Absence Management & Reasonable Accommodation

By Daniel B. Klein and Christopher W. Kelleher

Seyfarth Synopsis: While we await the proposed regulations due by March 31, 2019, the new Department of Family and Medical Leave has provided several points of clarification of which employers should be aware, as we gear up for implementation of the Massachusetts Paid Family and Medical Leave (PFML) Law.

As we previously reported, last summer, the Massachusetts Legislature passed the “Grand Bargain” bill, which will gradually raise the minimum wage, will phase out the time-and-a-half premium pay requirement for retail workers on Sundays and holidays, and will provide paid family and medical leave to Massachusetts workers. The Department of Family and Medical Leave is required to publish proposed regulations for public comment by March 31, 2019.

In the meantime, however, the Department has posted FAQs online that provide some points of clarification on the new PFML Law, and employers should take note of a few key highlights:

  • We already knew that beginning July 1, 2019, all Massachusetts employers will be required to contribute to the Family and Employment Security Trust Fund at an initial contribution rate of 0.63% of each employee’s wages. The Department has now clarified that the contribution will be limited to 0.63% on the first $128,400 of an individual’s annual earnings (note that this figure may be adjusted annually);
  • In addition, while inconsistent drafting in the PFML Law caused some debate regarding the start date for employees being able to claim leave benefits, the Department has clarified the starting dates as follows:
    • On January 1, 2021, employees can begin claiming benefits for bonding with a child or newborn; service-member related events; and dealing with the employee’s own serious health condition; and
    • On July 1, 2021, employees can begin claiming benefits to care for a family member with a serious health condition.

The recent updates including the Department’s FAQs can be found here for employers and here for employees, and it should be noted that the State may continue to tinker with the FAQs leading up to the March 31 deadline for proposed regulations. We will continue to provide updates as to any significant events that occur with respect to the PFML Law.

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.

By Rhandi Childress Anderson and Erin Dougherty Foley

Seyfarth Synopsis: Sixth Circuit Court of Appeals clarifies that employers have discretion to provide a reasonable accommodation as identified through the interactive process. Once an employee abandons the interactive process, the employer has no duty to accommodate.

Under the Americans with Disabilities Act (ADA), the purpose of the interactive process is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Employers may erroneously believe that the interactive process as a tool is something utilized by and beneficial to employees. However, the Sixth Circuit has recently shed light on just how the interactive process protects employers from having to make on-the-spot accommodations of an employee’s choosing.

In Brumley v. United Parcel Service, Inc., the Plaintiff Melissa Brumley, who worked primarily as a sorter, injured her back while unloading heavy packages from a UPS truck. After receiving worker’s compensation and taking a leave of absence, she initially returned to work with two return-to-work notes that included permanent lifting restrictions and a statement that Brumley may return to “local sort.” Even though it was unclear exactly how Brumley requested an accommodation, upon receipt of Brumley’s return-to-work notes UPS initiated an internal ADA interactive process, and pursuant to that process, asked Brumley to submit two medical forms that would allow it to evaluate further her restrictions and identify possible accommodations. Brumley remained on leave as a result of this request.

Thereafter, and after nearly a month delay in providing UPS with the requested medical documents, Brumley met with UPS’s Human Resource Manager. At that meeting, UPS indicated that they were reviewing Brumley’s restrictions and considering positions she could fill. However, Brumley disclosed at that meeting that she desired to voluntarily discontinue the interactive process and return to her doctor to have her work restrictions lifted. Because Brumley’s lifting restrictions were ultimately removed by her doctor, she ultimately returned to work without accommodations. After Brumley’s restrictions were lifted, UPS closed the interactive process and Brumley returned to work.

Nevertheless, several months later, Brumley sued UPS for failure to accommodate and disability discrimination, among other claims — in other words for keeping her off work during the time that they were evaluating her “return to local sort” restrictions from her doctor. The district court granted summary judgment in UPS’s favor on all claims and Brumley appealed. On appeal, Brumley argued, among other things, that UPS should have allowed her to work in local sort when she returned to work because her doctor’s note stated that she was able to do that work.

The Sixth Circuit affirmed the district court’s decision and found that an employer’s refusal to provide an accommodation to the position of the employee’s choice immediately upon the employee’s request is not, in and of itself, a failure to accommodate under the ADA. UPS had discretion to provide a reasonable accommodation as identified through the interactive process. Once Brumley voluntarily abandoned that process, UPS could not be liable for failing to provide a reasonable accommodation.

