nurseSo, back in January, I penned a post titled “Can You Fire an Employee Who Has Exhausted FMLA Leave?”

As if to respond, the EEOC yesterday released guidance that basically answers: Not necessarily, because it might violate the Americans with Disabilities Act. 

And that is the crux of the issue for employers.

Before I go further, let’s remember one thing: The ADA is a statute that demands flexibility.  It requires that employers provide “reasonable accommodations” to employees to enable them to perform the essential functions of their job.

The EEOC’s guidance tries to explain this flexibility in various ways.  Sometimes it clarifies the situation; but in other ways, the guidance only serves to create more questions for employers to ponder.

The guidance is broken down into six key areas.

1. Equal Access to Leave Under an Employer’s Leave Policy. This is fairly straightforward; the same leaves of absence rules applicable to employees without disabilities should be applied to those with disabilities.

2. Granting Leave as a Reasonable Accommodation. The EEOC’s continues to argue that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally.  The EEOC reminds employers that when an employee requests an accommodation such as leave (and note: such requests rarely come in a neat fashion like “I hereby invoke my rights under the ADA for a reasonable accommodation”), the employer should promptly engage in an “interactive process” with the employee.  This process should focus on the specific reasons the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end. Even under this instance, the employer may consider the “undue hardship” the leave may have on the workplace.

4. Maximum Leave Policies. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, the EEOC argues that employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.  Thus, policies with hard caps may violate the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment).  In this section, the EEOC argues that employers should avoid “100% Healed” policies, which require that an employee be fully recovered before returning to work.  A temporary transfer to a vacant position might allow the employee to return earlier while the employee continues to heal, for example.  Again, the notion of a “reasonable accommodation” and flexibility controls.

6. Undue Hardship. For employers, this may be the last safeguard and one that might need to be used more.  For example, an employer might argue that the duration and frequency of the leave, and the impact on the employer’s business, make such a leave too difficult under the circumstances.  A big plus for employers, however is that an “indefinite leave” — meaning an employee cannot say whether or when she will be able to return to work at all — “will constitute an undue hardship”.  But overall, employers will need to examine such requests on a case-by-case basis.

Jon Hyman of the Ohio Employer Law Blog suggests in his post today that this guidance “goes a long way to answering many of the questions employers will have.”  I respectfully disagree with Jon.  The EEOC’s guidance is an aggressive approach to the law that has yet to be fully tested by the courts.  Rather than create clarity, the guidance pushes the boundaries as to what employers should do. And CT’s anti-discrimination laws have their own requirements which may (or may not) mirror all of the ADA’s requirements.

For example, if an employee cannot do the essential functions of the job he or she was hired for with a reasonable accommodation, why is it reasonable to assign them permanently to another job?

That’s not to say that employers should turn a blind eye to those with disabilities or those in need to some extra time in some circumstances. I’m not advocating that at all; being understanding of your employees is vital being a good employer. And there will be instances where employers will do all that it can to keep a valued employee.

But I worry about the situations in which an employee is abusing leave; there has to be an end point. A point at which the employer can legitimately say “enough is enough.”

And with the EEOC’s guidance, that end point remains as muddy as ever.

While a recent Second Circuit case received lots of headlines regarding its discussion of individual liability under FMLA, the case has some other nuggets for employers to understand, as my colleague Gary Starr explains in today’s post.  Buried in Graziadio v. Culinary Institute of America case is a reference to the fact that the federal appeals court had not “yet had occasion to consider what standard should govern such rarely litigated claims of ‘associational discrimination.'”

That is, until now. Thanks to Gary for highlighting this notable aspect of the case.

starrYou should all know by now (and call us if you don’t) that when an employee asks for a reduced schedule to address his/her own disability, the ADA and Connecticut law may apply. Indeed, under the ADA and state law, you should engage in an interactive process to work out a way for both parties to benefit.

