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39 Offices in 19 Countries
Navigating the FMLA andthe ADA: What EveryEmployer Needs to Know
April 15, 2014
Presented by:
D. Lewis Clark [email protected]
Tara A. [email protected]
www.squiresanders.com www.employmentlawworldview.com
Agenda
• Americans with Disabilities Amendments
Act Update
• Family and Medical Leave Act Overview
and Update
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Americans with Disabilities Act
• The ADA protects qualified individuals with disabilities from
discrimination in employment.
• The ADA applies to employers who have at least fifteen
employees.
• An individual has a disability under the ADA if the person has a
physical or mental impairment that substantially limits one or
more major life activity, has a record of such an impairment, or is
regarded as having such an impairment.
• To be a “qualified” individual under this framework, the person
must be able to perform the essential functions of the job, with or
without reasonable accommodation.
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What is a disability?
• The ADA defines “disability” as:
A physical or mental impairment that substantially limits
one or more major life activities;
Having a “record” of such an impairment; or
Being “regarded as” having such an impairment.
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Anxiety from Fear of Losing Job
Huiner v. Arlington School District, 2013 U.S. Dist.
LEXIS 138318 (D.S.D. 2013)
• Employee put on performance plan then developed severe
anxiety at prospect of losing job
Lost 30 pounds over nine months, difficulty caring for children, sleep
issues, etc.
Requested accommodations, some of which were granted
• Court said employee met standards for showing that anxiety
constituted a disability under ADA
Partially based on new relaxed standards under ADAAA
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Disclosure of Medications & Safety
Stahly v. S. Bend Pub. Transp. Corp., 2013 U.S. Dist.
LEXIS 721 (N.D. Ind. 2013)
• Employee took medication and suffered anxiety attack, which led
to FMLA leave
Employer was aware of events
• Employer also required that all employees disclose all
medications they were taking
Justified for safety reasons
• Regarded employee as disabled, even if she really was not
disabled
• Request for medications is not job related and violates the
proscription of certain inquiries of employees about disabilities.
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Interactive Process: Employer Inquiry
Kelley v. Amazon.com, Inc., 2013 U.S. Dist. LEXIS
166534 (E.D. Wash. 2013)
• Is employer required to ask if disability is causing poor job
performance if they don’t suspect it?
• Employee suffered from migraines and other issues, took FMLA
leave and had modifications to work schedule
• Put on performance plan and disciplined several times
• Employee never notified employer of possible connection
between disability and job performance issues
• Employer not obligated to affirmatively explore connection
• Employer also not required to accommodate by allowing lowered
expectations when a uniform performance standard is required
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Dinse v. Carlisle Foodservice Prods., 2013 U.S. App.
LEXIS 22513 (10th Cir. 2013)
• Employee had multiple health issues, of which employer was
aware because of use of sick leave
• Employee’s job performance continued to suffer, had several
meetings with employer
• Employee informed employer of upcoming surgery and
requested a laptop so he could work from home and return more
quickly
• Employee was terminated several days later
Interactive Process: Employer Inquiry
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Interactive Process: Employer Inquiry
• Did employer have obligation to enter into interactive process?
• While employer was aware of disability, they were not aware that
disability was leading to poor job performance
Employer requires more than just awareness to trigger obligation
• Even with accommodation, wouldn’t be able to meet essential
functions of position
• Also, laptop was not an accommodation, it would only help him
return to work quicker, it would not help him meet essential
functions
• Employer’s obligation to engage in interactive process was not
triggered
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Reasonable Accommodation
Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013)
• Employee had knee problem and requested accommodation of
free on-site parking space
• Employer refused, said it would not help her perform essential
function of job
• Court looked outside of ADA and to the EEOC for guidance on
definition of “reasonable accommodation”
• “Reasonable accommodation” can also include actions that
enable a worker to “enjoy the benefits and privileges of
employment
Which could include an on-site parking spot
• Does not have to be a link between essential function of position
and request for reasonable accommodation
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Reasonable Accommodation
Santandreu v. Miami Dade County, 2013 U.S. App.