Takeaways for Employers

With ADA claims on the rise, employers should remember the importance of a formal (and documented) interactive process to identify a reasonable accommodation that works for the company, even if that process takes time. Employers can view the interactive process as both a shield and a sword for defending itself against claims of failure to accommodate. The duty to engage in the interactive process applies equally to both employers and employees. If the employee opts-out of the interactive process, the employer is under no duty to proceed with an accommodation. This decision is an important reminder that the interactive process under the ADA is not just a requirement for employers to engage in good faith—it also demands the same from employees before they can claim a failure to accommodate.

If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees’ requests for accommodations, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations Team.

By Joshua D. SeidmanTracy M. Billows, Ann Marie Zaletel, William P. Perkins, and Ryan B. Schneider

Seyfarth Synopsis:  This blog presents Seyfarth Shaw LLP’s Infographic tracking the spread of paid sick leave and anti-local sick leave laws around the country. The Infographic is divided into four distinct time periods to highlight the geographic and historic evolution of these laws.

Introduction

Over the last decade, dozens of states and cities have infected the nation with a patchwork of paid sick leave laws and ordinances. The paid sick leave epidemic has created compliance challenges for countless employers, whether their operations are nationwide, multi-state, or limited to a single state. As the paid sick leave epidemic has grown, so too has the number of states immunizing their boundaries from local paid sick leave ordinances.

The current spread of paid sick leave and anti-local sick leave laws takes several forms. In some states, only local paid sick leave ordinances exist. In others, there are only state paid sick leave laws in place. Some statewide paid sick leave laws strip localities of the ability to regulate paid sick leave. Other statewide sick leave laws have declined to enforce the anti-local vaccine, thereby allowing state and local paid sick leave mandates to co-exist. Finally, some states have enacted anti-local sick leave legislation without any statewide paid sick leave mandate in place.

The presence of a local paid sick leave ordinance or anti-local paid sick leave law does not prevent a state from passing a paid sick leave law in the future. Additionally, regardless of the presence or absence of paid sick leave mandates or anti-local paid sick leave laws, new strands of the paid sick leave virus, as well as new vaccines, have emerged over the years due to legislative and executive shifts across the nation. Needless to say, the paid sick leave landscape is constantly evolving. These maps illustrate the spread of the paid sick leave epidemic and anti-local paid sick leave vaccine over the years.

Read on for specific points about the development of paid sick leave laws during each of the four relevant time periods.

I.  Pre-2014

Note 1: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Seattle, WA; and (4) Washington, D.C. Outside of these locations, and the state of Connecticut, paid sick leave was an area left to employer discretion.

Note 2: A majority of the nine state anti-local paid sick leave laws in effect prior to 2014 preempted localities from regulating a wide range of employment-related matters, such “employment benefits” or a related term (which generally includes time off benefits and leave), as opposed to expressly preempting localities from regulating sick leave.

Note 3: A paid sick leave ordinance was enacted in Milwaukee, WI in 2008. However, due to judicial and legislative delays, the ordinance had not yet gone into effect when Wisconsin passed its statewide anti-local paid sick leave law in 2011.

II. 2014-2015

Note 1: In a matter of two years, the number of state and local paid sick leave laws around the country that were in effect or scheduled to go into effect increased from five to 23. The sick leave epidemic particularly impacted jurisdictions in the Northeast and Mid-Atlantic, and on the West Coast. To combat the epidemic, state anti-local paid sick leave laws emerged in four additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (covers certain hotel employers only); (6) Portland, OR; (7) Philadelphia, PA; (8) Jersey City, NJ; (9) Newark, NJ; (10) Passaic, NJ; (11) East Orange, NJ; (12) Paterson, NJ; (13) Irvington, NJ; (14) Montclair, NJ; (15) Trenton, NJ; (16) Bloomfield, NJ; (17) New York City, NY; (18) Seattle, WA; (19) SeaTac, WA (covers certain transportation and hospitality employers only); and (20) Washington, D.C.

Note 3: When California’s statewide paid sick leave law went into effect, it became the first state in which both state and local paid sick leave mandates were imposed.

Note 4: During this time period, New Jersey municipalities added nine local paid sick leave mandates and became home to the greatest number of municipal sick leave ordinances of any state in country.  New Jersey would retain this title until October 29, 2018.

