WIRTW #48

The news cycle this month has certainly been interesting. I can't recall when 3 huge stories dominated in such rapid succession. We started with Sarah Palin, moved onto Ike, and now we're inundated with economic doom and gloom. I'm starting this week's review with the latter. The Labor and Employment Law blog discusses a recent survey that asked employees what they are most worried about. It makes for an interesting read, and gives companies some insight on what issues are important to their employees.

Of course, the election is always newsworthy these days. COSE Mindspring asks if presidential politics and office politics can co-exist. Rush on Business reports on a summary prepared about the presidential candidates' positions on small business issues.

In light of the upcoming season premier of The Office, That's What She Said reminds employers that now is as good a time as any to review personnel policies.

World of Work reports on a recent 6th Circuit case that I missed, in which the court held that a company's failure to reasonably accommodate an employee's disability supported the employee's constructive discharge claim.

The Manpower Employment Blawg gives 10 great tips for testifying in court or a deposition.

The Delaware Employment Law Blog discusses a topic I touched on yesterday, the inherent dangers in making deductions from employees' paychecks.

Finally, Workplace Privacy Counsel lets us know that web-surfing at work is becoming more acceptable.

A primer on intermittent FMLA leave

Is there anything more frustrating for HR professionals than intermittent leave under the FMLA? While I can't ease that frustration, I can provide short primer on the rules of games that must be followed.

What is intermittent leave and when does it have to be provided?

The FMLA provides that leave may be taken "intermittently" in the following circumstances:

• When medically necessary for planned or unanticipated medical
  treatment of a serious health condition.
• For recovery from treatment of a serious health condition.
• For recovery from a serious health condition.
• To provide care or psychological comfort to an immediate family member with a serious health condition.

Examples of intermittent leave include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy.

Treatment by a health care provider is not necessary if the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition.

Intermittent leave is not available after the birth or placement of a child for adoption or foster care, unless the employer agrees. A pregnant employee, however, is allowed to take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness.

May an employer transfer an employee to an "alternative position" to accommodate intermittent leave?

The short answer is yes, if the intermittent leave is foreseeable based on planned medical treatment for the employee or a family member. The alternate position must have equivalent pay and benefits, but not necessarily equivalent duties. The employer may increase the pay and benefits of an existing alternative position to make it equivalent, or may transfer the employee to a part-time job with the same pay and benefits. When the employee no longer needs to continue on leave and is able to return to full-time work, the employee must be placed in the same or equivalent job as the job he/she left when the leave began.

It should go without saying that retaliation is still illegal, and an employer cannot transfer an employee as a means to discourage the taking of intermittent leave.

How is intermittent leave calculated?

Only the amount of leave actually taken may be counted toward
the 12-week FMLA entitlement. For example, a full-time employee working five days a week, one day off would equal 1/5 of a week of FMLA leave.

If an employee works part-time or a variable schedule, the amount of leave is determined  on a pro rata basis by comparing the new schedule with the employee's normal schedule. For example, if an employee who normally works 30 hours per week works only 20 hours a week, the employee's ten hours of leave would constitute one-third of a week of FMLA leave for each week the employee works the new schedule.

If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period would be used for calculating the employee's normal workweek.

An employer may limit leave increments to the shortest period of time that the employer's payroll system uses to account for absences or use of leave, provided it is at least one hour. Thus, if a payroll system only tracks time in whole days, that company will have to figure out a way to track intermittent leave by the hour.

May an employer deduct hourly amounts from an employee's salary for intermittent leave taken?

Again, the short answer is yes, but with a huge caveat. Any such deductions to the salary of an exempt employee will severely jeopardize that employee's exemption. Companies must take extreme care in making any deductions from the salaries of exempt employees.

UPDATE: House passes ADA Amendment Act; President expected to sign shortly

The Connecticut Employment Law Blog and World of Work have the details.

For my earlier thoughts on these amendments, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

The Ohio Healthy Families Act is dead, but what's next?

Aside from being key battleground states in the 2008 election, Ohio and Colorado have another similarity, one to which employers in our state should pay attention.

