• Supreme Court: Employer Does Not Violate ADA By Refusing To Hire A Disabled Applicant When The Job Would Pose A Direct Threat To The Applicant's Own Health
  
  
• Light Duty and FMLA Job Reinstatement
  
  
• "Intermittent Leave" And "Episodic Incapacity" Under The FMLA
  
  
  

Supreme Court: Employer Does Not Violate ADA By Refusing To Hire A Disabled Applicant When The Job Would Pose A Direct Threat To The Applicant's Own Health

Since our last newsletter, the Supreme Court of the United States issued more decisions clarifying an employee's rights and an employer's duties under the American with Disabilities Act ("ADA"). In one of those cases, Chevron U.S.A. Inc. v. Echazabal, 122 S. Ct. 2045 (U.S. 2002), the Court addressed the issue of whether an employer can successfully defend an applicant's ADA lawsuit by arguing that his disability on the job would pose a direct threat to his own health.

Mario Echazabal twice applied for a job with Chevron, which offered to hire him if he could pass the company's physical examination. Echazabal failed the exam each time because it showed "liver abnormality or damage, the cause eventually being identified as Hepatitis C, which Chevron's doctors said would be aggravated by continued exposure to toxins at Chevron's refinery." Id. at 2048. Based upon these exam findings, Chevron withdrew its offers of employment.

Echazabal sued Chevron, claiming that Chevron violated the ADA by refusing to hire him because of his liver condition. Chevron defended by asserting the "direct threat" defense. Under the statutory language of the ADA, a disabled employee is not afforded the protections of the ADA if the individual poses "a direct threat to the health or safety of other individuals in the workplace." 42 U.S.C. § 12113(b) (emphasis added). The regulation promulgated by the Equal Employment Opportunity Commission ("EEOC"), the government agency charged with implementation of the ADA, goes further and states that an employer does not violate the ADA by refusing to hire a disabled applicant who poses "a direct threat to the health or safety of the individual or others in the workplace." 29 C.F.R. § 1630.15(b)(2) (emphasis added).

Therefore, at issue in this case was an apparent conflict between the language of the statute and the EEOC regulation. The U.S. Court of Appeals for the Ninth Circuit held that the EEOC regulation, which extends the "direct threat" defense to cases where the disabled employee poses a direct threat to himself, exceeded the scope of permissible rulemaking under the ADA. The Ninth Circuit reasoned that, "by specifying only threats to 'other people in the workplace,' the statute makes it clear that threats to … the disabled individual himself - are not included within the scope of the [direct threat] defense." Echazabal, 122 S. Ct. at 2048.

The U.S. Supreme Court reversed the Ninth Circuit's decision. Justice Souter, who wrote the unanimous opinion, gave deference to the EEOC regulation, stating "Congress included the harm-to-others provision as an example of legitimate qualifications that are 'job-related and consistent with business necessity.' These are spacious defensive categories, which seem to give an agency (or in the absence of agency action, a court) a good deal of discretion in setting the limits of permissible qualification standards." Id. at 2050. Souter went on to say that since Congress had not spoken exhaustively on the issue of threats to a worker's own health, the EEOC regulation is permissible "so long as it makes sense of the statutory defense for qualification standards that are 'job-related and consistent with business necessity.'" Id. at 2051-2. Chevron's reasons were job-related and consistent with business necessity. "[M]oral concerns aside, [Chevron] wish[ed] to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act of 1970." Id. at 2052. Therefore, Chevron could assert its defense based upon the EEOC regulation.

While this decision is an apparent victory for employers, the "direct threat to the employee's own health" defense most likely will have very limited application, which requires an individualized case-by-case analysis. "The direct threat defense must by 'based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,' and upon an expressly 'individualized assessment of the individual's present ability to safely perform the essential functions of the job,' reached after considering, among other things, the imminence of the risk and the severity of the harm portended." Id. at 2053 (quoting 29 C.F.R. § 1630.2(r)). Therefore, employers should consult with medical and legal counsel before basing any employment decision on an individual's disability.

Eric W. Reecher

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Light Duty and FMLA Job Reinstatement

Generally when an employee returns from FMLA leave, he or she is entitled to reinstatement to the same or an equivalent position. 29 U.S.C. § 2614(a)(1). An equivalent position is "one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority." An employee retains reinstatement rights "even if the employee has been replaced or his position has been restructured to accommodate the employee's absence." 29 C.F.R. § 825.214(a). Only if a job is eliminated do reinstatement rights end.

While an employee may not waive, nor may an employer induce an employee to waive, his rights under the FMLA, this does not prevent an employee's voluntary and uncoerced acceptance (not as a condition of employment) of a "light duty" assignment while recovering from a serious condition. 29 C.F.R. § 825.220(d). Significantly, if an employee accepts "light duty" work, the length of FMLA leave combined with the duration of the "light duty" work may eliminate an employee's reinstatement rights.

