Absence Management & Reasonable Accommodation

By Honore Hishamunda and Alex S. Drummond

Seyfarth Synopsis: Employers face a tough challenge in trying to balance their obligations under the ADA with efforts to enforce workplace rules. A recent decision out of the United States Court of Appeals for the Sixth Circuit, however, highlighted how employers can get that balance right.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs and prohibits employers from retaliating against employees for exercising their rights under the ADA. But what if, in the midst of attempting to comply with these obligations, employers have to enforce workplace rules against someone requesting a reasonable accommodation? A recent Sixth Circuit Court of Appeals decision – McDonald v. UAW-GM Center for Human Resources – highlighted how, with care, employers can balance these seemingly competing goals.

The plaintiff in the case was a receptionist, a union member, and suffered from a genetic disorder which, with the employer’s permission, she took time off from work to treat. During plaintiff’s time with the employer, the operative CBA required employees to take lunch breaks no earlier than 11:00 a.m., and to, once a year, select either a half-hour lunchbreak with separate additional 15-minute breaks or an hour long lunch break. Plaintiff, despite these policies and despite choosing a half hour break, began leaving for the gym at 10:30 a.m. and tacking on her 15-minute breaks to essentially take an hour long break. In addition, plaintiff was accused of sexually harassing another co-worker.

In the midst of the employer’s sexual harassment investigation, plaintiff asked if she could either switch to an hour long break or tack on breaks in order to continue to work out as it helped with the pain from her previous surgeries. Her supervisor rejected this request citing the CBA’s rules, and offered plaintiff the option of arriving early in the mornings to work out. In addition plaintiff’s supervisor warned plaintiff that continued violation of the early or extend lunch break policy could result in disciplinary action.

Plaintiff rejected her supervisor’s compromise, and contacted the company’s personnel manager regarding her requests, this time providing a doctor’s note stating that plaintiff needed to exercise daily for 30 to 60 minutes. The personnel manager stated that the request would need approval from other members of management. However, while plaintiff’s request was being processed and on the same day she received an update regarding the same, plaintiff left early to go to the gym without authorization. Plaintiff was caught and eventually suspended for violating workplace rules. Plaintiff never returned to work and instead took personal leave before submitting her voluntary resignation. The time between her initial accommodation request and her resignation was less than 2 months.

Plaintiff sued claiming a failure to accommodate. Further, plaintiff alleged that her employer suspended her in retaliation for requesting a reasonable accommodation, or, alternatively, that she was constructively discharged. The Sixth Circuit, affirming the District Court, granted employer’s motion for summary judgment on each of plaintiff’s claims.

The Sixth Circuit held that the employer met its obligations to reasonably accommodate plaintiff. Specifically, the court found that the employer listened to plaintiff’s initial request for an accommodation, provided alternatives, again listened to plaintiff’s second request for an accommodation, and was unable to process the request because plaintiff resigned. In doing so, the court noted that, in the ADA context, (i) an employer’s minimal delay due to internal processing or events outside of its control does not an ADA violation; (ii) an employer is not required to provide a specific accommodation if it identify other reasonable accommodations; and (iii) when an employee quits before their accommodation request is resolved, the employee, and not the employer, is typically at fault for the interactive process breaking down.

In addition, the Sixth Circuit held that the employer did not retaliate against plaintiff for asserting her ADA rights. Specifically, the court found that plaintiff was not retaliated against because she was suspended for violating workplace rules, not for requesting reasonable accommodations. In doing so, the court noted that an employee must show that their protected activity was the “but-for” cause of any adverse action. Further, the court found that plaintiff, and other employees, cannot make such a showing where “an intervening legitimate reason to take an adverse employment action [like insubordination] dispels an inference of retaliation based on temporal proximity.”

The Sixth Circuit also held that the employer did not constructively discharge plaintiff. Specifically, the court found that plaintiff’s complained of treatment – the employer investigating her for alleged sexual harassment, declining her preferred accommodation, and suspending her for insubordination – did not support her constructive discharge claim. In doing so, the court noted that a constructive discharge claim “is hard to prove” and requires a showing that “working conditions were objectively intolerable and that [the] employer deliberately created those conditions in hopes that they would force [the employee] to quit.” Further, the court noted that, in the instant case, plaintiff’s suspension was related to her “deliberate insubordination” and her investigation was “management simply… responding to a workplace complaint” such that “no reasonable jury could find that [employer] hoped [plaintiff] would quit because of these preferred reasons.”

