By Jennifer L. Mora and Anthony S. Califano

Synopsis: On September 5, 2018, a federal district court in Connecticut granted summary judgment to a job applicant after an employer refused to hire her because she tested positive for marijuana in a pre-employment drug test. The decision, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr., should serve as a reminder to employers operating in states with medical marijuana laws to evaluate their policies and practices concerning employee use of marijuana outside the workplace.

Background

The plaintiff claimed that her doctors recommended she use medical marijuana (specifically, a synthetic form of marijuana, Marinol) for her post-traumatic stress disorder (PTSD).

The employer, which was a government contractor, extended to the plaintiff a job offer contingent on her passing a pre-employment drug test. The plaintiff notified the employer that she was a registered medical marijuana user who took Marinol, but only at night before bed so she would not be impaired at work. The employer withdrew the job offer after the plaintiff’s pre-employment drug test revealed a positive result for THC, a chemical component of marijuana.

The plaintiff sued, alleging the employer violated the Palliative Use of Marijuana Act (PUMA)’s anti-discrimination provision, which states:

[U]nless required by federal law or required to obtain funding: … No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.

The District Court Rejects the Employer’s Preemption Arguments

In its first attempt to end the litigation, the employer moved to dismiss, primarily asserting plaintiff’s PUMA claim was preempted by three federal statutes: the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA), and the Food, Drug, and Cosmetic Act (FDCA).

On August 8, 2017, the federal district court denied the employer’s motion and held that these laws do not preempt PUMA. The court also held that PUMA has an implied right of action under its employment anti-discrimination provisions. This decision marked the third time in 2017 that a court ruled in favor of a medical marijuana user, with separate decisions in Rhode Island and Massachusetts. These decisions stand in contrast to rulings from other courts–including courts in California, Colorado, Montana, New Mexico, and Oregon–ruling in favor of employers in cases involving employee or applicant use of marijuana.

The parties then conducted discovery and filed cross motions for summary judgment.

The District Court Grants the Plaintiff’s Summary Judgment Motion

One year later, the court denied the employer’s second request to dismiss the case, and instead granted the plaintiff’s motion for summary judgment.

The employer argued, among other things, that as a federal contractor, it was allowed to make the employment decision because it is exempt from PUMA’s anti-discrimination provision. The employer relied on PUMA’s provision allowing employers to refuse to hire or employ state-qualified medical marijuana users if “required by federal law or required to obtain funding.” According to the employer, as a government contractor, it was required to comply with the federal Drug-Free Workplace Act (DFWA) which, the employer argued, makes it unlawful for an employer to allow employees to use illegal drugs. Marijuana remains a Schedule I drug under the CSA and, thus, its use violates federal law. The court disagreed, holding that the DFWA neither requires drug testing nor regulates an employee’s off-duty cannabis use, “much less an employee who uses medical marijuana outside the workplace in accordance with a program approved by state law.”

The court also rejected the employer’s argument that it did not “discriminate” against the plaintiff because it relied solely on her failed drug test rather than on her status as a medical marijuana user. To accept the employer’s argument, according to the court, “would render the statute’s protection against PUMA-based discrimination a nullity, because there would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.” The court also found it important that PUMA allows an employer to discipline employees for on-duty use of cannabis. The court said that this statutory provision, “by negative implication . . . makes clear that PUMA protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours.”

Notably, despite the ruling in favor of the plaintiff, the court held that she will not be entitled to her attorney’s fees or punitive damages on the basis that PUMA doesn’t expressly allow for this type of relief.

What the Decision Means for Employers

The decision is from one federal district court analyzing the medical marijuana law in Connecticut. Thus, it is not binding on other courts and the employer may appeal the decision. Regardless, this is a developing area of the law and, thus, employers should consider reviewing their drug-related policies. More states are enacting medical marijuana laws and courts have issued employee-friendly decisions addressing existing laws, which makes it particularly important for employers to stay ahead of this evolving area of the law.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Cannabis Law Practice or Workplace Policies and Handbooks Team.

By James L. Curtis, Erin Dougherty Foley, Adam R. Young, Megan P. Toth, and Craig B. Simonsen

Seyfarth Synopsis: Employers must evaluate their safety protections for pregnant women and engage in the interactive process with employees to find reasonable accommodations.

Reproductive Health Hazards in the Workplace

Pregnant women work in hazardous jobs across the United States and in every sector of the economy.  While employers have a general duty to protect their employees from a condition known to cause harm, pregnant women may face unique risks and may be more susceptible to a range of serious workplace hazards.

The Occupational Safety and Health Administration (OSHA) notes that “exposure to reproductive hazards in the workplace is an increasing health concern.”  The National Institute for Occupational Safety and Health (NIOSH) has information resources on pregnancy and reproductive health hazards.  Ionizing radiation and lead, for instance, are known hazards to pregnant women and reproductive health.  A fetus might be more vulnerable to certain chemicals, particularly in the early stages of pregnancy when it is rapidly growing and the baby’s organs are developing.  Further, changes in a pregnant employee’s immune system, lung capacity, and even ligaments can increase their risk of injury or illness due to certain workplace hazards.  Employers must protect their employees (including more susceptible pregnant employees) and prevent exposures to these known hazards.

