From the Tinfoil Hat Files: Plaintiff Sleeping on the Job Claims Sensitivity to Electromagnetic Voltage

Sleeping at a desk

The 7th Circuit, in a short opinion issued April 6, zapped a plaintiff’s claim that he was terminated in violation of the ADA based on his condition of being overexposed to electromagnetic voltage at his job. Mr. Hirmiz, a desk clerk at a Travelodge hotel, was caught on video sleeping during a fight that broke out among guests in the lobby. He was fired. Mr. Hirmiz sued the hotel claiming that his employer failed to accommodate his disability–hypersensitivity to electromagnetic voltage. He also alleged that his termination was in retaliation of his filing a complaint with OSHA that the hotel had high-voltage levels. The lower court dismissed his case because he failed to show that he was actually disabled under the ADA and could not show that his OSHA complaint played any role in the termination.

Judge Posner, in a fairly short opinion, agreed with the lower court’s dismissal. He noted that there is a scientific debate about whether allergies to electromagnetic voltage are a physical disorder or a psychological one. The judge pointed out that if it is a psychological disorder, the symptoms might not rise to the level of substantially limiting a major life activity, which is required to qualify as a disability under the ADA. The analogy Judge Posner used is the fear of black cats—a psychological disorder that likely wouldn’t qualify. The 7th Circuit opinion noted that Mr. Hirmiz didn’t provide any proof to show that he was suffering from such an impairment.

On the retaliation claim, Judge Posner found that Mr. Hirmiz had not sought any accommodation for his alleged disability and didn’t file any charge with the EEOC until after he was fired. He couldn’t show any causal link between the OSHA complaint and his termination (in fact, OSHA tested the hotel and found all levels to be normal). The hotel had a valid reason, unrelated to his alleged disability, for firing him—-he was sleeping on the job. As such, the 7th Circuit affirmed the dismissal of his case.

This decision shows that although it may seem like courts take a broad view of what constitutes a disability, plaintiffs still have to meet the burden of showing that they suffer from an impairment that substantially limits a major life activity. Sometimes a sleeping employee is just that—-a sleeping employee.

Don’t Be Chatty about FMLA Leave

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.

A Diamond in the Rough (Part 2): What the Eleventh Circuit Said about FMLA Retaliation Claims

family leaveMy last post talked about Diamond v. Hospice of Florida Keys and what the Eleventh Circuit said about FMLA interference claims. As promised, this post will look at the Diamond decision’s take on the FMLA retaliation front.

Refresher on Ms. Diamond’s Case

Recall that Jill Diamond, a social worker for Hospice of Florida Keys, was approved to take intermittent FMLA leave to care for her sick parents. She took some days here and there (hence the term “intermittent”) but then took about 10 days in March and April of 2014. Although Hospice approved her leave, it asked her for receipts to prove she was where she said she was, warned her that her high use of PTO could have an impact on her employment, and gave her a detailed explanation of how her leave was compromising the quality of care. Diamond asked the company to not request documentation beyond what the FMLA allowed and for examples of the compromised patient care her leave was causing. Five days after Hospice provided this explanation (about two weeks after her last leave), Hospice terminated Diamond for poor job performance.

Although the district court granted summary judgment to Hospice on both the FMLA interference and FMLA retaliation claims, the Eleventh Circuit reversed.

Retaliation Claims in the Eleventh Circuit

The Eleventh Circuit explained that to prove an FMLA retaliation claim, a plaintiff must show that her employer intentionally discriminated against her for exercising an FMLA right—and this can be proven with either direct or circumstantial evidence. Under the circumstantial standard, a plaintiff must prove that she suffered an adverse employment decision that was causally related to her exercise of her FMLA rights. Under the familiar McDonnell Douglas standard, the plaintiff must establish a prima facie case of retaliation and then present evidence that the employer’s articulated reasons for the termination were a pretext and the real reason was retaliation.

The Court concluded that Diamond established a prima facie case of retaliation. Diamond’s termination was only two weeks after her last day of leave, which established a close temporal proximity. Additionally, the company’s behavior (e.g., negative comments about the effect of Diamond’s absences on the quality of patient care) reinforced the causal connection between the FMLA leave and her termination.

