Category: Discrimination

April 11, 2018

Firing Employees on Medical Leave

Can you legally do this? Yes . . . maybe. Firing an employee on medical leave is a tricky proposition. But sometimes it is appropriate. Even then, it might not go over well.

Let’s review some of the legal issues and practical considerations that come up in this area.

Legal Protections

The full range of legal protections for employees on medical leave depends on where the employee works. But the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) apply throughout the United States. We’ll focus on those laws here, but you should also consider any similar state or local laws that may apply.

ADA

The ADA covers all employers with at least 15 employees. It prohibits discrimination against qualified individuals with a disability. It also requires employers to provide reasonable accommodations to employees with disabilities. Reasonable accommodations may include unpaid medical leave. (Read more: Is Time Off a Reasonable Accommodation?)

Just as refusing time off to an employee with a disability might violate the ADA, so might ending their employment while they’re out of work.

FMLA

Employers with 50 or more employees must allow eligible employees to take up to 12 weeks of unpaid leave per year for specific reasons. These reasons include the employee’s own serious health condition.

Most employees on FMLA leave have the right to return to work at the end of their leave. It is also unlawful to retaliate against an employee for taking FMLA leave. These protections may come into play if an employer seeks to end the employment of someone on FMLA leave.

What You Can’t Do

Employers can’t fire a qualified employee because of their disability . . . . Unless the disability prevents them from performing the essential functions of their job despite any reasonable accommodations.

There are many reasons why managers may get frustrated with employees who seem to never be at work. But there has to be more than just not wanting to deal with someone with a medical condition.

Employers covered by the FMLA also shouldn’t automatically fire an employee who doesn’t return at the end of 12 weeks of FMLA leave. An employee with a medical condition might still be eligible for additional time off as a reasonable accommodation under the ADA.

When Could You Fire an Employee on Medical Leave?

There aren’t many absolutes here. Each situation is different and may raise unique concerns, but here are some times when an employer might be able to separate the employment of someone on medical leave:

The business is closing, so everyone is losing their job.
You are eliminating the person’s position–especially if others not on leave will also lose their jobs without being replaced.
The employee has falsified the medical basis for leave.
You’ve discovered misconduct that warrants termination regardless of leave status.
The employee won’t be able to return for an extended period of time, such that continuing employment is not a reasonable accommodation or would impose an undue hardship.

The above list roughly moves from straightforward to more complicated analyses regarding employees on medical leave. In particular, the last situation involves the complex evaluation of when an accommodation is no longer reasonable–which seldom has an easy answer.

Putting It All Together

Employers should understand that employees are not automatically untouchable just because they’re on medical leave. But, it adds a factor to consider before making the termination decision. The situations posed above are only some of the more common that could occur. As each case raises its own nuances, employers should consult with experienced employment counsel when faced with these decisions.

April 3, 2018

Is Time Off a Reasonable Accommodation?

The Americans with Disabilities Act (ADA) requires employees to provide reasonable accommodations to qualified employees with disabilities. These accommodations can take various forms, including structural modifications to the workplace and scheduling adjustments. The U.S. Equal Employment Opportunity Commission (EEOC) also considers time off from work to be a reasonable accommodation in many situations.

Time Off Under the ADA

Let’s start with a relatively unsurprising conclusion under disabilities discrimination laws. Employers cannot provide employees with disabilities less time off than other similarly situated employees. For example, an employer that allows employees to take vacation time for any purpose cannot exclude an employee with a disability from using vacation time to recuperate from a medical procedure.

Few employers would object to that principle. But many do not consider the possibility that an employee with a disability may be entitled to take more time off than company policies normally allow.

Leave as a Reasonable Accommodation

The EEOC’s ADA regulations define reasonable accommodation to mean modifications or adjustments:

to a job application process that enable a qualified applicant with a disability to be considered for the position the applicant desires;
to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the employer’s other similarly situated employees without disabilities.

EEOC guidance states that: “The purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work. Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.”

As with other forms of accommodations, additional leave or time off must be reasonable and can be denied if it imposes an undue hardship. Often these issues raise questions of how much leave is reasonable?

The EEOC will not answer this question directly. There is no bright line amount of time off that an employee with a disability must receive under the ADA. Instead, the EEOC has historically taken the position that employers must evaluate each situation individually.

Factors that play into the analysis of reasonableness include

the reason(s) the employee needs leave;
whether the leave will be consecutive (all at once) or intermittent (periodic); and
when the need for leave will end.

Additional factors toward whether time off will impose an undue hardship include

size and skills of the remaining workforce;
ability to temporarily replace the employee; and
whether the time off is foreseeable or unpredictable.

Maximum Leave Policies

Trying to avoid the complicated analysis suggested above, some employers seek to enforce a maximum leave policy. Most commonly, these are for either 6 or 12 months. But some employers use longer or shorter periods.

Under these policies, employers would like to say that no matter the reason for the extended leave, any employee out longer than X months will be removed from the payroll, etc. The EEOC consistently rejects these policies. Sometimes courts allow them, however.

Still, even the risk of EEOC investigation makes it dangerous to try to apply a strict maximum leave policy. Accordingly, it is usually better to build some discretion into the policy. For example, while referencing a general maximum time period, the policy would advise employees that a brief extension of the leave may be available if medically necessary. You could then determine what a “brief extension” means on a case-by-case basis, providing the flexibility the EEOC seeks.