This decision highlights that, even when wrestling with their obligations under the ADA context, employers may and should enforce workplace rules.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney, or a member of the Firm’s 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 Michael L. DeMarino and Dawn R. Solowey

Seyfarth SynopsisTitle VII requires employers to make “reasonable accommodations” for an employee’s religious practices. But what is “reasonable” has been the subject of much debate and litigation.  The Tenth Circuit’s decision in Christmon v. B&B Airparts, Inc., No. 17-3209, 2018 WL 2344628, at *1 (10th Cir. May 24, 2018) is a good reminder that an accommodation may be reasonable — even if it is not the employee’s preference. What matters is that the employee is allowed to engage in his or her religious practice.

In Christmon v. B&B Airparts, Inc., an employee sued his former employer under Title VII, claiming that his employer failed to accommodate his religious practices by not allowing him to change his overtime shifts from Saturday to Sunday so that he could observe the Saturday Sabbath. On appeal, the Tenth Circuit held that allowing the employee to skip Saturday shifts was a reasonable accommodation and that the employer was not obligated to provide an opportunity for overtime on Sunday.

The Decision

B&B Airparts requires its employees to occasionally work overtime shifts on Saturdays. Id. Jerome Christmon, a Hebrew Israelite, regards Saturday as the Sabbath and consequently requested to work his overtime hours on Sunday. But rather than allow Christmon to work  his overtime hours on Sunday, B&B simply allowed him to skip mandatory Saturday overtime shifts without any disciplinary action.

Christmon sued B&B Airparts in the U.S. District Court for the District Court of Kansas, under Title VII of the Civil Rights Act of 1964, claiming discrimination for failure to accommodate religious practices. Specifically, Christmon claimed that B&B Airparts was required to provide him with overtime hours on Sunday.

The District Court disagreed and granted summary judgment in favor of B&B Airparts, holding that B&B Airparts provided a reasonable accommodation by allowing him to miss his Saturday shifts. On appeal, the Tenth Circuit affirmed.

According to the Tenth Circuit, the undisputed evidence showed that B&B Airparts allowed Christmon to skip mandatory Saturday shifts after he had explained his religious concern. “This relief,” the Tenth Circuit concluded, “constituted a reasonable accommodation . . . .” Id. at *2.

Rejecting Christmon’s arguments, the Tenth Circuit explained that a “reasonable accommodation does not necessarily spare an employee from any resulting cost” and “may be reasonable even though it is not the one that the employee prefers.” Id. Rather, “‘[a]ccomodate . . . means allowing the plaintiff to engage in [his] religious practice despite the employer’s normal rules to the contrary.’” Id. Hence, although Christmon requested an opportunity to make up his overtime hours on Sunday, the Tenth Circuit determined that “Title VII did not require B&B Airparts to offer Mr. Christmon’s preferred accommodation.” Id. at *3.

Important to this conclusion was the Supreme Court’s decision in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986). There, the Supreme Court held that an unpaid leave that allows an individual to observe religious holy days is a reasonable accommodation because it avoids the “conflict between employment requirements and religious practices.” Id.

At the end of the day, B&B ‘s accommodation was reasonable because it “allowed Mr. Christmon to avoid the conflict with his religious beliefs even if he lost the opportunity for overtime.” Id.

Implication For Employers

The Tenth Circuit’s decision is a good reminder for employers of the parameters of their obligation under Title VII to provide a reasonable accommodation for religious practices. A reasonable accommodation does not necessarily have to be the employee’s first choice. Nor does it have to be free from any resulting cost to the employee.  A reasonable accommodation, however, should effectively avoid the conflict between the employee’s religious practice and the employer’s requirements.

Of course, the first step in providing an accommodation is recognizing when there is a conflict between an employer’s requirements and an employee’s religious practice. Employers should therefore be sure to provide a mechanism for their employees to express concerns over perceived conflicts or otherwise request a religious accommodation.

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 Jennifer L. Mora

Seyfarth Synopsis: The Equal Employment Opportunity Commission recently settled lawsuits with two employers it claims violated the Americans with Disabilities Act after rejecting a job applicant and terminating an employee based on their prescription drug use.