In 2006, both states' voters passed ballot initiatives that amended their respective state constitutions to provide for a higher minimum wage. Why, you might be asking, should Ohio businesses care about what Colorado voters did two year ago? Because both minimum wage ballot initiatives were union-backed, as was the Healthy Families Act, and as are four different measures on Colorado's ballot this fall that should have businesses scared for their lives. According to Business Insurance, Colorado employers are fighting four proposed constitutional amendments on November's ballot that would devastate businesses in that state, by:

• Eliminating "at will" employment and requiring private employers to have a "just cause" with supporting documentation before terminating employees.
• Mandating that all companies with 20 or more employees provide health insurance for workers and dependents.
• Removing workers compensation's "exclusive remedy" provision, and permitting injured workers to collect workers comp benefits and sue their employer.
• Holding corporate officials criminally liable for illegal company activities.

Ohio businesses quickly mobilized against the Healthy Families Act, and should be commended for their efforts to defeat it. Imagine, however, the devastating cumulative effect of no more at-will employment, mandatory health insurance, and private lawsuits for workplace injuries. Companies need to stay vigilant in their efforts to keep Ohio business-friendly, and combat the type of job-killing ballot initiatives that labor organizations are testing in Colorado. Do not think for a second that if one or more of these Colorado initiatives are successful that we won't see some combination of them in 2010.

As long as labor organization can place transparently populist anti-business measures on the ballot via petition drives, we need to be mindful of what is happening in Colorado and fearful that it will come our way in the next election cycle.

Do you need to control employee blogging?

Washington Redskins Tight End Chris Cooley apparently (and accidentally) posted pictures from the team's playbook on his blog. The Washington Post quotes Skins Head Coach Jim Zorn:

It "is quite interesting, I think for all coaches in today's technology-sound world," Zorn said. "At any level, not only the NFL level, but at any level there's MySpace, Facebook, there's blogging. I just think it's something that most coaches have never had to deal with or have dealt with. This will be my first experience. There's no rules, there's no laws.

"I think the rule of thumb that I'm going to have to contend with here is that if you have your own blog, and you're putting photos or you're even saying anything, that nothing really should be put in there that has Redskins playbook [on it]. That goes without saying. I think Chris used a little bit of poor discretion using that type of prop, if you will."

As this story illustrates, you can't always trust good intentioned employees to use good judgment, never mind disgruntled employees who want to harm your business. Coach Zorn says that there are no rules, but that does not have to be the case in your organization.

Companies should consider accounting for employee blogs and other social media in overall technology use policies. Do you want employees to blog at all? If not, say so in a policy. If so, consider implementing clear guidelines employees can follow about what they are and are permitted to say.

I also recommend taking a look at Dan Schwartz's (of the Connecticut Employment Law Blog) five tips for drafting a corporate blogging policy:

1. Employees can be instructed that they should not comment or use any confidential information about the company or discuss internal matters. (Whether the employee should be allowed to identify the employer is a business decision for the company.) 
2. Employees should be told that blogs should be done during non-working hours and not using Company resources, unless authorized by the company.
3. Employees should be told that the blog should have appropriate disclaimers that indicate that all views on the blog are those of the individual and have not been reviewed or approved by the [company].
4. Employees should be told that the blog should not imply sponsorship, endorsement or support by the company, nor should the blog use any logos or trademarks of the company.
5. Employees should be instructed that the blogs should not be libelous or defamatory, and that the blogs should avoid being written in a way in which it could be construed as harassing or discriminatory on the basis of a protected category.

Without some clear guidelines in place, employees don't know what's permissible and what's not, and like Coach Zorn, employers feel like they don't have and rules to fall back on. Common sense simply doesn't always work.

Senate unanimously passes amendments to ADA

Last week, the Senate unanimously passed the ADA Amendments Act (S. 3406). It is similar to the bill the House passed 402-17 earlier this year. Given this widespread bipartisan support, it is likely that we might see the first Democratically-driven employment law changes before President Bush leaves office. By doing so, this President Bush would expand upon the law first enacted by his father in 1990.

The highlights of the bill defines "substantially limits" to mean "materially restricts," it specifies examples of major life activities, and expands upon them to include major bodily functions, and helps employers by exempting from "regarded as" claims transitory or minor impairments that last or are expected to last for 6 months or less.

The biggest changes, though, will come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. If this bill becomes law, it will reverse that ruling, and require the determination of whether an impairment substantially limits a major life activity to be made without regard to the ameliorative effects of mitigating measures.

