December 2017

Is Never Ending Leave a Thing of the Past?

We are constantly warning employers not to automatically terminate employees who have exhausted their Family and Medical Leave Act (FMLA) leave. Instead, employers should first consider whether the employee might be entitled to some additional leave time as a reasonable accommodation under the Americans with Disabilities Act (ADA). But the key question for employers has always been how much additional leave time is reasonable after FMLA leave.

Recently, the Seventh Circuit Court of Appeals (which covers employers in Indiana, Illinois, and Wisconsin) in Severson v. Heartland Woodcraft, Inc. (Sept. 20, 2017), gave us a new answer to the question: Not very much leave is required after the FMLA. The Seventh Circuit now joins the Tenth Circuit in rejecting the Equal Employment Opportunity Commission’s (EEOC) position that an extended leave of absence may be required as a reasonable accommodation under the ADA. This case followed a 2014 Tenth Circuit case, Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), which held that the plaintiff’s request for a leave of absence beyond the six months provided by the defendant’s leave policies was not a reasonable accommodation under the ADA.

In Severson, an employee with a back condition used up his FMLA leave and asked his employer to extend his leave for another two to three months so that he could undergo and recover from back surgery. The employer denied the employee’s requested extension of leave and terminated his employment, telling the employee that he could reapply for open positions once he recovered. The employee then sued the employer, alleging that the employer failed to reasonably accommodate his disability when it denied the extension of leave. The lower court found in favor of the employer and dismissed the employee’s lawsuit.

On appeal, the Court addressed the question of how much leave is a reasonable accommodation under the ADA and concluded that employers are not required to provide multiple months of additional leave to employees who have already exhausted their 12 weeks of FMLA leave. In doing so, the court noted that the ADA only requires employers to provide reasonable accommodations for a disability when doing so will allow the employee to continue working and stated that “[a]n employee who needs long-term medical leave cannot work” and, therefore, “is not a ‘qualified individual’ under the ADA.”

Further, according to the Court, “an extended leave of absence does not give an [individual with a disability] the means to work; it excuses his not working.” Thus, the Court concluded that multiple-month leaves are not required as an accommodation under the ADA even if the leave is definite in length and is requested in advance of the need for leave. The Court also distinguished long-term, extended leaves from shorter periods of leave (e.g., days or weeks), indicating that the latter could be a reasonable accommodation under the ADA.

The Severson decision is contrary to the EEOC’s position that long-term, extended medical leaves are a reasonable accommodation as long as the leave is definite in time, is requested in advance, and will allow an employee to perform his or her job duties upon return from leave. Rejecting this position, the Severson court held that requiring employers to provide extended leave to individuals who cannot work would be “in effect, an open-ended extension of the FMLA” and would convert the ADA into a medical leave law rather than an anti-discrimination statute.

RLG Takeaway
Although this sounds like a reason to cheer, other circuit courts of appeal have reached different conclusions regarding whether longer-term, extended leave is a reasonable accommodation under the ADA. Moreover, this may not stop the EEOC, even in the Seventh Circuit, from finding probable cause if an employee is terminated just after the end of his/her FMLA leave. Employers should still evaluate each leave request individually and use the interactive process to determine how much additional leave will be needed, whether the additional leave will allow the employee to return to work following the leave, and whether the additional leave can be provided without undue hardship to the employer.

Enough is Enough: Social Media and Posts by Employees

We’ve heard about Google firing a software engineer for posting a lengthy memo criticizing the company’s diversity policy and culture on the company’s internal website. Google says he crossed a line and violated its Code of Conduct. The engineer says he engaged in protected speech and filed an unfair labor practice charge against Google with the National Labor Relations Board (NLRB). This case may not go anywhere but will be interesting to follow.

However, a recent court ruling may have made matters worse for employers. In Cooper Tire & Rubber Co. v. NLRB, the 8th Circuit Court of Appeals enforced an NLRB order to reinstate, with back pay, an employee who hurled racist slurs at a mostly black group of non-union employees who crossed a union picket line. An NLRB administrative law judge ruled that the Cooper Tire employee’s comments “certainly were racist, offensive, and reprehensible,” but they “did not tend to coerce or intimidate employees in the exercise of their rights under the Act, nor did they raise a reasonable likelihood of an imminent physical confrontation.” The Board affirmed this decision.

The question we now have to examine is how far can an employer go to protect their workers from racist insults while avoiding a claim from the employee suffering an adverse action for making such statements. Time will tell as the NLRB moves to a more conservative stance.

In general, employee communication will be protected if it relates to or grows out of group action, such as when an individual employee solicits other employees to take action to fix work-related problems or seek improvements in the workplace. But mere griping by an individual employee will not be protected as a protected concerted activity. Additionally, even communications that would be deemed concerted activities can lose National Labor Relations Act (NLRA) protection if they express egregiously offensive, abusive, or knowingly and malicious false statements.

A company policy that is too restrictive, prohibiting disparagement of the company or co-workers, for example, could be considered as “chilling” employees’ Section 7 rights. If the NLRB finds that a policy is overly broad and potentially restricts concerted activities, the company can be found to have violated the NLRA.

RLG Takeaway
Before disciplining or terminating an employee for writing emails, posting on social media, or otherwise communicating about the company, please consider the following:

Does the communication discuss with or seek to engage co-workers regarding terms and conditions of their employment?
Could the communication be seen as an effort to form a union or another form of group action related to the workplace?
Is the employee reaching out to a third party, such as the media or union organizers, on behalf of multiple employees?
If the basis for the discipline or discharge is a company policy, is the policy narrowly defined or is it too broad so that it interferes with employees’ Section 7 rights?

