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June 2010 Archives

Woman "Perceived as Disabled" Under ADA

Kimberly Ann Norman, a Union Pacific Railroad (“UNP”) employee, had a number of physical medical conditions, including irritable bowel syndrome, requiring short term and long term disability leave in the early 2000s. As with many LTD plans, the insurance company, or in this case, UNP, questioned whether Ms. Norman’s medical conditions were due in part to mental illness, thus subjecting Norman to a limited term of benefits known as a mental illness limit. The company required Ms. Norman to undergo an independent medical examination (“IME”), which resulted in the company’s physician determining that Norman’s long term disability resulted from mental, not physical conditions.

When she was later terminated, Ms. Norman claimed discrimination under the Americans with Disabilities Act (“ADA”) because UNP regarded her as mentally ill and terminated her because of the perceived disability.  Despite the fact that she did not regard herself as mentally disabled, never voluntarily sought treatment for mental disabilities, never received a second opinion from a physician confirming mental disability, and filed appeals and extensions allowing her to collect LTD benefits for her physical disabilities, the 8th Circuit Court of Appeals agreed with Ms. Norman’s argument.  For purposes of the ADA, Ms. Norman established an ADA-qualifying disability because the employer regarded her mentally disabled due to the findings of its own physician in Norman's LTD claim.
The “perceived as disabled” rule prevents employers, insurance companies, and plans from arguing in LTD cases that the employee’s disabilities are rooted in mental illness, and then turning around and arguing in an ADA discrimination case that the employee does not have an ADA-qualifying mental disability.

Court of Appeals for Texas, Louisiana and Mississippi Finds The Hartford Abused Discretion in Denying Benefits to Disabled Attorney

In a decision this month from the United States Court of Appeals, Fifth Circuit, the Hartford was ordered to pay a disabled lawyer ("Brian") his benefits and attorney fees. In this dispute over long-term disability benefits, the Fifth Circuit, which rules on long-term disability cases decided in Texas, Louisiana and Mississippi, held that the Hartford abused its discretion in denying physical disability benefits to Brian and ordered the Hartford to also pay his attorney's fees.

What Constitutes Adequate Notice of the Need to Take FMLA Leave?

What Constitutes Adequate Notice of the Need to Take FMLA Leave?

If employees do not give their employers adequate notice of their need for FMLA leave, they may deny themselves their benefits and rights under the FMLA.  Therefore, it is important for employees to understand what constitutes an adequate request for leave under the FMLA.

The Department of Labor ("DOL") regulations on the FMLA require that for "foreseeable" leave, an employee must provide at least 30 days notice before the leave is to begin. This is usually possible in situations where the employee or his or family member is undergoing a scheduled surgery or a scheduled medical treatment. (In addition to giving 30 days advance notice, if an employee is scheduling a surgery or treatment, he is also required to consult with the employer to make reasonable effort to schedule the treatment so as not to disrupt the employer’s operations).

