Maryland Business Law Blog

Employers Are Not Required to Permit All Employees with Disabilities to Work Off-Site or Take Unplanned Absences

Posted by Jeanine Gagliardi on Thu, 04/26/2012 - 16:23

The Americans with Disabilities Act (“ADA”) prohibits businesses from discriminating against individuals with disabilities. It requires an employer to accommodate an employee if the employee is qualified and capable of performing the essential functions of his job with a reasonable accommodation. One issue employers subject to the ADA may face is whether they must accommodate an employee by permitting the employee to take unplanned absences or work off-site.

In a recent case, a U.S. Court of Appeals held that a medical facility was not required to accommodate a nurse employee by permitting her to take as many unplanned absences as she requested. Because she had a disability which made it difficult for her to go to work, the nurse regularly exceeded the number of unplanned absences permitted by the employer’s attendance policy.

The employer tried to accommodate the employee by (a) permitting her to call in and move her shift to another day without finding a replacement and (b) not scheduling her to work on consecutive days. Even with these accommodations, the nurse continued to take an excessive number of unplanned absences.

The nurse requested, as an additional accommodation, that she be permitted to take an unlimited number of unplanned absences. The medical facility denied the request and terminated the nurse’s employment. The nurse sued, claiming that the medical facility failed to provide a reasonable accommodation, in violation of the ADA.

The court summarily rejected the nurse’s claim. Because the nurse's position required teamwork, face-to-face interaction with patients and families, and use of medical equipment located at the medical facility, the court held that regular attendance was an essential function of the job. The requested accommodation (unlimited unplanned absences) was unreasonable because it was, essentially, a request to be excused from an essential requirement of the job. The ADA does not require employers to (a) accommodate individuals unable to perform essential job functions or (b) provide unreasonable accommodations.

The relevance of cases like this to other employers and other jobs is always uncertain. On one hand, the court recognizes that regular attendance is an essential function of many jobs, for a variety of reasons. On the other hand, the court’s decision appears to be impacted by the high stakes at issue in the case - premature infants requiring a high level of care, and the fact that the employer previously attempted to accommodate the employee. These facts suggest that the court may not come to the same conclusion in other cases.

One takeaway is that, when trying to balance the need to accommodate employees and the need to enforce attendance policies, employers should assess whether on-site attendance is an essential part of a job. Factors to consider when making this assessment include:

• Whether regular attendance is included in the employee’s job description;

• Whether the employee’s job requires teamwork;

• Whether the employee’s job requires face-to-face interaction with clients; and

• Whether the employee’s job requires use of on-site equipment.

New Regulation Will Make It Harder to Defend Some Age Discrimination Claims

Posted by Jeanine Gagliardi on Thu, 04/12/2012 - 14:32

The Age Discrimination in Employment Act (ADEA) makes it illegal for employers to discriminate against workers because of their age. The ADEA prohibits both intentional discrimination and employment practices that are facially neutral but result in more harm to older workers than younger workers (“disparate impact”).

The Supreme Court has held that, in order to defend a practice that has a disparate impact, an employer only has to show a good reason for the practice other than age. That is called a “reasonable factor other than age” (“RFOA”). An employer does not have to prove the practice is a business necessity. A business necessity means that there is no alternative that would permit the employer to achieve its goals without disparately impacting older workers.

The Equal Employment Opportunity Commission recently issued a final regulation meant to clarify and explain what will qualify as a RFOA. By this regulation, in order to successfully assert an RFOA, an employer must prove that (1) the practice was reasonably designed to further a legitimate business goal and (2) the practice was reasonably administered.

The regulation lists five considerations relevant to what is "reasonable". The list is not exclusive. A court may still look to all circumstances to decide reasonableness. The EEOC's list of factors includes:

• The extent to which the employer accurately defined and fairly applied the non-age factor;

• The extent to which the adverse impact of the practice is assessed by the employer; and

• The degree of harm to older workers and the extent to which the employer took steps to reduce the harm, in light of the burden of the steps.

The list is problematic for employers. Because the list is not exclusive, an employer has no assurance about what factors a court consider to judge compliance. Claimants will still be able to point to unlimited other factors as evidence of discrimination. This means that employers are still without a reliable standard by which to measure their conduct.

In addition, one factor raised by the EEOC is “the extent to which steps were taken to reduce the harm on older workers.” This is akin to the "business necessity standard." The Supreme Court has previously said the standard for employers is not that high.

If these regulations are upheld, it may make it more difficult for employers to justify even honest practices based on RFOA.

The FMLA Now Protects Employees Who Are Not Eligible

Posted by Edward Sharkey on Mon, 03/19/2012 - 18:31

Under the Family and Medical Leave Act, an eligible employee can take 12 weeks of leave, all at once or in increments, for a variety of medical purposes. These purposes include caring for a relative who has a condition that prevents him from participating in "other daily activities."

It is not a secret that, along with benefits for workers, the regulation creates uncertainty and disruption in workplaces. Even so, employers and employment lawyers could at least count on an eligibility standard that was easy to use. Specifically, the FMLA does not cover an employee unless he has worked for the employer for one year and for 1250 hours in the last 12 months. That was, until just recently.

A U.S. Court of Appeals has now decided that the FMLA protects an ineligible employee who makes a "pre-eligibility" request for maternity leave.

In the case, an employee began working for her company in October 2008. In June 2009, she told her employer she would need leave following the expected birth of her baby in November 2009. After she was fired in September 2009, she filed a lawsuit, claiming the employer did it because she requested FMLA leave.

The trial court dismissed the complaint because, consistent with the language of the Act, the employee was not covered by the FMLA when she requested leave or when she was terminated. The appeals court reversed that decision.

The appellate court ruled that "logic mandates" that the FMLA allow a claim for employees who give notice of their plans to take FMLA in the future, even if they are not eligible.

That sounds logical, but it removes a bright-line rule that helps employers figure out who falls under the FMLA and who does not. It also conflicts with the language of the Act, which Congress passed after lengthy inquiry and debate. There is a reason that employees cannot claim FMLA leave on the first day of work. It could lead to abuses.

As the employer's lawyer pointed out, the court's decision will allow an employee to give notice on her first day of work of her plan to take FMLA leave way in the future, thereby becoming protected under the Act. The court dismissed this concern, saying such an employee could still be terminated for legitimate reasons.

That is a little simplistic. Yes, an employee can still be terminated for legitimate reasons. But as employers know, being right is not a guarantee against being sued. A worker fired for legitimate reasons is more likely to file a lawsuit if she happens to be "protected" under a federal regulation.

Good employers pay money to settle such cases all the time to avoid the cost and distraction of litigation, even though they have done nothing wrong. This ultimately reduces employment and raises costs for everyone.

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