In a highly-anticipated decision issued yesterday, the Massachusetts Supreme Judicial Court reversed a lower court’s dismissal of a suit filed by a woman who was fired because of her off-duty use of medical marijuana.  The SJC held that the woman’s claims for disability discrimination under the Massachusetts antidiscrimination statute, G.L. ch. 151B, could go forward.

Continue Reading Massachusetts High Court Reinstates Suit by Employee Fired for Off-Duty Medical Marijuana Use

As an attorney who counsels employers through difficult personnel issues, I am often asked, sometimes even in general conversation, what issues are the “hottest” and most frequent I see in my practice. For the past several years, the task of integrating and returning disabled employees to the workplace is at the top of the list; and of those, the most common and most challenging are the ones involving mental health issues. In addition to identifying when performance problems may be attributable to mental health diagnoses, employers also need to understand how to balance the employee’s rights under the Americans with Disabilities Act with safety and productivity concerns. An upcoming seminar at which one of my colleagues will be presenting features a panel of experts ready to help.

McLane Middleton attorney, Nick Casolaro, will be part of this panel discussion at the Business and Industry Association’s “Employer’s Guide to Mental Health in the Workplace” seminar on May 31, 2017 from 11:30 a.m. to 1:30 p.m. at the Radisson Hotel in Manchester, N.H.

During the presentation, the panelists will answer questions, such as: What can business owners do to encourage recognition and to provide opportunities for treatment? What are the appropriate accommodations? What mistakes must they avoid in handling employees dealing with short-term or chronic illnesses?

For additional information about this event, please click here.

Employers have a new resource document to use when determining when and how to grant employees leave as a reasonable accommodation under the Americans with Disabilities Act.  The document, published by the EEOC, is entitled Employer-Provided Leave and the Americans with Disabilities Act.

The ADAstock-photo-disability-medical-message-background-health-care-poster-design-121187878 applies to employers with 15 or more employees.  It requires employers to provide disabled employees with reasonable accommodations that allow them to perform the essential functions of their jobs unless doing so would cause an undue hardship.  Reasonable accommodations may include providing employees with leave from work or modifying a company’s leave policy for an employee with a disability.

In issuing this technical assistance, the EEOC noted the increase in disability charges.  2015 hit a new high for disability discrimination claims brought before the agency.  The EEOC intends this resource document as a way to educate employers about leave as an accommodation.  For each category addressed, the EEOC provides examples or scenarios to assist employers.

As noted in its release of this document, “[o]ne troubling trend the EEOC has identified in ADA charges is the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation. These policies often serve as systemic barriers to the employment of workers with disabilities. They may cause many workers to be terminated who otherwise could have returned to work after obtaining needed leave without undue hardship to the employer. EEOC regulations already provide that reasonable accommodations may include leave, potentially including unpaid leave that exceeds a company’s normal leave allowances.” 

Commissioner Victoria Lipnic added, “Leave issues often present some of the toughest situations for employers and employees to deal with in our workplaces. This document provides needed one-stop guidance on how the EEOC approaches many of the common issues we see.”

The key topics addressed include:

  • Equal Access to Leave Under an Employer’s Leave Policy.  Employers must provide employees with access to leave “on the same basis as other similarly-situated employees.”  Policies may require all employees to provide documentation to substantiate the need for leave — like a doctor’s note.
  • Granting Leave as a Reasonable Accommodation.  Employers must provide employees with leave as a reasonable accommodation.  This includes providing unpaid leave to an employee with a disability so long as doing so does not create an undue hardship for the employer.  An employer is not required to provide paid leave beyond its paid leave policy.  Employers may also not penalize an employee for taking leave as a reasonable accommodation.
  • Communication after an Employee Requests Leave.  This is also referred to as the “interactive process.”  Employers must engage in the interactive process after a disabled employee requests leave, or additional leave, for a medical condition.  Employers must treat the request as a request for a reasonable accommodation.  As the EEOC explains, the interactive process is “a process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship.”  At times, the employer may need more information so that it can understand the amount and type of leave, the need for leave, and whether there is a reasonable accommodation available other than leave.
  • Communication During Leave and Prior to Return to Work.  Employers should continue to engage in the interactive process if the disabled employee seeks additional leave due to a medical condition.  Employers may also ask for information from the employee as to the leave and the employee’s return to work.
  • Maximum Leave Policies.  Employers will be found in violation of the ADA if they enforce maximum leave policies.  While employers may have policies that set a maximum amount of leave the employer will allow, employers may need to grant exceptions to disabled employees and allow them additional leave beyond the maximum as a reasonable accommodation.
  • Return to Work and Reasonable Accommodation (Including Reassignment).  Employers will be found in violation of the ADA if they require employees to be 100% recovered or have no restrictions before they can return to work.  Employers should continue engaging in the interactive process if employees return to work with restrictions.  This allows discussion as to reasonable accommodations that will allow an employee to perform the essential functions of the job or consider reassignment to a vacant job position for which the employee is qualified.
  • Undue Hardship.   Employers may determine whether granting leave, or additional leave, is an undue hardship.  Factors that may be considered include impact on the employer’s operations and ability to serve customers, impact on co-workers and duties of job, whether intermittent leave is predictable or unpredictable, whether there is flexibility on when leave is taken, frequency of the leave, and amount and/or length of leave.

