Third Circuit Court Offers Employers Insight into FMLA and ADA

The Third Circuit Court of Appeals recently waded into the waters of the Family Medical Leave Act of 1993 (FMLA) and the Americans with Disabilities Act (ADA), finding that an employer did not violate the FMLA or ADA where it legitimately believed an employee was misusing FMLA leave, and terminated the employee as a result.

In this case, Capps v. Mondelez Global, LLC, the employee had a medical condition that caused arthritis in his hips. The employee had hip replacement surgery and afterwards he was approved for intermittent FMLA leave to address residual pain and occasional flare-ups.  After the employee returned from one of his intermittent leaves, the employer discovered through an anonymous source that the employee had been convicted for DUI on one of the days that he had been out on leave. The employer terminated the employee for violating its dishonesty policy after he failed to provide sufficient documentation supporting his FMLA leave.

The employee sued claiming violations of the FMLA and ADA. As for the employee’s FMLA retaliation claim, the court found that the claim failed because the employer was able to establish that it terminated the employee for misusing his FMLA leave and for being dishonest about it, and because the employee could offer no evidence to suggest that the employer did not honestly hold that belief.  The court also noted that there was no evidence showing that the employee had ever been denied intermittent FMLA prior to the employer’s discovery of his DUI conviction, nor was there any evidence of discriminatory animus on the part of the employer prior to that time. As for the employee’s FMLA interference claim, the court found that claim failed as well where there was no evidence showing that FMLA benefits had actually been withheld from the employee.

Turning to the ADA, the employee argued that his request for intermittent FMLA leave was protected by the ADA and that his employer failed to accommodate his disability.  The court acknowledged that, under some circumstances, a request for FMLA leave may also qualify as a request for a reasonable accommodation. However, in this case, the court found that even if the employee’s request for intermittent FMLA leave could be construed as a request for a reasonable accommodation, there was still no evidence to suggest that he was denied requested leave at any point.

So what insights does this case offer to employers?  

First, it highlights the importance of distinguishing between an employee’s request and utilization of FMLA leave, and an employee’s conduct or activities while on leave.  An employee clearly may not be disciplined for the former, but this case confirms that the FMLA does not provide an absolute shield for the latter, particularly where misuse of FMLA leave is concerned. Second, the decision highlights the interplay between the FMLA and the ADA and underscores the importance of evaluating leave requests individually and in context.

Recent Decision Provides Case Study on Managing Suspected Alcohol Impairment

If an employer suspects that an employee may be coping with a substance abuse issue, such as alcoholism, what steps can it take to ensure that the employee is not coming to work impaired?  A recent federal court case explored this issue and found that an employer acted within the scope of the law when it required an employee to undergo a breathalyzer test for alcohol and, based on the results of that test, terminated the employee from his safety-sensitive position.

The employee in the case, Foos v. Taghleef Industries, worked with machinery that required him to follow several safety protocols to ensure his own safety and that of others.  During his employment, the employee went out on a number of FMLA-covered leaves.  When requesting to return from his last leave, his physician submitted a return to work note that identified his diagnosis as “acute alcoholic pancreatitis.”  Upon receiving the physician’s certification, a health and wellness manager became concerned that the employee might be consuming alcohol at work.  The concern was based on the employee’s history of pancreatitis (which the employer did not know was related to alcohol prior to the doctor’s certification), as well as information that the employee had been hurt in a bar fight (which resulted in one of the employee’s previous FMLA-covered leaves).  Based on these concerns in light of the employee’s safety-sensitive position, the company concluded that it had reasonable grounds to believe that the employee was coming to work impaired.  When the employee returned from work, the company therefore sent him to the hospital for a breathalyzer test.  The company then terminated the employee after his test came back positive.

Although the employee claimed that the alcohol test was unlawful under the ADA, the court concluded that, under these facts, it was reasonable for the company to inquire into whether the employee was able to perform his job.  The alcohol test was therefore “consistent with business necessity.”  Also bolstering the employer’s case was that it applied the same procedures any other time it suspected an employee was returning to work in an impaired condition.  In other words, there was no evidence that the company singled out this employee for treatment that was distinguishable from other employees.