[Hat tip: Workplace Horizons]

A lesson in drafting clear handbook policies

Quality Mold had a handbook policy under which an employee would forfeit unused vacation upon a termination for "gross misconduct." The handbook, however, did not ascribe a definition to "gross misconduct." Quality Mold administered drug tests to its supervisors after receiving a tip from an employee's mother that one supervisor was furnishing drugs to her son. John Lang tested positive for cocaine and marijuana. Quality Mold terminated him and refused to pay him for his unused vacation time, determining that a failed drug test constitutes gross misconduct. In Lang v. Quality Mold (Summit Cty. 9/10/08), the Court of Appeals disagreed:

Quality Mold has argued that "gross" means "[g]laringly, obvious, [or] flagrant." As the magistrate noted, there was no evidence that Mr. Lang distributed illegal drugs to other employees. There was also no evidence that Mr. Lang's drug use had impaired his performance, that he had endangered other workers, that he had any absenteeism or disciplinary problems, or that he had caused harm to Quality Mold's other employees or property. Under these circumstances, this Court concludes that the trial court's finding that Mr. Lang had not committed gross misconduct was supported by the record.

On first blush, this opinion seems to defy common sense. As the concurring opinion points out, "employers and managers of companies unquestionably have an interest in preventing drug use by their employees, as it affects not only the quality of their production but also the safety of their staff and potential consumers." However, as the concurring opinion also points out, "employers also enjoy the prerogative to clearly set forth terms that define the manner in which vacation can be used or retained and the consequences for violation of company policies."

Let this case serve as a cautionary tale -- don't leave policies open to interpretation by a court. If you want drug use, or some other reason, to disqualify an employee from receiving a vacation payout on termination, say so. Don't trust that judges will see things your way when you have to argue an ambiguity after the fact.

WIRTW #47

Apparently it's not just Sikhs that Disney World is alleged to discriminate against. The Delaware Employment Law Blog reports on a decision out of the 11th Circuit in which an Asian man's national origin discrimination claim against Disney World was thrown out because he was not qualified to work in Epcot Center's Norwegian restaurant.

Politics continue to dominate the headlines. The Connecticut Employment Law Blog draws some employment law lessons from Barack Obama's "lipstick on a pig" comment from earlier this week.

CCH HR Management presents a nice, neutral summary of the candidates' positions on various workplace issues.

The Word On Employment Law points out an issue that may have fallen under the radar in the EEOC's recent new compliance manual section on religious discrimination in the workplace. Apparently, the EEOC is now taking the position that it is not religious discrimination for employers to hold worship services at work during business hours.

Courtesy of the World of Work comes this shocker -- a retail chain's store manager calling a department head "Grandma" was evidence of age discrimination.

The Philadelphia Business Journal has an insightful piece about current trends in the enforcement of non-competition agreements.

The HR Capitalist makes an excellent point on the allocation of the responsibility for background checks between employers and recruiters.

BLR's HR Daily Advisor debunks some common myths about sexual harassment.

The Workplace Prof Blog discusses a Tennessee Supreme Court decision which held that an employer owed a duty of care to the daughter of a former employee for her asbestos-related death.

Finally, on The Becker-Posner Blog, Gary Becker and Judge Richard Posner have a healthy debate on whether competition between businesses or the law is more effective at fighting discrimination.

If you could ask each Presidential candidate one question...

Dan Schwartz at the Connecticut Employment Law Blog asks, "What one question would you like the debate moderators to ask each of the major party candidates?" Here's mine.

In May 2007, the EEOC published its Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. As part of Sen. Obama's plan to strengthen families, he has vowed to protect against caregiver discrimination by committing the government to enforce those EEOC guidelines.

For Sens. Obama and Biden:

Gov. Palin could be a heartbeat away from assuming the presidency. Do you believe that a mother of a child with special needs can effectively balance her job as a mother and being the leader of the free world?

For Sen. McCain and Gov. Palin:

Since Gov. Palin's nomination, your campaign has gotten a lot of traction out of her life story. You have accused the media and the Democratic party of sexism in their treatment of Gov. Palin and her dual role as a politician and mother to a special needs child. In light of Gov. Palin's caregiving role, if elected, will you make the same commitment as Sen. Obama to combat workplace discrimination against people with caregiving responsibilities?