But what happens when it is not the employee who has the disability, but rather a family member and the employee seeks an accommodation?

While we know that employers must address the situation involving a qualified individual with a known disability, the situation is different when the employee has a relationship with someone known to have a disability.

Discrimination is prohibited based on that relationship or association, but importantly, the scope of the employee’s rights is not the same.

The Second Circuit recently explained that there are three situations that can lead to a claim of associational discrimination:

  1. Where the employee suffers an adverse action as a result of the employer’s concern over the “expense” that may cause increases in insurance due to the employee’s association with a disabled individual covered by the employer’s insurance;
  2. Where the employee suffers an adverse action as a result on the employer’s fear that the employee may contract or is genetically predisposed to develop the disability of the person with whom he/she is associated; or
  3. Where the employee suffers an adverse action due to the employer’s fear that the employee will be inattentive at work due to the disability of the disabled person.

If any of these 3 situations is the basis for the adverse action, then the recent case suggests that the employer will have to prove that it had a legitimate non-discriminatory reason for its action.

In the case before the court, there was no claim involving concerns about insurance or about the possibility that the employee might develop a disabling condition.  Instead the employee alleged that the employer feared the employee would be inattentive at work because her son developed diabetes and he was learning how to monitor his blood sugar.

While that was the allegation, the employee could not and did not show that she was fired because the employer believed she would be “distracted” by her son’s condition.  Rather, the evidence showed that she was fired because her employer’s concern was that she would not be at work at all.

The employee failed to prove she was discriminated against under the ADA as an accommodation was not available under these circumstances.

However, often these cases have an aspect under another federal law.  Here, the Family Medical Leave Act could provide her with the opportunity for intermittent leave, if necessary, and this became the basis for her lawsuit.

What cases like this demonstrate is that under the patchwork of state and federal laws, it is important to analyze a situation under differing statutes.  In this case, the employee had no recourse under the ADA, but did under the FMLA.  It is important to take the time and be sure that the requests made by an employee for an accommodation are fully reviewed.  The consequences can be protracted litigation and a large back pay judgment.

 

HallofFame200pxV32007 seems like yesterday.

And yet, eight years after I started this blog and over 1800 posts later (and a Hall of Fame entry), I’m pretty sure 2007 WASN’T yesterday.

So for this year’s anniversary post, I thought I would capture what I think are some of the biggest storylines from the last eight years.  This isn’t definitive, but there are a few things that stand out.

1.  Social Media – Well this first one was easy, right? What’s amazing is that I didn’t even talk about Facebook and its impact on employers until fall 2008.  In that post, I talked about whether employers should use those sites in their hiring practices.  Since then, there seems to be no corner of the workplace that hasn’t been touched by social media. And yet, I’m also struck by the fact that there is a perceptible sign that we’re seeing this area mature. Less discussions about whether to have a social media policy. And less handwringing about whether social networking site posts are discoverable.  Yes, there are still unsettled areas on this  — the NLRB’s guidance continues to shift — but social media isn’t nearly as foreign as it was back in 2007.

2. The Return of the NLRB – Any discussion of the last eight years certainly must discuss the NLRB under the Obama Presidency.  There are those who complain about the political nature of the agency, but it’s always been a creature of various Presidential administrations.  But what we’ve seen over the last few years in particular is use of cases and regulations to chart new ground (or reverse older ground) in elections, workplace communications, and, last month, joint employer status. As such, we’ve seen union membership increase in several states, like Connecticut.  Make no mistake: On this day after Labor Day, unions and labor law have received a big old proverbial shot in the arm the last several years.  The election in 2016 will be a pivotal year in determining whether this changes continue.