For example, if an employee takes six weeks of FMLA leave for a serious health condition, and then spends six weeks in light duty work, the employee retains the right to reinstatement to his same or equivalent position. However, if the employee takes six weeks of FMLA leave for a serious health condition, and he works "light duty" for seven weeks, his entitlement to reinstatement expires.

Although in the example above, the employee is entitled to six additional weeks of FMLA leave, the employee has no right to reinstatement to his same or an equivalent position. This is so, because under the regulations, "the employee's right to restoration to the same or an equivalent position is available until 12 weeks have passed within the 12-month period including all FMLA leave taken and the period of this light duty." 29 C.F.R. § 825.220(d). Additionally, if an employee accepts "light duty" work, he may lose workers' compensation benefits, although the employee would be entitled to remain on unpaid FMLA leave until the 12-week entitlement is exhausted. 29 C.F.R. § 825.207(d)(2).

Observation. It is important for an employer to remember that FMLA rights are not merely based upon employment during the preceding 12 months; FMLA rights are also dependent upon time worked. If for example, an employee has been on light duty work, which included a reduced schedule, it may be that the employee has no continuing entitlement to FMLA leave, because the employee's working time has fallen below 1250 hours during the preceding 12-month period. Therefore, an employer must count hours worked, and not just days worked, during the preceding 12-month period.

Mark M. Lawson

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"Intermittent Leave" And "Episodic Incapacity" Under The FMLA

Summary. Employers must not confuse "intermittent leave" with "episodic incapacity" under the FMLA. "Intermittent leave" is intended to cover treatment and recuperation, whereas "episodic incapacity" may result from a chronic serious health condition.

Discussion. FMLA regulations provide that leave may be taken "intermittently" under certain circumstances, but it must relate to a single qualifying reason. Such leave is permissible "when medically necessary" for either (1) planned or unanticipated treatment of a related serious health condition, or (2) recovery from treatment for such a condition. An employer may limit intermittent leave increments "to the shortest period of time that the employer's payroll system uses to account for absences or use of leave, provided it is one hour or less." 29 C.F.R. §825.203

In addition to an "intermittent leave," however, an employee may be excused for an unexpected absence related to a chronic serious health condition. Such an absence may be attributed to "episodic incapacity" contemplated by FMLA regulations. Whether an absence is deemed "intermittent leave" or results from "episodic incapacity," the cause of the former or the reason for the latter must be a "serious health condition" as defined in the regulations.

A "serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. 29 C.F.R. §825.114(a)(1) and (2). "Episodic incapacity" is discussed in 29 C.F.R. §825.114(e), which provides that an absence attributable to an incapacity due to a chronic serious health conditions "qualifies for FMLA leave even though the employee or the immediate family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three days."

In order to determine whether an employee's symptoms or "flare-up" is an "episodic incapacity" qualifying for FMLA leave, one has to consider subsections 29 C.F.R. §825.114(a)(2)(ii) and (iii).

Eliminating some verbiage, one derives the following:

A serious health condition involving continuing treatment by a health care provider includes any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which (1) requires periodic visits for treatment by a health care provider, (2) continues over an extended period of time (including recurring episodes of a single condition), and (3) may cause episodic rather than a continuing period of incapacity (e.g. asthma, diabetes, epilepsy, etc.)

Hypothetical. Suppose Jane Doe is diagnosed with both (1) degenerative disk condition and (2) chronic fatigue syndrome. Assume, too, that Doe's employer requires medical certification for each condition. In the case of the disk condition, Doe's health care provider claims that the condition renders her unable to perform the essential functions of her job and that he expects that the condition will, from time to time, prevent her from attending to her duties. He also says that Doe may require intermittent leave so that she may receive treatment or therapy. With respect to the chronic fatigue syndrome, however, the health care provider determines that Doe is not suffering from a serious health condition that prevents her from performing the essential functions of her job. Subsequently, Doe suffers bouts of absenteeism, some of which she attributes to her degenerative disk condition, some to chronic fatigue syndrome, and some to no reason whatsoever. Her employer charges against Doe the unexplained absences and the absences related to chronic fatigue syndrome, but does not charge against Doe the absences related to the degenerative disk condition. Doe's employer also charges Doe for a half day (four hours) of FMLA leave when she is away from work for only one hour receiving treatment, although the employer's payroll system will track a fraction of an hour. Under these facts, has the employer acted unlawfully?

