Last week, in Brown v. Bank of America et al., No. 1:13-cv-00367-JAW (D. Me. March 7, 2013), a federal district court in Maine refused to dismiss a Bank employee’s disability discrimination claims against a third party administrator (“TPA”), which administered the Bank’s disability and leave claims. The employee alleged the TPA controlled whether leave would be granted as an ADA accommodation of her PTSD after a sexual assault by a co-worker. The TPA argued it was not the employer, but the court disagreed, finding that the employee’s complaint sufficiently alleged that the TPA might have been her employer or its agent under the ADA because it did more than simply administer benefits. For example, the Bank instructed plaintiff to provide information to the TPA to justify leave, the TPA interacted with plaintiff and directed the information she was to provide, and the TPA informed the Bank that plaintiff was “being placed on ‘LOA-closed’ status” and directed the Bank to take action within three days. Thus, the court found that “it may well be that the TPA was ‘intertwined’ with” the Bank as to the employee’s benefits. Of course, being “intertwined” with the TPA would create liability for the employer as well. Outsourcing leave decisions may not provide a defense to ADA, or any other, claims.
By Bill Wright
Reminder: sometimes an easy solution is a reasonable accommodation. In a recent case, an employee suffering from osteoarthritis of the knee asked for free on-site parking at her workplace. Feist v. Louisiana, No. 12-31065 (5th Cir. September 16, 2013). The public employer apparently denied the request; we don’t know why. On appeal, the court allowed a failure to accommodate claim to move forward, noting that the ADA also requires reasonable accommodations that allow employees to enjoy the same benefits of employment. What we don’t know from the published account of this case is whether the public employer had parking available for the employee, whether it would be reasonable to provide free parking, or whether it would have been an undue burden to provide free on-site parking. Let’s hope the employer considered all those issues in the first place.
By Sarah Peace
Just because a disabled employee takes long term disability benefits and certifies she is unable to work, doesn’t mean she can’t seek workplace accommodations. Smith v. Clark County School District, No. 11-17398 (9th Cir. Aug. 21, 2013). In this recent case, the plaintiff, an elementary school employee aggravated a pre-existing back condition, applied for medical leave and disability benefits. In connection with her applications, Smith certified that she was “incapacitated,” unable to perform any work until released by a doctor, and “totally disabled.” Smith subsequently claimed the school failed to accommodate her disability by not allowing her to transfer to a different, less physically demanding position. The trial court threw the case out because the plaintiff’s representations that she was totally disabled belied a required element of her ADA claim – that she was “qualified” for the job she sought. The Ninth Circuit Court of Appeals revived her claim. The court reasoned that FMLA and insurance disability claims were not inconsistent with the plaintiff’s ADA claim because the statements on her applications did not account for “reasonable accommodation,” her ability to work in the future, or her ability to perform another job.
You can’t always take employees at their word when they tell you – or even when their doctor tells you – that they cannot perform any work. You still have to engage in the ADA interactive process. Being “totally disabled” is only total disability until you come up with an alternative.
Imagine your employee tells you he has a drug problem and wants help. Under your policies, you give time off for treatment. The employee detoxes, but leaves the program before “treatment.” Imagine you send him back to complete the program and he leaves again after one day. Now what? His drug addiction is an ADA “disability.”
A recent case gives one answer. Shirley v. Precision Castparts Corp., No. 12-20544 (5th Cir. Aug. 12, 2013). In this case, the facts are those imagined above. The employee nearly overdosed on Vicodin, took leave to receive treatment for drug addiction, and prematurely dropped out of the program—twice. The employer discharged him rather than let him return to work, anticipating further drug use. The court held the employee is not a “qualified individuals” because he is “currently engaging” in illegal drug use. Current use includes use that is “sufficiently recent” to justify the employer’s belief that the abuse remains a problem.
An employer might have a reasonable basis to expect continued drug use when an employee fails a drug rehabilitation program. The employee might claim he will kick the habit on his own, but you don’t have to run an unreasonable risk of drugged employees running your heavy equipment.
By Bill Wright
A federal district court in Arizona was a little short with an employer seeking to dismiss a disability discrimination claim at the very beginning of a lawsuit. The former employee, who stands 4’ 10”, sued for discrimination and harassment based on various protected statuses. The only status to survive the employer’s motion to dismiss was “disability” under the ADA, based on the employee’s below-“normal” height. The first issue of course was whether her height was an “impairment” under the ADA. The court acknowledged that “[h]eight is . . . not a typical impairment,” but would not go so far as to conclude that height could never, under any circumstances, be a disability. The employer and the plaintiff will have to wait through discovery to see whether the height outside the “normal” range is a disability in this particular instance. McElmurry v. Arizona Depart. Of Agriculture, No. CV-12-02234-PHX-GMS (D. Ariz. June 11, 2013).
By Mike Grubbs
In EEOC v. AutoZone, Inc., No. 07-CV-1154 (7th Cir. Feb. 15, 2013), the EEOC got the court to affirm an injunction against an employer to “obey the law.” In the case, a jury found the employer violated the Americans with Disabilities Act (ADA) by failing to accommodate an employee’s disability. (The direct supervisors had accommodated the employee by relieving him from cleaning duties, but their district manager overruled the supervisors.) The employee got compensatory damages, back pay and punitive damages. The EEOC got an injunction requiring the employer, among other things, to comply with the ADA accommodations requirement in the Central District of Illinois.
On appeal, the 7th Circuit U.S. Court of Appeals decided the “obey the law” injunction was appropriate under the circumstances, and it was appropriately limited to a specific region. However, the court of appeals sent the case back to the district court to impose a reasonable time limit. Otherwise, any future local violation by the employer of the ADA requirement could be enforced by direct application to the court for a contempt citation, by-passing the EEOC’s usual obligations to investigate, reach a determination, conciliate and sue.
