By: Ogletree Deakins

The Rehabilitation Act of 1973 was the first major federal statute to focus on the rights of individuals with medical impairments. Section 504 of the Act creates a private right of action for individuals claiming to have been discriminated against in any “program or activity” receiving federal financial assistance. Courts have included federally funded employment as one such “program.”

Amendments to the Rehabilitation Act have incorporated certain standards and remedies from other civil rights laws, and specifically have incorporated the standards of the Americans with Disabilities Act that determine whether employment discrimination has occurred. The 9th U.S. Circuit Court of Appeals recently addressed an issue on which appellate courts are divided, and has held that unlike the ADA, the Rehabilitation Act protects independent contractors as well as employees. Fleming v. Yuma Regional Medical Center, 9th Cir., No. 07-16427, 11/19/09.

Dr. Lester Fleming entered into a contract in May of 2005 to provide anesthesiology services to Yuma Regional Medical Center in Yuma, Arizona. Prior to beginning work in November of that year, Fleming was asked – and refused – to sign an addendum to his employment contract that would have precluded a schedule that accommodated Fleming’s sickle cell anemia. Based on that refusal, Fleming’s employment contract was cancelled. Fleming sued Yuma for breach of contract and for violation of Section 504 of the Rehabilitation Act. The district court granted summary judgment in favor of Yuma, ruling that Fleming was an independent contractor and, as such, was not protected from disability discrimination by the Rehabilitation Act. Fleming did not dispute his independent contractor status, but appealed the determination related to whether he was covered under the Act.

The Ninth Circuit reversed the dismissal, ruling consistently with a prior Tenth Circuit decision that Section 504 incorporates only the ADA’s standards for what conduct violates the Act, and not the definition of who is covered by the protections of the Act. The Court based its determination on the fact that the Rehab Act is broader than the ADA, covering any “otherwise qualified individual” who has been excluded from a program receiving federal funds, and not just employees. Further, the programs covered under Section 504 are all such operations, not just employment, whereas the ADA is limited to the employer-employee relationship. Because Congress did not use general language when it referred to the ADA in Section 504, and did not restrict the scope of the Act to employment, the Ninth Circuit was hesitant to “reduce the express scope of the Rehabilitation Act by wholesale adoption of definitions from another Act.”

The Ninth Circuit’s decision puts it in direct conflict with the Sixth and Eighth Circuits, each of which previously has held that Section 504 does incorporate the ADA’s employer-employee relationship requirement into the Rehabilitation Act. While the Ninth Circuit’s opinion spells out the rationale for its divergence from these decisions, there still exists a major split in the Circuits on the issue, creating an issue of concern for employers and their attorneys in the remaining circuits, and one which they will be following until the issue is addressed, if ever, by the U.S. Supreme Court. In the meantime, employers should be aware of this decision, and should take it into account when making decisions related to employees and independent contractors with medical impairments.

 

The Family and Medical Leave Act prohibits employers from discriminating against employees who have taken leave under that Act. However, the 7th U.S. Circuit Court of Appeals has affirmed summary judgment in favor of an employer who terminated an individual for excessive absenteeism and performance issues that developed prior to that employee’s request for FMLA leave, even though her termination occurred during that protected leave. Long v. Teachers’ Retirement System of Illinois, 7th Cir., No. 08-3094, Oct. 23, 2009.

Julie Stephens Long was employed by the Teachers’ Retirement System of the State of Illinois (TRS) from 1985 until her termination in 2006. Starting in 2000, Long worked in TRS’ payroll department, where she had responsibilities that included enrolling members in an electronic fund transfer (EFT) program, entering information into a database, and verifying bank routing and account numbers. She reported directly to TRS’ Payroll Insurance Manager (Branham). While Long’s initial performance in Payroll was good, both her absences and her work errors increased over time. In June of 2005, Long missed 25% of her scheduled work days; this rose to 40% during the following month. In addition, Long failed to train employees from other departments on the EFT process, in spite of multiple directives from Branham to do so.