UPDATE: Coincidentally, msnbc.com posted an article this morning about the potential Palin effect on working moms. From the article: "A spokeswoman for the McCain-Palin campaign said she was unable to say at this time what Palin’s position is on federal policies relating to job protections and benefits for working mothers." All the more reason to ask this question.

Every minute counts for FMLA eligibility

A few years ago I had the privilege of arguing the winning side in Ricco v. Potter (6th Cir. 7/27/04). Ricco held that "make-whole relief awarded to an unlawfully terminated employee may include credit toward the hours-of-service requirement contained in the FMLA's definition of 'eligible employee,'" reasoning that "[t]he goal of a make-whole award is to put the employee in the same position that she would have been in had her employer not engaged in the unlawful conduct; this includes giving the employee credit towards the FMLA's hours-of-service requirement for hours that the employee would have worked but for her unlawful termination."

Pirant v. U.S. Postal Service (7th Cir. 9/4/08) illustrates the import of the Ricco holding. the USPS terminated Pirant for attendance violations. She claimed that the USPS violated the FMLA by terminating her for missing work because of an arthritic knee. One part of one day of work proved dispositive to her FMLA claim. On October 5, 2001, Pirant’s supervisor ordered her to clock out two hours early, claiming that she was being insubordinate and not doing her work. Pirant clocked out and went home two hours early. While she complained to a Postal Service Dispute Resolution Specialist, who advised that she could file a formal grievance for restoration of back pay if she still thought she had been wrongfully ordered to clock out two hours early. Pirant, however, never filed a timely grievance. The USPS secured dismissal of her FMLA claim because she had only worked 1249.8 hours in the preceding 12 months. Thus, she was 12 minutes short of the law's requisite 1,250 hours.

This case is a good lesson for companies that something as trivial as a grievance over 2 hours of missed work could end up being very significant. If Pirant had grieved that two-hour suspension and had won, she would have been over the 1,250 hour threshold. In that case, instead of fighting over her eligibility for FMLA leave, the employer would have been fighting over the motivation for her termination, a much harder case. However, because she failed to grieve that suspension, it was a moot point:

Pirant also argues that she should be credited for the two hours she alleges she missed when her supervisor improperly ordered her to clock out early. Citing the Sixth Circuit’s decision in Ricco v. Potter, 377 F.3d 599 (6th Cir. 2004), Pirant argues that hours not worked because of a wrongful suspension or discharge count as hours of service for FMLA purposes. Ricco does not help her here....

Here, Pirant was advised of her right to file a formal grievance and request for back pay after the October 5, 2001 clock-out incident. She did not do so—not, at least, until after she was terminated and long after the 15-day regulatory filing period had expired. Nor did she pursue any challenge to the dismissal of her belated grievance as untimely.... By failing to pursue a formal challenge to her suspension, Pirant has accepted that she is not entitled to either compensation or FMLA credit for the lost two hours.

[Hat tip: Workplace Prof Blog]

Are you ready for the return of labor unions?

Statutes are famous for their creative names. For example, did you know that the [USA] Patriot Act is actual short for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act? The Employee Free Choice Act (ECFA) is no exception. After all, in a democracy who's against people having a free choice? If you are an employer of a non-union shop, you best decide that you are against it, and figure out a plan to cope with it if it becomes law.

Under current federal labor law, the tools used to recognize a union as employees' exclusive bargaining representative begin with a employee petition for representation by a union, and in most cases end with a secret ballot election. If more than 30% of employees, but less than a clear majority, sign petition cards requesting representation, the cards are submitted to NLRB to hold a secret ballot election. If more than 50% of employees certify their desire for representation, a union can choose to form based on the cards alone. An employer, however, does not have to recognize the card check petition and can require a secret-ballot vote overseen by the NLRB. Because most, if not all, employers will insist on a secret ballot election if given the opportunity, there are very few unions that end up being certified without an election being held.

The EFCA, however, will change this process by removing the secret ballot election. Under the EFCA, an employer would no longer have the opportunity to demand a secret ballot election. In other words, a majority of cards will be enough to certify a union.

