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

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

Reproductive Health Hazards in the Workplace

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

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

Involuntary Reassignments of Pregnant Women

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

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

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

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

Changes to Protective Equipment

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

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

Disclosure and Voluntary Accommodations

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

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

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

More Information About Pregnancy In the Workplace

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

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

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

By Condon McGlothlen and Colton D. Long

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

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

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

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

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

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

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

By Jade M. Gilstrap and Alex S. Drummond

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

Case Background

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

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

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

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

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

The D.C. Circuit Court’s Reasoning

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

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

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

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

Takeaways for Employers

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

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

 

By Minh N. Vu

Seyfarth Synopsis:  Is it a service animal or an emotional support animal?  Do I have to allow both?  How to tell one from the other, and the rules that apply.

We get a lot of questions about service and emotional support animals.  It’s obvious that there is a lot of confusion out there.  Here is how to tell one from the other, and the rules that apply to both.

Public Accommodations.  Under Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is an animal that has been trained to perform work or tasks for the benefit of a person with a disability.  Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks.  Instead, they provide a benefit just by being present.  Public accommodations (e.g. restaurants, theatres, stores, health care facilities), are allowed to ask only two questions to determine if an animal is a service animal:  (1) Do you need the animal because of a disability? and (2) What work or tasks has this animal been trained to perform?  The second question is the key:  If the person is unable to identify the work or tasks that the animal has been trained to perform, then the animal is not a service animal.

Under the ADA, only a dog or miniature horse (no, we are not joking) can serve as service animals.  The ADA requires public accommodations to allow service animals to accompany their owners anywhere the owners can go, although the Department of Justice made clear a few years ago that they can be prohibited from swimming pools (in the water) as well as shopping carts.  The ADA provides no protection for emotional support animals in public accommodations.  The Department of Justice has a very helpful FAQ about service animals, and the Washington Post recently published a story that is also useful.

When developing policies, public accommodations must comply with both federal and state law, and some states provide greater protections.  For example, in some states, any type of animal (not limited to dogs and miniature horses) can be a service animal provided it has been trained to perform work or tasks.  Some states may provide protection for emotional support animals as well.  Virtually all states protect service animals in training, which are not addressed by the ADA.  Thus, public accommodations must tailor their policies to account for state requirements, or adopt a policy that will comport with the broadest of all state laws nationwide.

Housing.  The federal Fair Housing Act (FHA) applies to residential facilities and provides protection for emotional support animals in addition to service animals.  Thus, property managers, condo associations, co-op boards, and homeowners associations need to keep this in mind when dealing with requests from homeowners and tenants relating to these types of animals.  The Department of Housing and Urban Development’s most recent guidance on this topic is here.

Airplanes.  The Air Carrier Access Act (ACAA), not the ADA, governs accommodations for people with disabilities on airplanes.  The Department of Transportation (DOT) is responsible for enforcing the ACAA rules.  Historically, the rules have required accommodations for emotional support animals, but recent abuses of the rules by passengers seeking to bring all manner of animals such as peacocks and pigs onto planes has caused the DOT to revisit this issue in a pending rulemaking.

Compliance Strategy.  All businesses should have a written policy concerning service and emotional support animals that takes into account federal law, state law, the nature of the business, and the ability of employees to make decisions about whether an animal should be allowed onto the premises.  Having a written policy and training employees on the policy is key to ensuring that they know how to respond when one of these animals shows up on the premises.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the ADA Title III Team.

By Sara Eber Fowler and Lynn Kappelman

Seyfarth Synopsis: Oregon’s new employee scheduling law – impacting hourly employees at large retail, food service, and hospitality employers – goes into effect after the end of this week, on July 1. Affected employers must now be aware of the potential consequences in changing employees’ schedules.

Friendly Reminder! At the end of this week, on July 1, Oregon will become the first state with a predictable scheduling law in effect. You may recall that predictable scheduling laws – sometimes referred to as fair or flexible scheduling laws – are laws that impose certain financial penalties on covered employers who make changes to employees’ schedules, and may restrict specific scheduling practices (like scheduling on-call shifts) altogether. While stemming from admirable goals, these laws can have the effect of making employee scheduling – already head-splitting! – an even more complicated, and costly, process. Until Oregon’s legislature passed its scheduling law last summer, other predictable scheduling laws had been limited to cities and municipalities (e.g., San Francisco, Emeryville, Seattle, New York City).

Hopefully, if you are a covered employer (retail, hospitality or food service employers with 500 or more employees) with operations in Oregon, you have already developed a plan for compliance with this new scheduling law. (And if you have not – do not panic! – the law will not be enforced until at least January 2019.) Below are some key takeaways and reminders for complying with Oregon’s employee scheduling law:

  1. The law does not apply to salaried employees. Given the law’s purpose to cure inflexible, unpredictable schedules that plague hourly workers, that makes sense. Sorry exempt workers, no predictability pay for you!
  2. The law requires advance notice of schedules at least 7 days before the first day on the schedule – not 7 days’ before a shift. So, if you schedule two weeks at a time, your work schedule covering July 15-28 needs to be posted no later than July 8. And yes, it means that, subject to some exceptions (see below), any changes made to an employee’s schedule after July 8 will require predictability pay – even if the change is made with far more than 7 days’ notice before the actual shift. Plan carefully, if you can!
  3. Premium pay comes in all shapes and sizes. It is not just about changing work schedules after the 7-day notice period – any alterations to employees’ hours worked within that notice period may require additional compensation. That includes adding and subtracting shifts, sending employees home early, asking employees to stay late, and changing start or end times (with or without a loss of hours). The amount of premium pay depends on the degree of schedule change. The law also requires premium pay for any employee scheduled to work without 10 hours’ rest, regardless of whether an employee receives sufficient notice (except split shifts).
  4. But, keep in mind – not every schedule change comes with financial penalties. There are many ways for employers to avoid financial penalties for schedule changes. A few notable exceptions include:
  • Schedule changes of 30 minutes or less;
  • Employees voluntarily trading shifts;
  • Employees who request a schedule change (in writing);
  • Schedule changes for legitimate disciplinary reasons; and
  • Employees on a company’s Voluntary Standby List, who agree to work a shift with less than the required notice.

5.  Speaking of which – use a Voluntary Standby List! It is hard to think of a reason not to have a Voluntary Standby List (“VSL”) if you are covered by Oregon’s scheduling law. Employees may choose to include their names on a VSL, and if additional shifts become available (e.g., unanticipated employee call-offs or customer needs), employers can ask employees on the VSL to fill-in without being required to pay additional compensation. Keep in mind, however, that employees on the VSL can still decline to work any shifts offered, and can take their names off of the list at any time. The law also has specific requirements about the kind of notice employees must receive about the VSL, if employers elect to use one.

With these tips in mind, hopefully navigating Oregon’s employee scheduling law will be a more “predictable” endeavor.

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

 

By 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.