Involuntary Reassignments of Pregnant Women

This does not mean that employers should be reactive and involuntarily remove pregnant women from positions or duties in which they may be exposed to hazards, either to themselves or their developing baby, without the employee’s request and/or agreement. There are both federal and state laws that protect pregnant employees in the workplace, including Title VII to the Civil Rights Act of 1964, which prohibits discrimination based on sex and the federal Pregnancy Discrimination Act prohibits discrimination against employees “on the basis of pregnancy, childbirth, or related medical conditions.”  Moreover, the Americans with Disability Act (ADA), as well as state pregnancy accommodation laws, prohibit discrimination based on qualifying pregnancy related disabilities, and, under certain circumstances, prohibit employers from requiring employees to take accommodations to which they do not agree (i.e., a forced reassignment or relinquishment in job duties).

To the extent that an employer changes a job assignment or removes a woman from a desirable position because she is pregnant or may become pregnant, without a specific accommodation request, and in some cases, agreement from the employee, the employer could face a claim of gender and/or pregnancy discrimination.

Where there is no medically-documented basis (e.g. chemical or radiation hazard) that exposure might injure a fetus, a pregnant or potentially pregnant employee’s perceived susceptibility to a hazard probably would not be a legitimate reason to involuntarily demote, take away opportunities, or discharge a female employee. This, however, does not mean that employers should not offer pregnant workers the opportunity to avoid exposure that may be more harmful to them based on their pregnancy or that it should not be consider as an accommodation.  It simply means job assignment and removal of desirable duty should not be assumed or forced upon a worker because she is pregnant.

However, some potential chemical and radiation exposures may force an employer to make involuntary reassignments.  For example, low levels of lead or radiation may be safe for most employees, but may not be safe for women who are pregnant or may become pregnant.  Employers should inform employees of these hazards and their potential effects on reproductive health and fetal health, and request that the employee notify the employer if the employee is pregnant or is potentially pregnant.  Where there is a potential chemical or radiation hazard that might injure a fetus, an employer may need to propose a reassignment and overrule an employee if she rejects the accommodation. Specific regulations address some of these hazards with regard to pregnant women and mandate actions by the employer.  See https://www.osha.gov/SLTC/reproductivehazards/standards.html; and https://www.osha.gov/SLTC/radiationionizing/pregnantworkers.html.

Changes to Protective Equipment

Because of physical changes to the body during pregnancy which may necessitate new safety protections, employers must consider some workplace safety equipment changes to protect and accommodate pregnant employees.  Personal Protective Equipment, such as a harness for a personal fall arrest system, may no longer fit a pregnant employee or may have the potential to cause unnecessary harm to a worker or their developing baby.  Similarly, gloves, sleeves, helmets, or specialized boots may need to be replaced by the employer, with the assistance of the employee to ensure a proper fit.

Respirators present a trickier question.  If an employee passed a medical evaluation and fit test before becoming pregnant, she may present different medical issues with using a respirator and the respirator may no longer fit properly.  Employers should contact their medical professional to help coordinate any respirator use by pregnant employees.

Disclosure and Voluntary Accommodations

NIOSH recommends that a pregnant employee discuss possible job hazards with the employer and their doctor as soon as possible after learning about the pregnancy.  NIOSH suggests that many pregnant women adjust their job duties temporarily, or take extra steps to protect themselves.

The ADA, as well as various state laws, also requires employers provide accommodations to employees with qualifying pregnancy-related disabilities, upon becoming aware that employees are in need of such an accommodation.  Although employees should be expected to notify their employers of their need for a pregnancy-related accommodation, there are no “magic words” that trigger an employer’s obligation under the ADA. Therefore,  managers should be well trained to identify and properly inquire when a pregnancy-related accommodation may be needed, and how to appropriately engage in the interactive process, both under the ADA and any applicable state laws.

For example, if employers are concerned about exposures to pregnant employees, and the employee has reported that she is pregnant, the employer may ask the employee whether she needs any accommodations.  If the employee is interested in an accommodation, the employer should engage in the interactive process, including a robust dialogue with the employee to determine what reasonable accommodations may be agreeable.  If the employee can no longer perform the essential functions of their position, and there are no other reasonable accommodations available, reassignment to an open position, or if no open positions, a leave of absence, may be the only potential reasonable accommodations possible. However, it is important to be aware, an employee may not be forced to take a different position or a leave of absence as a reasonable accommodation, if there are other reasonable accommodations available.

More Information About Pregnancy In the Workplace

Pregnancy in the workplace presents a range of employment issues that confound human resources managers, in-house counsels, and safety managers.

