The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition.

The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts.

But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court:

The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position open indefinitely while [she] attempt[ed] to recover. . . .’’

Under these circumstances, the court said that the Plaintiff cannot establish even a prima facie case of discrimination because she cannot show that she “requested a reasonable accommodation that enabled her to perform the essential functions of the job”.

In doing so, the state court reviewed federal law and noted that “[R]easonable accommodation does not require [an employer] to wait indefinitely
for [the employee’s] medical conditions to be corrected . . . .’’

In this particular case, the court said, the plaintiff, prior to her departure, informed her supervisor that she would be taking leave for ‘‘over thirty days depending on my lung condition . . . .’’  At a subsequent deposition, the court went on to say, the plaintiff was asked, with respect to her request for leave, that ‘‘you didn’t know how long you were going to be out, correct?’’ The plaintiff responded, ‘‘[c]orrect.’’

The forms submitted by the employee at the time were confusing and the Plaintiff did not respond after requests by certified and regular mail by the employer for more information.  When the employee was told to submit information by a date certain and did not do so, the employer just went ahead and fired her. The court upheld that termination.

For employers, the case offers some helpful reminders:

  • Reasonable accommodation is an interactive process. So long as the employer holds up its end, courts will be more inclined to support the employer in the end.
  • Seeking medical documentation from employees regarding their requested leaves is both necessary and essential to defending a claim where the documentation is vague.  Don’t hesitate to followup and set firm deadlines to the employee to provide the information.
  • As always, seek legal counsel to help navigate through this and work through any issues regarding termination.

Employers may feel like anti-discrimination laws are rigid, but there is built-in flexibility for employers if they know where to look.

The case, Thomson v. Department of Social Services, can be downloaded here. 

Part of an employer’s job is to review I-9 documentation at the start of employment, including Green Cards. But for employers, knowing what is real vs. fake, can be an issue.  My colleagues have prepared this update to one form of documentation that you should be on the lookout for.  The change is happening sooner than you might think.  

Understanding USERRA

U.S. Citizenship and Immigration Services (USCIS) just announced a redesign to the Permanent Resident Card, commonly known as the Green Card, and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. Although USCIS will begin issuing the new cards on May 1, 2017, both existing and new cards will be valid until their expiration date.

The new designs use enhanced graphics and fraud-resistant security features so that the resulting cards are more tamper-resistant and secure than those currently in use.  The new card designs demonstrate USCIS’ commitment to continue taking active measures to reduce the threat of document tampering and fraud. They are also part of an ongoing collaborative effort among USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

The Redesigned Cards

The new Green Cards and EADs will display the individual’s photo on both sides. In addition, there will be unique graphic images and color palettes (Green Cards will bear an image of the Statue of Liberty on a predominantly green palette and EAD cards will display an image of a bald eagle on a predominantly red palette).  Each will have embedded holographic images and neither will display the individual’s signature anymore. Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017 may still display the existing design format, as USCIS will continue using existing stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, please visit the Temporary Protected Status and American Competitiveness in the 21st Century Act web pages on uscis.gov.

Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date at all–these dateless ones will remain valid. Individuals who have Green Cards without an expiration date, however, may want to consider applying for a replacement card bearing an expiration date, so as to reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

On October 1, the rollout of major changes to the state’s Personnel Files Act becomes official.

If I had to hazard a guess, however, I’d say that many small to mid-size companies remain unprepared for the breadth and scope of the changes.  If you haven’t focused on it yet, you’ve got a weekend to catch up.  (I’ve covered it in prior posts like this one before.)

Here are the key things you need to know now about the new law:

  • Under the new law, an employer will now have seven business days (instead of a “reasonable time”) to permit a current employee to inspect AND, if requested, a copy of his or her personnel file.
  • For former employees, an employer will now have ten business days after receiving a written request to allow that person to inspect or get a copy of his or her personnel file. Such a request must come within one year of the date of termination of that former employee. An employer can comply with this section by mailing a copy of the personnel file within the same time frame if the employer and former employee cannot agree “upon a location to conduct such inspection”.
  • A copy of any documentation of any disciplinary action must be provided to the employee within one business day after imposing such action. (If there is no such documentation to begin with, it remains unclear if anything needs to be created, but certainly if you document your “verbal warnings”, a copy of that will likely need to be provided to the employee.)
  • When an employee’s employment is terminated, the employer now has to “immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.” Presumably, again, it does not require such documentation to be made (the language here isn’t as ambiguous); only that if there is such documentation, it needs to be given to the employee at the time of termination.
  • In addition, a statement in clear and conspicuous language in any documented disciplinary action, notice of termination of such employee’s employment or performance evaluation that the employee may, if he or she disagrees with it, submit a written statement explaining his or her position. That statement must be included in any personnel file.