Note 5: Pittsburgh, PA also passed a paid sick leave ordinance during this timeframe. It was scheduled to go into effect in early January 2016. However, it has not taken effect due to ongoing litigation regarding whether Pittsburgh could pass such an ordinance. The Pennsylvania Supreme Court heard oral arguments on the matter in October 2018.

III. 2016-2017

Note 1: During this 2016-17 window, the paid sick leave epidemic nearly doubled, increasing the number of laws with state or local mandates either in effect or scheduled to go into effect from 23 to 40. Notably, not only did the epidemic continue to intensify in the Northeast, Mid-Atlantic, and on the West Coast, but it also began spreading inward to Arizona and localities in Illinois and Minnesota. To combat the epidemic, state anti-local paid sick leave laws emerged in 7 additional states.

Note 2: Local paid sick leave mandates present in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Philadelphia, PA; (15) Jersey City, NJ; (16) Newark, NJ; (17) Passaic, NJ; (18) East Orange, NJ; (19) Paterson, NJ; (20) Irvington, NJ; (21) Montclair, NJ; (22) Trenton, NJ; (23) Bloomfield, NJ; (24) New Brunswick, NJ; (25) Elizabeth, NJ; (26) Plainfield, NJ; (27) Morristown, NJ; (28) New York City, NY; (29) Seattle, WA; (30) SeaTac, WA (covers certain transportation and hospitality employers only); (31) Spokane, WA; (32) Tacoma, WA; and (33) Washington, D.C.

Note 3: Oregon’s statewide paid sick leave law came with an anti-local preemption vaccine, which eliminated the local strain that was in effect in Portland and had been enacted in Eugene.

Note 4: In 2013, the Arizona legislature enacted a preemption law, preempting a wide range of employment matters, including paid sick leave. The 2017 Arizona statewide paid sick leave law, however, expressly permits localities to enact more generous local paid sick leave mandates. See Ariz. Rev. Stat. §§ 23-378, 23-379(b). Given this language and questions surrounding the propriety of the preemption law in a more general context, it is very likely that localities may attempt to regulate paid sick leave in Arizona. See generally United Food & Com. Workers Local 99 v. State, No. CV 2016-092409, 2017 WL 8776461 (Ariz. Super. Ct. Aug. 30, 2017).

Note 5: The North Carolina law prohibiting local regulation of private employment practices (which likely includes sick leave) is set to expire on January 1, 2020.

Note 6: Ohio’s paid sick leave preemption statute (Ohio Rev. Code Ann. § 4113.85) was enacted in 2016 via S.B. 331, a bill regulating a broad range of topics beyond preemption or employment law, and went into effect in March 2017. Many municipalities have filed lawsuits due to S.B. 331’s broad sweep. At least two county courts in Ohio have found that the bill violates the Ohio Constitution’s “one subject” clause and declared all provisions of S.B. 331 unrelated to pet store purchase supply regulation, the bill’s original purpose, unconstitutional. Regardless, localities in Ohio are likely preempted from passing paid sick leave legislation because (1) Ohio Rev. Code Ann. § 4113.85 is in effect, (2) at least one intermediate appellate court case found that because the plaintiffs did not challenge paid sick leave preemption, but rather another provision, the issue of paid sick leave preemption was moot, and (3) the county court decisions do not bind other courts.

Note 7: On January 1, 2017, the federal contractor paid sick leave requirements, as set forth in Executive Order 13706 and the United States Department of Labor’s corresponding Final Rule, went into effect, thereby providing paid sick leave benefits to many employees of certain federal contractors.

IV. 2018

Note 1: 2018 has seen the paid sick leave epidemic spread to only three additional localities. However, the epidemic has continued to evolve and expand as five additional statewide sick leave mandates either went into effect or were enacted this year.  The total number of paid sick leave mandates in effect or scheduled to go into effect at the time of this publication is 35 (this figure excludes Pittsburgh, PA and Austin, TX in light of ongoing lawsuits challenging the cities’ respective paid sick leave ordinances).