LEXIS 5542 (11th Cir. 2013)
• Employee took leave for several health issues. Leave was
extended several times. After fifteen months of leave, employer
terminated employee when additional leave was requested
• ADA does not require an employer to provide leave for an
indefinite period of time
• Employee was still unable to show when he would be able to
return to work and perform essential functions of position
• No bright line rule – depends on situation, employer’s leave rules
and employer’s needs
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Essential Functions
Scott-Bolton v. State of Alabama Bd. of Pardons &
Paroles, 2013 U.S. Dist. LEXIS 40942 (N.D. Ala. 2013)
• Probation officer suffered from multiple sclerosis and unable to
pass weapons requalification test
Weapons skills rarely used, but qualification was statutory component
of job description
• Requested permanent transfer to desk job
• Held that essential function of job does not have to be done
frequently in order to be considered essential
Employer also not required to create desk-only job where one did not
previously exist
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Disability: Overweight
Powell v. Gentiva Health Servs., 2014 U.S. Dist. LEXIS
17709 (S.D. Ala. 2014)
• Salesperson selling hospice services. Performance reviewnoted: “would not even discuss her weight”.
• “However, plenty of people with an 'undesirable' physicalcharacteristic are not impaired in any sense of the word. Toillustrate the point, suppose plaintiff wore her hair in a neongreen mohawk. Such an unconventional hairstyle choice mightbe viewed as unprofessional, and might well impede her effortsto sell hospice services to physicians and senior living facilities,but it obviously is not a physical impairment. The same goes forweight. An overweight sales representative may have difficultymaking sales if the prospective customer perceives herappearance to be unprofessional, but that does not render herweight a 'physical or mental impairment' within any rationaldefinition of the phrase.”
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Disability: Overweight
• Court notes that there are situations in which weight could be
physical impairment
i.e. job requirement of climbing a ladder or climbing flights of stairs
But that is not the case here
• The fact that the employee may have believed that “customers
did not want to buy hospice services from an overweight
salesperson is no more a perception of an impairment than a
belief that customers do not want to buy hospice services from a
salesperson with a brightly colored, rebellious hairstyle.”
• Held in favor of employer as there was no evidence that
employer perceived employee to have an impairment
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Credit Information
• For those you who require CLE or HRCI credits please note the
following states have been approved, California, Ohio and Texas;
as well as Arizona, New York, and New Jersey through state
reciprocity laws. CPD and COE have also been approved. If you
require credit in a jurisdiction not pre-approved we can assist.
• Tomorrow you will receive an email with a link to an online
affidavit. Open this link and complete the form. Don’t forget to
include the affirmation code on the form. Once completed, PDF a
copy of the signed form to Robin Hallagan at
• Remember to complete the webinar survey immediately following
the end of this presentation. You are required to complete this
evaluation before receiving a certificate of attendance.
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Family & Medical Leave Act
• Eligible Employees
Employees are eligible for leave if they:
Worked for their employer at least 12 months;
Worked at least 1,250 hours over the past 12 months;
Work at a location where the company employs 50 or moreemployees within 75 miles.
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Qualifying Reasons For Leave
• Eligible employees are entitled to 12 workweeks
of leave for the following reasons:
birth and care of the employee’s newborn child;
placement with the employee of a child for adoption or
foster care;
to care for the employee’s spouse, child, or parent with
a serious health condition -- but not “in-laws”;
when the employee is unable to perform the essential
functions of the employee’s position because of a
serious health condition;
qualifying exigency
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DOMA Ruling
• U.S. v. Windsor, 133 S. Ct. 2673 (2013)
Definition of “spouse” under Defense of Marriage Act that “refers only
to a person of the opposite sex who is a husband or wife” declared
unconstitutional
• 2009 Department of Labor FMLA regulations
Define “spouse” as “husband or wife as defined or recognized under
State Law for purposes of marriage in the State where the employee
resides, including common law marriage in States where it is
recognized”
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FMLA & Spouse
• For FMLA, focus is where employee resides, not where
employer is located, where employee works or where marriage
occurred
• Same sex marriage lawful:
California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois
(June 1, 2014), Iowa, Massachusetts, Maine, Maryland, Minnesota,
New Hampshire, New Jersey, New Mexico, New York, Rhode Island,
Vermont and Washington
• FMLA leave for same-sex spouse in residing state where not
recognized, leave would not reduce 12 week allotment
Leave would not qualify under FMLA definition of “spouse”
• If FMLA leave granted to employee, still need to provide full
allotment if requested in future, otherwise, could be interference
claim
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Eligible Employee
Basden v. Professional Transportation, Inc., 714 F.3d
1034 (7th Cir. 2013)
• Employee was discharged after accruing too many absences
• Employee claimed absences related to her multiple sclerosis
• Court found employee did not show that she was protected by
FMLA
• Employer terminated employee’s employment before she had
been employed for 12 months
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Notice of Leave
Hurley v. Kent of Naples, Inc., 2014 U.S. App. LEXIS
5259 (11th Cir. 2014)
• Employee submitted schedule for eleven weeks of vacation over
next two years
Suffered from depression, which was cause for leave
• While an employee has to provide notice of leave when it is
foreseeable, leave still has to qualify for protection
• Notice of unqualifed leave does not trigger FMLA, otherwise
FMLA would apply to every leave request
• Leave was not for a period of incapacity and could not predict
any future periods of incapacity
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Notice of Leave
Giarrizzo v. Mount Air Casino & Resort, 2013 WL
5924806 (M.D. Pa. 2013)
• Leave to care for father
• Notified supervisor
• When employee had to leave early and could not find his head
supervisor, he gave notice to an immediate supervisor
• Employee was suspended for an investigation into his early
departure and terminated a week later
• Court found that the employee previously informed a supervisor
of his father’s medical condition, had specifically mentioned his
father’s safety when he left work early, and conveyed the same
message to his head supervisor through phone messages.