Seyfarth Shaw has frequently blogged on other pregnancy and employment related issues and topics, like Governor Baker Signs Into Law the Massachusetts Pregnant Workers Fairness Act, Rescind that Job Offer After Her Notice of Pregnancy? Maybe Not, SCOTUS Rules on Pregnancy Accommodation Case, “A Telecommute Dispute” – What is a Reasonable Accommodation Under the ADA?, Supreme Court Debates Reach of Pregnancy Law, New Guidance From The EEOC Requires Employers To Provide Reasonable Accommodations Under The Pregnancy Discrimination Act, New York City and Philadelphia Pass New Pregnancy Accommodation Laws, Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits, Pregnancy Discrimination Update: Young v. United Parcel Service, Inc., and Retail Detail: Pregnancy Discrimination, Accommodations and Issues For Retailers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA), Absence Management and Accommodations, or Workplace Policies and Handbooks Teams.

By Megan P. Toth and Erin Dougherty Foley

Seyfarth Synopsis: The Washington State Office of the Attorney General has recently published a Guide outlining pregnant employees’ civil rights under the Washington “Healthy Starts Act,” a law which became effective July 23, 2017.

Under the Healthy Starts Act, employers with at least 15 employees in the state of Washington must provide certain accommodations to pregnant works, regardless of a disability, and the Act provides a list of nine accommodations to be considered, including:

  1. Providing more frequent, longer, or flexible restroom breaks;
  2. Modifying a no food or drink policy;
  3. Providing seating or allowing the employee to sit more frequently if her job requires her to stand;  and
  4. Limiting lifting to 17 pounds or less.
  5. Job restructuring, including a part-time or modified work schedule, job reassignment to a vacant position, or providing or modifying equipment, devices, or an employee’s work station;
  6. Providing for a temporary transfer to a less strenuous or less hazardous position;
  7. Providing assistance with manual labor;
  8. Scheduling flexibility for prenatal visits; and
  9. Any further accommodations the employee may request, which an employer must give reasonable consideration, taking into account any Department of Labor & Industries or other medical documents provided by the employee.

The rececently issued Guide outlines employers’ obligations with regard to the above suggested accommodations, and sets forth employer prohibited acts with regard to pregnancy accommodations under the Act. Specifically, the Guide clarifies that employers must provide accommodations 1-4 above and cannot request medical certification from a health care professional for those accommodations, and employers may request written certification from a health care professional regarding the need for the accommodations in 5–8 above, or for restrictions on lifting less than 17 pounds.

The Guide also outlines “prohibited practices” under the Act, which include: (1) Failing or refusing to accommodate a pregnant employee, unless doing so would impose an “undue hardship,” which is defined as “an action requiring significant difficulty or expense.” (2) Retaliating against a pregnant employee who requests a change to their work environment (3) Denying employment opportunities to an otherwise qualified employee because of their needs, or (4) Requiring a pregnant employee to take leave if an alternative solution could be provided.

Finally, the Guide provides information for employees regarding how to report a violation of their rights under the Act.

So what now? The Guide does not actually change or alter employers’ obligations under the Act with regard to pregnancy accommodations, but rather clarifies and outlines what employers should be doing (since the law was enacted in July 2017). Therefore, employers should review their pregnancy accommodation policies and practices in Washington, and ensure they comply with the Act, as outlined in the Guide.

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

By David S. Baffa, Tracy M. Billows, Pamela Q. Devata, Sara Fowler, and Annette Tyman

Seyfarth Synopsis: Join us on Thursday, September 13th for breakfast! As parents and children gear up for the inevitable fall return to school (“it’s the most wonderful time of the year….”) we thought it also would be a good time to start a new chapter, and get back to our “ABC”s of hiring and onboarding.

We will be tackling developments in predictive scheduling laws, pay equity issues, the impact of medical marijuana on hiring, and other general hiring considerations. The program will include an educational tutorial and mandatory classroom participation on the following issues:

  • Onboarding, hiring practices and trends (get your homework done!)
  • “Ban the Box” (20 years later; PLUS the what, when (where, why) and how employers can ask about and use criminal history in the hiring process)
  • Medical marijuana (and the wrench it throws into the drug-testing machinery)
  • Pay Equity (dotting all your “I”s and crossing all your “T”s (and $$s))
  • Predictive Scheduling (do we have to give employees a crystal ball schedule — maybe!)

While there is no cost to attend, registration is required and space is limited. If you have any questions, please contact Fiona Carlon at fcarlon@seyfarth.com and reference this event.

Also, for those that need the credits, note that Seyfarth Shaw LLP is an approved provider of Illinois Continuing Legal Education (CLE) credit. This seminar is approved for 1.5 hours of CLE credit CA, IL, NY, NJ and TX. CLE Credit is pending for GA and VA. HR professionals: please note that the HR Certification Institute accepts CLE credit toward recertification.

By James L. Curtis, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Employment in healthcare occupations continues to outgrow all other industries, as the American population continues to age and nursing home and hospital services expand. Health care workers face a range of  safety issues, such as ergonomics, blood borne pathogens, and workplace violence. The federal Occupational Safety and Health Administration is refocusing its enforcement efforts to target healthcare employers.

According to the Bureau of Labor Statistics (BLS), the Healthcare Practitioners and Technical Occupations (Major Group) currently employs over 8.5 million workers. BLS further states “employment of healthcare occupations is projected to grow 18 percent from 2016 to 2026, much faster than the average for all occupations, adding about 2.4 million new jobs. Healthcare occupations are projected to add more jobs than any of the other occupational groups. This projected growth is mainly due to an aging population, leading to greater demand for healthcare services.”