The company offered a legitimate, non-retaliatory reason for the termination decision—Diamond had “disregard[ed] a direct order from her supervisor . . . and violat[ed] Survey guidelines by leaving the premises during a State Survey without notifying the Clinical Director.” Sounds pretty good. The next question was whether Diamond could present sufficient evidence that the reasons were not true or otherwise a pretext and the real reason was retaliation.

The Court found that Diamond presented sufficient evidence of pretext to survive summary judgment. First, the two reasons (i.e., disregarding the order, leaving the premises) were not even included in the “offenses” listed in Diamond’s termination memo. Second, Diamond had never been disciplined for any of the issues listed in the memo. Third, the HR manager testified that Diamond was terminated for poor performance rather than the two offered reasons. Fourth, the company conceded that the two offered reasons, standing alone, would not support the termination—but were considered in conjunction with her poor job performance. Finally, Diamond offered the evidence of the company’s comments about how her FMLA leave was impacting patient care, which potentially connected her leave to any performance deficiencies.

So What Have We Learned?

As we all know, employees who take FMLA are in a protected classification. While you have to manage the employee’s job performance—even during intermittent leave periods—make sure you focus on the performance and clearly separate it from the leave.

Some lessons from the Diamond decision:

  • If there is a performance problem, be sure to focus on performance while the employee is at work—not what they are not accomplishing because of the leave. In this instance it appears that Hospice tried to do that—focusing on Diamond’s patient care issues, insubordination, etc.—but the court felt that the temporal proximity (two weeks) and the negative comments created a genuine issue of fact for a jury.
  • Think long and hard before you terminate an employee without some intermediate steps. If you find that the employee is stealing and you always fire thieves, fire away. If, however, you find that the employee’s job performance is not great, you may need to issue a warning or two before you terminate. Although the employee could claim that the discipline was retaliatory, it is easier to defend a disciplinary decision.
  • Put some distance between the leave and any ultimate employment action. Firing someone on the heels of leave (or any protected activity) is dangerous. Address the behavior but take a measured approach. Not only will that give the employee a chance to improve (which could happen), it will put some time between the leave and the adverse action. This is more difficult with intermittent leave—because when does the leave actually end? However, it will always play better before the court to show that you disciplined for consistent behavior or performance problems—not all of which occurred during or on the heels of leave.

If someone’s FMLA leave is “contentious”—maybe it was challenging, caused some operational problems, etc.—look closely before taking a subsequent adverse employment action. Those actions almost always end up costing more than expected.


Discrimination Based on Sexual Orientation is Sex Discrimination Under Title VII: Seventh Circuit Takes Clear Stand

Gay pride flagOn Tuesday, the Seventh Circuit jumped into the Title VII sexual orientation discussion with both feet. In Hively v. Ivy Tech Community College of Indiana, a full-court reversed an earlier three judge panel decision, finding that discrimination based solely upon the employee’s sexual orientation is sex discrimination prohibited by Title VII. As the opinion recognizes, this finding goes not only against the Seventh Circuit’s own past rulings, but also against opinions from almost all the other Circuits (1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 10th and 11th). In fact, two Circuits, the 11th and the 2nd, had ruled exactly the opposite in the past month.

So how did the Seventh Circuit come to this point? 

The majority opinion begins by pointing out that it does not have the power to amend Title VII, so it must look at whether the statute’s current language can be interpreted to include sexual orientation as protected. The Court pointed out that although the EEOC already has interpreted Title VII to prohibit sexual orientation discrimination, it is not bound by that agency’s position. Instead, the Court noted that while Congress may have had a certain definition of “sex” in mind when the law was passed, courts have expanded and adopted other definitions over the years—including to cover same-sex workplace harassment and discrimination based on failure to comply with gender stereotypes.