On July 26, 2005, Branham met with Long to inform her that because of her frequent absences, he planned to withdraw his nomination of her for a promotion. In September, Branham traced several errors in the EFT system to Long. He then met with Long to discuss her errors, her failure to conduct the requested training sessions, and the effect of her increased absences on co-worker morale. He summarized those issues in a memo dated September 20, 2005.

On September 26, Long applied for FMLA leave for medial epicondylitis (“tennis elbow”). After the leave was granted, Long informed TRS that her September absences were related to that condition. She then modified her leave request to ask for intermittent leave for treatment of ovarian cysts. She took six days off in October and eight days in November under that leave. However, she also was absent on nine days in December 2005 and five in January 2006 for non-FMLA reasons. Branham’s frustration with Long increased to the point where he met with TRS’ HR manager (Larkin) and a Deputy Director of its Benefits Department (Sherman) and recommended that Long be fired. Larkin then undertook a full review of Long’s performance evaluations, co-worker and TRS member complaints, and comments from both Branham and Sherman, and then recommended to TRS’ Executive Director (Bauman) that Long’s employment be terminated. Bauman had no knowledge of Long’s FMLA leave when he made the final decision to fire her.

Long filed suit against TRS, claiming violation of the FMLA. While TRS did not dispute the fact that Long engaged in protected activity when she took the FMLA leave, it argued that its decision to fire her was based on a number of factors, and not on any retaliatory animus. The district court granted summary judgment in favor of TRS, and decision was upheld by the 7th Circuit on appeal.

Long’s lawsuit centered around the claim that Branham was angry about her absences, and that he unduly influenced the decision to fire her on that basis. However, the Court noted that Long had not applied for leave prior to the documented disciplinary meeting with Branham on September 20, and that Branham already had documented the fact that Long’s absences were negatively affecting the performance of her group prior to Long’s request for leave. Therefore, any comments by Branham regarding Long’s pre-FMLA leave absences could not be used as evidence of FMLA retaliation on Branham’s part. Further, the Court pointed to Larkin’s independent investigation, in which she reviewed not only Branham’s comments, but information from others as well. The decision to fire Long ultimately was made by Bauman, who relied on multiple sources of information, and was unaware of Long’s FMLA leave.

The critical issues in this matter are ones of which employers should be aware: (1) Branham’s documentation of his September meeting with Long showed that there were performance concerns prior to Long’s request for FMLA leave; (2) the multiple sources of information used in the termination investigation supported TRS’ argument that Branham’s concerns about Long were not the sole basis for TRS’ decision; and (3) the independent deliberation of the ultimate decision-maker was evidence that Branham was not the deciding factor in the adverse action against Long. Companies that follow this model of “documentation/multiple sources of information/independent decision-making” are far more likely to be successful in avoiding liability under the FMLA.
 

On October 28, 2009, President Obama signed the National Defense Authorization Act (NDAA), which includes provisions that expand the military leave entitlements of the Family and Medical Leave Act (FMLA) by expanding both the “qualifying exigency” leave and military caregiver leave that became effective in January 2008.

Prior to these new amendments, an eligible employee whose spouse, son, daughter or parent was on active duty or called to active duty in support of a contingency operation as a member of the National Guard or Reserves was entitled to “qualifying exigency” leave. The new law extends qualifying exigency leave to an eligible employee whose spouse, son, daughter, or parent is a member of any branch of the military, including the National Guard or Reserves, and who was deployed or called to active duty in a foreign country. In addition to extending qualifying exigency leave to eligible family members of a member of any branch of the Armed Forces, the new law eliminates the requirement that the active duty be in support of a contingency operation.

The new law did not change the length of leave entitlement under the FMLA. A covered employer still must allow an eligible employee up to a total of 12 workweeks of unpaid leave during the normal 12-month period established by the employer for FMLA leave. The reasons for which an eligible employee can take qualifying exigency leave also are unchanged. Such leave still can be taken for short-notice deployment, military events, and related activities such as official ceremonies, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status.