The opioid crisis is dominating the news. And, employers have reason to be concerned. According to the Bureau of Labor Statistics, overdoses from the non-medical use of drugs or alcohol while on the job increased from 165 in 2015 to 217 in 2016, a 32-percent increase. That same report showed that overdose fatalities have increased by at least 25 percent annually since 2012. Further, the U.S. Centers for Disease Control recently stated that use of prescription opioids can result in serious issues with addiction and that in 2014, nearly two million Americans either abused or were dependent on prescription opioid pain relievers.

However, employers should tread carefully when addressing any prescription drug use in the workplace. It has long been the case that the Americans with Disabilities Act (ADA) and state disability discrimination laws provide protections to applicants and employees taking prescription medication, including opioids, and regulate the right of an employer to inquire about such use. Two recent settlements with the Equal Employment Opportunity Commission (EEOC) highlight a few common issues facing employers.

The Settlements

In one case, the EEOC brought suit against a pre-school that allegedly terminated an afterschool teacher after he disclosed his prior opioid addiction and his participation in a supervised medication-assisted treatment program. As part of his treatment, he was legally prescribed Suboxone, which is a prescription used to treat adults who are dependent on, or addicted to, opioids. The EEOC claimed the school terminated the teacher 30 minutes into his first work day because of his use of this medication. The EEOC claimed that the failure of the school to conduct an individualized assessment to determine what, if any, impact the drug had on the teacher’s ability to perform his job violated the ADA. As part of the settlement, which required a $5,000 payment to the teacher, the EEOC required the school to, among other things:

  • Amend its written drug use policy to include a clear and specific exclusion to the policy for individuals who use legally-obtained prescription medication in a lawfully-prescribed manner.
  • Create an ADA-compliant procedure for conducting an individualized assessment of an employee who is enrolled in any form of alcohol, drug, or illegal substance rehabilitation program in order to determine whether the employee can safely perform the essential functions of his or her position with or without reasonable accommodation.

In another case, the EEOC alleged the employer withdrew an applicant’s job offer based on a positive drug test result for prescription medication. The EEOC also alleged the employer maintained an unlawful policy requiring all employees to report if they were taking any prescription and nonprescription medication. Both actions, according to the EEOC, violated the ADA. The parties settled for $45,000, with a requirement that the employer adopt company-wide policies to prevent future hiring issues under the ADA and only require employees to report prescription medications if the employer has a “reasonable suspicion” that the medication may be affecting performance.

Takeaways for Employers

These settlements serve as a reminder that employers should avoid making adverse decisions based on misperceptions or a lack of information about the effect of lawful prescription drug use on their employees’ ability to perform their job duties. In general, employees have a protected right to use prescribed controlled substances and come to work unless such use creates an undue risk of harm or presents a safety issue. Moreover, employers should take precautions before implementing blanket drug-testing policies that do not account for the need under the ADA to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations. Employers also should consider revising any workplace policy that requires employees to disclose their prescription medication use, unless there is reason to believe the medication may impact performance, or otherwise suggests that employees taking such medication will be treated in a certain way without regard to whether their drug use impacts their work.

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

 

By Honore Hishamunda and Alex S. Drummond

Seyfarth Synopsis: Plaintiffs in disability discrimination cases often have sympathetic facts on their side. A recent decision out of the United States Court of Appeals for the First Circuit, however, highlighted that courts are tasked with applying the law in such cases even if doing so leads to a loss for a sympathetic plaintiff.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs and prohibits employers from retaliating against employees for exercising their rights under the ADA. Additionally, ADA cases often involve sympathetic plaintiffs. However, a recent First Circuit Court of Appeals decision – Sepulveda-Vargas v. Caribbean Restaurants, LLC – highlighted the importance of applying the law in such cases even where doing so results in a loss for a sympathetic plaintiff.

The plaintiff in the case was an assistant manager for a fast food franchise. One evening while depositing money on behalf of his employer, plaintiff was “attacked at gunpoint, hit over the head, and had his car stolen.” In the aftermath, plaintiff began to suffer from PTSD and depression. He then requested, as a reasonable accommodation, that he be excused from the company’s rotating shift policy (which rotated managers across the franchise’s district map and placed them on two different day shifts, and an evening shift). After initially agreeing to do so, the employer denied the request.