Note 2: Local paid sick leave mandates either in effect or scheduled to go into effect in: (1) San Francisco, CA; (2) Long Beach, CA (covers certain hotel employers only); (3) Oakland, CA; (4) Emeryville, CA; (5) Los Angeles, CA (two ordinances – one covers certain hotel employers only and the other generally applies to private employers); (6) San Diego, CA; (7) Santa Monica, CA; (8) Berkeley, CA; (9) Chicago, IL; (10) Cook County, IL; (11) Montgomery County, MD; (12) Minneapolis, MN; (13) Saint Paul, MN; (14) Duluth, MN; (15) New York City, NY; (16) Westchester County, NY; (17) Philadelphia, PA; (18) San Antonio, TX; (19) Seattle, WA; (20) SeaTac, WA (covers certain transportation and hospitality employers only); (21) Tacoma, WA; and (22) Washington, D.C.

Note 3: March 30, 2019 is the expected effective date of the Westchester County, NY ordinance because this date is 180 days from the date the paid sick leave bill was “adopted” according to the language of the ordinance and corresponding certification page from the Clerk of the Westchester County Board of Legislatures. However, there are multiple interpretations of the effective date that could result in a slightly different effective date as we near late-March/early-April 2019.

Note 4: The Duluth, MN paid sick leave ordinance is scheduled to go into effect on January 1, 2020.

Note 5: The Texas update is based on the following: The cities of Austin and San Antonio both passed paid sick leave ordinances in 2018.  The Austin ordinance was originally scheduled to go into effect on October 1, 2018, while the San Antonio ordinance is scheduled to go into effect for most employers on August 1, 2019. The Austin ordinance is currently involved in a lawsuit that found the ordinance to be unconstitutional. In addition, the Texas legislature has introduced a bill that would prohibit all municipal paid sick leave ordinances in the state. However, the lawsuit does not impact San Antonio and the preemption bill will not be passed, if at all, until 2019. As a result, at the time of this publication, at least San Antonio’s paid sick leave ordinance is still “scheduled to go into effect” in August 2019.

Note 6: Like the California statewide paid sick leave law, the Washington statewide paid sick leave law, which went into effect on January 1, 2018, does not preempt municipalities within the state from passing more generous paid sick leave mandates.

Note 7: The Spokane, WA paid sick leave ordinance’s “sunset” provision took effect on January 1, 2018, and thus the Spokane ordinance is no longer in effect.

Note 8: Maryland’s statewide paid sick leave law preempted its political subdivisions from passing paid sick leave ordinances on or after January 1, 2017. As a result, Montgomery County’s paid sick leave ordinance, which went into effect in 2016, is still in effect and co-exists with the statewide paid sick leave law.

Note 9: When New Jersey’s statewide paid sick leave mandate went into effect on October 29, 2018, the law preempted the state’s 13 existing local paid sick leave ordinances and all future local New Jersey paid sick leave ordinances from being enacted.

Note 10: Michigan’s statewide paid sick leave law is scheduled to go into effect in late-March 2019.  Michigan is currently the only state that (1) has a statewide paid sick leave mandate, and (2) preempts local paid sick leave ordinances via a law other than the statewide paid sick leave mandate. Michigan had prohibited local paid sick leave mandates since 2015, and thereafter passed its statewide paid sick leave law in 2018.

If you have any questions regarding these issues, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Danielle M. Kays and Erin Dougherty Foley

Seyfarth Synopsis: For the first time since the enactment in 2008 of the ADA Amendments Act (ADAAA), which broadened the definition of a disability under the Americans with Disabilities Act (ADA), the Ninth Circuit addressed, and expanded, the definition of an individual who is “regarded-as” disabled under the act. The court held that a plaintiff establishes he is “regarded-as” disabled if he shows “an actual or perceived physical or mental impairment,” regardless of whether the impairment actually limits, or the employer perceives the impairment to limit, a major life activity. The decision reminds employers to proceed carefully when making personnel decisions regarding employees with injuries or impairments, even if they may not rise to the level of a disability.

Case Background

In Nunies v. HIE Holdings, Inc., the plaintiff Herman Nunies was a former delivery driver for HIE Holdings in Honolulu, who had requested a transfer to a part-time warehouse position. The parties disputed the plaintiff’s stated reason for his transfer request, but the plaintiff claimed he requested the transfer to a less-physical position because he had developed shoulder pain. Plaintiff alleged that the Company initially approved the transfer but subsequently denied it and forced him to resign after he reported his shoulder pain to his employer. The employer cited budget cuts as the reason for denying the transfer and advised plaintiff that his position no longer existed, but evidence showed the employer had an open warehouse position at the time of plaintiff’s termination.