The top categories of this increased employment are: General Medical and Surgical Hospitals, Offices of Physicians, Nursing Care Facilities (Skilled Nursing Facilities), Health and Personal Care Stores, and Outpatient Care Centers. Also included are Healthcare Social Workers and Home Health Aides. Many nurses and hospitals are unionized, which can lead to an increased push for government enforcement and involvement.

Regulators have begun to target workplace violence in healthcare settings. California OSHA has led the regulatory wave by issuing new, onerous regulations that require employers to create a Workplace Violence Prevention Plan, train employees, and maintain a Violent Incident Log. Federal OSHA has yet to promulgate a new workplace violence in healthcare standard (see Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries), but the Agency has targeted healthcare employers with General Duty Clause citations.

For example, in Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015), Judge Phillips issued an opinion affirming a General Duty Clause citation to a home health care services employer which alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior. After complaining that the client made her feel uncomfortable, the employee was fatally stabbed by the client at his home. Judge Phillips determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions. The case is illustrative of the increasingly close eye the Agency is placing on workplace violence, and the unique and challenging environment employees face in health care.

Moreover, healthcare systems worldwide share health policy and regulatory goals for ensuring quality care and patient safety, mitigating fraud, cyber threats, and the challenge of data protection.  Cybersecurity and data risk management continue to be a major concern.   Additionally, challenges in the health care industry, such as staffing shortages will remain an issue.

We have previously noted many workplace safety and violence trends in the healthcare sector, including with regard to the propensity of employees to suffer ergonomic injuries while treating and lifting patients. Here are some of our previous related blogs on these topics: Nothing to Sneeze At: Evaluating Employee Safety Protections in the Healthcare Industry, NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers, OSHA Issues “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting, Judge Affirms OSHA Citation in Death of Healthcare Worker Killed by Mentally Ill Client, OSHA Updates Workplace Violence Guidance for Protecting Healthcare and Social Service Workers, and Healthcare Industry Receives New Fact Sheet on Musculoskeletal Disorders in Nursing and Residential Care Workers.

Each of these areas should be closely watched and targeted moving forward by healthcare employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Condon McGlothlen and Colton D. Long

Seyfarth Synopsis: Since 2001, Illinois has required that employers provide unpaid nursing or lactation breaks for working mothers. Effective last week, at least some of those breaks must now be paid.

On August 21, 2018, Governor Rauner signed a bill amending the Illinois Nursing Mothers in the Workplace Act. The amendment took effect immediately, and requires that Illinois employers provide paid breaks to mothers who breastfeed or express milk at work. The Act previously required that Illinois employers provide “reasonable unpaid break time” to nursing/expressing employees. It also said that breaks provided to nursing/expressing employees “must, if possible, run concurrently with any break time already provided to the employee.”  As amended, nursing breaks “may” still run concurrently with other breaks. However, as to the “reasonable” number of additional breaks beyond those regularly provided to all employees, an employer “may not reduce an employee’s compensation for the time used for the purpose of expressing milk or nursing a baby.” In short, nursing employees must now be paid for those extra breaks.

To understand how this works, first determine what the law (or your lawful policy) already provides as regards breaks. The federal Fair Labor Standards Act doesn’t require any rest or meal breaks, but mandates that employees be paid for short breaks ranging from between 5 and 20 minutes. It also says employers can provide an unpaid meal break of at least 30 minutes, so long as the employee is not required to perform any work during that time. Separately, Illinois law mandates that employees who work 7.5 continuous hours or more receive an unpaid meal break of at least 20 minutes. Thus, in order to comply with both federal and state law, many Illinois employers provide an unpaid meal break of at least 30 minutes.

Under the Illinois Nursing Mothers Law as amended, nursing employees can still be required to use that unpaid meal break for nursing or expressing milk (along with any other breaks the employer chooses to provide employees generally). Also like before, nursing mothers are entitled to a “reasonable” number of additional nursing/expressing breaks. Unlike before, however, those extra breaks must now be paid.

In addition, the amendment specifies that the reasonable – now paid – breaks requirement runs only for “for one year after the child’s birth.” Previously, the Act did not limit the time during which working mothers were entitled to additional nursing breaks. Lastly, the original Act excused employers from providing additional break time for nursing/expressing employees “if to do so would unduly disrupt the employer’s operation.” The amendment changed that affirmative defense language; now, in order to be to be excused from the additional paid breaks requirement, Illinois employers must establish “undue hardship”, a demanding standard borrowed from the Americans with Disabilities Act and the Illinois Human Rights Act. The amendment thus makes it harder for an employer to argue that business demands or other reasons should relieve it from compliance.

Since the amendment is now in effect, Illinois employers must promptly review their current nursing/lactation policy and see if it complies with the recent amendment. If not, revise it as soon as possible. In the meantime, follow the new law. If a working new mother requests additional breaks for nursing, don’t be afraid to discuss with her appropriate details regarding the number and frequency of those breaks. The Act, both before and as amended, envisions a joint, interactive determination of how many additional breaks are needed. And don’t count on having an affirmative defense for not providing paid nursing breaks, especially if you are a large employer; that uphill climb got even steeper last week.