The EEOC’s resource document ends with citations to additional guidance on leave laws under the ADA, Family and Medical Leave Act (FMLA), and  worker’s compensation.

Companies should review their policies and procedures on leave so that they can make sure they are properly considering requests for leave by disabled employees.  Training on leave laws, leave requests, and the interactive process are also considered best practices.  Consultation with counsel is also advisable as properly considering leave or extended leave requests and documenting the interactive process may avoid liability.

Photo: Day Donaldson via Flickr (CC by 2.0)
Photo: Day Donaldson via Flickr (CC by 2.0)

The Zika Virus, an illness transmitted primarily by mosquitoes and also, less frequently, through blood transfusions and sexual contact has certainly been in the news recently.  The U.S. Centers for Disease Control (CDC) has issued travel warnings alerting people to the risk of travel to more than two dozen countries in the Caribbean and South and Central America.   More than a dozen states have reported cases of the virus.  Due to the possibility of risk of birth defects if pregnant women are infected, even female members of the U.S. Olympic Team are expressing concern about travel to Brazil this summer.

Employers are asking what precautions they can and should take to protect employees, especially those who travel to foreign locations as part of their jobs.  The warnings are certainly of concern, especially to women of child-bearing age, but it is important that employers not panic and overreact.

As with any medical issue, great care must be taken to protect the privacy and rights of employees and prospective employees.  Laws of particular import include the following:

  • Americans with Disabilities Act (ADA): The ADA prohibits an employer from requiring medical examinations of current employees absent a reasonable belief that the employee has a medical condition or disability which poses a direct threat to the employee’s own safety or the safety of others in the workplace. Due to the lack of objective evidence that the virus can be spread through casual contact, there seems to be no basis to require medical examinations.
  • Occupational Health and Safety Act (OSHA): OSHA does permit employees to refuse to perform job tasks when they have a reasonable basis to believe that there is a threat of imminent death or serious injury.  The CDC has indicated that the spread of Zika can be eliminated with appropriate precautions, even in countries affected by the virus except when the employee is pregnant.  Employees may therefore not be reasonable in asking not to be sent to affected countries.  A pregnant employee’s request of this nature, however, may be deemed a reasonable accommodation.
  • Title VII of the Civil Rights Act of 1964 (Title VII): Although an employer may want to agree to a pregnant employee’s request to be excused from travel to affected nations, it would not be a good idea for an employer to ban pregnant employees, spouses of pregnant employees or individuals planning to become pregnant from overseas travel.  The employer’s best course of action is to educate employees about the risks and then let them make their own healthcare decisions.

The best course of action for employers, especially those who have employees traveling to the Caribbean or South or Central America, is to provide education about risks and precautions to take and to refer employees to the CDC website for information. Such employers should also reinforce sick leave and FMLA policies and make sure supervisors are knowledgeable about illnesses and require sick employees to take time off from work. Finally, employers should consider allowing employees, especially those expecting children or planning to get pregnant, to opt-out of travel, at least until  more is known about the virus, its genesis and its long term affects.

The New Hampshire Commission for Human Rights has released data on discrimination charges filed by employees in 2013.  Last year, the Commission received 222 discrimination charges against employers.  This number was slightly down from the year before at 257.  Retaliation across all categories topped the list at 93 claims.  Following closly behind with 89 charges was disability discrimination.  There were 64 claims based on sex discrimination and 31 claims based on age.  Of the sex discrimination claims, the charges included 17 gender, 36 harassment, and 11 pregnancy.

The Commission found probable cause to proceed with a hearing in 3 cases — 2 for disability discrimination and 1 for sex (pregnancy) discrimination.   No probable cause was found in 37 of the cases.  Additionally, 13 cases were removed to federal court; 34 were removed by the complainant to state court and 2 were removed by the respondent to state court.  The Commission closed 199 cases in 2013.

