apnea, employers in the long-haul trucking industry should pay attention for changes in the law related to enhanced driver testing requirements, and ensure that any driver testing policies for a subset of drivers would constitute a business necessity in the eyes of the courts.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team, the Workplace Counseling & Solutions Team, or the ADA Title III Team.

 

By Johanna T. Wise and Ryan L. Behndleman

Seyfarth Synopsis: Do employers have to let employees sleep on the job as a reasonable accommodation for a disability? While far from being decided, a recent federal case in the Southern District of New York addresses the issue.

Let’s face it, we all get tired from time to time. While on the clock, however, sleeping at work is a practice that employers invariably frown upon. Earl Beaton learned this the hard way when he was fired from his job with New York City’s Metro Transit Authority (MTA) after briefly nodding off during his shift. But Mr. Beaton’s situation is not as clear as it seems because he fell asleep due to a side effect caused by his necessary prescription medication. Mr. Beaton did not intend to take his termination lying down, so he filed suit against his former employer for discriminating against his disability.

Background

Mr. Earl Beaton was diagnosed with schizophrenia and depressive disorders in 1985. Without medication, Beaton is prone to psychotic episodes and delusions. To counteract these symptoms, Beaton was prescribed an anti-psychotic medication called Fluphenazine, which can cause drowsiness.

Beaton disclosed his illness to his employer in 1995, and was able to work for many years without incident while taking the medication as prescribed. In 2000, Beaton was even promoted to a position as a station agent. Then, during the overnight shift on December 23, 2013, Beaton encountered a problem. Around 1 a.m. Beaton experienced severe schizophrenic symptoms and took a pill to counteract those symptoms. Three hours later, the symptoms had not subsided, so he took another pill. The high dosage made Beaton extremely drowsy, and it appeared that he briefly nodded off. It was at this moment that Beaton’s supervisor approached and caught him sleeping on the job.

After disciplinary hearings, although Beaton denied that he was actually sleeping, MTA terminated his employment. He then filed a charge with the EEOC and soon thereafter filed suit in the Southern District of New York.

MTA’s Motion To Dismiss

Upon service of the complaint, MTA filed a motion to dismiss for failure to state a claim upon which relief can be granted. In this stage of a case, the court generally relies on the allegations made by the plaintiff to decide whether there are enough facts to sustain plausible claims. Using this standard, the court dismissed Beaton’s failure to accommodate claim but allowed the discrimination and retaliation claims to survive.

Many employers may learn of this decision and think, “What?! I can’t terminate an employee for sleeping on the job?” But rest assured, this case is far from decided. When a court decides a motion to dismiss, it looks for one key issue: Does the plaintiff have plausible claims based on what the plaintiff alleged in his complaint? Further, the court must view these allegations in the light most favorable to the plaintiff.

In his judicial opinion, Judge Edgardo Ramos assessed Beaton’s discrimination claim by using a well-established four-part test: 1) Was the plaintiff a member of a protected class? 2) Was the plaintiff qualified for the position? 3) Did the plaintiff suffer adverse employment action? and 4) Is there some minimal evidence to support an inference of discrimination? As you can see, the bar is extremely low for what will pass muster under this test. While MTA argued that Beaton’s need to sleep made him unqualified for his position, the court noted that his 13 years of satisfactory performance established that he was qualified to perform the essential functions of his job.

As for the retaliation claim, to survive a motion to dismiss the plaintiff only needs to show that he engaged in protected activity (i.e. filing a grievance with a labor union or filing an EEOC claim) that the employer was aware of, and that it caused the employer to take adverse employment action against him. Judge Ramos noted that this claim survived because there is the possibility that the termination decision occurred after Beaton engaged in protected activity, and that was enough to raise a plausible claim.

So What Happens Next?

This case is far from over. The surviving claims will enter the discovery phase to allow each side to collect evidence to support their claims or defenses. The case could be decided on summary judgment or settled at any stage of the litigation process.

It is important to note that in his opinion regarding the motion to dismiss, Judge Ramos did not decide whether employers need to allow their employees to sleep on the job as a reasonable accommodation. So what should employers do? Just as before, employers should engage in an interactive process if an employee or applicant with a disability requests an accommodation to determine if the employee can be reasonably accommodated without causing an undue hardship. Employers should also carefully review and consider consulting with an attorney before taking adverse employment action where the underlying behavior at issue is tied to a disability. But at this point, there is no need to lose any sleep over this case.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

 

By David J. Rowland

Seyfarth Synopsis: Please enjoy a recent op-ed piece written by Seyfarth attorney David Rowland, entitled “Employers Should Move Beyond Mere ADA Compliance.”  The piece originally ran on August 5 in Law360 and discusses why embracing the ADA is the future. Rowland writes that the ADA requires compliance, but, more importantly, the ADA also provides us the opportunity to increase the ranks of individuals with disabilities in our workforces. You can view the article by clicking through [here].