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

By James L. Curtis, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis:  A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.

Nebraska Railcar Cleaning Services LLC (NRCS) employees sent workers in to railcars to scrape and remove various commodities from tanker cars, including gasoline, ethanol, petroleum by-products, pesticides, herbicides, and food grade products.  Two of the company’s workers were killed and a third was injured when the contents of a railcar ignited while being cleaned.  According to the indictment, the company, NRCS and its owners and executives, allegedly failed to implement worker safety standards and then tried to cover that up during an Occupational Safety and Health Administration (OSHA) inspection.  The defendants also allegedly mishandled hazardous wastes removed from rail tanker cars during the cleaning process.

OSHA requires employers to test air in confined spaces such as rail tanker cars for hazardous gases prior to allowing employees to enter the confined workspace, and to provide employees exposed to certain chemicals with respirators for which they must be assessed and fit tested.  EPA requires facilities like NRCS to ensure that hazardous wastes generated are properly treated and disposed of.

The indictment alleges that after a 2013 inspection of NRCS, the company represented that NRCS had been testing for hazardous wastes, including benzene, since July 2014.  After OSHA returned to NRCS in March 2015 to conduct a follow-up inspection and was turned away, documents were “created” and submitted to OSHA to “falsely show” that NRCS had been purchasing equipment to test the contents of railcars for benzene and had taken other required safety precautions.  In addition, “during inspections by the Nebraska Department of Environmental Quality and the U.S. Environmental Protection Agency in 2013 and 2014 respectively, NRCS was informed that it was required to test its wastes to determine if they were hazardous in order to properly dispose of them, rather than send all untested waste to a landfill not permitted to receive hazardous waste.”  The indictment alleges that was not done before April 2015.

In April 2015, the contents of a railcar ignited while being cleaned by NRCS employees. Two employees were killed and a third was injured. Two days after the explosion, NRCS had three railcars tested to assess whether their contents were hazardous, and two were determined to be hazardous.

Employer Takeaways

This indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors.  First, if the employer represents that it is implementing certain safety measures — do it!  Secondly, the case serves as a reminder of the importance of providing complete and accurate submittals to government entities.  A deliberate falsification can have serious ramifications, both by way of civil penalties and criminal prosecution.  As everyone has learned through countless infamous cases, it’s not the crime but the cover-up that will really come back to bite the employer.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jade M. Gilstrap and Alex S. Drummond

Seyfarth Synopsis: The D.C. Circuit recently revived a single-leg amputee’s claim that his former employer failed to accommodate his disability by refusing his request for a classroom aide. In reversing the lower court’s decision in part, the two-member panel found triable issues of fact existed regarding whether forcing the plaintiff to work with pain, when that pain could have been alleviated by his requested accommodation, violated The Americans with Disabilities Act (ADA).

Case Background

In Hill v. Associates for Renewal in Education, Inc., No. 15-7064 (D.C. Cir. 2018), the plaintiff, who wore a leg prosthesis, worked as a teacher and program aide for Associates for Renewal in Education, Inc. (“ARE”). Throughout his employment, Hill worked in a three-story building with no elevator and was responsible for instructing participants in the classroom, on field trips, and during outside activities; overall classroom management; counseling participants on academic and behavioral challenges; and providing administrative and/or clerical support to administrative personnel.

A year and a half before his termination, Hill injured his amputated leg and damaged his prosthesis while walking across ARE’s playground, which resulted in him experiencing severe pain and bruising after standing for long periods of time. As an accommodation, he requested and was assigned a classroom aide and was permitted to hold his classes on the second floor of the building.

A couple of months later, ARE reassigned Hill to a classroom on the third floor. Unlike the other teachers in his program, Hill was not assigned a classroom aide, despite having the largest classroom size among his peers. According to Hill, he contested the reassignment and requested to be moved back to a lower floor and with a teacher aide, but to no avail. Around the same time, Hill began to have disciplinary issues at work and was subsequently terminated.

Hill subsequently filed a pro se complaint against ARE alleging, inter alia, claims for disability discrimination and hostile work environment based on the non-profit’s denial of his requests for a classroom aide and to be reassigned to a classroom on a lower floor. The D.C. District Court denied summary judgment on Hill’s claim for failure to accommodate based on ARE’s refusal to assign him to a lower floor, but granted summary judgment on his claims for hostile work environment and failure to accommodate his request to be assigned a classroom aide. Specifically, with respect to his request for a classroom aide, the district court concluded that Hill “had not adduced any evidence to show that an [a]ide would have been an effective means of addressing the limitations imposed by his amputated leg,” despite Hill’s insistence that the aide was necessary because his disability substantially limited his ability the perform the essential functions of his job “without pain and bruises,” which required walking long distances, standing for long periods of time, and climbing consecutive flights of stairs.

Hill appealed. The Circuit court affirmed in part and denied in part.