As I’ve said before, each company may have their own take on what a “disciplinary action” means in the context of each workplace, so employers should consider consulting their preferred legal counsel for additional advice on how to comply with this law.  Of course, the law doesn’t completely override other aspects of the law too which you should familiarize yourself with. 

If you’ve been putting off this issue until you had a firm deadline, that deadline is now upon us.

Time to get to work.

As you’ve no doubt noticed, I’ve taken a few days off from the blog to attend to the logistics that a new job entails and also attend the ABA Annual Meeting earlier this week.  There have been some interesting developments in both the FLSA and FMLA the last few days so look for posts on those topics and the ABA meeting soon.

In the meantime, I’ve had several discussions with people lately about the implications that Connecticut’s revised Personnel Files Act will have on their companies on October 1st — the law’s effective date.

I’ve previously summarized the law in a prior post here so I won’t repeat all I said there.

The most frustrating provision is the new Sec. 31-128b(c) which states as follows:

Each employer shall provide an employee with a copy of any documentation of any disciplinary action imposed on that employee not more than one business day after the date of imposing such action. Each employer shall immediately provide an employee with a copy of any documented notice of that employee’s termination of employment.

There are a few issues that come out of this:

  • First, the requirement to provide a copy of any documentation of any disciplinary action is a new one. More than that, it needs to be done “not more than one business day” after imposing the action.  Is that the date that the decision is made or told to employee? What about a suspension that takes place the following week; is it the date the suspension first occurs or some other date?
  • But then suppose the employee is out of the office on suspension, will mailing a copy of the notice suffice? If so, when is the notice effective? The date of mailing or date of receipt? What about e-mail? These questions are left unanswered though you have to think from an enforcement perspective that the CTDOL will adopt some type of reasonableness standard along with this.  (Remember too that any violations of the Act are to be handled by the department itself.)
  • But the issues go on: look at the phrase “any documentation of any disciplinary action imposed on that employee”.  What is exactly the scope of “any documentation”? Just the notice of the discipline itself? Or everything leading up to it too, including an investigation? The reasonable interpretation would seem to suggest just the actual discipline itself, but will the CTDOL take a similar position for enforcement purposes?
  • Next up, when an employee’s employment is terminated, the employer must “immediately” provide a copy of any documented notice.  What about a notification over the phone with a followup letter? Does that satisfy the purposes of the statute? After all, in some instances, it may be impractical to bring an employee who has been suspended back to the workplace just to fire him or her.  Again, the new law leaves this bit confusing too.

There are, of course, other issues to deal with on this new law.  Employers have about 6 weeks left to update their policies and figure out how to deal with requests for personnel files too.  Time is ticking so be sure to consult with your local employment counsel if you are unsure how to proceed.

New week. Same trial.

But with the new week comes some more new guest bloggers.  Each continues to talk about various employment law and human resources issues.

Today’s guest blogger is no exception. Indeed, since coming onto the blog scene some months ago, John Phillips has been churning out post after post on topics as varied as where the presidential candidates stand on employment law issues to what we can learn from the New York Yankees.  His The Word on Employment Law , may not be as edgy as Stephen Colbert’s segment on "The Word", but the blog is a very useful addition to the world of employment law and I encourage you to check it out.

In his "spare" time, John works for Miller & Martin and his full bio (with a hefty 33 years worth of experience) is available here.  And since Connecticut falls right on the Mason-Dixon line between Red Sox Nation and Yankees Country, it’s nice to know John is squarely a Yankees fan

Today, John tackles the topic of what an employer should do when there is no documentation about a problem employee.

Have you ever been in this situation?

You’ve got to fire an employee. He simply can’t cut it. You’ve tried to work with him. You’ve given him coaching, counseling. You should’ve fired him some time ago. He’s not only doing a poor job. Now, he’s hurting morale.

You’ve simply got to fire him.

But you don’t have any supporting documentation. You meant to document his poor performance. You meant to document those counseling or discipline sessions. But you didn’t. You’ll just have to take your chances, because you can’t put the firing off any longer.

A thought. There may actually be some documentation. Depending on what the employee’s job is, there may be production reports that show the employee was routinely way below the production quota. There may be customer complaints. There may be emails from co-workers complaining of the employee’s performance. There may be reports created by the employee that show his horrible communication skills.

You get the idea.

There may be documentation–not yours–but still good documentation that supports a discharge.

When you think the documentation cupboard is bare and you’re in a pickle because you have to move forward with a termination, check another cupboard or two. You may find some documentation a lot better than anything you could have done yourself.