Ivy Tech did not renew the contract of Kimberly Hively, one of the professors. Hively alleged that the non-renewal was because she is a lesbian.  She offered two theories under which her sexual orientation discrimination claim should be covered under Title VII and the full Seventh Circuit agreed with both. First, under the comparative method a court would ask would the same decision have been made if she had been a man. Hively argued that if she had been a man married or living with a woman, as opposed to a woman married or living with a woman, she would not have been terminated. The Court agreed that such comparative analysis would show sex discrimination. The Court went on to note that by being a lesbian, Hively failed to comply with the female stereotype in America by not being heterosexual. While other courts (and even the Seventh Circuit panel in its earlier opinion) had held that there was a distinct line between a gender non-conformity claim and one based on sexual orientation—the Hively majority opinion concluded that no line exists —it is all sex discrimination.

Hively’s second theory was that discrimination based upon sexual orientation should be prohibited based on an associational theory. In Loving v. Virginia the Supreme Court ruled that restricting the freedom to marry solely because of racial classifications violates the Equal Protection Clause. Since the Court recognized that protection for race, then Title VII should also prohibit discrimination on the basis of national origin, color, religion or the sex of the person associating with an employee.

Finally, the Seventh Circuit discusses how their decision must be considered against the backdrop of recent Supreme Court decisions striking down statutes prohibiting homosexual intimacy (Lawrence v. Texas), statutes excluding same-sex partners from the definition of spouse (United States v. Windsor) and prohibiting same-sex marriage (Obergefell v. Hodges). The Court recognized that there is contrary authority to their current stance, but stated “this court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.”  The Court concluded that it is “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

Judge Posner has an interesting concurring opinion that delves deeper into how history and time should cause changes in statutory interpretation. The dissent follows the other circuits in holding that the courts should not change the scope of Title VII—that is up to Congress.

So what is an employer to do?

As noted in the opinion itself, this decision is currently an outlier among the federal circuits. However, it sets up a split that will almost surely have to be decided by the Supreme Court. The decision again shows that there is a fine line (one that the Seventh Circuit refused to recognize) between discrimination against someone because they do not meet a gender-stereotype and discrimination based on sexual orientation. Employers should remind everyone that all employees, male or female, should be treated equally in the workplace. We will likely be receiving clearer instructions on the definitions of claims under Title VII, but until that time, it is better to be safe than sorry.

A Diamond in the Rough (Part 1): FMLA Intermittent Leave and Interference Claims Per the Eleventh Circuit

FMLA actManaging intermittent FMLA is every employer’s nightmare (or is it just me?). Employees are entitled to take leave and operations folks find it difficult to keep the trains running on time with employees who don’t show up every day. Employers try to keep a tight rein on it— requiring employees to submit medical certifications, seeking recertification when appropriate, requiring clear recording of each FMLA absence, etc. So when does that tight rein go too far? In Diamond v Hospice of Florida Key, the Eleventh Circuit analyzes both an interference and an retaliation claim—finding the employer went too far (at least too far to get summary judgment). This post will look at the Diamond Court’s discussion of the interference claim and I will address the retaliation claim in a future post.

Facts of Ms. Diamond’s Case

Jill Diamond was a social worker for Hospice of Florida Keys. Her parents were ill, she submitted the appropriate medical certifications, and Hospice approved her to take intermittent FMLA leave. She took leave at different times from June 2013 until February 2014. So far, so good. As per company policy, Diamond used her PTO for these approved absences. Also as per company policy, because her PTO balance was getting low, Diamond got a written notice that her balance was low and continued absences could affect her employment. The notice didn’t mention FMLA—just her low PTO balance. A company witness admitted that such a notice could discourage an employee from taking FMLA leave.