With the report of these statistics, it is a good time for employers to review, redistribute, and reinforce their anti-harassment and non-discrimination policies to all employees.  Employers should confirm their handbooks cover all protected categories under federal and state laws.  Companies should also provide training for employees on their nondiscrimination and anti-harassment policies.  Supervisors and managers need to be trained on the policies as well as receive an overview of the laws relevant to the workplace.  All of these steps can help companies safeguard against liability for harassment and discrimination in the workplace.

The question of whether obesity meets the definition of a “disability” under the Americans with Disabilities Act (“ADA”) has received significant play over the past few years.  The issue first emerged in 2011 when the EEOC filed suit on behalf of the estate of a very obese woman who was terminated from her employment with a long term residential treatment facility for chemically dependent women. Lisa Harrison had filed a charge of discrimination with the EEOC claiming her termination was as a result of the defendant “regarding” her as disabled due to her obesity.  She passed away shortly after the termination; the cause of death was listed as “morbid obesity” and also listed hypertension, diabetes and congestive heart failure as significant conditions contributing to her death. The EEOC filed a Motion for Summary Judgment in 2012 requesting that the court find as a matter of law that it had established a prima facie case of disability.  The court found that Lisa Harrison was indeed “disabled” under the ADA.

In  August 2013 the American Medical Association announced a change in the classification of obesity from a “condition” to a disease, further opening the door to possible claims by employees under the ADA.  According to the Centers for Disease Control and Prevention one third of Americans fall under the definition of obese, 30 pounds over the recommended weight for their age, gender and weight. Claims under the ADA include discrimination (failing to hire or promote), harassment (disparaging comments about weight) and failure to accommodate (different furniture, time off).

Now, a Missouri federal judge just last week denied the motion to dismiss  of a car dealership whose former employee claimed he was fired for his weight.  The court found that the employee had produced sufficient evidence that he is disabled within the meaning of the ADA.   Attorneys for the company had moved to dismiss the case, arguing that obesity was not a disability and citing language from an EEOC guidance stating that “except in rare circumstances, obesity is not considered a disabling impairment.”

The court rejected that argument, reminding the litigants that the lanuguage at issue predated the Americans with Disabilities Act Amendments Act of 2008, which “rejected the unduly restrictive approach” to determining whether a plaintiff suffered from a disability. The judge refused to dismiss the case because “plaintiff has sufficiently pled a claim that he is disabled within the meaning of the ADA.”

Employers should keep these developments in mind when making employment related decisions concerning employees who might meet the AMA definition of obese.

The Massachusetts Supreme Judicial Court (SJC) has held an employer is prohibited from discriminating against its non-disabled employee based on that employee’s association with an immediate family member with a disability or handicap under Chapter 151B, the state’s antidiscrimination law.  This decision expands the scope of employer liability.

In Flagg v. Alimed, Inc (July 19, 2013),  Mark Flagg alleged that he was terminated from his employment because of his wife’s disability.  In 2007, Flagg’s wife underwent surgery for a brain tumor.  Flagg became responsible for caring for the couple’s children, which included his periodically leaving work for a short period of time to pick up his daughter and then returning to work to finish the day.  During those times he left, Flagg did not punch out, which he claims his manager knew.  Shortly after his wife’s recurrence of the brain tumor, Flagg was terminated for failure to punch out.  Flagg alleged the company really terminated him because it did not want to pay for his wife’s costly medical treatment.

Chapter 151B prohibits employment discrimination in Massachusetts and section 4(16) specifically prohibits discrimination based on handicap.   G.L. c. 151B, sec. 4(16).  At issue before the SJC was whether the statute extended to include “associational discrimination,” which does not specifically appear in its text.  The SJC explained that the term “associational discrimination” refers to a plaintiff who, “although not a member of a protected class himself or herself, is the victim of discriminatory animus directed toward a third person who is a member of the protected class and with whom the plaintiff associates.”

Answering in the affirmative, the SJC determined that a broad reading of the statutory language to include associational discrimination furthered the state’s general purpose to eliminate workplace barriers based on discrimination.  It noted that the definition of “handicap” includes (1) persons with a physical or mental impairment that substantially limits one or more major life activities or (2) persons with a record of impairment, as well as covers those (3) persons “being regarded as having such impairment.”  G.L. c. 151B, sec. 1(17).  It reasoned that this third prong protects those who are not actually impaired but who may be the victim of “stereotypic assumptions, myths, and fears regarding such limitations.”  For this reason, “[w]hen an employer takes adverse action against its employee because of his spouse’s impairment, it is targeting the employee as the direct victim of its animus, inflicting punishment for exactly the same reason and in exactly the same way as if the employee were handicapped himself.”