The new amendments expand military caregiver leave in two ways: First, the new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any time within five years of receiving the medical treatment that triggers the need for military caregiver leave. Therefore, employees who are family members of a current service member or veteran undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred in the line of duty may take up to six months of caregiver leave, so long as the veteran was a member of the military within five years of receiving such treatment. Employers do not have the option of using the typical FMLA calendar-year method for military caregiver leave – the 12-month period begins when the employee begins using caregiver leave.

Second, the new amendment expands the definition of a “serious injury or illness” for purposes of determining eligibility for military caregiver leave. It has been expanded to include the aggravation of existing or pre-existing injuries to an active duty service member in the Armed Forces. Thus, employees may now take military caregiver leave for a family member whose pre-existing injury or illness was aggravated while on active duty. For veterans, the definition allows the leave whether the injury or illness manifested itself before or after the Armed Forces member became a veteran.

The NDAA did not specify the date on which these amendments to the family military leave entitlements become effective. Thus, the presumption is that these changes took effect when President Obama signed the NDAA on October 28. It is anticipated that the U.S. Department of Labor will issue guidance to address the changes in the near future.
 

The 9th U.S. Circuit Court of Appeals has held that a teacher’s statements on behalf of disabled students were “protected activity” under the ADA, and that the teacher had standing to sue for retaliation under the ADA and Section 504 of the Rehabilitation Act. Barker v. Riverside County Office of Education, 9th Cir., No. 07-56313, Oct. 23, 2009.

Susan Lee Barker was hired as a Resource Specialist Program teacher with the Riverside County Office of Education in California in 2002. As early as 2003, Baker began to express her concerns to the County regarding its special education services for students with disabilities, and complained that the services did not comply with state or federal law. In 2005, Barker and a co-worker filed a lawsuit with the federal Department of Education’s Office related to those issues.

Barker resigned on August 1, 2006, stating that her working conditions had become intolerable after she filed the 2005 complaint. She subsequently filed a federal court retaliation claim under the ADA and the Rehabilitation Act, alleging that she was constructively discharges by being excluded from meetings, that her caseload was reduced, and that she was refused certain work, all because of her support of the students and complaints on their behalf. The district court granted the County’s motion to dismiss the case, finding that Barker lacked standing to sue for retaliation under either of the two statutes.

The Ninth Circuit reversed, finding that both the ADA and the Rehabilitation Act include a broad anti-retaliation provision that shield’s “any individual” who is harmed after attempting to protect the rights of the disabled. The County argued that Barker could not sue because she was not a “qualified individual with a disability” and that she had no “close relationship” to the disabled students. However, the Ninth Circuit specifically found that Section 504 of the Rehabilitation Act grants standing to non-disabled people who are retaliated against for attempting to protect the rights of the disabled, as does Title II (the “public accommodation” provision) of the ADA.

The interesting issue in this case is that the lower court automatically analyzed the case under Title I (the “non-discrimination in employment” provision) of the ADA, because Barker was suing her employer. However, Barker’s claim addressed the County’s relationship with the students, and was appropriately brought under Title II. Based on this case, public employers should carefully analyze issues brought by employees regarding individuals with disabilities, and should be aware that adverse actions taken against such employees could have implications under the ADA or the Rehab Act.
 

Under the Americans with Disabilities Act, employers and employees are required to engage in an interactive process with respect to a disabled employee’s request for a reasonable accommodation. In cases of psychological disability – depression, for example – necessary accommodations may be non-obvious to the employer. In those cases, courts have held that in order to trigger an employer’s obligation to provide accommodation, a disabled employee must make the employer aware of any non-obvious, medically necessary accommodations by supplying corroborating evidence, such as a doctor’s note or statement. Recently, the 7th U.S. Circuit Court of Appeals reversed a lower court’s dismissal of a case, and found that a school failed to engage in the required interactive process after a teacher provided a doctor’s statement that linked the teacher’s Seasonal Affective Disorder depression to the lack of windows in her classroom. Ekstrand v. Sch. Dist. of Somerset, 7th Cir., No. 09-1853, Oct. 6, 2009.