Plaintiff filed a lawsuit asserting disability discrimination under the ADA and state law, alleging that his employer forced him to resign because of his shoulder injury. The employer moved for summary judgment, arguing that plaintiff could not assert a prima facie case of disability discrimination because he was not disabled under the ADA, among other arguments. The district court agreed, granting summary judgment to the employer. In its decision, the district court held that plaintiff did not have a disability and was not “regarded-as” having a disability under the ADAAA, because plaintiff did not provide any evidence that the employer subjectively believed that plaintiff “was substantially limited in a major life activity.” The district court further held that the plaintiff did not establish an actual disability because he “did not identify any major life activities that were affected by his impairment” — indeed, plaintiff had continued to work without apparent issue or limitation. As further evidence that plaintiff was not disabled, the district court held that plaintiff had not demonstrated that his shoulder pain substantially limited any activity compared to most people in the general population.

The plaintiff appealed, joined by the Equal Employment Opportunity Commission (“EEOC”) as amicus curiae. The EEOC explained it offered its position to the appellate court because other district courts in the circuit had “failed to heed” the broader “regarded-as” disability definition promulgated by the ADAAA.

The Ninth Circuit’s Ruling

The Ninth Circuit agreed that the ADAAA expanded the scope of the ADA’s “regarded-as” definition and that some district courts continued to rely on pre-ADAAA case law to apply the older, narrower “regarded-as” disabled definition. Specifically, the district court in the Nunies case had erroneously concluded that Plaintiff had failed to meet his burden of presenting evidence that his employer “subjectively believed that Plaintiff is substantially limited in a major life activity.” Based on the plain language of the ADAAA, the appellate court held that plaintiff was not required to present evidence that the employer believed that plaintiff was substantially limited in a major life activity. Instead, the plaintiff could simply show that the employer terminated plaintiff “because of” his knowledge of the shoulder pain, regardless of whether the employer actually perceived the shoulder pain as a disability, and regardless of whether or not the shoulder pain amounted to an actual disability. Notably, the Ninth Circuit’s expansion of the scope of the “regarded-as” disability definition follows decisions in the First, Fifth, Sixth and Tenth Circuits which similarly defined the definition under the ADAAA.

Additionally, although the employer had argued that the ADAAA “regarded-as” disabled definition does not apply to “transitory and minor impairments,” the appellate court noted that this exception is an affirmative defense with the burden of proof on the defendant, and not the plaintiff. The court held that the employer had not set forth evidence to establish plaintiff’s shoulder pain was transitory and minor.

Therefore, the appellate court held that Plaintiff had established a genuine issue of material fact as to whether the employer regarded him as having a disability.

The Ninth Circuit further reversed the circuit court’s holding that the plaintiff could not establish his shoulder pain was an actual disability. Specifically, the appellate court found that because plaintiff could neither work nor lift more than 25 pounds nor lift his arm above chest height without pain, he had identified two major life activities affected by his impairment. The court noted an impairment “need not prevent, or significantly or severely restrict the activity” in order to substantially affect a major life activity. Therefore, the court found an issue of fact as to whether plaintiff had an actual disability.

Takeaways for Employers

The protections under the ADA, the ADAAA, and state law are ever-evolving and sometimes nebulous. As disability-related issues continue to increase in the workplace, employers should proceed carefully when considering personnel decisions involving individuals with potential injuries or impairments, as they may meet the “regarded-as” disabled definition. This decision is an important reminder to employers to ensure that any adverse actions taken against such employees are based on legitimate, non-discriminatory and non-retaliatory reasons, and to carefully document the business reasons for those adverse actions.

If you have any questions regarding this area or need assistance evaluating personnel decisions relating to employees with medical afflictions, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

 

By Dawn Reddy Solowey and Latoya R. Laing

Seyfarth Synopsis: The 8th Circuit recently held that while a request for a religious accommodation  may qualify as a protected activity, it is not necessarily “oppositional” so as to give rise to an opposition-clause retaliation claim under Title VII. Employers considering requests for religious accommodation should, despite this Circuit’s narrow decision, proceed carefully when considering any request.