3. The Battle Over Disabilities – True, there are plenty of other noticeable changes since 2007, but one that barely gets mentioned is the Americans with Disabilities Act Amendments Act.  It was one of the last employment law bills signed by President Bush and became effective January 1, 2009.  The Act changed the debate on litigation involving employees with disabilities. Instead, the Act said that courts should interpret the act to provide the coverage to individuals “to the maximum extent permitted.”  For example, previously, courts and employers had to determine a person’s disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids. Now, employers and courts must ignore those measures.   As a result, ADA cases have moved from “threshold” issues (whether the person has a disability) to “liability” issues (whether the person was actually discriminated against).

While EEOC disability charges increased markedly from 2008 to 2010 – that probably had more to do with the economy than anything else. Claims have levelled off since then and have even dropped from their peak in 2012.

A lot has changed since I started this blog in 2007.  I thank you all for your continued readership.  We’ll see what the next year brings.

Back in 2012, I posted about a lawsuit filed by a cab driver who claimed he suffers from cynophobia (a fear of dogs), who was fired after he refused to pick up a blind customer with a service dog.  The cabbie claimed that his termination violated the Americans with Disabilities Act because he has a disability — namely a fear of dogs.

Back then, I tried to frame what I thought the issues would be in the case.

Assuming that the plaintiff has a cognizable disability under the ADAAA, the case at first blush seems to put one disability against another.  Does a patron’s need for a service dog trump an employee’s fear of dogs?

But it’s more than merely a patron’s “need”.  Indeed, the law mandates that guests with service dogs be permitted in all modes of public transportation.  Refusal to do so is a misdemeanor.

The U.S. Department of Justice has a recently released guidance on service dogs too.  The guidance speaks directly to the issue of fear of dogs.

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

So perhaps the case will also look at another ADA issue: Is picking up a passenger with a service dog an “essential” part of the job?  Given the legal requirement noted above, it would seem so.  And if the cab driver couldn’t do this “essential” function because of his disability with or without a reasonable accommodation, he may not be able to seek protection under the ADA.

The case took several turns but ultimately, the driver’s claim was heard in state court alleging violations of Connecticut’s anti-discrimination laws.

Earlier this month (h/t Connecticut Law Tribune), the Superior Court dismissed the complaint.  And wouldn’t you know, but the court dismissed it on the exact grounds I highlighted three years ago — namely that picking up blind passengers with service dogs is an essential function of being a cab driver.

Since under state and federal law, taxicab drivers are required to provide transportation to disabled individuals and their service animals, this constitutes an essential function of their job….[F]ederal case law resolves a difficult conundrum: that employers should not be forced to violate state and federal laws and regulations, in this case, discrimination laws relevant to one protected class, in order to avoid discriminating against another protected class.

The case is an important one to keep in mind for employers who have to comply with various state and federal regulations.  It reminds employers that the ADA won’t trump those requirements in many instances.  This will come in handy, for example, when employers have to address the issue of employees who use medical marijuana and the obligations that they may have to keep a drug-free workplace.

My colleague, Jarad Lucan, returns today with a post discussing a new Connecticut Supreme Court case that has expanded the state’s anti-discrimination laws when it comes to disability claims. 

When Congress enacted the Americans With Disabilities Act (ADA), it recognized that fears, misperceptions, and stereotypes about disabled individuals are so pervasive that employment discrimination reaches beyond those who are burdened by the requisite substantially limiting impairments.

As a result, the definition of a disability under the ADA expressly includes being regarded as having a physical or mental impairment that substantially limits one of more major life activity.

In other words, the ADA clearly prohibits disability discrimination based on an employer’s mistaken belief.

Unlike the ADA, the Connecticut Fair Employment Practices Act (CFEPA) does not expressly protect an employee whose employer mistakenly regards him or her as being physically disabled (the CFEPA does expressly make it illegal for an employer to discriminate against an employee because the employer regards the employee as being mentally disabled).

In fact, under the CFEPA, physically disabled is defined to include only any individual who has any chronic physical handicap, infirmity or impairment.

Nevertheless, the Connecticut Supreme Court determined last week that the CFEPA does protect individuals from being discriminated against because of an employer’s mistaken belief about his or her physical disability.