The D.C. Circuit Court’s Reasoning

The D.C. Circuit Court concluded that the district court was right to grant summary judgment on Hill’s hostile work environment claim (agreeing that even if ARE had denied Hill a classroom aide and failed to assign him to a lower floor, such behavior did not amount to the type of “extreme” conditions sufficient to constitute a hostile work environment), but wrong to say that Hill had not proffered sufficient evidence for a reasonable jury to conclude that ARE violated the ADA when it refused his request for a classroom aide.

To prevail on a failure-to-accommodate claim brought under the ADA, a plaintiff is required to show that: 1) he suffered a qualifying disability, 2) his employer knew about the disability, 3) he could perform the essential functions of his job, with or without a reasonable accommodation, and 4) his employer refused to make the accommodation. An accommodation is only reasonable under the ADA if it “relate[s] to the disability that creates the employment barrier and, in fact, “address[es] that barrier.”

The Court found that Hill—who alleged he experienced “a hazard of pain and bruising” while standing for long periods of time, pain that resulted from him having to supervise his class without assistance from a classroom aide— had satisfied his burden of sufficiently connecting his disability with his request for a classroom aide and the assistance the aide could provide him in performing the essential functions of his job. The Court, however, found unpersuasive ARE’s argument that Hill did not need the accommodation of a classroom aide because he could perform the essential functions of his job without accommodation, albeit with a lot of pain, and, instead, held that “[a] reasonable jury could conclude that forcing Hill to work with pain when that pain could be alleviated by his requested accommodation violates the ADA” and that “if ARE [had] provided Hill a classroom aide as it did for his colleagues, that aide could help Hill supervise students in the classroom and during outdoor activities, reducing his need for prolonged standing and mitigating the alleged ‘hazard of pain and bruising.’”

While the Court expressed no opinion about whether the classroom aide would have, in fact, constituted a reasonable accommodation for Hill’s disability—leaving that for the jury to decide—it reminded employers and employees, alike, that while “the ADA does not make employers responsible for alleviating any and all challenges presented by an employee’s disability… an employer may be required to accommodate an employee’s disability by ‘reallocating or redistributing nonessential, marginal job functions,’ or by providing an aide to enable the employee to perform an essential function without replacing the employee in performing that function.”

Takeaways for Employers

The ADA continues to be a significant area of liability for employers, as disability-related issues continue permeating today’s workplace. The D.C. Circuit’s decision stands as a reminder to employers to carefully assess the reasonableness of an employee’s request for an accommodation and to strongly consider such requests in the absence of undue hardship. Employers should take care to remember that the “reasonableness” of any request for an accommodation will necessarily depend on the specific circumstances which must be evaluated on a case by case basis. The mere fact that a disabled employee can perform the essential functions of his or her job, albeit with pain or discomfort, may not, by itself, be sufficient to deny that employee a reasonable 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 or Workplace Policies and Handbooks Teams.

 

By Andrew H. Perellis, Alex W. Karasik, and Patrick D. Joyce

Seyfarth Synopsis: In a toxic tort class action stemming from automotive and dry cleaning facilities’ alleged contamination of groundwater near Dayton, Ohio, the Sixth Circuit affirmed an Ohio federal district court’s grant to certify seven common issues for classwide treatment under Rule 23(c)(4). Shortly thereafter, the four Defendant companies filed a petition for a rehearing en banc, arguing that the Sixth Circuit misapplied Rules 23(b)(3) and 23(c)(4).

This ruling is important for businesses to have on their radar since it represents another federal appellate court relaxing the barriers to issue-class certification.

Case Background

In Martin et al. v. Behr Dayton Thermal Products LLC, et al, No. 17-3663 (6th Cir. 2018), the Plaintiff residents alleged that the company Defendants released volatile organic compounds and other hazardous substances into the groundwater beneath their properties. The complaint alleged eleven causes of action: (1) trespass; (2) private nuisance; (3) unjust enrichment; (4) strict liability; (5) negligence; (6) negligence per se; (7) battery; (8) intentional fraudulent concealment; (9) constructive fraud; (10) negligent misrepresentation; and (11) civil conspiracy. Id. at *4. Plaintiffs sought Rule 23(b)(3) class certification as to liability for five of their eleven causes of action—private nuisance, negligence, negligence per se, strict liability, and unjust enrichment. In the alternative, they requested Rule 23(c)(4) certification of seven common issues.

The District Court held although Plaintiffs’ proposed classes satisfied Rule 23(a)’s prerequisites, Ohio law regarding injury-in-fact and causation meant that Plaintiffs could not meet Rule 23(b)(3)’s predominance requirement. Id. Accordingly, the District Court denied certification of the two proposed liability-only classes. The District Court then addressed Plaintiffs’ alternate request for issue-class certification under Rule 23(c)(4), considering whether predominance constituted a threshold requirement that must be satisfied with respect to the entire action before a court may certify certain issues, Id. at 4-5. Noting that this question has resulted in a conflict between several other circuits, the District Court adopted the “broad view,” and rejected treating predominance as a threshold requirement and certified seven issues for class treatment. Id. at 5. The District Court concluded its class certification decision by stating that it would “establish procedures by which the remaining individualized issues concerning fact-of-injury, proximate causation, and extent of damages can be resolved” and noting that any such procedures would comply with the Reexamination Clause of the Seventh Amendment. Id.

