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by M. McClure on Jul 2, 2010 at 11:05 AM

Medical leave can be a reasonable accommodation under the ADAI recently taught a semester of Employment Law at the UALR Bowen School of Law, and the most difficult topic for my very talented students seemed to be the intersection of the ADA, FMLA and Workers Comp statutes.  Most HR professionals would not be surprised by this observation because they struggle with these statutes on a daily basis. Well, it's all about to become even more complicated.

Several courts have recognized that time away from work can be a reasonable accommodation under the ADA. And, the recent amendments to the ADA suggest that the statute will cover many more employees.  The EEOC's website states it pretty clearly: "The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis." 

This change will mean that employers will need to consider the ADA's impact on an employee's request for medical leave.  A recent article by Michael J. Lotito suggests that courts will often consider two questions, among others, when determining whether medical leave is a reasonable accommodation under the ADA: " (1) would the leave fulfill its medical purpose? (i.e., would the employee be able to perform the essential functions of his or her job upon return to work); and (2) would the employee's return to work be relatively close in time?"  Lotito correctly points out that no bright line exists where ADA accommodations are concerned, and that every request for leave should be examined individually. 

Although the EEOC's regulations interpreting the amended ADA were expected out this summer, it looks like they will be delayed.  In the meantime, employers should be aware that the amended ADA could affect the decisions that they make when granting or denying medical leaves.  

 

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by M. McClure on Sep 5, 2009 at 12:11 PM
Filed in ADA | FMLA

Exception to company policyIn HR circles, we joke that no good deed goes unpunished.  A well-intended exception to a company policy can turn into Exhibit A of a lawsuit.  For that reason, employment lawyers generally preach "no exceptions."  But exceptions that are grounded in good business judgment can provide management flexibility, create employee goodwill, and help to make your company an employer of choice.

In Hearst v. Progressive Foam Technologies, an Arkansas employer allowed an employee to take FMLA-protected time away from work before the employee was technically eligible for the leave.  The employee worked for Progressive Foam for nine months before he was injured off the job.  The FMLA requires that an employee work a full year before he or she is eligible for leave.  Here, the employee requested a month of FMLA leave, and Progressive Foam allowed it.

The employee then extended the leave to undergo surgery, stretching the leave into four months.  After the first twelve weeks passed, Progressive Foam informed the employee that his FMLA leave had expired, but agreed to extend the leave 30 more days based on his doctor's statement.  The employee then notified Progressive Foam that he would need another surgery and another month to recover, and Progressive Foam fired him.  

The employee filed an FMLA claim, arguing that because he did not work for Progressive Foam for a year when he initially requested leave, he was ineligible under the FMLA and that none of the time off before his one-year anniversary should be counted.  The court disagreed and found that "equity trumped" the employee's argument.  Although FMLA provides a minimum twelve-month work requirement, employers are free to lower the standard if they wish.  Here, Progressive Foam not only allowed the employee to take FMLA leave before he worked twelve months, it also allowed him four weeks of extra time. 

Bottom Line:  For making an employee-friendly exception, Progressive Foam found itself in litigation.  Still, I think Progressive Foam made the right decision.  Allowing an employee to take FMLA-protected leave before he or she is technically qualified creates goodwill with your employee base, may help you comply with the requirements of the Americans with Disabilities Act, and is sometimes just the right thing to do.  Yes, often good deeds are punished, but Progressive Foam, like other employers, may have reasoned that a little flexibility grounded in good business judgment can improve employee retention and productivity.  So, go ahead and do the right thing.     

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by M. McClure on Aug 7, 2009 at 3:36 PM
Filed in FMLA | Title VII

Small employers are often relieved to hear that they are not governed by Title VII because they have fewer than 15 employees. Also, the Family Medical Leave Act only applies to employers with at least 50 employees. But, an employer can inadvertently reach these numbers when more than one company is owned and managed by the same entity. 

A recent case from an Arkansas federal district court demonstrates that courts will look at all related companies to determine whether an employer has 15 employees and is subject to the requirements of Title VII.  Hardy v. Town of Perla Water Ass'n.  One company plus another company could equal 15 employees.

In the Hardy case, an employee sued the Town of Perla Water Association and the Mayor of Perla for racial discrimination, hostile work environment, and retaliation under Title VII. Because the Perla Water Association had only six employees, the court looked at whether the company should be combined with the City of Perla to determine whether the company was an employer under Title VII.

The court in Hardy first set out the factors to consider when combining to two private companies for Title VII purposes: 1) interrelation of operation, 2) common management, 3) centralized control of labor relations, and 4) common ownership or financial control.  FMLA regulations set forth the same test to determine whether two companies should be combined to determine whether an employer has 50 employees and is governed by the FMLA. 29 C.F.R. 825.104(c)(2). 

The Hardy court rejected this test because the town of Perla was a public entity rather than a private entity.  Instead, the court looked for "indicia of control," which includes the authority to hire, transfer, promote, discipline, or discharge, establish work schedules, direct work assignments, and the obligation to pay. The court found indicia of control between the two entities, but excluded volunteer fire fighters and city council members from the count, leaving too few employees to create Title VII liability.  Therefore, the employee's claims were dismissed under Title VII. 

Bottom Line:  The Hardy case demonstrates that a court will look past corporate structure when determining the number of employees for Title VII purposes.  Employers should be particularly concerned about related companies that could be combined to group more than 50 employees, and therefore, become subject to the FMLA. Conduct that will create liability under Title VII is usually pretty offensive and careful employers, even those with fewer than 15 employees, take steps to avoid that conduct in their workplaces.  But, the FMLA requires employers to provide job-protected leave to qualifying employees, along with specific notifications, which most employers would not do if they were not subject to the FMLA. So, take a look at any related companies and do the math.  Don't be unprepared when 1 + 1 = 50.    

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