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Employee Choice
Escriba v. Foster Poultry Farms, Inc., 2014 U.S. App.
LEXIS 3571 (9th Cir. 2014)
• Employee failed to follow attendance policy when missed work to
take care of sick parent in Guatemala
• Employee can choose not to use FMLA time even if FMLA
qualifying event
• Employer has obligation to ascertain whether FMLA leave is
being sought
• Employee could need time off but intend not to use FMLA, they
could be saving it for future use
• Employer could face liability for forcing FMLA leave on unwilling
employee
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Care for a Family Member
Ballard v. Chicago Park District, 741 F.3d 838 (7th Cir.
2014)
• Issue -- Is leave to take vacation with FMLA qualifying relative to
whom employee provides support a violation of FMLA?
• Employee took leave to care for ailing mother. During leave,
went on vacation with ailing mother to Las Vegas. Employer
terminated employee for unauthorized absences.
• Employee still provided medical, hygienic and nutritional needs
to mother while on trip
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Intermittent Leave
Graham v. BlueCross BlueShield of Tennessee, Inc., 521
Fed. Appx 419 (6th Cir. 2013)
• Intermittent leave for migraine headaches
• Certification: 1 episode per month, 3 – 4 days per episode
• Absences exceeded original estimate
• Requested modified certification
Physician could not give clear frequency or duration
Granted leave for 6 month period, subject to additional
certification/recertifications
Employee missed 28 days
Requested recertification
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Restoration Rights
Haskell v. CentraCare Health Sys.—Long Prairie,
952 F. Supp. 2d 838 (D. Minn. 2013)
Duties changed during leave
Employee stated she would not return to work
Rivera v. FedEx Corp., 2013 WL 6672401 (N.D. Cal.
2013)
Duties changed during leave
Selected for reassignment because of his seniority and not because of
his FMLA leave
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Poor Performance
Ion v. Chevron USA, 731 F.3d 379 (5th Cir. 2013)
• Employee was granted custody of child in divorce and led to lack
of focus at work
Filed FMLA leave request due to “too much stress”.
Included angry outburst when asked to sign medical release
• Employer learned from co-worker that employee had he
intended to fake a mental breakdown so he would not have to
work. Employee terminated for reasons leading to suspension
and for faking mental breakdown and failing to return to work
after suspension
• Employer previously disciplined him for transgressions and
never investigated the fake mental breakdown claim.
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Joint Employer Liability
• Miller v. Nordam Group, Inc., 2013 WL 6080268 (ND Okla.
2013)
• Temporary staffing agency placed employee on Oct 6, 2010
• Became permanent employee on July 18, 2011
• Employee requested FMLA on October 20, 2011
• Court found that the employee was an eligible employee under
the FMLA
Both temporary agency and employer exercised control over the work
and working conditions of the employee
Employer had discretion over work, working hours, evaluating her
work and power to discharge
39 Offices in 19 Countries
Navigating the FMLA andthe ADA: What EveryEmployer Needs to Know
April 15, 2014
Presented by:
D. Lewis Clark [email protected]
Tara A. [email protected]