With respect to the degenerative disk condition, the health care provider originally certified a chronic serious health condition. Being degenerative, the condition may continue over an extended period of time, and it is anticipated that Doe might have recurring bouts of discomfort relating to the condition. Accordingly, the condition may cause episodic rather than a continuing period of incapacity. Moreover, the health care provider gave notice that the condition might require an intermittent reduced leave schedule so that Doe could receive treatment or therapy. Thus, Doe's employer acted lawfully by approving requests for intermittent leave and by not charging against Doe the absences resulting from her "episodic incapacity." However, the employer violated the FMLA when it charged Doe with four hours of FMLA leave when she was only away for one hour.

Doe's employer also correctly charged against her both the absences related to chronic fatigue syndrome and those for which no reason was given. First, the health care provider did not certify chronic fatigue syndrome as a serious health condition, which prevented Doe from performing the essential functions of her job. Accordingly, any absence related to this condition was not an instance of "episodic incapacity" and not an FMLA-qualifying leave. While Doe claimed that the absences were related to chronic fatigue syndrome, the employer had the right to rely upon the health care provider's original negative certification. Thus, any absence related to chronic fatigue syndrome was not related to a chronic serious health condition.

With respect to the unexplained absences, the employer correctly charged the absences against Doe. An employee must give his employer notice of the reason for leave "within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances." While an employee is not required to expressly assert rights under the FMLA or even mention the FMLA, the employee must state that the leave is needed. 29 C.F.R. §825.303(a), (b). Sufficient information is to be given to the employer to provide reasonable notice that the employee requests time off for a serious health condition. Price v. Marathon Cheese Corp., 119 F.3d 330 (5th Cir. 1997). An employee must provide notice and a qualifying reason for requesting leave. Brohn v. J.H. Properties, Inc., 149 F.3d 517 (5th Cir. 1998). An employer is not required to be clairvoyant. Johnson v. Primerica, 1996 WL 34148 (S.D. NY 1996).

The foregoing hypothetical is derived in part from Slaughter v. American Building Maintenance Co. of New York, 64 F.Supp. 2d, 319 (S.D. NY 1999), and Stoops v. One Call Communications, Incorporated, 141 F.3d 309 (7th Cir. 1998).

In Slaughter, the employee injured his back and big toe while emptying a dumpster. Five years later, Slaughter suffered another injury at work, which resulted in pain in his left groin, a lumbar sprain, and back spasms. When Slaughter later suffered several bouts of absenteeism, he never specified that his absences were related to his back problem. The Court held that it was "notice of the qualifying reason for leave, and not notice of the FMLA basis for that leave that must be communicated." Sufficient information must be given to the employer to provide reasonable notice that the employee requests time off for a serious health condition. Although Slaughter argued that his original certification had put his employer "on notice" of his back condition, the Court rejected the argument, and held that the employer's "general awareness" of Slaughter's back trouble did not relieve Slaughter of the obligation to inform his employer that he was taking leave because of his back. Neither Slaughter's telephone calls to the employer, nor the doctor's "excuses" that he provided the employer, gave sufficient notice of a "qualifying" reason for Slaughter's absenteeism. Accordingly, Slaughter's termination was upheld. Accord, Collins v. MTM-Bower Corp., (7th Cir. 2001).

In Stoops, the employee was fired for excessive absenteeism. Stoops' health care provider certified that Stoops was not qualified for FMLA leave. Thereafter, Stoops had additional absences, and his employer charged against Stoops his subsequent absences. The issue in the case, as defined by the Court, was whether Stoops' employer could rely upon the physician's earlier certification that Stoops was not qualified for FMLA leave. The district court granted summary judgment for the employer, and the court of appeals affirmed.

Stoops argued that when he called in sick, his employer was obliged to further investigate the reason for the absenteeism, and that Stoops should have been permitted to obtain additional physician certification. The court of appeals rejected the argument, which would have the employer base its decision solely on information provided by the employee at the time of the request for leave. FMLA regulations do not prohibit an employer from basing its decision on an earlier certification by the employee's physician that the employee is not qualified for FMLA leave. Once Stoops learned that the initial certification was "negative," it was his burden to have the certification corrected. This was especially true where nothing in the FMLA or regulations limit an employee's ability to produce a medical opinion that contradicts a prior negative certification originally provided by the employee.

Observation. An employer should be conscientious in obtaining certification of a serious health condition under the FMLA. Forms for this purpose are available at the Department of Labor's website. Particular attention should be given to whether the provider gives a "negative certification" or whether the provider anticipates the need for "intermittent leave" or "episodic incapacity." If the provider gives a negative certification, or if the provider does not anticipate a need for "intermittent leave," or if the provider does not anticipate "episodic incapacity," the employer should carefully respond to subsequent leave requests. The employer should make sure that the employee is providing a sufficient basis for concluding that the leave is related to a serious health condition and therefore justified under the FMLA.

Mark M. Lawson