Plaintiff sued claiming a failure to accommodate. Further, the plaintiff alleged that after making his request, he was retaliated against as he was treated poorly by his co-workers. The First Circuit, affirming the District Court, granted employer’s motion for summary judgment on both of plaintiff’s claims. In doing so, the court noted that its decision was “a lesson straight out of the school of hard knocks” and that “[n]o matter how sympathetic the plaintiff or harrowing his plights, the law is the law and sometimes it’s just not on his side.”

The First Circuit held that the employer did not have to provide any accommodation to plaintiff as he was not qualified to perform the essential functions of his job. Specifically, the court found that the ability to work on a rotating shift was one of the essential functions of his job. In doing so, the court noted that (i) both the employer and plaintiff admitted that rotating shifts was an essential function; (ii) the employer’s job applications for assistant managers and advertising for the same highlighted the need to work rotating shifts; and (iii) permitting plaintiff to bypass the requirement would hamper the employer’s ability to flexibly schedule the remaining assistant managers.

The First Circuit also held that the employer did not retaliate against plaintiff for asserting his ADA rights. Specifically, the court found that plaintiff’s allegations – which focused on being scolded by supervisors for bypassing the chain of command, feeling embarrassed by supervisors treatment, and being made to feel as if he was lying about his health conditions – individually and collectively fell short of statutorily prohibited retaliation. In doing so, the court noted that only treatment that could “dissuade[] a reasonable worker form making or supporting a charge of discrimination” or that produces “a significant, not trivial harm” is actionable. Further, the court found that plaintiff’s allegations fell short of this level and instead characterized his allegations as “nothing more than the petty insults and minor annoyances” which are not actionable under the ADA.

This decision highlights that, even in the ADA context, courts must and will apply the law even if doing so results in a loss for otherwise sympathetic plaintiffs.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the author, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Paul Galligan and Samuel Sverdlov

Seyfarth Synopsis: “Thank you for your email, I will be out of the office from….” New York City employers might soon be seeing a lot more of these “out-of-office” emails from their employees if a recently proposed “Right to Disconnect” law is enacted.

In September 2017, Apple created an iPhone commercial in advance of the iPhone X release, which advertised all of the many new features of this smartphone, including: paying for goods with facial-recognition software, creating “animojis,” and taking professional-quality photographs. The new smartphone is being marketed as a traveling computer, bank, camera, video game console, mp3 player, and also, telephone. Interestingly, Apple did not advertise what else the smartphone has essentially become — a mobile workspace, which allows employees to be reached at anytime, anywhere.

At least one New York City lawmaker, New York City Council Member Rafael Espinal, has lofty ambitions to combat the purportedly growing demand on employees to make themselves available to their employers at all hours of the day. On March 22, 2018, Mr. Espinal introduced a potentially landmark piece of legislation, Int. 0726-2018, which is modeled after a similar law in France, and would prevent employers with more than ten employees from requiring employees to access work-related communications outside of normal working hours. Although the legislation excludes certain employees from this requirement [i.e, any employees whose terms of employment require them to be on call twenty-four hours a day on days when they are working (under this scenario the law shall only apply to such employees’ days off, including paid time off), work study program employees, employees compensated through qualified scholarships, and independent contracts], employers would be prohibited from retaliating against employees who exercise their rights under this legislation.

Further, the law would mandate that employers give written notice to employees of their rights under this law, and adopt a written policy regarding the use of electronic devices to send or receive work-related communications during non-working hours, the usual working hours for each class of employees, and the various categories of paid time off that employees are entitled to. Employers who violate this statute must pay employees compensatory damages, and are subject to financial penalties ranging from $50 for failing to notify employees of their rights to $2,500 for retaliating against employees.

If this law does pass, New York City will be the first jurisdiction within the United States with a right-to-disconnect bill. It goes without saying that this legislation would have a monumental impact on the workplace for New York City employers, and would cause them to, for the most part, rethink and overhaul their entire workplace. As always, we will monitor this legislation and update you accordingly.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the author, your Seyfarth Attorney, or a member of the Firm’s Workplace Policies and Handbooks or Absence Management and Accommodations Teams.