When her mother’s condition got worse, in March 2014 Diamond requested and was approved for a few more days, although Hospice asked her for an updated medical certification. While Diamond was on leave, Hospice got a new HR Manager and the real issues (according to Diamond) began. Not only did the CEO allegedly warn Diamond if she worked for another company she would be out of a job, the HR Manager requested additional documentation, such as receipts for food or lodging or documents from the hospital “to verify where [she] said [she] would be.” Diamond took additional leave when her mother went into the hospital and Hospice asked for additional documentation. Hospice also noted that Diamond’s “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.” Hospice warned her that she might want to conserve her FMLA leave, as it was “running low.” Diamond testified that because of this warning, she did not take available leave and instead made an additional 600 mile round trip to her parents’ home rather than staying longer and providing the care the doctors said her parents needed. The HR Manager also provided examples of how patient care was suffering because of Diamond’s emergency leaves (all FMLA covered).  Five days after this explanation (about 2 weeks after her last leave), Hospice terminated Diamond for poor job performance.

Diamond sued, claiming that Hospice interfered with her FMLA rights and the retaliated against her for taking FMLA leave. The district court granted summary judgment on both claims, Diamond appealed and the Eleventh Circuit reversed.

Interference Claims are More than Just Denied Leave

The Eleventh Circuit started with an explanation of what Diamond must prove to establish an FMLA interference claim: (1) that she was denied a benefit to which she was entitled under the FMLA and (2) that she was prejudiced by the interference. In this case, Diamond got all the leave she requested and was reinstated when she returned—so what’s the problem? The Court found that interference goes beyond denying leave or refusing to reinstate. Citing the regulations, the Court found that discouraging an employee from using leave can be interference. Importantly, the employer’s intent doesn’t matter—only the employer’s conduct and whether it discouraged the employee. Finally, the Court noted that a plaintiff may not need to show denied leave or lost wages to establish prejudice from the interference. If a plaintiff got the leave (and thus did not lose wages), she can show actual monetary losses sustained as a direct result of the violation.

In Diamond’s case, the Eleventh Circuit found ample evidence for a jury to conclude that Hospice potentially discouraged Diamond from taking FMLA leave. Specifically, the Court found that a jury might find that the memo telling Diamond that her continued absences (all FMLA covered) compromised the quality of patient care could have discouraged her from taking more leave. It further noted that the requests for “proof of need”—something above and beyond what the FMLA regulations envision and which would not address whether Diamond’s parent had a serious health condition—could be found to be discouraging. Finally, the Court noted that a jury could believe Diamond’s testimony that had Hospice not been riding her about her excessive leave, she would have taken additional time off rather than make a 600 mile round trip—and award that expense to Diamond.

So What Have We Learned?

Intermittent FMLA is tough to manage. Here are some takeaways:

  • The fact that the employee got all the leave he or she actually requested doesn’t foreclose an interference claim. How you grant the leave can make a difference. If you approve the leave, make sure the supervisor or your approval memo doesn’t send a different, discouraging message.
  • You can request documentation but make sure it goes to the need for leave. You should always require medical certifications but you can’t require a doctor’s note for every absence. Think twice before requiring non-medical justifications—like food and lodging receipts—because they don’t relate to the need for leave. If you have reason to believe that an employee is lying about leave, there may be ways to get verification. In light of this decision, however, a blanket request for receipts is probably not the best route.
  • Be careful when addressing performance issues with employees taking intermittent FMLA as it can look like interference. You have to manage performance, even when someone is taking leave, but make sure that the issues are not simply about the employee’s availability or reliability (which is hard to distinguish from the leave). Focus on what the employee does when she is at work—not that she has been absent.

I’ll say it again, intermittent FMLA leave is tough to manage. Keep in mind, however, that defending an FMLA interference claims is also tough (and expensive) and with the Eleventh Circuit’s new decision elevating discouragement to interference, they just got tougher.

Blacklisting Executive Order Blacklisted

Discarded blacklist

President Obama and his EO’s

Remember the Blacklisting Order that required federal contractors to provide a rap sheet with a proposal? No? Well, President Obama issued 275 Executive Orders during his two terms on various subject matters, some of which were fairly controversial, the Blacklisting Order included. Back in 2014, he issued several high-profile executive orders focused on employment issues in particular. For example, executive orders were issued for federal contractors regarding minimum wage, affirmative action, disclosure of compensation information, and similar issues. So what happens to those EOs now? Although we can’t predict the future, we can tell you that the Blacklisting Order is gone for now.