Thereafter, Defendants filed a Rule 23(f) petition, arguing that the District Court reached the wrong conclusion on the interaction between Rules 23(b)(3) and 23(c)(4) and that, even under the broad view, the issue classes were insufficient. Defendants also raised Seventh Amendment arguments, citing the District Court’s mention of a potential procedure involving the use of a Special Master to resolve remaining issues. On appeal, the Sixth Circuit’s review was limited to the District Court’s decision to certify issue classes under Rule 23(c)(4). Id. at 6.

The Sixth Circuit’s Decision

The Sixth Circuit affirmed the District Court’s certification of issue classes under Rule 23(b)(3). As an initial matter, the Sixth Circuit explained that appellate courts across the country have disagreed about how Rule 23(b)(3)’s requirements interact with Rule 23(c)(4). Id. at 7. Under the “broad view,” which has been adopted by the Second, Fourth, Seventh, and Ninth Circuits, courts applied the Rule 23(b)(3) predominance and superiority prongs after common issues had been identified for class treatment under Rule 23(c)(4). Id. The broad view permits utilizing Rule 23(c)(4) even where predominance has not been satisfied for the cause of action as a whole. Id. (citations omitted). In contrast, the “narrow view,” adopted by the Fifth and Eleventh Circuits, prohibits issue classing if predominance has not been satisfied for the cause of action as a whole. Id. at 8 (citations omitted). Other circuits, including the Third and Eighth Circuits, have adopted a functional, superiority-like analysis instead of either view.

After evaluating the above approaches, the Sixth Circuit elected to adopt the “broad view” approach, holding (1) it does not risk undermining the predominance requirement since it instructs courts to engage in the predominance inquiry after identifying issues suitable for class treatment; (2) it flows naturally from Rule 23’s text, which provides for issue classing “[w]hen appropriate,” and (3) the concomitant application of Rule 23(b)(3)’s superiority requirement ensures that courts will not rely on issue certification where there exist only minor or insignificant common questions, but instead where the common questions render issue certification the superior method of resolution. Id. at 9. Accordingly, the Sixth Circuit held that a requirement that predominance must first be satisfied for the entire cause of action would undercut the purpose of Rule 23(c)(4) and nullify its intended benefits. Id. at 10.

Applying the “broad view” approach, the Sixth Circuit held that because each issue may be resolved with common proof and because individualized inquiries do not outweigh common questions, the seven issue classes that the district court certified satisfy Rule 23(b)(3)’s predominance requirement. Id. at 12. Further, regarding the superiority requirement, the Sixth Circuit held that the district court correctly noted that issue certification will ensure that property owners in the affected area will have an opportunity to litigate their claims, and that by trying these common questions to a single jury, this procedure also saves time and scarce judicial resources. Id. at 14. Accordingly, the Sixth Circuit held that the District Court did not abuse its discretion by certifying issue classes under Rule 23(c)(4) since the predominance and superiority requirements were met.

The Sixth Circuit also rejected the Defendants’ Seventh Amendment arguments, noting that the district court has not formalized any procedures for resolving either the common issues or the remaining individualized inquiries. Id. at 14-15. As such, the Sixth Circuit affirmed the District Court’s issue-class certification decision.

On July 31, 2018, the Defendant companies filed a petition for rehearing en banc, requesting that the entire appeals court reconsider Sixth Circuit’s affirmation of the District Court’s issue-class certification.

Implications For Businesses

For businesses located in states within the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) that are facing class action lawsuits, these companies must be cognizant that the Sixth Circuit has adopted the “broad view” of Rule 23, meaning it will be easier for plaintiffs to obtain certification of issue classes. This ultimately affords the plaintiffs’ class action bar some leverage in regards to expanding their cases and potentially increasing exposure.

From an environmental law perspective, harm to property or bodily injury, and the amount of compensation due, are almost always highly individualized and will predominate other issues. Under the “narrow view,” class actions for toxic tort actions would be inappropriate. However, under the “broad view,” the toxic tort class can proceed and litigate broad issues establishing the defendant’s release of contaminants and the extent of contamination. After the issues are resolved on a class-wide basis, mini-trials or alternate proceedings are needed to establish the individualized damages incurred by each class member. The broad view, now adopted by the Sixth Circuit, provides a plaintiff group with significant leverage against the allegedly polluting company because the contamination issues can be litigated as a class.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By Annette Tyman, Lawrence Z. Lorber, and Michael L. Childers

Seyfarth Synopsis: The Office of Federal Contract Compliance Programs (“OFCCP”) is closing the summer by issuing two new enforcement directives. The first, Directive 2018-03, clarifies the OFCCP’s enforcement of religious non-discrimination in light of recent court decisions and executive orders. The second, Directive 2018-04, creates focused reviews for Executive Order 11246 (“EO 11246”), Section 503 of the Rehabilitation Act (“Section 503”), and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”). These two directives come just a week after the OFCCP released its much anticipated publication outlining what federal contractors can expect from the agency.