By Kevin A. Fritz

Seyfarth Synopsis: The U.S. Supreme Court’s decline of a Seventh Circuit appellate decision solidifies that where an employee is medically unable to return to work within a very short time period following a leave of absence, the employer has no additional federal legal obligation to provide additional leave, or hold the employee’s job open.

Recently, the U.S. Supreme Court declined review of a Seventh Circuit Court of Appeals decision establishing a rule that leave of more than a few weeks in duration falls outside an employers’ reasonable accommodation obligations under the Americans with Disabilities Act (ADA). The case is Severson v. Heartland Woodcraft, Inc.

Plaintiff took Family Medical Leave Act (FMLA) leave for multiple herniated discs in his back. He notified his employer that he was scheduled for back surgery the same day his FMLA leave expired, and he requested another three months of medical leave to allow him to return to work. The employer denied this request and discharged his employment. Plaintiff sued, claiming that his employer failed to provide reasonable accommodation by denying him the additional leave.

What is interesting about this case is that the Equal Employment Opportunity Commission filed an amicus brief in support of Plaintiff’s claims. The agency argued that any fixed period of post-FMLA leave can constitute a reasonable accommodation the ADA, and that employers have the burden of demonstrating this additional leave poses an undue hardship.

The Seventh Circuit rejected the argument, affirming summary judgment for the employer. In its decision, the Court concluded that leave requests beyond FMLA that extend for more than a brief period of time are never required under the ADA. The Court never answered the question of whether the additional leave request constituted an undue hardship because once it found that employees who are unable to perform their duties for extended periods of time are “not qualified” as defined by the ADA, the inquiry stops.

Now, the Supreme Court’s decline to review this holding establishes that, at least in the Seventh Circuit, employers do not have to provide significant additional leave following expiration under the FMLA because doing so would convert the ADA to a medical leave entitlement statute. Which it is not. The Seventh Circuit stands in opposition to four other federal appellate circuits and the Equal Employment Opportunity Commission, which treat leave in the same manner as any other requested medical accommodation. Other appellate courts, including the Fourth Circuit and Eleventh Circuit have not litigated this issue up to the appellate level.

As the workforce continues to change its makeup, and individuals continue to take leaves of absences to attend to their personal needs, this area will surely continue to develop.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the author, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations Team.

By Christine Mary Costantino and Dawn Reddy Solowey

Seyfarth Synopsis: The Tenth Circuit has recently vacated summary judgment in favor of an employer in a religious accommodation case that centers on what constitutes a “reasonable” accommodation of an employee’s observance of – and consequent inability to work on – the Sabbath. In this case, the Court found that the employer’s reliance on neutral paid time off policies and voluntary swift swaps could not be determined “reasonable” as a matter of law. While the Court’s decision remanding the case for further proceedings leaves the ultimate question of “reasonableness” open, the Court’s analysis is instructive for employers facing similar religious accommodation requests. Tabura, et al. v. Kellogg, USA, Case No. 16-4135 (10th Cir. Jan. 17, 2018).

Procedural History

Two individuals employed at Kellogg’s food production plant filed a lawsuit in the United States District Court for the District of Utah. At the trial court level, their claims included religious discrimination, failure to accommodate their religious practices and retaliation. The parties cross-filed motions for summary judgment. The District Court granted summary judgment in its entirety in favor of Kellogg. On appeal, the plaintiffs only challenged the District Court’s ruling on the failure to accommodate claim. Therefore, the issue before the Court was the propriety of the District Court’s entry of summary judgment in favor of the employer, Kellogg, on two grounds: that the employer’s accommodation was reasonable as a matter of law and that further accommodation would constitute an undue hardship for the employer.

Factual Background

The plaintiffs, both Seventh Day Adventists, refrained from working from Friday at sundown until Saturday at sundown as part of their observance of the Sabbath.

The plaintiffs were long-time employees at Kellogg’s food production plant. They both worked Monday through Thursday, ten hours per day, until March 2011. At that time, Kellogg changed its staffing model to “continuous crewing.” Under this model, the employees of the food production plant were divided between four shifts – A, B, C and D. Each shift was scheduled to work 12 hours per day for two or three days in a row, and then scheduled for two or three days off. Additionally, the shifts were paired so that, for example, Shift A would work 6:30 a.m. to 6:30 p.m., and the Shift C would work from 6:30 p.m. to 6:30 a.m. Shifts B and D were similarly paired. Both plaintiffs were assigned to Shift A.