Some Background: Fair Pay and Safe Workplaces Executive Order 13673

Executive Order 13673 (issued on July 31, 2014) was called the “Fair Pay and Safe Workplaces” order, and it required federal contractors and subcontractors to report any “administrative merits determination arbitral award or decision, or civil judgment” against them in the preceding three years that related to potential violations under the FLSA, NLRA, OSHA, FMLA, and other anti-discrimination laws. It was known as the “blacklisting” order because it required the federal contracting officer to consider such violations when awarding or extending government contracts. The order also barred contractors from imposing predispute arbitration agreements on their employees.

Successful Challenge to the Order: The FAR Rule and the Injunction

On August 24, 2016, the Federal Acquisition Regulatory Council and the Department of Labor published a final rule implementing the Fair Pay and Safe Workplaces Executive Order. The final rule required federal prime contractors and subcontractors, including federal construction contractors with contracts over $500,000, to disclose to the government labor violations occurring within an expanding lookback period. Among the labor laws listed were the Davis-Bacon Act, the Service Contract Act, the FLSA, OSHA, the Migrant and Seasonal Agricultural Worker Protection Act, and the NLRA.  The final rule, which was more than 500 pages, contained an effective date of October 25, 2016.

On October 7, 2016, the Associated Builders and Contractors (ABC) filed a lawsuit in the Eastern District of Texas to have the order and final rule declared unlawful and set aside. The ABC complaint stated that “[t]he Executive Order, FAR Rule, and DOL Guidance are unprecedented in their exercise of authority over matters previously controlled by Congress.” ABC further sought to have the regulation immediately enjoined. On October 24, 2016, the Texas federal judge granted ABC’s motion for a preliminary injunction against the reporting obligations in the new rule. The court also enjoined the restriction on arbitration agreements.

Enter the CRA and President Trump

Using a law passed in 1996 called the Congressional Review Act (CRA), in 2017 Congress immediately began reviewing regulations issued in the final months of the Obama administration. The CRA gives Congress an expedited process to revoke administrative regulations issued by the executive branch which it believes infringed when believed the regulations infringed upon the role of Congress. Although used only a few times since its passage, Congress has already invoked the CRA seven times this year. All of these actions have been signed into law by President Trump.

This week, on March 27, President Trump signed CRA legislation to repeal the Fair Play and Safe Workplaces regulations issued last August. Under the CRA, the House passed a resolution on February 2 to revoke the rule, and the Senate followed suit on March 6. With President Trump’s signature this week, the blacklisting rule finally and officially is blacklisted. In signing the CRA bill, the Trump administration commented that the blacklisting rule had been seen as one of the most significant threats to growing American businesses and hiring more American workers. We suspect that there will be more blacklisting of President Obama-era regulations in the days to come.

Muscle Beach Party and Theories of Sex Discrimination: Second Circuit Tries To Clarify Sexual Orientation vs. Gender-Stereotyping

genderIs there a difference between being discriminated against because of your sexual orientation versus being discriminated against for not conforming to a gender stereotype? In most areas of the country, there most certainly is according to the Second Circuit in Christiansen v. Omnicom Group, Inc., et al. Matthew Christiansen, an openly gay man and creative director at an ad agency, sued his employer alleging that his direct supervisor engaged in a pattern of humiliating harassment “targeting his effeminacy and sexual orientation.” Alleged incidents included sexually suggestive drawings of him during meetings, comments about Christiansen “prancing around,” and display of a Muscle Beach Party poster that had Christiansen’s head attached to a female bikini-clad body. Christiansen claimed this behavior violated Title VII’s prohibition against discrimination based on sex. The lower court noted that it is very difficult to distinguish between discrimination based solely on sexual orientation (which is not illegal in most of the country’s courts) from discrimination based upon someone failing to conform to gender stereotypes (which is illegal per the Supreme Court’s Price Waterhouse decision). Based upon this difficulty, the lower court punted and decided that it could not draw such a distinction. Therefore, the court granted the defendants’ motion to dismiss, holding that Christiansen’s complaint did not allege that he was discriminated against because he did not conform to gender stereotypes, but instead because he was gay. Christiansen appealed.