Last year we blogged about a Minnesota District Court’s decision holding that a religious accommodation request did not constitute a protected activity under Title VII. The plaintiff appealed the ruling.  On November 13, 2018, the Eighth Circuit Court of Appeals affirmed, holding that it could not “categorically” resolve whether a request for religious accommodation is oppositional activity for a retaliation claim, but that it would affirm the ruling for the employer on the summary judgment record in this case.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 17-2926 in the U.S. Court of Appeals for the Eighth Circuit. The Equal Employment Opportunity Commission (EEOC) sued the employer hospital, claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs as a Seventh Day Adventist. On March 15, 2017, the employer moved for summary judgment. The employer argued that the retaliation claim failed on grounds including that a religious accommodation request did not amount to protected activity as a matter of law. The District Court agreed, granting summary judgment in favor of the employer.  The EEOC appealed, joined by amicus curiae that included the American Civil Liberties Union (ACLU).

What Did the Court Rule?

The 8th Circuit explained that it was considering an “issue of first impression,” namely whether “requests for religious accommodation are protected activity under Title VII’s anti-retaliation provision.”  The Court held that “the issue cannot be resolved categorically,” but affirmed the district court’s ruling on the summary judgment record in this case, holding that the applicant’s simple request for a religious accommodation was not “oppositional” activity as required for Title VII retaliation claims.

Title VII makes it unlawful for an employer to discriminate against an employee or an applicant for employment because the employee opposed an unlawful employment practice. To establish a prima facie case of retaliation, the EEOC was required to show that the applicant opposed an unlawful practice.

The Court relied on the Supreme Court case Crawford v. Metro. Gov’t of Nashville and Davidson Cty. 555 U.S. 271 (2009), emphasizing that when an employee communicates to the employer a belief that the employer had engaged in discrimination, that communication almost always constitutes the employee’s opposition to the activity.

However, in this case, the Court held that the applicant’s actions were not oppositional because “merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.”

While the Court generally construes the statute “broadly to cover opposition to employment actions that are not unlawful,” the plaintiff’s request for religious accommodation, by itself, “did not reflect, much less communicate, any opposition or resistance to any North Memorial employment practice.”

The Court explained that at least for religious accommodation claims, “protected activity” is not always “oppositional activity.”  The Court held that in some circumstances, a religious accommodation request could form the basis for a retaliation claim, such as if an employer denied an accommodation on the grounds that it was not in fact based on a religious practice and fired the employee for making the request.  However, when the employee or applicant requests a religious accommodation, and the request is denied on the grounds that it cannot reasonably be accommodated absent undue hardship, there is no basis for an opposition-clause retaliation claim.  Instead, the employee or applicant’s exclusive claim is a disparate impact or disparate treatment claim under Title VII.

Finally, the Court noted that the applicant’s original EEOC charge had included a claim of disparate treatment.  However, the EEOC’s enforcement action alleged only unlawful retaliation.  Thus, while the Court held that the applicant’s “Title VII remedy as an unsuccessful job applicant was a disparate treatment claim under [the statute] for failure to reasonably accommodation,” there was in this case no disparate-treatment claim before the Court.

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending a retaliation claim, an employer should consider whether, in the relevant jurisdiction, there is a viable argument in its jurisdiction that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  This issue was one of first impression in the Eighth Circuit, and different courts are likely to reach different conclusions.  As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

Employers should follow a conservative approach in responding to religious accommodation requests.  Employers would be wise to assume — until there is settled, binding law to the contrary in the relevant jurisdiction on identical facts  — that a request for religious accommodation may be construed as protected activity under Title VII.  As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.  Further, an unlawful denial of a religious accommodation request can give rise to a disparate-treatment discrimination claim, even if there is no available retaliation claim.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law. Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented.

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

By Paul Galligan and Ryan B. Schneider 

Seyfarth Synopsis: In Judge v. Shikellamy Sch. Dist., No. 17-2189, 2018 U.S. App. LEXIS 27229 (3d Cir. Sep. 24, 2018), the 3rd Circuit Court of Appeals adopted a new approach to constructive discharge cases where an employee alleges coerced resignation in lieu of disciplinary proceedings.

Background

Plaintiff Holly Judge, a tenured school principal in Shikellamy School District, resigned after she was arrested for driving while intoxicated. The blood alcohol test revealed that Plaintiff’s blood alcohol content was .332, more than four times the legal limit. Plaintiff was released the same night, and formal criminal charges were not filed at that time.