Is there anything less democratic about people not being able to state their opinion via a secret ballot? I can't put it any better than Representative John Kline of Minnesota:

 

This bill has passed the House, but was held up by a filibuster in the Senate. Regardless, President Bush has already gone on record with a promise to veto it if it ever comes in front of him. Unsurprisingly, Barack Obama is in favor of the EFCA, and John McCain is against it. Even if McCain wins in November, this issue will not go away, as Congressional Democrats will continue to aggressively push for its passage.

For now, and even if the EFCA becomes law, the best defense against a labor union is simply being a good place to work. Having competitive wages and benefits, maintaining open lines of communication between employees and management, making personnel decisions for legitimate, non-arbitrary reasons, and fostering a sense of community all go a long way to deterring employees from even considering brining in a union.

What McCain's Sarah Palin decision teaches us about employment law

A lot of ink has been spilled in the last 10 days about John McCain's decision to choose Sarah Palin as his running mate. Much of that ink has focused on Palin's family issues that have come to light and whether McCain's team properly vetted her background. Suffice it to say that I'd like to see companies do more extensive screenings on even their hourly employees then it is believed McCain did on Palin.

Some of that ink has also suggested a sex-based bias in the treatment of Governor Palin as a mom and the role that plays in her ability to effectively perform her job. Some conservative pundits have suggested a bias because no one is questioning Obama's ability to govern and be a father at the same time.

While this debate has a lot to say about sexual stereotypes and the treatment of parents in the workplace, I'd like to use this debate to illustrate another point. On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act ("GINA"). Among other provisions, GINA makes it illegal for employers to discriminate against any employee because of the employee's genetic information, or the genetic information of an employee's family members. While it may seem legitimate to question whether Sarah Palin has the time to take on the Vice Presidency and effectively parent a special needs child, GINA instructs that such considerations are illegal.

WIRTW #46

With Ohio's Healthy Families Act officially dead, attention turns to legislation on the federal level. It is safe to say that if Barack Obama is elected President, employment law in this country will see its biggest transformation since perhaps 1964. On the horizon are landmark pieces of legislation, including the federal Healthy Families Act, the Employee Free Choice Act, the ADA Restoration Act, the Civil Rights Act of 2008, and the Lilly Ledbetter Fair Pay Act. The ABA Journal Daily News and Human Resource Executive Online have the details.

Work Matters, a blog I recently discovered, has an interesting take on race in the workplace.

The Business of Management points out that it is generally a bad idea to notify employees about a lay off via email.

The Delaware Employment Law Blog reports on the 10 best excuses for being late to work.

The Evil HR Lady gives some tips on how to handle an employee who frequently skips out of work because of headaches.

The Labor and Employment Law blog lists 8 steps employers should take to comply with HIPAA.

Fair Labor Standards Act Law talks about Kimoto v. McDonald's Corp., in which a California federal court refused to certify a wage and hour class action.

Finally, Workplace Prof Blog gives its opinion on a 3rd Circuit case which held that a Spanish-speaking employee could be bound by an arbitration agreement written in English.

Ohio Chamber of Commerce announces victory on paid sick leave

The Ohio Chamber of Commerce has weighed in on the timely demise of the Healthy Families Act:

The Ohio Chamber of Commerce is pleased the mandated sick leave proposal will be pulled from the November ballot.  We appreciate the courage Governor Ted Strickland exhibited as he worked diligently to protect Ohio’s economy from this extremely costly proposal.  We applaud his leadership and the leadership of Senate President Bill Harris and House Speaker Jon Husted on this issue.  They truly understood how detrimental this mandate would be to our state’s economy and the ability to attract and retain the jobs Ohioans so desperately need.  Ohio employers have always provided good-paying jobs with excellent benefits.  With this issue behind them, they can now get back to the work of growing their businesses and creating jobs.

Meanwhile, SEIU District 1199, the measure's sponsor, has indicated that it pulled the issue from the ballot after Gov. Strickland and Sen. Sherrod Brown pledged their help in enacting the law on a federal scale. In other words, stay tuned in 2009 for the resumption of this battle on Capitol Hill.

Victory (for now): Healthy Families Act to be pulled from ballot

Rumors started circulating early this morning that the Governor finally succeeded in getting the Healthy Families Act pulled from the ballot. Now, we have formal confirmation, courtesy of the Columbus Dispatch:

Ohioans for Healthy Families, the group that backed the paid sick-day amendment, said today that it has asked that the proposal be pulled off the Nov. 4 ballot.