Under the continuous crewing model, every shift was assigned to work 26 Saturdays per year, creating a scheduling conflict with plaintiffs’ Sabbath observance. Additionally, as scheduled day shifts ended at 6:30 p.m., the plaintiffs had a further conflict in the winter when the sun set, marking the beginning of the Sabbath, before their Friday shifts ended.

Kellogg’s proposed accommodation was to permit the plaintiffs to use paid time off or swap shifts with qualified co-workers in order to avoid scheduling conflicts with their observance of the Sabbath. These options were part of a neutral attendance policy that was available to any employee who wanted to take a day off for any reason and were not specially established for plaintiffs’ religious conflicts.

The plaintiffs earned between 160 and 200 hours of paid time off annually. Therefore, even if the plaintiffs used all of their earned paid time off to observe the Sabbath, they would still be left with between 9 and 13 Saturdays that they could not cover with paid time off. On those days, under Kellogg’s proposed accommodation, they would have to secure a voluntary shift swap with another employee to avoid a conflict between their work schedules and their religious observance.

Kellogg’s attendance policy assessed disciplinary points for any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee. Accumulation of points triggered certain disciplinary measures, including termination for amassing sixteen disciplinary points in a twelve-month period. Consequently, under Kellogg’s proposed accommodation, if the plaintiffs could not secure coverage via a swap for these remaining Saturday shifts, they would each earn over sixteen disciplinary points in a twelve-month period, warranting termination under the attendance disciplinary policy.

The plaintiffs put forth evidence that there were very limited options to trade shifts with other employees. First, in order to swap shifts with another employee, an employee needed to be qualified to perform the other’s position. Additionally, per Kellogg’s policy, no employee could work more than 13 hours in a row, eliminating the possibility of swapping with an employee assigned to Shift C. Because Shift D was regularly scheduled to work night shifts, it was less likely that an employee on the night Shift D would voluntarily swap with an employee on the day Shift A, which would require adjustment to their regular sleep schedules. After consideration of all of these factors, the plaintiffs argued that they were essentially limited to swapping shifts with “qualified” employees on Shift B, which left them each with three or fewer qualified employees with whom they could seek shift swaps.

Both plaintiffs contended that they were unable to regularly find qualified employees who would voluntarily agree to swap shifts, causing them to miss Saturday shifts to observe the Sabbath and accumulate disciplinary points for leaving their shifts uncovered. Eventually, both plaintiffs were terminated under Kellogg’s attendance policy for accumulation of disciplinary points, at least in part due to missed Saturday shifts.

The Decision

The Court looked at two questions in its decision – whether Kellogg reasonably accommodated the plaintiffs’ religious practice of not working on the Sabbath, and, if not, whether Kellogg could have offered a reasonable accommodation without undue hardship to the business.

Ultimately, the Tenth Circuit vacated summary judgment in favor of Kellogg, holding that there were questions of fact on both issues presented that precluded the entry of summary judgment, and remanded the case for further proceedings. Although the decision leaves open the ultimate question of whether Kellogg’s accommodation was reasonable, the Court did provide additional guidance for employers in rejecting two theories advanced by plaintiffs and the EEOC, which submitted an amicus brief on behalf of plaintiffs.

First, the Tenth Circuit held that there is no per se requirement that a “reasonable” accommodation “completely” or “absolutely” eliminate any conflicts between an employee’s religious practices and his or her job requirements, which in this case could require, for example, that the plaintiffs never be scheduled for a Saturday shift. The Court found that such a rule would read “reasonably” out of the statute. The Tenth Circuit thus expressly declined to adopt the position that in order to be reasonable an accommodation “must eliminate, or totally eliminate, or completely eliminate, any conflict between an employee’s religious practice and his work requirements.” The Court reiterated that the statute only requires that the accommodation to be “reasonable” and the assessment of reasonableness is made on a case-by-case basis. Employers should note that the question of whether a reasonable accommodation must completely eliminate the conflict varies significantly by jurisdiction, as noted in the decision.