Twenty days after Plaintiff’s arrest, the Superintendent of Plaintiff’s school district visited Plaintiff’s office and inquired about the incident, which Plaintiff acknowledged. That afternoon, Plaintiff was summoned to the Superintendent’s office and was asked to resign immediately. In exchange for Plaintiff’s resignation, the superintendent offered to provide a neutral reference, but if Plaintiff declined the offer, Plaintiff would be issued a written charge of dismissal premised on “Immorality.” A pre-termination hearing would follow pursuant to Plaintiff’s employment contract. Plaintiff was given until 12:30 pm the following day to accept or decline the ultimatum. Plaintiff did not consult her criminal lawyer whom she had retained after her arrest, but after speaking with her mother that evening and learning that she was charged with “general impairment” and “highest rate of alcohol” DUI under Pennsylvania law, Plaintiff resigned by the deadline.

Thereafter, Plaintiff filed procedural and substantive due process, equal protection, and breach of contract claims against the school district and other individually named Defendants, all under a constructive discharge theory. Plaintiff’s breach of contract and procedural due process claims survived a motion to dismiss but were dismissed on summary judgment. Plaintiff then appealed to the 3rd Circuit.

The 3rd Circuit’s New Approach to Constructive Discharge Claims

The 3rd Circuit acknowledged that there was a rebuttable presumption that employees tender their resignations voluntarily. As such, employees carry the burden of producing evidence that their resignation was involuntarily procured via coercion or duress, viewed objectively.

However, the Court noted that it had not “explained how claims of constructive discharge should be evaluated.” The Court found that the five factors examined by 11th Circuit in Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995), provided a useful framework: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice she was given; (3) whether the employee was given a reasonable time in which to choose; (4) whether the employee was permitted to select the effective date of the resignation; and (5) whether the employee had the advice of counsel. Affirming the district court, the 3rd Circuit closely examined each factor and held that the balance of the factors was insufficient for a reasonable jury to find Plaintiff had overcome the presumption that her resignation was voluntary.

The New Approach Applied

The 3rd Circuit found that the first three factors weighed in favor of the school district. First, the Court found that Plaintiff was offered an alternative to immediate resignation — a written statement of charges for dismissal followed by a hearing before any termination decision. Noting that the charges were not an illusory alternative, the Court highlighted that Pennsylvania law permitted discharge of tenured teachers for immoral conduct and recognized that driving while intoxicated under “certain circumstances” fell within the definition of such conduct.

Second, the Court found that a reasonable school principal would have understood the nature of Plaintiff’s choice between resignation and termination charges because Plaintiff’s annually signed contract outlined the procedure. Third, although Plaintiff had less than 24 hours to decide on the Superintendent’s ultimatum, the Court reasoned that “the clear possible effect of a DUI on the night of her arrest gave [Plaintiff] more than two weeks to foresee the gathering storm.”

Although the Court found that the fourth and fifth factors favored Plaintiff “to some extent,” it noted the fact that from the arrest to her resignation, Plaintiff only consulted her mother despite having retained counsel in anticipation of criminal charges. Thus, notwithstanding Plaintiff’s uncounseled decision and inability to set her resignation date, the appellate court presumed her resignation voluntary as a matter of law.

Takeaways

While the presumption that employees who resign do so voluntarily can be viewed as an employer-friendly legal standard, the 3rd Circuit’s analysis under the newly adopted framework suggests a fact-intensive inquiry that should make employers tread carefully when presenting an employee with the option to resign in the face of serious charges.

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

Category:       ABSENCE MANAGEMENT & REASONABLE ACCOMMODATION,

By Paul Galligan and Tara Ellis

Seyfarth Synopsis: Employers Continue to Labor over Pregnancy Accommodations.

Earlier this month, Plaintiff Caroline Ruiz filed suit in the Southern District of New York against her former employer New Avon LLC, contending that Avon failed to accommodate her high risk pregnancy, and instead hastily terminated her employment upon learning she was pregnant. Caroline Ruiz v. New Avon LLC, et al., 1:18-cv-09033. Ruiz, the former Global Head of North America Indirect Procurement at New Avon LLC, contends that she requested to work from home after her doctor recommended bed-rest for a week, because Ruiz had a high risk pregnancy. However, according to Ruiz’s complaint, Avon callously disregarded this recommendation, forced Ruiz to come into the office, and terminated her, due to fabricated performance issues.

The case raises some interesting questions, including, whether a pregnant employee’s request to work from home due to her doctor’s recommendation of bed rest is a reasonable accommodation, and whether the answer to this question changes based upon the nature of the employee’s job, the length of the anticipated bed-rest and the classification of the employee’s pregnancy as high risk.

We will continue to watch this case, and will keep you posted of any developments.

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 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.