Drawing a Line

On appeal, Christiansen argued that the landscape had changed and the Second Circuit should recognize discrimination based solely on sexual orientation as a valid claim under Title VII. The Second Circuit, however, noted that its past decisions disagreed with that theory. However, the Second Circuit majority opinion found that Christiansen had stated a distinct claim for gender stereotyping that was separate, and valid, beyond any discrimination solely based on his sexual orientation. The Court noted that the complaint identified numerous instances of gender stereotyping discrimination:  the supervisor describing him as “effeminate;” and the Muscle Beach Party poster depicting him as “a submissive sissy.” The Court ruled that under Price Waterhouse, “stereotypically feminine” gay men and “stereotypically masculine” lesbian women could pursue a gender stereotyping claim under Title VII just the same as straight men or women with similar non-conforming gender behavior at work. The Second Circuit held that the gender-stereotyping claim must be allowed to go forward.

Interestingly, Judges Katzmann and Brodie filed a separate concurring opinion promoting the argument that sexual orientation discrimination should be considered a valid claim under Title VII. Those judges believe that sexual orientation is completely tied to sex, as defined by Title VII. In addition, they argued that all sexual orientation discrimination is fundamentally based on gender stereotypes anyway. Although not precedent, the concurrence is an interesting read on these theories.

Does This Case Change the Landscape?

Probably not. Most Circuits, and certainly the Fifth and the Eleventh (which cover most of the Deep South.), already have adopted the Second Circuit’s thinking about gender stereotyping and how it is different than a claim based solely on someone’s sexual orientation. Many Title VII cases these days will include claims that the employee was discriminated against for not acting sufficiently manly or femininely in the workplace. Those type claims typically survive a motion to dismiss. This distinction is not likely to change unless it comes from the Supreme Court.

The bigger lesson of the Christiansen case is that employers should address potential harassment in the workplace if it implicates sex—including gender stereotyping and sexual orientation. We don’t know the other side of the story in this case (and there are always two sides) because the district court dismissed it based on the complaint. However, the Second Circuit found that the statements allegedly made and the Muscle Beach poster went beyond “good office fun” and now the company has to defend them—and may end up defending them in front of a jury. Employers might want to use this as an example in a discussion of the company harassment policy.


Needle and the Damage Done: Pharmacist’s Phobia Not Enough for ADA Claim

ImmunizationsCan fear of an aspect of your job constitute a disability under the ADA?  Depends on how essential the function is. In Stevens v. Rite Aid Corp, the Second Circuit Court of Appeals looked at the case of a Rite Aid pharmacist, Christopher Stevens, who suffered from trypanophobia—-fear of needles.

Factual Background.

In 2011, Rite Aid decided that all pharmacists had to give immunization injections to customers and revised the essential functions on the job description to include a valid immunization certificate. Stevens (who had worked as a Rite Aid pharmacist for 34 years) promptly went to his treating physician and got a note stating that if required to use a needle to give an immunization, he would suffer from lightheadedness, paleness and may faint. Rite Aid engaged in an interactive process—seeking additional information about what, if any, accommodation would enable Stevens to administer injections. The doctor essentially said there were none and went on to note that the possibility of Stevens fainting might be unsafe for the customers and Stevens.

In response, Rite Aid told Stevens that his phobia was not covered by the ADA and that giving immunizations was now an essential function of his job. Since he could not perform that function, Stevens was terminated. He filed suit against Rite Aid for wrongful termination, retaliation, and failure to accommodate him under the ADA and a jury awarded him over $2 million dollars. Rite Aid asked the district court to set aside the verdict. The Court reduced part of the verdict and dismissed the failure to accommodate claim.  Both Stevens and Rite Aid appealed that decision. The Second Circuit sided with Rite Aid.

The Court’s Legal Analysis.