In Desrosiers v. Diageo North America, Inc., the Supreme Court recognized that the language of the CFEPA is plain and unambiguous (which normally ends a court’s inquiry into the meaning of a statute) in that nowhere does it establish protection for an individual who is regarded as having a physical disability.

However, the Supreme Court determined that applying the CFEPA in such a manner would bring about bizarre results.

“Namely, under the plain language of [the CFEPA], if an employee has a chronic disease, the employer may not discharge the employee on that basis. If, however, the employer is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of the [the CFEPA] do not protect the employee from discharge on that basis, despite the fact that the employer’s actions, in both cases, were premised on the same discriminatory purpose.”

In arriving at its decision, the Supreme Court relied, in large part, on the Commission on Human Rights and Opportunities’ long standing interpretation of the CFEPA to include protection for employees who are regarded as having a physical disability.

In addition, the Supreme Court looked to the legislative history of the CFEPA, which made clear that the definition of physically disabled was to “cover as many people as possible under the definition and leave it open and broad.”

In the Court’s opinion, it would be inconsistent with the legislative efforts to protect as many individuals as possible and “thwart” the purpose of the CFEPA to exclude protection for employees who are merely regarded as being physically disabled.

Not surprisingly, Justice Zarella issued a forceful dissent saying that the interpretation would not lead to a “bizarre” result:

Although the majority’s interpretation of the relevant statutory language may be the better public policy, and although the legislature might adopt that policy if the matter is brought to its attention, that is not sufficient reason for abandoning the plain and unambiguous directive in the statute itself. The fact that a better public policy exists does not mean that the expressed public policy ‘‘yields absurd or unworkable results . . . .’’

Nevertheless, the outcome is probably not terribly surprising. The Supreme Court has long looked to federal antidiscrimination laws, including the ADA, when interpreting the CFEPA and taken a fairly expansive view.

Way back in 2008, for example, the Supreme Court determined in Curry v. Allan S. Goodman, Inc. that the CFEPA requires an employer to engage in the interactive process with employees and provide reasonable accommodations if necessary even though no such requirements are expressly included in the CFEPA.

For employers in Connecticut, the case shouldn’t result in dramatic changes to policy because most employers simply follow the ADA procedure — whether or not it applies to them. After this decision, it’s pretty clear that those procedures will apply in a similar fashion under state law tool.

(Disclosure: Dan Schwartz represented an individual defendant in this matter at the lower courts and will refrain from direct comment on this matter.

Hope you all had a wonderful Thanksgiving weekend.

Last week, I shared my family’s personal story about how cancer has impacted us.  With that in mind, I thought I would share a few tips for employers.  Even if you don’t presently have an issue with an employee, it’s worth familiarizing yourself with some of the rules of the road.

First off, to no one’s surprise, cancer is very likely a “disability” under the ADA.  Even if an employee is in remission from cancer, they can still fall within the statute’s protections as having a “record of” a disability (cancer).

It is so common, that the EEOC has released set of questions and answers to address cancer-related employment issues.  It’s a good starting point for employers when facing these issues.

The ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, his actual performance is the best measure of ability to do the job.

One question that the EEOC addresses, for example, is “When may an employer ask an employee if cancer, or some other medical condition, may be causing her performance problems?”

The EEOC does not bar such questions in their entirety.  Indeed:

Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as extreme fatigue or irritability, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance.

Continue Reading Cancer and the Workplace: Tips for Employers

The moment when you learn your wife has cancer gets imprinted on your brain in a hurry.

At least for me, it did.

That happened back in February of this year.  I haven’t talked about it on the blog yet for several reasons including that my wife is much more private online than I am.

But she suggested that I talk about it publicly on the blog now, if only to let others to know that they are not alone in having cancer affect them or a family member.  And to raise awareness of this very common type of cancer.

You see, my wife is young — if you still count the early 40s as young — with no history of colorectal cancer in the family.  So, when she was diagnosed, it came as a shock to her. And our entire family.