Officials with the Service Employees International Union were holding a press conference this morning with Gov. Ted Strickland and U.S. Sen. Sherrod Brown, D-Ohio, to announce the decision.

Strickland and Brown said they would push for a separate law requiring paid sick days.

The compromise almost certainly will be Sen. Brown pushing for similar legislation in the Senate. If Obama wins the election, it is guaranteed that we will see the Healthy Families Act, in some form, on a national level. More on this to come.

On a personal note, thank you Governor Strickland for standing up for Ohio's businesses and taking a position that might not be popular with your base, but is clearly in the best interest of Ohio.

Now, I have to go find something to do to fill all my time that's been taken up by this issue.

Be careful what you ask for

Non-competes are a curious breed. They are often used, but difficult to enforce. What's the harm in trying, you might ask? If an employee signs a non-competition agreement and goes to work for a competitor, why not roll the dice and see if you can extract your pound of flesh from the former employee and your rival?

U.S. Foodservice v Marzich (N.D. Ohio 9/2/08)* illustrates the dangers. As a result of U.S. Foodservices's attempt to enforce a non-compete agreement against former executives, it is now faced with an Opinion and Order from a federal court that its agreement is invalid as a matter of law:

The breadth of solicitation and confidentiality covenants certainly extend beyond the reach necessary for the protection of Foodservice's business interests and presents an undue hardship on the Former Employees in violation of Maryland's law on restrictive covenants.... The Agreement lacks the narrow tailoring necessary to merely prevent the Former Employees from trading on the goodwill they created while serving Foodservice customers. Rather, the restrictive covenants appear designed to prevent any kind of competition by the Former Employees, which is not a legally protected interest under Maryland law.... While Foodservice has a legitimate interest in protecting its customer relationships, it does not have a legitimate interest in limiting ordinary competition. By prohibiting the Former Employees from soliciting business, "directly or indirectly" from any "Persons" in the universe of "Customers" who have ever made "contact" with Foodservice, "whether or not these [contacts] resulted in sales," the Agreement prohibits the Former Employees from engaging in conduct that could only reasonably be construed as ordinary competition.

If the company cannot enforce a non-compete against former executives, who can it enforce it against? A national company with more than 27,000 employees is now faced with the prospect of having an agreement that it can never enforce against anyone. For current employees, it will have to go back to the drawing board. For former employees, in the words of one of my former law professors, it's too bad, so sad, hard cheese.

This case certainly gives companies something to consider the next time an employee goes to work for a competitor.

*Full disclosure: KJK represents the defendants.

Q&A on applying performance and conduct standards to employees with disabilities

It is an oversimplification to simply say that employers should hold disabled employees to the same conduct standards as non-disabled employees. Certain conditions may require modifications of conduct and performance standards as a reasonable accommodation to enable an employee to perform the essential functions of the job adequately. To clarify these issues, the EEOC has published a comprehensive Q&A on Applying Performance and Conduct Standards to Employees with Disabilities.

According to the EEOC:

Although, an employee’s disability typically has no bearing on performance or conduct, sometimes an individual's disability may contribute to performance or conduct problems. When this is the case, a simple reasonable accommodation often may be all that is needed to eliminate the problem. However, EEOC continues to receive questions from both employers and employees about issues such as what steps are appropriate where a disability is causing – or seems to be causing – a performance or conduct problem, when a request for accommodation should be made, and when an employer can properly raise the issue of an employee’s disability as part of a discussion about performance or conduct problems. Even when the disability is not causing the performance or conduct problem, some employers still have questions about what action they can take in light of concerns about potential ADA violations.

The Q&A covers topics such as:

• Seeking medical information when there are performance or conduct problems
• Attendance issues
• Dress codes
• Alcoholism and illegal use of drugs
• Confidentiality issues arising from granting reasonable accommodation to avoid performance or conduct problems

It's a must read for any company dealing with a disabled employee who is not meeting standards or who is having conduct or discipline problems potentially attributable to a disability.

Sometimes the little things go a long way

Often times, we forget that the law is a floor and not a ceiling. For example, just because the FMLA caps unpaid leave at 12 weeks does not mean that every employee who cannot return to work at the end of 12 weeks should be terminated (in fact, the ADA may require otherwise).

