Sad Dad Wants Paid Leave to Care for Newborn Lad; Employer’s Leave Policy Is Not So Rad; ACLU Gets MadCan an employer distinguish between moms and dads when granting paid parental leave for care for a newborn? Bank JP Morgan appears to believe so. Derek Rotondo requested parental leave when his wife was expecting their second child. Under JP Morgan’s policies, mothers are by default considered primary caregivers and are automatically entitled to 16 weeks of paid parental leave. Fathers, however, are only entitled to two weeks of paid leave, unless the father could prove that the mother was “medically incapable” of taking care of the child. Mr. Rotondo did not meet that criteria and was denied the 16 weeks of paid leave. In response, he and the ACLU filed a charge with the EEOC alleging that JP Morgan’s policy violated Title VII because it enforced gender stereotypes—women as caregivers and men as workers.

Keep in mind we are not talking about whether men can take unpaid leave to care for a newborn. That issue was decided long ago with the FMLA’s passage. If a man working for an FMLA-covered employer is FMLA-eligible and requests 12 weeks of unpaid leave when a newborn enters his life, the employer’s answer is almost always a definite yes. The issue in this matter is about the employer’s paid leave policy.

EEOC Guidance

The EEOC has issued specific guidance on employers providing paid pregnancy and post-pregnancy leave. They suggest that employers should divide this type of leave into two categories:

(1)  Pregnancy disability – leave related to any physical limitations imposed by pregnancy or childbirth

(2)  Bonding – leave for purposes of bonding with and/or providing care for a child

Obviously, the first category can be limited to women affected by those conditions. However, if an employer chooses to extend paid leave to new mothers beyond the period of recuperation from childbirth, it must provide that leave to similarly situated men and women on the same terms. The guidance goes on to give an example of how an employer can phrase the distinction between the types of leave in their policies.

Takeaways

The JP Morgan charge is still in the early stages so it will be interesting to see how this plays out. However, as norms for childcare have evolved into a more equal status between mothers and fathers, employers may be confronted with similar requests by working dads. While the EEOC’s suggested language for a policy is only guidance, not a requirement, it is helpful as a starting point for discussions about what benefits an employer may want to provide. Keep in mind that you cannot discriminate against employees based on their sex—even if your intent is to give new mothers an extra benefit.

EEOC To Employers: Requiring Employees to Return to Work with “No Restrictions” Could Get You Sued

Before the Americans with Disabilities Act (and there was a time before the ADA), it was not uncommon to require employees to have a doctor’s note returning them to work “with no restrictions.” That won’t work in today’s ADA world, and the EEOC’s recent complaint against M&T Bank Corporation in New York provides a clear reminder.

The Details

The EEOC alleges that HCSB (a bank that M&T acquired in 2015) had a policy requiring employees “with potential disabilities to take leave until a physician provided a full release with no restrictions.” Upon requesting a reasonable accommodation or more than five days off in connection with a medical condition, an employee got a letter that said “You may only return to work if your doctor has provided a written notice of a full release with no restrictions.”

The complaint mentions four allegedly aggrieved employees:

  • Carmen Gaillard (Achilles tendinitis and bone spurs) and the Staten Island Clerk (a broken foot) each claim they were denied the reasonable accommodation of being allowed to wear a “cam walker boot” to work.
  • The Cherry Hill Teller who claimed she needed accommodations for complications related to her pregnancy.
  • The Jersey City Clerk who had arthritis and claimed she needed a cane to walk following some surgery. She did not request the accommodation (using the cane) because she knew it would not be granted.

The complaint also alleges that HCSB required people to remain on leave (rather than provide a reasonable accommodation such as the cam walker boot), and then terminated them after they couldn’t return to work without restrictions after 26 weeks (and sometimes earlier).

What Can We Learn from This?

We do not know the actual facts—only what the EEOC alleges in the complaint. However, assuming the facts as alleged are true, I can think of a few takeaways:

  1. Return-to-work policies: Be sure your policies and form letters don’t suggest that an employee can only return to work “without restrictions” or with a “full medical release.” Policies should talk about being able to perform the job “with or without a reasonable accommodation.” Your form letters should encourage employees to tell you what, if anything, you can do to help get them back to work. Remember that you have to engage in the interactive process, and you need a clear record of what the employee requested as an accommodation.
  2. No bright lines: Having a bright line policy that employees who run out of leave will be terminated if they cannot immediately return to work is risky. The EEOC has made clear that it believes leave can be a reasonable accommodation.
  3. Get the word out on your policies: Make sure no one in your organization thinks that employees are automatically terminated if they run out of leave. I listened with horror (yes, horror) to a former HR Manager explain that the company always terminated people who couldn’t return to work after they ran out of FMLA leave. I knew that was not the corporate policy but apparently my onsite HR Manager had either ignored or forgotten about that change.
  4. Consider accommodation even if the disability is questionable: The EEOC defines disability as broadly as possible. At first glance, I might have said that the Staten Island Clerk’s broken foot was not a disability under the ADA because it was transitory and minor. However, if she needed 26 weeks of leave, it doesn’t look all that minor or transitory. It is probably best to look at the requested accommodation and not get hung up on whether it is a disability.

gossiping coworkersIf you’re not careful, a casual reference to an employee’s FMLA leave might give rise to an FMLA interference claim. A recent Florida case, Holtrey v. Collier County Bd. of Commissioners, reminds us that you can get into trouble—and violate an employee’s rights—despite proper record keeping if an employee with access to those records discloses sensitive medical information about another employee’s FMLA leave.

Basic FMLA Rules

Generally, eligible employees are entitled to up to 12 weeks of FMLA leave in a 12- month period and they get to return to their position at the end of the leave. There’s also no question that FMLA regulations  require an employer to keep confidential an employee’s medical records and information related to an employee’s FMLA leave. In fact, you must maintain medical records separately from personnel records.

So What Happened in Florida?

Keep in mind that the facts as we know them are based almost entirely on the plaintiff’s version of events. With that caveat, Scott Holtrey applied for and received FMLA leave for a chronic and serious medical condition affecting his genito-urinary system. While he was out on leave, a manager apparently chatted with several of Holtrey’s coworkers about his medical condition. When Holtrey returned from leave, coworkers made jokes and obscene gestures about his medical condition in front of him. He complained and his employer (the Collier County Board of Commissioners) failed to remedy the situation, so he filed a lawsuit claiming the board violated the FMLA when his manager disclosed his medical condition and when his coworkers teased him about it. The board filed a motion to dismiss pointing out that Holtrey got all the leave he requested.

The court denied the board’s motion to dismiss, finding that Holtrey sufficiently pled an interference claim because he alleged that the board interfered with his FMLA rights by disclosing his confidential medical information resulting in a “work environment riddled with obscene gestures and jokes at his expense.” According to the court, the issue “is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right.” The court noted that district courts conflict on whether disclosure of medical information constitutes an FMLA interference claim, but went on to note that the regulations make clear that “confidentiality of medical information is a right provided and protected under the FMLA.”

Guarding Confidential Medical Information

The court hasn’t said that Holtrey wins his FMLA interference lawsuit based entirely on the supervisor’s violation of his confidentiality. It has, however, found that Holtrey’s lawsuit to test that theory can continue. How could this be prevented? Maybe Holtrey’s manager didn’t need to know what was wrong with Holtrey—just that he was approved for leave. The Holtrey case is a good reminder to make sure that employees (especially managers) are thoroughly (and frequently) trained about their FMLA obligations.

Rule of thumb: Don’t chat about an employee’s medical condition — ever.