While employers have a great deal of authority to discipline or discharge an at-will employee based on inappropriate or undesired communications or actions, the employer must make sure that there is no violation of the NLRA and that its company policies are not too broad and over-reaching.

Avoiding the Pitfalls of Offering Parental Leave Benefits

More and more companies are offering parental leave benefits above and beyond the 12 unpaid weeks required by the FMLA. However, it is easy to run head first into anti-discrimination laws by providing different parental leave benefits to fathers and mothers.

Title VII bans employment discrimination on the basis of sex. 42 U.S.C.A. § 2000e-2. Recently, however, there has been a growing consensus among courts that employers can also violate Title VII by providing female employees with maternal leave policies that are more generous than the paternal leave policies offered to men. See e.g. Johnson v. Univ. of Iowa, 431 F.3d 325, 328 (8th Cir. 2005); EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, (June 25, 2015), available here.

In evaluating whether a parental leave policy violates Title VII, courts look to the purpose of the leave: is this a medical leave policy or a parental bonding leave policy? Employers may continue to provide medical leave to female employees because of pregnancy and to recover from childbirth and medical leave does not need to be offered to male employees.

Title VII comes into play when the reason for parental leave is bonding, that is caring for and bonding with a newborn. In that case, employers must provide parental leave on the same terms to their male and female employees.

RLG Takeaway
To avoid a potential Title VII violation, employers should review company policies to ensure that they distinguish between pregnancy or childbirth-related leave and parental bonding leave so that any leave provided to women alone is limited to the period in which an employee is medically incapacitated by pregnancy or childbirth.

Are Drug Testing Policies Going Up in Smoke?

Drug testing in the workplace is under the microscope as more employees are testing positive for state-legalized marijuana, either under recreational or medicinal use. We see a variety of concerns as it relates to workplace safety and the length of time marijuana stays in a person’s system – weeks or more –when compared with alcohol and other drugs. Currently over half of states have some form of legalized marijuana. Meanwhile, positive tests for marijuana use continued to climb in both federally mandated, safety-sensitive workplaces, such as transportation and nuclear plants, and general U.S. workforces, according to a study released in May by Madison, New Jersey-based Quest Diagnostics Inc.

Although marijuana may be considered legal in a state, this is not necessarily the case in the workplace. Arizona, Delaware, New York and Minnesota have statutes that specifically protect employees that have a medical marijuana license and test positive for marijuana use. In those states it is the employer’s burden to prove the employee was impaired during work. Other state statutes are silent on this issue or are ambiguous. For example, some state statutes prohibit employers from taking adverse action against an employee because of their status as a medical marijuana user, but do not touch on issues of a failed drug test. Wherever employers operate, it is clear that they must take added precautions in administering their drug testing policies.

So, what should employers do?

First, employers should rethink testing and rewrite your policy. These policies should: (a) set clear expectations of employees; (b) provide justifications for the need for drug-testing; and (c) expressly allow for adverse action (including termination or refusal to hire) as a consequence of a positive drug test. We can no longer deal with marijuana the way we deal with alcohol. The Quest Diagnostic numbers were not a big surprise. In fact, the report shows that in states where marijuana was legalized, recreational use had some of the biggest increases for workers in safety-sensitive jobs. Yet, it’s confusing because presence does not equal impairment – according to the experts. Employers testing for marijuana in states where there is some form of legalized marijuana use should consider a separate marijuana policy.

When an individual tests positive ostensibly because marijuana is used to treat a disability, employers may be required to engage in the interactive process. First, however, employers should evaluate whether the individual has a qualified disability that warrants an accommodation and whether allowing the individual to use medicinal marijuana would allow rather than hinder the individual’s ability to perform the essential functions of the job.

Additionally, employers should focus on better training for supervisors and managers on spotting whether an employee is intoxicated or impaired during the workday, and especially following an accident. We can no longer rely on the drug test and we must now be better about training to recognize impairment and be able to prove it. In the states where we see cases where drug test results are overturned, the courts are saying that the employer cannot prove impairment and didn’t “see” them impaired.

RLG Takeaway
For now we will have to see how this issue evolves on the state level and employers should consider revisiting their drug testing policies in states where medical marijuana is legal. Employers that want to implement a zero tolerance policy will need to be prepared to prove its necessity. Employers should train managers and supervisors. And, finally, seek legal counsel if you are going to take any adverse action against an employee for a positive marijuana test.

Employers Beware with Background Checks

In the 9^th Circuit’s August 15, 2017 decision in Robins v. Spokeo, the latest in the long-running legal debate about when a consumer cause of action exists for a data breach, the 9th Circuit has declared that inaccuracies in a published credit report may sometimes constitute a “concrete injury” sufficient to confer Article III standing. This is a significant concern for employers as plaintiffs may now avoid the difficult task of proving actual, tangible harm flowing from a credit reporting company’s error and be able to find liability against the reporting agency and possibly the employer for relying on such data.

Spokeo operates a website that collects consumer data and builds individual consumer profiles. It markets its services to companies to learn information about prospective business associates and employees. The plaintiff became aware that Spokeo published an inaccurate report about him, which included false information about his age, marital status, wealth, education level, profession and employment status, and listed a photo of a different person. The plaintiff alleged that this false report harmed his employment prospects when he was unemployed and caused him emotional distress. The Ninth Circuit noted that harm to the plaintiff’s ability to search for a job was more than a mere “technical violation” of the FCRA and found liability against Spokeo.

RLG Takeaway
This case has been up at the Supreme Court once and is likely to go again. Until we have clarity on this issue, it is important for employers to ensure that they are using reliable, third-party reporting services for information about prospective employees and to obtain hold harmless language in their contracts with such agencies.

This newsletter is provided for informational purposes only, not as legal advice. The reader of these materials should seek legal advice before using this or any other materials from this author.