Once an Accommodation, Always an Accommodation?

Wednesday, March 14, 2018

A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift 50 pounds. Over the next 15 months, the clerk has difficulty completing all of his tasks in a safe and timely manner, but his employer elects not to reprimand him in light of his full release and the expectation that he will continue to improve. The employee does not improve, though, and so the employer offers the clerk a job transfer. The employee accepts but fails to adjust to the new position, and the employer terminates his employment. The clerk then sues claiming that, because the employer accommodated him for 15 months without complaint, it was obligated to continue doing so.

The question is: Is he correct?

A federal district court in North Carolina recently tackled this question and—based on the specific facts of the case—answered it with a “no.”

In Moore v. Wal-Mart Stores East, LP, the court noted that, even after 15 months, the clerk was unable to perform the essential functions of his job with or without a reasonable accommodation. He could not, for example, lift more than 20 pounds or safely climb ladders on his own and could only do so with assistance from others, which the court noted was unreasonable because it effectively reallocated the job’s essential functions to others.

As for the clerk’s claim that the employer was obligated to continue providing the accommodation it had given him for 15 months, the court found that the employer was not required to maintain a diminished level of exertion indefinitely. Although the employer had accommodated the clerk by allowing him to resume working while only performing certain functions, there was no legal duty to create a “permanent light-duty position that does not otherwise exist.”

According to the court, it could not punish the employer by deeming it to have “conceded the reasonableness of so far-reaching an accommodation.” Otherwise, it would discourage employers “from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored.” That result, said the court, would clearly be at odds with the purpose of the Americans with Disabilities Act (ADA).

EEOC Releases New Strategic Enforcement Plan

Thursday, March 8, 2018

The Equal Employment Opportunity Commission (EEOC) has announced a new Strategic Plan for 2018 – 2022. The EEOC approved the new plan unanimously and began implementing it last month.

As explained by the EEOC in its announcement, the Strategic Plan serves as a framework for the Commission to achieve its mission through “strategic application of the EEOC’s law enforcement authorities, preventing employment discrimination and promoting inclusive workplaces through education and outreach, and organizational excellence.” For each of these three objectives, the EEOC has identified specific outcome goals as well as performance measures to track the Commission’s progress toward those goals.

The new Strategic Plan continues many of the same priorities found in the EEOC’s previous plan. For example, the plan continues to prioritize systemic investigations and lawsuits, which the Commission believes have greater strategic impact due to their wide influence on industries, occupation, and geographic areas. According to the EEOC, though, the new Strategic Plan sharpens the agency’s focus and updates emerging issues of concern. The Strategic Plan’s performance measures contain perhaps the best evidence of this updated focus, which include greater emphasis on obtaining targeted, equitable relief when resolving charges, and ensuring that charge investigations and conciliations meet certain quality criteria.

Although the EEOC has already begun implementation of the new Strategic Plan, it is not doing so at full capacity: the five-member Commission still has two vacancies, and it is not clear when (or if) President Trump’s nominees for those vacancies will be confirmed.

Recent NLRB Activity Has Implications for Social Media

Tuesday, March 6, 2018

It has been a busy few months at the National Labor Relations Board (NLRB). Since December 2017, the NLRB has: released more than 40 advice memoranda containing guidance on a plethora of labor issues; overruled the joint employer test it adopted in 2015 in Browning-Ferris Industries, and then vacated its decision (Hy-Brand Industrial Contractors, Ltd.) due to a board member’s conflict of interest; and issued decisions in three other cases that significantly alter the standards applied to micro-bargaining (PCC Structurals, Inc.), unilateral changes (Raytheon Network Centric Systems), and employee handbooks (The Boeing Company). Two of these developments have implications for social media in the workplace.

First, in one of the advice memoranda released by the NLRB (Team Fishel), the NLRB’s Division of Advice concluded that a policy restricting the use of social media on company equipment was unlawfully overbroad and represented an opportunity to extend the Board’s decision in Purple Communications to social media. In Purple Communications, the Board held that employees who have been given access to a company email system have a presumptive right to use email to communicate about the terms and conditions of their employment during non-working time. According to the Division of Advice, although Purple Communications was limited to the use of company-provided email, the “internet, including social media, shares many of the email-related attributes that were discussed by the Board in Purple Communications.” Those similarities weighed in favor of giving employees a presumptive right to use social media as a means of communicating about Section 7 activities during non-working time.

Second, with its decision in The Boeing Company, the NLRB threw out the standard it has used to determine whether handbook policies, including social media policies, are lawful. That standard, which the NLRB adopted in 2004 in Lutheran Heritage Village-Livonia, focused on whether a policy could “reasonably be construed” by employees as chilling protected rights under the National Labor Relations Act (NLRA). The breadth of this standard made it difficult for employers to craft compliant policies on social media and other topics, despite attempts by the NLRB’s Office of the General Counsel to provide guidance. Now, under a new standard announced in The Boeing Company, the NLRB will consider both the impact that a workplace policy may have on NLRA rights, and the employer’s legitimate justifications for the policy.