“What Contractors Can Expect”

On August 2nd, the OFCCP published the “What Contractors Can Expect” guidance which lays out the agency’s enforcement plans and echoes the message of transparency that the OFCCP announced when the new leadership took over and that Acting OFCCP Director Craig Leen recently reiterated to the contractor community during his opening address at the 2018 National Industry Liaison Group. In it the OFCCP assures contractors that they can expect:

  • Access to Accurate Compliance Assistance Material;
  • Timely Responses to Compliance Assistance Questions;
  • Opportunities to Provide Meaningful Feedback and Collaborate;
  • Professional Conduct by OFCCP’s Compliance Staff;
  • Neutral Scheduling of Compliance Evaluations;
  • Reasonable Opportunity to Discuss Compliance Evaluation Concerns;
  • Timely and Efficient Progress of Compliance Evaluations; and
  • Confidentiality

These expectations are consistent with the message of collaboration that the OFCCP has promised under the current administration. References to the neutral scheduling of compliance reviews and the opportunity to discuss concerns contained in the guidance echo previous actions taken by the agency in 2018.

The agency followed up on August 10th by issuing two new directives.

Directive 2018-03: Executive Order 11246 § 204(c), religious exemption

Directive 2018-03 clarifies the agency’s position on religious non-discrimination under EO 11246 in light of recent cases involving the relationship between federal regulation and the Free Exercise Clause, including Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, Trinity Lutheran Church of Columbia, Inc. v. Comer, and Burwell v. Hobby Lobby Stores, Inc. In its press release, the OFCCP noted that this Directive also serves to align the agency’s enforcement actions with recent executive orders issued by the White House protecting religious freedom and the ability of faith-based and community organizations to compete fairly for government contracts and grants. The Directive instructs OFCCP staff to take these policies into consideration when providing compliance assistance, processing complaints, and reviewing compliance with EO 11246.

In practical terms, this Directive may not impact the vast majority of interactions that occur between the agency and the contractor community, as it is directed to OFCCP staff. However, it does signal a change in the way that the agency reviews religious accommodations during compliance evaluations. It may also impact complaint investigations against certain employers which allege discrimination on the basis of religion or sexual orientation and gender identity. The Directive specifically notes that “[t]his Directive supersedes any previous guidance that does not reflect these legal developments, for example, the section in OFCCP’s Frequently Asked Questions: Sexual Orientation and Gender Identity regarding “Religious Employers and Religious Exemption.” See https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html.”

Directive 2018-04: Focused reviews of contractor compliance with Executive Order 11246 (E.O.), as amended; Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended; and Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended

While the impact of Directive 2018-03 appears to be fairly limited, Directive 2018-04 represents a major change in the way that the OFCCP enforces affirmative action and non-discrimination requirements, particularly under Section 503 and VEVRAA. The Directive calls for the agency to direct a portion of future scheduling lists to “focused reviews” of EO 11246, Section 503 and VEVRAA. The Directive further notes that in these focused reviews, “OFCCP would go onsite and conduct a comprehensive review of the particular authority at issue.” The reviews would include “interviews with managers…as well as employees affected” by the particular regulation and also evaluations of “hiring and compensation data.” The Directive instructs the OFCCP staff to develop a standard protocol for conducting the focused reviews as well as staff training, contractor education and compliance assistance materials. This policy suggests that the agency will be increasing its focus on the enforcement of Section 503 and VEVRAA which have historically received less attention than EO 11246 during compliance reviews.

What This Means for Employers?

Neither the “What Contractors Can Expect” policy, nor the directive clarifying the religious exemption signal any significant change for contractors. The creation of the focused reviews, however, puts contractors on notice that the OFCCP will be scrutinizing policies and practices that relate to disability and protected veteran status much more closely. In anticipation of the first round of focused reviews, contractors should ensure that their current policies and practices comply with the 2014 updates to the Section 503 and VEVRAA regulations. Contractors should specifically focus on the following:

  • Implementing an audit and reporting system to measure the effectiveness of their affirmative action efforts and take any necessary remedial measures;
  • Documenting requests for accommodations;
  • Ensuring that an interactive process for requesting accommodations during the hiring process is in place;
  • Soliciting protected veteran and disability status from applicants and new hires;
  • Listing all job openings with state employment delivery services; and
  • Reviewing job descriptions and qualifications to ensure that they do not screen out protected veterans or individuals with disabilities.

Contractors should also remember that in connection with both current compliance reviews and the new focused reviews, they may be asked to provide their most recent VETS-4212 Report. The deadline for filing the 2018 VETS-4212 Report is fast approaching on September 30, 2018.

It is unclear how the introduction of the focused reviews may impact desk audit submissions or whether these reviews will necessitate additional analyses for hiring or compensation. We anticipate further announcements from the OFCCP given its promise to provide contractor education and compliance assistance materials. We will continue to monitor these changes and will alert you as more develops.

In the meantime, if you have questions about best practices for OFCCP compliance and audit defense, please contact a member of Seyfarth’s Organizational Strategy & Analytics Team or your Seyfarth relationship partner.