As the much-used phrase goes, life hasn’t been the same since then.

Getting diagnosed with cancer is both scary and frustrating.  Scary for the obvious reasons, but also frustrating, because medicine moves at its own pace. Doctors are careful and cautious, making sure to get the treatment plan right.  And treatments typically take many months.

It’s also both physically and mentally exhausting not only to the person who is diagnosed, but to the entire family.

My wife’s cancer wasn’t caught early, but the doctors told us that they believed they didn’t catch it too late either.  However, they outlined a long and fairly new treatment protocol that we have been living with ever since the diagnosis.

We have been fortunate to work with local doctors at Hartford Hospital (a terrific client of my firm as it turns out) and super specialists in New York at Memorial Sloan Kettering.  She underwent four grueling months of chemotherapy earlier this year followed by nearly 2 more months of chemo with radiation.

That, however, was just the warm up.

Early this month, she underwent a planned 15-hour complex surgery with three surgical teams at Memorial Sloan Kettering Cancer Center.  Her recovery from such a major surgery has been slow, but steady.  She finally returned home in the last few days for further rest and recovery.  The care we received at MSKCC was outstanding.

And yet, despite the difficult nature of the surgery, we are thankful for the news we recently received: After several more weeks of recovery, the doctors have given her (and us — since cancer really is a “family” disease, as the doctors have reminded us time and again) a very good prognosis going forward.

With Thanksgiving upon us, we certainly have a lot to be thankful for.

Careful readers might notice a lot more posts from my colleagues here at Shipman & Goodwin this year. That’s not an accident. My colleagues have been so supportive in both substantive work and for the blog.  I’m so thankful for their support.

I’m also thankful for the support of countless others who have brought meals to our house, or helped in other ways.  And thankful for the world-class care my wife has been receiving both here in Connecticut and in New York.

I’m thankful as well to have this bully pulpit.  I hope to use it in an upcoming post or two to talk about the employment law issues related to this topic from a more personal experience.

But my wife didn’t want this post to be about her.

As I said at the top, we wanted to raise awareness of the issue.  Colorectal cancer is the second leading cause of cancer deaths in the United States.  Over 135,000 people will be diagnosed with colorectal cancer this year alone.

Yet, compared with other types of cancer, it receives less publicity. I won’t debate the causes here, but it’s time we recognize how serious this disease is here in the United States.

So here are three things you can do right now.

First, get screened for colorectal cancer.  Make your appointment today if necessary.  From a colonoscopy to at home tests, screening remains the single best way to beat this disease. When caught early, the survival rate is significantly higher.  And you’re never too young to start thinking about it.  Colonoscopies are quick and painless.  If Katie Couric can do it, so can you.

And trust me, colonoscopies are a lot easier than dealing with months of chemotherapy.

Second, follow one of the many groups focused on this issue such as the Colon Cancer Alliance.  Take the time to understand this issue.  And the spread to word to others.  And please consider donating to them as well.  There may not be an ice bucket challenge associated with it, but you’re over 25 times more likely to get diagnosed with colorectal cancer as you are to be diagnosed with ALS.

Third, and here is the lawyer in me speaking, consider updating your will, health care proxy, and other estate planning documents — particularly if you’re otherwise healthy. You don’t want to have to worry about them when you get diagnosed with a life-threatening illness.  My firm does this work, but there are many others who provide this service as well. And, at a minimum, consider one of the self-help legal sites to get the basics done if you don’t think you can afford to pay an attorney.

My posts here will remain somewhat sporadic for a while as I balance being a caregiver with work obligations as well.  But if this post causes just one of you to take the action steps outlined above, I’ll know that we can make something positive happen from such a tough diagnosis.

And if we can make something good happen from this post, I will be thankful.

Happy Thanksgiving to all.