Renae Ekstrand taught kindergarten from 2000 to 2005 at Somerset Elementary School in Wisconsin. In 2005, Ekstrand’s request to be transferred to teach first grade was granted; she was assigned to a classroom that lacked exterior windows. At that time, Ekstrand informed the principal that she suffered from Seasonal Affective Disorder (“SAD”), a form of depression, and would have difficulties teaching without access to natural light. While two alternate rooms were available, both with windows, no transfer to either of those rooms was made. During the initial weeks of the 2005 school year, Ekstrand’s health declined, and she continued to ask for a room with access to exterior windows, which was denied. However, during that same time, the school did address Ekstrand’s requests related to other work area issues, including inadequate ventilation and the lack of various educational necessities, like bulletin boards and a locking cabinet. Ekstrand’s health problems worsened, and on October 17, her doctor placed her on medication and advised a leave of absence for the remainder of the term.

During the following months, Ekstrand continued to ask for the room change, advising the school that she would be able to return under that condition. On November 28, 2005, Ekstrand’s psychologist notified the school district, through its representative, of the importance of natural light for individuals with a history of SAD, and opined that Ekstrand’s depression was a direct result of her transfer to a room lacking access to natural light. Still, the school district did not make the requested room change, and Ekstrand ultimately left her employment at Somerset and began teaching elsewhere.

In 2008, Ekstrand sued the school district, alleging failure to accommodate, as well as constructive discharge. A federal district court granted the school district’s motion for summary judgment on both claims, holding that the school engaged in the interactive process when it addressed Ekstrand’s other work-related issues, and that the school’s conduct did not amount to a constructive discharge. On appeal, the 7th Circuit upheld dismissal of the discharge claim, but reversed the ADA dismissal. The reversal was based primarily on the fact that once it was aware of natural light’s medical necessity to Ekstrand (after being informed by Ekstrand herself that she was willing and able to return to work in a classroom with access to such light), the school district was obligated to provide that requested accommodation, unless it could show that the request would impose an “undue hardship” for the school. After reviewing the proffered evidence related to the proposed classroom change, the Court determined that there would be “little hardship” related to the switch, and reversed the dismissal of Ekstrand’s claim on that basis.

While the ADA is focused primarily on the interests of disabled employees, the Act’s “reasonableness” standard regarding the interactive process protects the interests of employers by allowing them to show that a requested accommodation would create an undue hardship. However, not every non-zero cost to an employer will be viewed by the courts as “undue” hardship. In this case, the evidence produced by the school indicated that the cost and disruption associated with the classroom change would have been “modest,” leading the Court to find that once the school was informed by the doctor that Ekstrand’s depression was cause by lack of natural light, an obligation was created that either required the school to make the change, or prove that the hardship generated by the change would be significant. Neither occurred, and Ekstrand’s case will go forward on the issue of whether the school failed in its duty to accommodate. Employers should recognize when an accommodation has been requested, full and considered evaluation of the costs and effects should be done promptly, and documentation of those efforts should be complete, in order to support the employer’s decision with respect to the request.
 

Daylight Saving Time (DST) ends on Sunday, Nov. 1, 2009, at 2 a.m., so don’t forget to turn the clock back one hour before going to bed on Saturday, October 31. This affects employers and employees involved in “shift work,” because shift workers on duty the night of October 31, and who normally work an 8-hour shift, actually will work an extra hour, for a total of nine hours of work on that day. Non-exempt employees must be paid for all nine hours of work under the Fair Labor Standards Act. Those individuals also are entitled to overtime pay for all hours in excess of 40 worked during the week, including the extra hour worked during the week’s conversion back to standard time.
 

A public school music teacher who was replaced by a less experienced teacher eleven years her junior was unable to show that her age – rather than her work-performance – was the basis of the non-renewal of her contract. Dorfman v. Pine Hill Board of Education, 3d Cir., No. 08-4012, September 30, 2009.