Another Federal Appeals Court Finds Title VII Prohibits Sexual Orientation Discrimination

Thursday, March 1, 2018

Following the Seventh Circuit’s landmark decision last April in Hively v. Ivy Tech Community College, the Second Circuit Court of Appeals has joined in finding that Title VII prohibits discrimination on the basis of sexual orientation. In Zarda v. Altitude Express, decided on February 26, 2018, the Second Circuit concluded that Title VII’s ban on sex discrimination “applies to any practice in which sex is a motivating factor.” Because sex is necessarily a factor in sexual orientation, discrimination based on sexual orientation amounts to banned sex discrimination, reasoned the Second Circuit.

The outcome in Zarda is significant because, unlike many state laws that explicitly prohibit sexual orientation discrimination, Title VII has long been interpreted by federal courts as not reaching such discrimination. The Second Circuit’s decision therefore signals a seismic shift in this long-standing consensus and will likely cause other circuits to reexamine their precedent in light of Title VII’s “evolving” legal framework. Although the Eleventh Circuit hewed close to its precedent in a decision issued shortly before Hively and declined to extend the reach of Title VII to sexual orientation discrimination, the Second Circuit’s decision suggests that the Equal Employment Opportunity Commission’s (EEOC) position on sexual orientation discrimination, which the agency has advanced for several years now, may be gathering steam. For example, in a recent decision from the First Circuit, Franchina v. City of Providence, the court noted that the continuing validity of its “nearly twenty-year-old” precedent on Title VII and sexual orientation discrimination was not at issue in the case, but it also observed (citing Hively) that “the tide may be turning when it comes to Title VII’s protections.” How high the tide goes, and whether it will reach the doors of the Supreme Court, remains to be seen.

Decision on medical marijuana and preemption holds lessons for Maine employers

Thursday, August 31, 2017

A U.S. district court recently held that federal law does not preempt the anti-discrimination provision in Connecticut’s medical marijuana law prohibiting employers from terminating or refusing to hire individuals based on their status as qualifying medical marijuana patients.  The ruling is important for Maine employers because of the similarities between Maine’s and Connecticut’s medical marijuana statutes.

The plaintiff in the case, Noffsinger v. SSC Niantic Operating Co., LLC, had received a verbal offer of employment from a nursing facility, but was not hired after she disclosed that she was a qualifying medical marijuana patient and tested positive for marijuana on a pre-employment drug screen.   Noffsinger sued in state court claiming that the facility’s refusal to hire her violated the anti-discrimination provision in Connecticut’s medical marijuana law.  The facility removed the case to federal court, where it argued that Noffsinger’s complaint should be dismissed because federal law preempted Connecticut’s medical marijuana statute. 

In denying the facility’s motion to dismiss, the district court found no actual conflict between Connecticut’s medical marijuana law and the federal laws identified by the facility.  For example, the court found that the Controlled Substances Act (CSA) did not preempt Connecticut’s law because the CSA regulates drugs, not employment, and therefore did not conflict with the employment-related provisions in Connecticut’s law.  The court also found no conflict with the ADA; although the ADA does not protect current users of illegal drugs, the court observed that Connecticut’s law did not authorize the use of drugs in the workplace, and nothing in the ADA suggested that it was intended to regulate the use of drugs outside the workplace or limit the abilities of states to do so.  Finally, although the facility argued that Connecticut’s anti-discrimination provision was preempted by the Federal Food, Drug, and Cosmetic Act, which prohibits the sale or distribution of unapproved medications, the court found that it, like the CSA, did not govern the employment relationship and therefore did not preempt Connecticut’s anti-discrimination provision.

This decision is important for Maine employers because, like Connecticut’s statute, Maine’s medical marijuana statute contains an anti-discrimination provision that prohibits employers from making employment decisions based on an individual’s status as a medical marijuana patient.  The decision therefore provides a potential roadmap on how an employer’s preemption arguments might play out with respect to Maine’s medical marijuana law.

When is an employee a qualified individual with a disability under the MHRA?

Monday, August 7, 2017

Maine’s highest court recently weighed in on what it means to be a qualified individual with a disability under the Maine Human Rights Act.  Affirming a summary judgment in favor of the employer in Carnicella v. Mercy Hospital, the Law Court found that an employee who remained absent from work after exhausting her leave failed to demonstrate that she was a qualified individual with a disability where there was no dispute that she was unable to perform the essential functions of her job with or without an accommodation at the time of her termination.