I’ve talked about wellness programs from time to time here on the blog.  Robin Shea, on her great blog, first brought this up back in August. But since then, there are some new developments from the EEOC that employers should keep an eye out on. 

Today, my colleague Marc Herman joins us for the first time to guest post on the latest and greatest on wellness programs, with a  warning that your wellness program may be more of a liability than a benefit.

“I’m stuck in between a rock and a hard place.”

You’re familiar with that phrase. So how about this one?

“I’m stuck in between participating in a wellness program and having to fork out a fortune on health insurance. . .”

Sure, it doesn’t quite have the same ring to it (check out English-Idioms.com — a real thing — for more), it does convey a relevant message for Connecticut employers––your organization’s wellness program may not pass muster under the Americans with Disabilities Act.

At least according to the EEOC.

This is no small issue.   94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs. Wellness programs have many perceived benefits-–they assist employers in promoting healthier lifestyles which, in turn, leads to healthier, happier, and more efficient employees. (And who said that there is no room for sentimentality in the world of employment?)

But, their advantages aside, wellness programs are being challenged when participants are required to undergo some form of medical examination as a condition of enrollment.

This month and back in August, the EEOC has filed suits against two Wisconsin employers for alleged violations of the Americans with Disabilities Act (ADA).

In both suits, an employer offered its employees a “voluntary” (a poignant word choice) wellness program, that required a medical examination as a condition of participation. Employees that participated in the program received a heavily subsidized health insurance premium; non-participating employees, on the other hand, did not.

According to the EEOC, the employers violated the ADA because employees were subjected to involuntary and arbitrary medical examinations.

The EEOC contends that the biometric testing and health risk assessment constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.

Importantly, under the ADA, employers may conduct truly voluntary medical examinations as part of an employee health program available to all employees.

But, involuntary employee medical examinations are a no go, unless such examination is shown to be “job-related and consistent with business necessity.”

According to EEOC, a wellness program is voluntary as long as an employer neither requires participation nor penalizes non participation. In these cases, the EEOC suggests that incentivizing participation is merely a euphemism for punishing non participation, and is thus a violation of the ADA.

What’s the Takeaway for Employers?

It’s still too early to see whether the EEOC’s position will find support in the courts. The EEOC has overreached on some issues this year such as the challenge to CVS’s standard severance agreement.

But these suits should remind employers that wellness programs must truly be voluntary to succeed.  As we go into open enrollment season, it’s a good time to take a look at the language you use to promote these wellness programs.  Your experienced legal counsel is certainly a good option to help on this too.

So last month we talked about how an employer may, in some circumstances, need to give additional leave as an accommodation above and beyond the Family and Medical Leave Act.  Today, my colleague Clarisse Thomas shows how the law in this area really is still developing.  She highlights a new case that comes to a different conclusion.  For employers, this uncertainty is definitely something to keep an eye on. 

Just last week, the Tenth Circuit Court of Appeals in Hwang v. Kansas State Univ.  held that an employer was not required to extend its 6-month leave policy as a reasonable accommodation to an employee.

In doing so, the Court also held that the employer’s “inflexible” leave policy did not violate the Rehabilitation Act. Similar to the Americans with Disabilities Act (“ADA”), the Rehabilitation Act also prohibits employers from discriminating on the basis of disability.

The employee in Hwang relied on EEOC Enforcement Guidance concerning the ADA to argue, albeit unsuccessfully, that her employer should have extended her leave as a reasonable accommodation after her leave period expired.

That Guidance provides that an employer must modify its “no-fault” or “inflexible” leave policy to provide an employee with additional unpaid leave as a reasonable accommodation, unless the employer can show that:

  1. There is another effective accommodation that would enable the person to perform the essential functions of his/her position; or
  2. granting additional leave would cause an undue hardship.

Rather than extend its leave policy, the employer in Hwang arranged for the employee to receive long-term disability benefits after her leave period expired — an act which the employee complained constituted termination of her employment, and thus a violation of the law.