The Second Circuit first focused on Rite Aid’s essential function argument. Under the ADA, if an employer claims that a particular job function is essential, the Court must review the evidence to see if that is true. The Second Circuit found that the evidence was uncontradicted that Rite Aid made a business decision to start requiring pharmacists to perform immunizations and that it revised its job description for pharmacists to include that as an essential duty. Stevens did not present adequate evidence to show that the immunization duty was not essential.

Next, the Second Circuit looked to see if there was a reasonable accommodation that would enable Stevens to perform the essential function of giving injections. The Court noted the important distinction that it is not whether Stevens could adequately perform other aspects of his job—he had to show that there was a way that he could perform the injection essential function. At the lower court, Stevens had argued that Rite Aid could have provided him “desensitization therapy, “ but there was no authority that providing medical treatment is a reasonable accommodation and Stevens could not show that he would have even gone through that therapy. Stevens also argued that he could have been transferred to another position that did not require him to give injections. However, the proof showed that Rite Aid offered him such a position and he chose not to take it. Finally, Stevens argued that Rite Aid could have either hired a nurse to give his required injections or paired him with another pharmacist who could do so. The district court found (and the Second Circuit agreed) that Rite Aid was not required to eliminate the essential function from Stevens’ position, nor were they required to force other employees to do it instead of Stevens. As such, Stevens failed to show that any reasonable accommodation existed that would allow him to perform the essential function of administering injections. Therefore, his ADA claim was properly dismissed.

Practical Takeaways.

This case, although with a unique set of facts, emphasizes the importance of clearly stating the essential functions of a position. Rite Aid was successful because it did a lot of things right:

  • It showed that it made a business decision to include immunizations as a service to its customers.
  • It amended the pharmacist job description to reflect the new essential job function.
  • It engaged in the interactive process—asking what, if any, reasonable accommodations would enable Stevens to get the job done.
  • Importantly, Rite Aid offered Stevens a transfer—which he turned down.

This case shows that there are some disabilities that employers simply cannot accommodate.  This decision also shows just how important it is for employers to engage in the interactive process with their employees to explore the possibilities and be able to document the decision making process.

Son of Noel Canning? Worst Blog Title Ever? Supreme Court Takes Another Shot at NLRB Vacancy History

business manHow important are the titles “temporary” or “permanent” when it comes to an appointee to run a federal agency? Apparently, very important. On March 21, the U.S. Supreme Court waded back into the messy timeline of President Obama’s attempts to appoint members of the National Labor Relations Board (NLRB).

Why Are We Talking About President Obama’s Appointments?

As you may know, the President appoints the five members and the general counsel of the NLRB, and the Senate has to confirm them. In June 2010, President Obama appointed Lafe Solomon as acting general counsel of the NLRB. No one seemed to have a problem with that appointment. Issues arose, however, when President Obama decided to nominate Solomon as the permanent general counsel, which required Senate approval. While his nomination was pending, Solomon continued to serve as the acting general counsel. The Senate chose not to consider Solomon, so President Obama withdrew the appointment and went with someone else (who was ultimately confirmed).

The NLRB v. SW General, Inc. Case

SW General was an employer who had an unfair labor practices (ULP) complaint issued against it by the NLRB while Solomon was acting general counsel but nominated for the permanent position. SW General argued that under the Federal Vacancies Reform Act (FVRA), Solomon qualified to serve as acting general counsel, but that he lost that qualification once the President officially appointed him as the permanent general counsel, but without Senate confirmation. Since he was not authorized to serve as general counsel, any complaints issued during that time period would be invalid. Both a federal district court and the D.C. Circuit Court of Appeals agreed.

The Supreme Court, in a very grammar and punctuation focused opinion, affirmed the D.C. Circuit. Specifically, they found that the FVRA prohibits a person who has been nominated temporarily to fill a vacant office (such as NLRB general counsel) from later serving as an acting officer pending Senate approval. The Court noted that President Obama could have appointed another person to serve as the NLRB acting general counsel while Solomon awaited the confirmation that never came, but he chose not to do so. For those reasons, they dismissed the ULP complaint against SW General.

Who Cares?