Second, the Tenth Circuit rejected plaintiffs’ blanket position that an employer cannot meet its accommodation obligations through use of a neutral policy, such as the accommodation provided in this case. Rather, the Court reaffirmed that a neutral employment policy “may” satisfy the need for a reasonable accommodation, and specifically stated that the combination of paid time off and voluntary shift swaps “might, under the facts of a particular case, reasonably accommodate an employee’s Sabbath observance.”

Nonetheless, the Court found that the evidence created a dispute of fact as to whether the accommodation in this case was reasonable. Specifically, in this case, the Tenth Circuit explained that “an accommodation will not be reasonable it if only provides Plaintiffs an opportunity to avoid working on some, but not all, Saturdays.” And here, there was evidence in the record that, after narrowing the pool of individuals with whom they could seek swaps based on these limitations, each plaintiff was left with less than three options from which to seek voluntary shift trades. Neither plaintiff had substantial success in consistently obtaining shift swaps for Saturdays, and upon advising their supervisor of this difficulty, plaintiffs contend that no further action was taken to assist or accommodate them. The Court noted that in consideration of the limited options for swapping shifts and the demonstrated difficulty plaintiffs had in swapping shifts, a reasonable accommodation “could” require an employer to take a more active role in the accommodation rather than merely permitting the voluntary shift swaps.

The Court emphasized, however, that this does not mean that the employer in this case was required to guarantee that the plaintiffs would never be scheduled for a Saturday shift. And there is no requirement that an accommodation be without cost to the employee.   For example, the Court noted that requiring an employee to take unpaid leave could eliminate the conflict between a religious practice and work requirements. Unpaid leave is only a loss of income for the period that the employee is not at work and has no direct effect on either employment opportunities or job status.

With disputed factual issues surrounding the reasonableness of the accommodation and the plaintiffs efforts to utilize the provided accommodation, the Tenth Circuit determined that the case must be decided by a jury.

The Tenth Circuit’s decision touched only briefly on Kellogg’s affirmative defense that any additional accommodation would be an undue hardship for the company. The Court noted that Kellogg did not move for summary judgment on that ground, but the District Court’s granted summary judgment in the alternative on that defense. Similar to the Court’s analysis of the issue of what constitutes a “reasonable” accommodation, the Court found that whether further accommodation would impose an undue hardship on the employer is a question of fact that turns on the particular circumstances in each case.

Employer Takeaways

The resounding theme in the Court’s decision is that “determining what is reasonable is a fact-specific determination that must be made on a case-by-case basis.” This is good advice for any employer in responding to a request for accommodation; the employer should make a factual inquiry into the particular circumstances of each request and whether, as a practical matter, the proposed accommodation provides a realistic opportunity for the employee to avoid conflicts between job requirements and religious practices. It is also a good example of how neutral policies are not always sufficient to constitute a reasonable accommodation. Finally, the decision serves as a reminder that religious accommodation standards may vary considerably from jurisdiction to jurisdiction. Employers are wise to consult with an attorney with expertise in this area who can help assess the specific religious conflict and accommodation possibilities, within the legal standards applicable to the jurisdiction.

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 and Megan P. Toth

Seyfarth SynopsisThe Eleventh Circuit is the next to find a long-term leave of absence is not a reasonable accommodation under the ADA.

Just a few months after a recent and definitive decision by the Seventh Circuit that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the Americans with Disabilities Act (ADA), the Eleventh Circuit has issued a similar opinion. This decision may signal a growing trend that courts are attempting to curb the abuse of long-term leaves of absence under the ADA that has been rampant and debilitating to employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities Authority, the plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He was not able to have corrective surgery during this time, so under the employers medical leave policy, he was granted another three-month medical leave.  However, at the end of this period — a total of six months of leave — the employee was still not medically able to return to work. He told the employer that he had a doctors appoint in a month and would likely be released to work in six weeks, but it was unclear whether he would have any restrictions at that time. Thus, the employer terminated the plaintiff’s employment and he sued, alleging failure by the employer to provide additional leave as an ADA reasonable accommodation.