The Court, however, was not persuaded. It explained that the purpose of a reasonable accommodation is to “permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.” As such, the Court interpreted the EEOC Guidance to mean that only after it is determined that modification of a leave policy is a reasonable accommodation necessary to enable an employee to perform the essential functions of his/her job, is modification then required.

The problem in Hwang was that the employee admitted she could not perform any essential job junctions, even with a reasonable accommodation. Thus, the employer did not have to modify its “inflexible” leave policy by granting her extended leave.

Herein lies the rub. Although employers are not required to hold a job open indefinitely, simply because an employee’s leave has expired before s/he is able to return to work does not automatically mean that s/he is no longer qualified to perform the essential functions of the job.

While the case is from a different jurisdiction, the lessons learned from that case can be applied to other employers as well.  So, what should Connecticut employers consider to avoid challenges to their “inflexible” leave policies (besides, of course, consulting with their preferred local counsel)?

Here are a few general tips:

  • Don’t just rely on the terms of your leave policy when making employment decisions. Instead, engage in an interactive process with the employee to determine whether s/he can perform the essential functions of the job with a reasonable accommodation, such as a short extension of leave.
  • If modification of a leave policy is not a reasonable accommodation, the employer’s inquiry should not end there, as other reasonable accommodations may be available, such as allowing the employee to work from home for a brief period before returning to the office full time.
  • “No-fault” leave policies should be consistently and uniformly enforced. Requests for extensions of such leave policies should not be granted for some employees but denied as to others.

If your policy hasn’t been reviewed in the last 5-10 years, consider taking another look at it. The law in this area has been shifting subtly.

My colleague, Gabe Jiran predicted the future!

Well, not exactly. But in a post earlier this month, he outlined some of the issues relating to whether telecommuting is a reasonable accommodation under the ADA.

And now we have some court guidance on the subject.  The road to understanding an aspect of the “reasonable accommodation” is paved with court rulings.  Read on….

Close on the heels of my last post on telecommuting as a reasonable accommodation under the Americans with Disabilities Act (“ADA”), a federal court of appeals shown itsheadlights on the issue with a new decision.

In EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals found that a former Ford employee could proceed to a trial on her claim that the company was required to allow her to telecommute on a regular basis.

First, a quick background on the plaintiff: she was a “resale buyer” at Ford who responded to emergency steel supply issues to make sure that parts manufacturers always had an adequate steel supply on hand.

According to Ford, her job required group problem solving, including interaction with other members of the resale team and suppliers.

However, because the plaintiff suffered from Irritable Bowel Syndrome (“IBS”), she was unable to come to work on a regular basis. She thus asked to telecommute up to four days per week, which was permitted in certain occasions by a company policy. Ford denied her request, and several months later terminated her for performance issues.

The Court decided that Ford had to consider telecommuting as an option for the plaintiff. In reaching this conclusion, the Court made some interesting observations that have implications for any employer confronted with an employee requesting to telecommute.

Here are the key points:

  1. While attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace.
  2. The “workplace” is anywhere that an employee can perform the job.
  3. Even where a job requires teamwork or interaction with colleagues, an employee can often perform those functions remotely with advances in technology such as teleconferencing.
  4. Jobs suitable for telecommuting are no longer extraordinary or unique, and the universe of potential telecommuters is expanding rapidly.

The Court was careful to note that where predictable attendance during core business hours is an essential function of the job, that telecommuting may not work. However, the Court clearly took an expansive view of the company’s requirement to consider a telecommuting relationship for its employees.

While the Sixth Circuit does not cover Connecticut (we are in the Second Circuit, after all), decisions such as this can be persuasive to Connecticut courts and agencies like the CHRO.

Further, you can believe that the EEOC will use this decision in evaluating any telecommuting cases regardless of the state.

The takeaway for employers in Connecticut when “driving” forward (sorry, more car puns with a case name like this): Proceed with caution!