Judith Dorfman was hired in 2001 at age 56 by the Pine Hill New Jersey Board of Education. Her contract was renewed in 2002 and 2003. However, at the end of the 2003-04 school-year, Dorfman was told that there was a problem with her “fit” at the school, and her contract was not renewed for the following school year. Instead, Dorfman was replaced by a qualified, but less experienced, teacher who was eleven years younger than she.

Dorman filed a lawsuit claiming age discrimination. The School Board’s motion for summary judgment was granted by the district court. To support her discrimination claim, Dorfman first had to establish a prima facie case. She was able to do that by showing that she was a member of a protected age group, that Pine Hill did not renew her contract, and that she was replaced by a younger person. The lower court found that Pine Hill then met the second step of a three-step burden-shifting process by submitting evidence of Dorfman’s negative performance evaluation and her need to improve classroom skills as the “legitimate non-discriminatory reason” for the non-renewal of the contract. In order to ultimately succeed in proving discrimination, Dorfman would have had to demonstrate that Pine Hill’s reason for its action was not the true reason for the employment decision but was, instead, a pretext for discrimination. Dorfman’s case failed at this step, and was dismissed by the district court.

On appeal to the 3d U.S. Circuit Court of Appeals, Dorfman argued that the district court should have found that Penn Hill’s “legitimate non-discriminatory reason” was a pretext for discrimination. First, Dorfman argued, earlier performance evaluations praised her classroom skills. However, upon review, the Third Circuit found that even the early evaluations noted that Dorfman “needed to improve her classroom disciplinary procedures.” Second, Dorfman argued that a remark by the school district’s Superintendent that Dorfman was “not a good fit” suggested age-based discrimination. However, without evidence of a pattern of contract non-renewals based on age, the Third Circuit was unwilling to find that the word “fit” suggested age bias.

Dorfman further argued that Pine Hill’s decision to hire a less experienced and younger replacement was strong circumstantial evidence of discrimination. However, the Third Circuit found that while the replacement had slightly less experience, she clearly was qualified for the position of music instructor. The Court held that in light of Dorfman’s job deficiencies, hiring a qualified teacher – even with less experience – did not constitute per se discrimination. In short, the school board’s evidence of Dorfman’s negative performance evaluation supported a proffer of a “legitimate non-discriminatory reason” for its action. Dorfman was unable to show that age was a determinative factor in the decision regarding her contract.

Once again, employers are reminded that fully documenting decisions, and assuring a reasonable relationship between those decisions and legitimate business-related issues, can assist in avoiding legal liability in claims of discrimination.
 

In response to continued concerns expressed by employers, the EEOC has issued a technical guidance to assist employers on H1N1 planning.  The document provides information about Titles I and V of the Americans with Disbailities Act (ADA) and pandemic planning in the workplace, and identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning, including:

  • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent?
  • Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?
  • When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

View the entire document at: http://www.eeoc.gov/facts/pandemic_flu.html.  

In an unpublished opinion, a federal district court in New Jersey has upheld a jury verdict in which a company was found liable for violating the federal Stored Communications Act (SCA). The violation occurred when the company’s managers intentionally accessed a “chat group” on an employee’s MySpace account without having received authorization from the MySpace member to join the group. Further, the court upheld the jury’s finding of malicious conduct, which supported an award of punitive damages. Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s, D.N.J., No. 06-5754, unpublished, Sept. 25, 2009.

Brian Pietrylo and Doreen Marino filed suit against their employer, Houston’s Restaurant, after two of the restaurant’s managers accessed a MySpace chat group maintained by Pietrylo during his non-work hours. The chat group, called the “Spec-Tator,” was accessed via an electronic invitation from Pietrylo. If the user accepted that invitation, he or she could access the site only by using a personal password. The site included language that indicated that the group was private, and that it was a place in which Hillstone employees could talk about the “crap/drama/and gossip” related to their workplace. No Hillstone upper manager was invited to join the group, and members accessed the site only during non-work hours and on non-company computers.