The Eleventh Circuit affirmed dismissal of the plaintiff’s claim on summary judgment. The plaintiff acknowledged that case precedent says that employers are not required to provide indefinite leaves. However, he argued that these prior decisions involved situations where employees suffered from chronic medical conditions that could continue indefinitely. In this case, the plaintiff contended that an unspecified leave was reasonable because there was a projected end date and once concluded, his medical condition would be resolved without the potential need for additional leave.

The Eleventh Circuit rejected this argument finding that even though the plaintiff would eventually recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted that the employer did not violate the ADA because it already provided six months of leave and the plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual.  Thus, the court found that regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

It appears that the Seventh Circuit is not the lone-ranger in its attempt to invalidate the EEOC’s historic and strongly advocated position that long-term leaves are required “reasonable accommodations” under the ADA.  If other circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify the denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods.

If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request. While employers should be aware of this apparently growing trend and may choose to adjust their leave and accommodation approaches accordingly, they still must approach long-term and indefinite leave requests very carefully as there are conflicting decisions from other circuits and the EEOC’s position will remain unchanged unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

By David J. Rowland and Cheryl A. Luce

Seyfarth Synopsis: The Seventh Circuit sent shockwaves through the EEOC and through the employer community by concluding that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the ADA.

To the surprise of many observers, and undoubtedly the EEOC, the Seventh Circuit held last week in Severson v. Heartland Woodcraft, Inc., — F. 3d — Case No. 14-cv-1141 (7th Cir. Sept. 20, 2017) that “a long-term leave of absence cannot be a reasonable accommodation” under the ADA. Id. at 7. Judge Sykes, on behalf of a power panel that included Chief Judge Wood and Judge Easterbrook, analyzed the language of the ADA and concluded that it “is an antidiscrimination statute, not a medical-leave entitlement.” Id. at 2.

The facts of the case are straightforward. Severson had a chronic back condition that pre-dated his employment at Heartland that would occasionally flare up and affect his ability to walk, bend, lift, sit stand, move and work.  In June 2013, Severson experienced such a flare-up and took a leave from work.  Over the summer months, he submitted periodic notes from his doctor informing Heartland that he was receiving treatment and could not work.

Heartland approved his request for 12 weeks of FMLA leave. Two weeks before his leave expired, he informed Heartland that his condition had not improved and that he would need surgery the date that his leave expired, and that the typical recovery time for this surgery was at least two months.  Heartland notified Severson the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day and invited him to reapply with the company when he recovered from surgery and was medically cleared to work. He recovered several months later and, instead of reapplying, filed a lawsuit.  The district court awarded summary judgment in favor of Heartland on Severson’s ADA claims and the Seventh Circuit affirmed.

The EEOC filed an amicus brief and participated in oral argument.  In its opinion, the court took special care to explicitly reject the EEOC’s argument that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is of a definite, time-limited duration, requested in advance, and likely to enable to perform the essential functions of his job when he returns.  The court found the EEOC’s reading of the statute to equate “reasonable accommodation” with “effective accommodation,” a concept rejected by the Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Severson at 9.  More importantly, the court found that by the EEOC’s logic, the length of the leave did not matter and therefore transformed the ADA into a medical leave statute—“in effect, an open-ended extension of the FMLA”—which the court found “untenable.” Id.

The court left open the possibility that “intermittent time off or a short leave—say, a couple of days, or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule.” Id. at 8.  But, relying upon prior precedent from Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003), the court found that the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.” Id.

This decision is the firmest and most comprehensive rebuke of the EEOC’s long-held and vigorously pursued position that long-term leaves are a required form of reasonable accommodation. The Chicago office of the EEOC, in particular, has leveraged multi-million dollar settlements in the past after suing employers that actually had long term, “multi-month” extended leave policies in place, but were unwilling to extend leaves beyond six months or even a year.  This avenue of ADA attack now appears blocked in the Seventh Circuit.

Employers must proceed with great caution in this area for several reasons. First, the Seventh Circuit’s decision arguably conflicts with decisions in the First, Sixth, Ninth and Tenth Circuits (at least according to the EEOC’s amicus brief at pp. 15-16 ).  As a result, employers with a national footprint cannot assume this same rule will apply outside of the Seventh Circuit.  Second, Severson could seek rehearing en banc, likely with the EEOC’s support.  Given the panel in Severson, though, a rehearing bid may be an uphill battle.

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.