In its holding, the SJC afforded substantial deference to the Massachusetts Commission Against Discrimination (MCAD), which has adopted associational discrimination under c. 151B.   It also looked to analogous federal law under Title VII and the Rehabilitation Act to support the ruling.  In a footnote, the SJC noted that it was limiting claims for associational discrimination to immediate family members only.  It should also be noted that the Americans with Disabilities Act (ADA) prohibits “excluding or otherwise denying equal jobs or benefits” because of the known disability of an individual with whom the employee is “known to have a relationship or association.”

Employers should  train all managers, supervisors, and employees on this protected status and other anti-discrimination laws.  Companies should also review and update their policies.

Systemic discrimination involves a pattern or practice, policy, or class case where the alleged  discrimination has a broad impact on an industry, profession, company or geographic area.   The Equal Employment Opportunity Commission (“ EEOC”)  usually files 200-300 lawsuits per year, and it is expected that these numbers will hold steady or increase into the future.  Given the limitations on its resources, the EEOC has always taken the position that it should file suit in cases with an opportunity to make the biggest impact on the largest number of employees or to address and focus on new and emerging theories of liability.

The case of  EEOC v. Dillard’s is an example.   Dillard’s Inc., a national retail chain, agreed to pay $2 million and committed to extensive, company-wide injunctive relief to settle a class action disability discrimination lawsuit.  At issue was Dillard’s longstanding national policy and practice of requiring all employees to disclose personal and confidential medical information in order to be approved for sick leave.  The policy at issue required employees to disclose the exact nature of their medical conditions in order to be approved for sick leave rather than simply providing a doctor’s note confirming that the absence was due to a documented medical concern.  According to the allegations in the suit, the employee representing the class was terminated after missing only four days of work.  She and her co-workers were allegedly fired in retaliation for refusing to provide further details of their medical conditions.  The court ruled that Dillard’s policy was facially discriminatory under the Americans with Disabilities Act (“ADA”).

The EEOC also took great issue with other aspects of Dillard’s handling of employee medical leave, specifically a policy limiting the amount of leave an employee could take without engaging in an assessment of whether additional leave might be a reasonable accommodation under the ADA.   The  claim was that Dillard’s terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed by the company policy in violation of the ADA.

Previously, in the case of EEOC v. AutoZone from the Central District of Illinois the EEOC was successful in winning significant damages for an employee with a disability claiming that the employer discriminated against him by forcing him to perform work that was outside of his medical restrictions and causing an exacerbation of his medical problems.  Following the verdict, the EEOC sought an injunction against the employer precluding it from engaging in similar behavior in the future.  The court issued this injunction and also required all of the AutoZone locations in central Illinois to report all requests for accommodation by employees to the EEOC for a period of three years and to maintain records concerning how the company responded to each request.  This judgment was affirmed by the Seventh Circuit Court of Appeals on February 15, 2013.

Employers are well advised to consider the interplay between all aspects of disability and leave law including FMLA, ADA and worker’s compensation and pay particular attention to whether the company policies and practices might have a disparate impact on disabled employees.  The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act is a very useful tool for human resource directors and other managers to keep close at hand.   The risks of failing to have clear policies which are actually followed by all who might make decisions about employee leave and restricted duty are significant and there are many traps for the unwary.

The Equal Employment Opportunity Commission recently reported retaliation under all statutes as the most frequently filed discrimination charge in fiscal year 2012.  Race and sex discrimination were the next most frequent charges. The statistics reflect charges of employment discrimination filed for statutes enforced by the EEOC.

The EEOC received almost 100,000 charges of discrimination in the fiscal year that ended September 30, 2012.  Of the charges received, retaliation charges filed under all the discrimination statutes topped the list with 37,836.   Following close behind were race discrimination charges with 33,512 and sex discrimination charges with 30,356.  Retaliation has consistently held the highest spot since 2009 when it overtook race charges.  GINA charges increased in 2012 but remained the lowest reported charge filed with 280.

EEOC charge receipts for Massachusetts totaled 426 for FY 2012.  The EEOC received 143 charges for retaliation for all statutes, along with 139 for sex, 137 for age, and 128 for disability.

EEOC charge receipts for New Hampshire totaled 59 for FY 2012.  Disability topped the charges with 28, followed close behind with retaliation for all statutes at 20, sex at 16, and age at 14.

The EEOC received $44.2 million through its litigation program in monetary benefits in FY 2012.  $34.3 million of that monetary recovery was for Title VII discrimination charges.