One employee/chat group member, Karen St. Jean, made a Houston’s manager aware of the site. St. Jean later provided her password to another manager, Robert Anton, who shared the information with a regional manager, Robert Marano. In spite of the privacy warning on the page, Anton and Marano accessed the site on multiple separate occasions. After determining that the content of the postings in the chat group were “offensive,” Anton and Marano fired Pietrylo and Marino.

Pietrylo and Marino then sued Houston’s, alleging, in part, that the company violated the SCA and a parallel New Jersey statute, the New Jersey Wiretapping and Electronic Surveillance Control Act. A jury found in favor of the employees, awarding modest compensatory damages, but adding punitive damages after finding that the company acted maliciously. Houston’s challenged the verdict in a motion for judgment, and requested a new trial. Both motions were denied by the district court, which found that the verdict and the damages were supported by the evidence.

Under the SCA, the plaintiffs had to prove that Houston’s managers accessed the chat group “knowingly, intentionally, or purposefully,” and without authorization. Although Houston’s argued that St. Jean willingly volunteered her password to Anton, St. Jean’s trial testimony included the fact that she would not have provided that information to Anton if he had not been a manager. Interestingly, the court’s decision turned partly on the fact that there was no documentary evidence concerning the authorization, and so the jury had to rely on the testimony and demeanor of the witnesses. The court held that the jury could infer from St. Jean’s testimony – specifically her statement that she felt that she “would have gotten in trouble” if she hadn’t provided her password – that the purported authorization was coerced. In addition, the court cited that particular testimony, in conjunction with the fact that the restaurant’s managers viewed the site on several different occasions, even though the site specifically contained warnings that it was “private” and accessible to “members only,” to support its decision to deny Houston’s motions.

While this decision is a district court case and therefore open to appeal, the decision is one of which employers should be aware. The lack of documentation regarding how the company obtained the password, the use of a self-designated “private” chat room by individuals without an actual invitation, and the continued use of the site with specific knowledge of its invitation-only status all provided a basis for the court to support the jury’s findings against the company. While employers have certain rights and obligations with respect to company-related computer equipment and electronic sites, this case points out the pitfalls of an attempt to extend that authority to non-work-related equipment and sites. This area of the law is developing quickly, and employers should be attuned to the ways in which courts are addressing the issues that arise in that area.
 

If so, you’ve done the following things:

 Created a pandemic flu plan and educated your employees on that plan;
 Have become aware of current CDC recommendations, and will stay alert for upgrades;
 Reviewed and (if necessary) revised attendance policies;
 Educated yourself on confidentiality issues and concerns;
 Checked with HR or legal on questions of federal employment laws (including OSHA, privacy questions, wage & hour issues, FMLA policies, and ADA accommodation issues).

The CDC Guidance (www.cdc.gov/h1n1flu/business/guidance/) Provides a Basic Outline of Issues about which employers should be concerned. That Guidance:

1. Includes preparedness and response recommendations:
 Monitor personnel for unusual increases in absenteeism;
 Work with state/local public health partners;
 Be prepared to act if schools/daycare close.

2. Suggests components of an Influenza Pandemic Plan:
 Review HR policies to assure consistency with existing laws;
 Explore flexible work hours/work sites;
 Establish lines of communication with employees;
 Identify essential business functions to assure coverage.

3. Recommends “action steps” regarding symptomatic employees:
 Sick employees should stay home (24 hrs after fever);
 Ensure that sick leave policies are flexible;
 Sick employees at work should be asked to leave.

4. Addresses issues related to vaccination of employees.
 Encourage employees to get seasonal flu vaccination;
 Encourage H1N1 vaccination when available;
 View http://www.cdc.gov/h1n1flu/vaccination/acip.htm;
 Offer worksite opportunities for vaccination.

5. Provides action plan in the event of increased severity of H1N1 during the upcoming flu season:
 Consider actively screening employees for H1N1;
 Create opportunities for alternative work environments;
 Consider increasing social distancing where possible.

6. Includes a list of additional guidance documents developed by the federal government to assist employers in planning efforts.