An “obey-the-law” injunction is rare, but the court okayed it here because the employer hadn’t fixed its policies or practices despite 8 years of litigation with the EEOC. Practical takeaway from this case—you can avoid “obey the law” injunctions by obeying the law.
By Andy Volin
Most people would consider getting caught sleeping on the job –repeatedly – an “open and shut” case for termination. In a recent disability discrimination case, however, a diabetic corrections officer persuaded a court there was enough evidence in his favor to require a trial to decide the case.
The officer denied that he had been sleeping on the job, and his partner corroborated his story. He claimed that a photo taken of him sleeping was not authentic, because details in the background suggested that it had been taken years before. Other inconsistencies between the stories of the people who saw him sleeping were enough to support the conclusion that “the sleeping on the job” accusation was simply false and made to get rid of him.
How did that tie in to his diabetes and his disability claim? He said that he had asked for a meal break that was needed to control his diabetes, and that his supervisor had told him to wait. That was enough to assert a failure to accommodate claim under the ADA. The fact that he had diabetes and was fired was enough to claim that his termination was really disability discrimination, based on the facts that showed the “sleeping on the job” excuse could have been a bogus reason. Lee v. District of Columbia, 2013 U.S. Dist. LEXIS 13874 (D.D.C. Feb. 1, 2013).
By Ted Olsen
Different sections of the Americans with Disabilities Act accomplish different ends. Title I addresses employment issues; Title II addresses participation in public services, programs, or activities; Title III generally protects disabled persons’ access to the goods, services, privileges and advantages of “public accommodations.” The U.S. Second Circuit Court or Appeals recently emphasized the differences between the sections in ruling that a public employee cannot pursue disability discrimination claims against her former employer under Title II. Mary Jo C v. New York State Local Retirement System, No. 11-2215 (2d Cir. Jan. 29, 2013).
In Mary Jo C, a mentally disabled employee at a public library was discharged, allegedly because of behaviors “that were symptomatic of her mental illness.” (She did not contest her dismissal.) The fired employee did not file an application for disability retirement benefits within three months of her separation, as required by New York state law, again, allegedly because of her mental disability. The Library declined to file an application on her behalf, as requested by her brother, although it had the authority to do so. The Library also denied the brother’s request that her dismissal be reclassified as a leave of absence, which would have extended the time period for filing a benefits application. After the plaintiff’s condition improved, she applied to the New York State Local Retirement System for benefits. The application was denied as untimely, and the Retirement System refused to waive the three-month filing deadline.
The plaintiff sued, claiming that both the Library and Retirement System violated Title II of the ADA – the plaintiff asserted that the Library should have filed a benefits application for her or reclassified her dismissal as a leave of absence, and the Retirement System should have waived the filing deadline. The Second Circuit ruled that Title II does not apply to employment discrimination claims, “at least not those that are covered by Title I.” In support of its conclusion, the Court noted that Titles I and II are enforced by different government agencies, have different administrative exhaustion requirements, provide different remedies, and protect differently defined sets of disabled individuals. This ruling was inconsistent with Department of Justice regulations under Title II, which support employment discrimination claims.
The Court did permit the plaintiff to pursue her Title II claim against the Retirement System. It ruled that the ADA preempts inconsistent state laws, meaning that the Retirement System could not conclusively defend its action by relying on the three-month filing deadline required by New York state law. Such a deadline was ruled to be subject to reasonable modification or waiver, when necessary to permit a disabled person the benefit of such programs.
Mary Jo C is a good example of how creative litigants are asserting that various portions of the ADA overlap, giving them cumulative remedies. As in Mary Jo C, some litigants assert claims under Title II; other litigants raise discrimination claims under Title III. Decisions like Mary Jo C put a helpful limit on the obligations of public employers to their disabled employees.
A new interpretation letter from the U.S. Department of Labor may change how some employers administer their FMLA policies. Under the FMLA, qualified employees may take up to twelve weeks of unpaid leave during a twelve-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a biological or adopted child, a stepchild, a foster child, or a legal ward who is either under the age of eighteen, or eighteen years of age or older and “incapable of self-care because of a mental or physical disability.” Some of the DOL’s previous interpretation letters suggested that an adult son or daughter must have become disabled before the age of eighteen in order for a parent to qualify for FMLA leave.
The DOL’s new interpretation letter clarifies that the age a son or daughter becomes disabled is not relevant when determining a parent’s entitlement to FMLA leave. A parent who otherwise satisfies the FMLA’s eligibility requirements will be entitled to FMLA leave to care for an adult son or daughter who (1) has a disability as defined by the ADA; (2) is incapable of “self-care,” as defined by the FMLA, because of his or her disability; (3) has a serious health condition; and (4) requires care because of his or her serious health condition. In light of this new interpretation letter, employers should review their current FMLA policies and make any necessary changes.
ADA: Last Minute Accomodation Request
Passing an investment advisor licensing exam was required for the job. The employee had already failed the exam four times and was about to lose his job when he suggested his failures might relate to his disability and asked for an extension of time as an accommodation.
The First Circuit Court of Appeals (which sits in Boston) held that the last-minute request was not reasonable. Instead, the request was just an attempt to avoid termination. Also, the employer had no reason to believe that an extension would allow the employee to pass the test.
The employee suffered chronic pain and atrophy in his left arm from a motorcycle accident, but had worked without requesting any accommodation. The Court bypassed the question of whether the employee was “disabled” under the ADA and focused instead on the issue of “reasonable accommodation.” In the wake of the 2008 amendments to the ADA, we expect many other courts similarly to focus on accommodation, not disability. Jones v. Nationwide Life Ins. Co., No. 12-1414 (1st Cir. 2012).