Other than statutory nerds and strict grammarians, who really should worry about this decision?  Well, it seems eerily similar to the Noel Canning case which also dealt with President Obama’s attempts to appoint members to the NLRB. In Noel Canning, the Supreme Court ruled that several board members were improperly appointed and resulted in the NLRB having to reconsider hundreds of cases that had been decided by the prior board. In this case, the D.C. Circuit Court opinion (which was affirmed by the Supreme Court) specifically held that this would not be that type of situation and, instead, that only respondents who expressly and timely challenged Solomon’s appointment under the FVRA could have their NLRB decisions reviewed. However, because Solomon was general counsel, there may be all sorts of decisions that were made that may now be challenged—appointments to lower positions with the board administration, discovery issues, etc. If an employer had an adverse ruling from the NLRB during the time when Solomon served, this may now provide an avenue to challenge that decision.

ICE Could Come Knocking: Employers Should Be Prepared as Business Raids Increase

A criminal is handcuffed by a policeman

Employers– the chances that you could receive a visit from immigration officers have increased. Recently, U.S. Immigration and Customs Enforcement (ICE) agents conducted “raids” at eight Asian restaurants in Mississippi—in Clinton, Flowood, Madison, Meridian, and Pearl. Fifty-five restaurant employees, all undocumented, were detained during the raids. According to one immigration advocate, enforcement raids have “blown up” over the past two weeks in the Deep South. However, employers in other areas of the country should not be complacent as the ICE website also reports the arrests of 248 in Pennsylvania, West Virginia and Delaware in the last two weeks.

Department of Homeland Security Secretary John Kelly said the ICE raids were part of “a series of targeted enforcement operations” for undocumented immigrants. For years, ICE has prioritized detaining undocumented immigrants who have been convicted of a crime. These raids suggest a broader approach under the Trump administration with ICE making so-called “collateral arrests”– checking employee papers during raids and detaining anyone who is undocumented. However, Thomas Byrd, spokesman for ICE’s New Orleans field office, which oversees immigration enforcement in multiple states in the Southeast, said “ICE conducts targeted immigration enforcement in compliance with federal law and agency policy. ICE does not conduct sweeps or raids that target aliens indiscriminately.”

Since 1986 employers have been required to check the work authorization of every worker using the familiar Form I-9. In 2012, ICE developed a “comprehensive worksite enforcement strategy” describing its focus on critical infrastructure worksites and employers who exploit undocumented workers. The U.S. Citizenship and Immigration Service recently published a revised Form I-9, which became mandatory the day after President Trump’s inauguration.

With the increased emphasis on immigration enforcement, and the risk of heavy civil penalties and even potential prison time for knowingly employing undocumented workers, businesses should, at the very least, take the following steps:

  • Ensure that your I-9s are in order and conduct periodic internal audits to assess the status of all I-9s.
  • Ensure your worksites and staffs have proper training for I-9 implementation.
  • Enroll in and utilize E-Verify, an internet system that allows businesses to assess the status of their employees. Although E-Verify is generally voluntary, it is mandatory for federal contractors and may be under some state laws, so employers should check the states where they have worksites for E-Verify requirements.
  • If ICE does pay a visit to your business, remember that ICE must have a warrant to enter a business or arrest an employee. You should not panic or refuse to speak to them, but you and your employees do have the right to remain silent and speak to a lawyer.

Whereas ICE has traditionally provided notice of a prospective audit, the recent enforcement efforts were unannounced and reflect an expansive shift.  ICE’s targeted enforcement actions may be intended to promote the concept of “self-deportation,” where illegal immigrants leave the country voluntarily rather than through actual involuntary, forced deportation. As described by Emily Bazelon in a recent New York Times Magazine article, “[d]etention and deportation on a mass scale would be a gargantuan task – divisive, enormously costly and legally fraught. The only feasible way to get millions of undocumented immigrants out of the county, as Trump has promised, is to create a climate that induces immigrants to leave on their own.”

With the administration’s undeniable concentration on illegal immigration, reflected by ICE’s recent enforcement efforts in Mississippi, employers should take necessary measures to be prepared in this new environment.