The employee in the case, Carnicella, was a registered nurse who developed a serious medical condition requiring an absence from work.  In August 2013, Carnicella’s employer, Mercy Hospital, granter her full leave under Maine’s medical leave law and then extended it after Carnicella developed post-surgery complications.  In December 2013, shortly before Carnicella was due to return to work, her surgeon informed Mercy that Carnicella was not able to resume work and that her anticipated return date would be on March 15, 2014.  In January 2014, however, Carnicella’s primary care physician notified Mercy that a March return date was premature and estimated that Carnicella would be able to return to work without restrictions on June 1, 2014.  At a subsequent meeting with Carnicella, Mercy told her that it would extend her leave until March 15 and that if she was unable to work at that time then she could transition to per diem status.  When March 15 came, however, Carnicella left a voicemail with Mercy stating that she was still not able to return to work.  Carnicella did not propose any accommodations that would have allowed her to return to work.  Believing from her voicemail that Carnicella did not want to remain a per diem employee, Mercy terminated Carnicella’s employment.  Although Mercy reversed the termination within weeks and reinstated Carnicella after she made it clear that she wanted to remain a per diem employee, Carnicella sued Mercy claiming that she had been terminated because of her disability.  Mercy moved for summary judgment, which the court granted.

On appeal, Carnicella argued that the court incorrectly found that she was not a qualified individual with a disability.  The Law Court did not agree.  According to the Law Court, two questions are relevant to the determination of an employee’s qualified status: 1) whether the employee can perform the essential functions of his or her job; and 2) if not, whether any reasonable accommodation would enable the employee to perform those functions.  As to the first question, the Law Court found that because Carnicella had never received a medical clearance to return to work, there was no dispute that she was unable to perform the essential functions of her job when she was terminated.  With respect to whether a reasonable accommodation would have allowed Carnicella to do so, the Law Court noted that additional leave was the only accommodation Carnicella arguably sought.  However, the Law Court found this accommodation was unreasonable because of a statutory defense under the MHRA, which absolves an employer of liability for discrimination if, at the time of an employee’s termination, the employee is unable to perform their job duties.  Because Carnicella was unable to perform her job duties at the time she was terminated, and because additional leave “would necessarily continue to prevent” her from doing so, the Court reasoned that the statutory defense applied and made additional leave unreasonable as a matter of law.

The Law Court’s decision is noteworthy given other cases exploring the interplay between disability and medical leave laws and the sometimes thorny issue of extended leaves.  One such case is Hwang v. Kansas State University, which the Law Court cited with approval in Carnicella, but which is arguably at odds with the EEOC’s views on what disability laws like the ADA require after an employee has exhausted a medical leave.  Employers should therefore take the Carnicella decision in context, just as they should do when dealing with any disabled employee.

Employer Grabs the Driver’s Seat on Electronic Privacy Claims

Friday, June 2, 2017

Most employment laws are like a one-way street, where the only party with the ability to drive a claim is the employee.  When it comes to electronic privacy, however, some federal statutes allow for two-way traffic.  Although the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA) are often used by employees to assert claims (like this and this) against employers over unauthorized access to electronic communications, these laws also provide avenues for employers to pursue claims against employees for similar transgressions.

For example, earlier this year the Eleventh Circuit Court of Appeals affirmed a judgment against an employee for violations of the CFAA and SCA in a case called Brown Jordan International v. Carmicle.  The employee in the case, Carmicle, was an executive who became suspicious that a subordinate employee with whom he was having difficulty was communicating directly with the company’s CEO.  Acting on that suspicion, Carmicle took advantage of a generic email password to search the accounts of other employees.  From his search, Carmicle inadvertently learned about a planned buyout of the company by a select group of executives, and he also discovered that the company was scrutinizing his entertainment expenses.  Concerned that his job was in jeopardy after a poor financial year, Carmicle informed the company’s board of directors about the planned buyout and accused the group of executives of fraudulent activity.  This prompted the board to hire an independent investigator.  The resulting investigation failed to substantiate Carmicle’s accusations, but did disclose the extent of his email activities and the fact that he had spent over $100,000 in unauthorized business expenses.  After receiving these findings, the company terminated Carmicle and then sued him for violations of the CFAA and SCA.  The company prevailed at trial.

On appeal, Carmicle argued that the judgment on the CFAA claim was in error because the company had not experienced a “loss” recognized by the statute.  However, the Eleventh Circuit found that the CFAA’s definition of a “loss” encompassed payments that the company had paid to outside consultants to determine the extent of Carmicle’s hacking activity and so affirmed the judgment on that claim.  As for the SCA claim, Carmicle argued, among other things, that his access of employee email accounts was authorized because the company’s policy made clear that emails were subject to monitoring and were not private, and also because, as a member of senior management, he was not required to request access.   However, agreeing with the trial court, the Eleventh Circuit found that it was unreasonable to interpret the policy as authorizing Carmicle to “exploit a generic password” and to access email accounts without going through the proper channels, particularly where he did so without any reason to suspect wrongful or illegal conduct by the employees whose accounts he accessed.

The Brown decision serves as an important reminder of the leverage that statutes like the SCA and CFAA can provide to employers when it comes to protecting their proprietary electronic communications and systems.  Although employers are unlikely to find themselves very often in the position of needing that leverage in pursuit of a claim against an employee, these statutes nonetheless provide employers with a license to go down that road if needed.