Don’t Let the FMLA Fool You

The federal Family and Medical Leave Act (FMLA) requires employers with 50+ employees to allow eligible employees to take up to 12 weeks off. Qualifying circumstances for FMLA leave include the employee’s own serious health condition.

Employees with serious health conditions often also qualify as employees with a disability under the ADA. Thus, they may be eligible for leave as a reasonable accommodation. And more than 12 weeks off might be reasonable under the circumstances.

Accordingly, employers should almost never automatically terminate an employee’s employment merely because they don’t return to work immediately after 12 weeks of FMLA leave. (In addition to the medical leave scenario, other forms of FMLA leave may also touch on other discrimination protections, such as sex/pregnancy discrimination. Plus, retaliation for taking FMLA leave is itself unlawful.)

Time Off as an Accommodation Can Be Unpaid

Allowing an employee time off as a reasonable accommodation does not mean employers must provide paid leave. As mentioned, if the employee is eligible to use vacation or other paid leave for a portion of the time off, then they should not be denied the opportunity to do so based on their disability. But, if they have exhausted any available paid time (or have none in the first place), then, like the FMLA, the ADA does not entitle anyone to receive paid leave.

Review Your Leave Policies

It is difficult to propose one-size-fits-all advice on this issue, but all employers should seek to avoid facially unlawful leave policies. At a minimum, this includes any wording that directly penalizes qualified employees with disabilities. But most employers should go further and build in flexibility to account for reasonable accommodations, as suggested above. This includes, by the way, so-called “no-fault” attendance policies. (But that will have to be a topic for another day!)

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March 21, 2018

Association Discrimination in Employment

Most employers know they can’t discriminate against employees based on the employees’ own legally protected characteristics. But they may not realize that the same laws often also prohibit “association discrimination,” or “relationship discrimination.” In other words, employers can’t discriminate based on an individual’s association with someone in a protected class.

Forms of Association Discrimination

The employment discrimination laws don’t always expressly identify what forms of association discrimination they proscribe. The courts have recognized forms of this protection by applying more general aspects of the laws.

An employee may be able to claim harassment or discrimination based on:

a relative’s disability;
open association with or marriage to someone of a different race;
being a parent or caregiver to children; and
the protected activities of a relative.

Association Discrimination Under the ADA

The Americans with Disabilities Act (ADA) is one law that contains express provisions about association discrimination. The ADA covers all employers with at least 15 employees.

The ADA provides that no employer may “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Among the forms of discrimination it expressly prohibits is “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The ADA requires no familial relationship for an employee to receive this protection. The protection depends on whether the relationship of whatever type motivated the employer’s action.

Association discrimination does not afford all of the same protections under the ADA as it does to an employee who personally has a disability. Most notably, employers do not have to provide accommodations to employees (or applicants) based on the disability of a relative.

Association Discrimination Based on Race

Title VII of the Civil Rights Act of 1964 prohibits employers with 15+ employees from discriminating on the basis of race, color, sex, religion, and national origin. Unlike the ADA, Title VII does not contain any specific provisions about association or relationship discrimination. However, many courts have recognized such protections regarding race.

Here are some examples of actual cases where a court recognized a theory of racial association discrimination:

White man alleged he was fired because of his marriage to a black woman.
White woman alleged she lost her job because the employer disapproved or her social relationship with a black man.
Employee alleged that employer reacted adversely to him because his race differed from his daughter’s.

Caregiver Discrimination

Title VII doesn’t identify “caregivers” as a protected characteristic. But the EEOC and some courts have applied the law to provide employees rights to raise children.

Most of these cases have involved women claiming they were denied employment opportunities for having or wanting to have children. In a 2009 decision, the U.S. Court of Appeals for the First Circuit summarized: “In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.”

The EEOC has consistently taken this position, which it has described in assorted guidance documents.

Other Bases for Association Discrimination Claims

A few appellate courts have ruled that Title VII prohibits association discrimination regarding each of the law’s protected characteristics. Most recently, the U.S. Court of Appeals for the Second Circuit (which covers Connecticut, New York, and Vermont) ruled, “we now hold that the prohibition on association discrimination applies with equal force to all the classes protected by Title VII . . . .”

The Second Circuit made this pronouncement through a February 26, 2018 decision in which the court ruled that Title VII prohibits sexual orientation discrimination through its general inclusion of sex as a protected characteristic. You can learn more about that decision in an earlier post.

Retaliation by Association

In 2011 the U.S. Supreme Court ruled that an employee may sue his employer for retaliation under Title VII claiming that he had been fired because his fiancée had filed a sex discrimination charge against their employer.

Before this decision, many courts had concluded that Title VII’s retaliation protections only applied to the persons who personally engaged in protected activity. For example, the person who has filed a discrimination complaint. The Supreme Court, however, advised that “Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

On that standard the Court continued: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.”

Employer Responsibilities

Many of the legal details in this area remain murky. The Supreme Court has not weighed in recently on most of these questions. It is not certain how it would rule in these cases today. Regardless, most employers don’t want to be in the position of finding out directly. Accordingly, it is best to avoid any appearance of discrimination, whether based directly on an employee’s characteristics or those of their relatives or others with whom they associate.

Employers should also be aware of the Genetic Nondiscrimination Act (GINA), which likewise applies to employers with 15+ employees. Among other things, GINA prohibits discrimination in employment based on an individual’s family medical history. For more, read Don’t Forget GINA.

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