De la Rama v. Illinois Dept. of Human Servs. (7th Cir. 9/2/02) illustrates this point. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not tell her employer until much later. Instead, she continued to call in sick without explaining the nature of her illness. Ultimately, in October she submitted a medical certification and requested for a leave of absence, for which the employer granted FMLA leave. De la Rama was out on unpaid FMLA leave for 17 weeks, and upon her return assigned to a different unit under a new supervisor at her request. Her absences in July and August, however, were treated as unauthorized.

She sued, claiming that the classification of her July and August absences as unauthorized interfered with her rights under the FMLA. The court disagreed:

[I]n light of the fact that de la Rama was permitted to take seventeen weeks of leave—five weeks more than the twelve weeks the Department was required to give her under the FMLA—we find it difficult to see how the Department interfered with her entitlement to leave at all.

The employer's generosity in giving de la Rama the leave she needed once she documented her need was very persuasive to the court in deciding whether its designation of her prior leave as "unauthorized" violated the FMLA. In other words, its willingness to go above and beyond for an employee demonstrated that it did not harbor an intent to violate the Act. Keep this in mind the next time you are faced with the prospect of terminating an employee at the end of the 12th week of leave, or extending the leave for a few extra weeks to allow the employee to return to work.

Employer's failure to provide written notice does not save employee who failed to return to work following FMLA leave

Under the FMLA, an employer must provide an employee taking FMLA leave "with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." 29 CFR 825.301(b)(1). In fact, the Department of Labor provides a convenient form for employers use. Among other items, the notice must provide whether the employer will require the employee to "present a fitness-for-duty certificate to be restored to employment." 29 CFR 825.301(b)(1)(v). If an employer fails to provide the required notice, "the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice." 29 CFR 825.301(f).

Tucker v. Middleburg-Legacy Place (6th Cir. 8/29/08) answers the question of what happens if an employee mistakenly assumes that a fitness-for-duty certificate is required before she can return to work. When Sonia Tucker started her FMLA leave, she claims that her employer did not provide her with the written notice required by 825.301(b)(1). She also claimed that while she was cleared to return to work on January 17, 2007, she failed to do so because she believed her employer required a fitness- for-duty certificate. When she failed to show up for work on January 17, the employer fired her for job abandonment.

The Court held that even if the employer failed in its obligation to provide Tucker with the required written notice, her FMLA claim warranted dismissal because she did not claim that the fitness-for-duty certification was an actual requirement:

Plaintiff has further failed to allege she was terminated for failing to present the fitness-for-duty certificate. In ¶ 12 of her Amended Complaint, Plaintiff alleges, “defendants unlawfully terminated plaintiff from her employment for alleged job abandonment.” (Emphasis added). She does not allege her employment was terminated for failure to provide a fitness-for duty certificate. Plaintiff clearly alleges she “had been initially cleared to return to work from her medical leave on January 17, 2007.” (Amended Complaint at ¶ 9). She did not return to work on that date. Rather, she went to her physician on that day to be examined and to obtain a fitness-for-duty certificate. (Amended Complaint at ¶ 11). Nowhere does Plaintiff indicate she advised Defendants of the doctor’s appointment, or otherwise communicated with Defendants on the date of her scheduled return. As the Magistrate Judge noted, the provision in 29 C.F.R. § 825.301(f), barring employer action against an employee for failure to present a fitness-for-duty certificate “is only triggered if the employer actually required the employee to present a fitness-for-duty certificate.” (Emphasis added).

Typically, ambiguous employment policies do not help an employer. In this case, however, the ambiguity was fatal to the employee's claim. Because the employer did not tell the employee, in writing, that a fitness-for-duty certificate was required, the court overlooked its failure to tell the employee that the certificate was not required.

Despite this decision, it is not a real good idea for companies to ignore their obligations under 825.301(b)(1) to provide written notice to employees taking FMLA leave. Much more often than not, that failure will invoke 825.301(f)'s protections, and an employer will not be able to fire an employee who fails to meet some other FMLA obligation (such as returning to work).

Happy Labor Day

Like most, I'm happily taking this Labor Day off. If you're looking for something to read, hop over to the Connecticut Employment Law Blog, where Dan Schwartz gives us a brief history of this holiday.