Sometimes the need for leave is "unforeseeable."  For example, an employee may give birth prior to her due date, undergo emergency surgery, or be hospitalized due to a medical emergency.  Giving 30 days notice would not be practicable in these situations.  If the need for leave is "unforeseeable," and giving 30 days notice is not possible or practicable, the employee must give notice “as soon as practicable.” The regulations define “as soon as practicable” as providing notice of the leave either the same day or the next business day. However, in certain situations, this may not be possible either.  In determining when it was practicable for an employee to provide notice, the employer is required to take into consideration the individual facts and circumstances of every situation.  In a situation where the need for leave is unforeseeable, if the employee is unable to give notice herself, a family spokesperson may give notice on her behalf (i.e., spouse, adult family member, or other responsible adult).There is no requirement that an employee's notice be written. Verbal notice of the need for leave is sufficient. However, the notice must be sufficient enough for the employer to be aware that the employee needs FMLA leave as well as include the anticipated duration and timing of that leave.  In some situations, just indicating the medical condition will be enough to put the employer on notice, where that condition indicates to the employer that it renders the employee unable to perform her job duties. For example, when an employee tells her boss that she is pregnant, she has put her employer on notice of her need for FMLA leave.  Similarly, when an employee tells his employer that he has been hospitalized, he has put his employer on notice of his need for FMLA leave.  Simply “calling in sick,” however, without saying more, is not enough. Typically, the employee is not required to expressly state that she is asserting her rights under the FMLA or even mention the FMLA during her request for leave.  However, if the employee is requesting a second leave for a condition for which she has previously taken leave, then she needs to specifically reference the FMLA. For example, if the employee has taken FMLA leave to care for her sick husband six months prior and she suddenly needs to take additional leave to care for him, she must reference the FMLA during this second request. After an employee has given notice of the need for leave, the employer has the right to inquire further whether the leave is FMLA-qualifying or to request more information to make that determination.  The employer has the right to, and almost always will, request doctor certification to determine if the medical reason is a serious health condition. The employee has a duty to respond to the employer’s questions regarding whether the leave is FMLA-qualifying or to provide more information, including the doctor certification, upon the employer's request. An employee’s failure to respond to such questions or requests may result in a denial of FMLA covered leave.Employers may also require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, if it is the employer’s policy that a certain individual be contacted regarding leave or a sick day, then the employee must contact that individual for their FMLA leave request. If an employer’s policy requires a written request for leave, than the employee must follow that policy. Failure to comply with the employer’s usual policy could result in a denial of FMLA covered leave. When an employee seeks intermittent leave or a reduced schedule under the FMLA, he must advise the employer, upon the employer’s request, of the reasons the intermittent or reduced leave schedule is necessary. Both parties are required to attempt to come to a solution/schedule for such leave that meets the employee’s needs without unduly burdening the employer’s business operations. A district court in Florida recently addressed the issue of what constitutes an employee’s adequate notice in Cooper v. Gulfcoast Jewish Family Services, Inc.   In that case, the court held that there were two components to valid notice of the need for FMLA leave: “(1) the notice must inform the employer that the employee desires time off from work; and (2) the notice must assert that the requested absence is due to a FMLA qualifying condition.” The court found that after the employee expresses these two components, the onus is then on the employer to inquire further about whether the employer is seeking FMLA leave. The court also noted that where the leave is unforeseeable, the employer must provide the employee with at least fifteen (15) calendar days to provide any requested doctor certification. The court found that the 15 day time period runs from the date of the employer's request for the information, not from the date of employee’s absence. If you have given your employer adequate notice of your need for FMLA leave and you feel that your condition qualifies for the FMLA, but your employer is still denying you FMLA leave, you should contact an attorney. You should also contact any attorney if you feel you are being retaliated against for seeking or taking FMLA protected leave.

Two "failure to hire" Disability Discrimination Suits Resolved

On June 15, 2010, the EEOC reported that it reached an agreement with Starbucks to settle a suit for Starbucks' failure to hire Chuck Hannay, who suffers from multiple sclerosis. Among other terms of the agreement, Starbucks paid $80,000 to resolve the suit. Mr. Hannay applied for one of six open barista positions at a store in Russellville, Arkansas, but the store did not contact Mr. Hannay in response to his application. It instead hired other, less experienced candidates to fill the open barista positions. Starbucks reportedly worked in a cooperative manner with the EEOC to insure that similar discrimination would not occur in the future. Failure to hire individuals with physical or mental impairments that substantially limit one or more of their major life activities is illegal under the Americans with Disabilities Act.

On June 16, 2010, the EEOC issued a news release revealing that it settled a similar case against Balance Staffing. Balance's owner and manager hired Jocelyn Snower as a recruiter. When the owner learned that Ms. Snower is blind, he immediately revoked the job offer, despite the fact that Ms. Snower is an experienced recruiter. This is an example of "direct" disability discrimination, which is unlawful under the ADA.  In order to resolve the suit, Balance was forced to pay $100,000 and the owner was compelled to enter ongoing EEO training.  Individuals who are subjected to such adverse treatment should contact an employment lawyer and the EEOC.

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