Although this decision certainly provides some guidance as to the steps an employer can take to ensure an employee is not coming to work impaired, it is just that: a guidepost.  Each case – and each employee – must obviously be analyzed on an individual basis.

Recent Decision Explores Issues of Mental Disability and Violence in the Workplace

A federal district court recently grappled with whether an employer’s termination of an employee for engaging in violent behavior was lawful, where the employee’s behavior was related to an underlying mental impairment.  Joining other courts, the district court found that the employer was justified in letting the employee go for unacceptable workplace behavior, even though the conduct may have resulted from her underlying conditions with anxiety and depression.

In Felix v. Wisconsin Department of Transportation, Felix was employed as a customer service agent and driving test proctor.  Her job involved both working behind a counter to process driver’s license applications, and administering road tests.  During her employment, Felix experienced anxiety at work that resulted in panic attacks.  Her employer accommodated these incidents by letting Felix take breaks to do breathing exercises and calm down.

The incident leading to Felix’s termination occurred after she suffered a particularly acute panic attack, when a supervisor found her lying on the floor and crying loudly while trying to speak.  She had visible cuts on her wrist and could be heard saying things like “everybody hates you” and “they want to get rid of you.”  After an ambulance arrived and Felix calmed down, she was moved to a break room.  The next day, Felix was informed that she would need to undergo an independent medical exam to determine whether she was fit to return to duty, as the DOT was concerned both for her own safety and the safety of applicants with whom she drove.  Ultimately, the medical examination concluded that Felix remained at increased risk for potentially violent behavior toward herself and others.  Based on those results, the DOT terminated her employment on the grounds that she was unfit for duty.

Affirming the DOT’s decision, the court determined that it was undisputed that Felix’s termination was due to her behavior, which led the DOT to determine she was unfit for duty.  The court noted that, absent a disability, the DOT would have been justified in terminating any employee who engaged in similar behavior.  Although Felix argued that the DOT was wrong in its assessment of her fitness for duty, the court explained that was beside the point:  the issue was not whether the DOT’s reliance on the medical report was wrong, but whether the DOT’s explanation for her termination was dishonest and pretext for terminating her because of a disability.  In short, the court found that the DOT was not required to tolerate Felix’s conduct, and that her termination was due entirely to unacceptable workplace conduct, not because of a disability.

For Employers, Recent Decision Highlights Complexity of Medical Marijuana Laws

Last month, the Colorado Supreme Court affirmed the right of an employer to terminate an employee who tests positive for marijuana in violation of the employer’s drug policy.  Although the impact of the decision is largely limited to Colorado, as the case involved only the interpretation of Colorado law, it nonetheless highlights the complex legal landscape that employers face as they navigate both state and federal laws governing marijuana usage.

The employee in this case used medical marijuana off-duty to ameliorate a health condition, a practice permitted under Colorado’s constitution.  At the time of testing, the employee was not under the influence of marijuana, nor was there any evidence that he had used marijuana at work or had been under the influence at work during other times.  The employer, however, had a zero-tolerance drug policy, and when the employee tested positive, it terminated his employment.  The employee sued, claiming that his termination violated Colorado’s off-duty conduct statute, which provides that employers may not terminate employees for engaging in any “lawful activity off the premises of the employer during non-working hours.”

The key issue for the Colorado Supreme Court was whether the employee’s medical marijuana use was a “lawful activity.”  Notwithstanding Colorado’s constitutional amendment allowing for the use of medical marijuana, the Court concluded that for an activity to be “lawful” under the off-duty conduct statute, it must be lawful under both state and federal law.  Because marijuana use remains unlawful under federal law, the Court held that the employee had not engaged in a “lawful activity” that prohibited his termination.

Because only Colorado law was at issue in the Court’s decision, the case is not likely to have immediate impacts in other jurisdictions with medical marijuana laws.  Unlike Colorado, for example, Maine’s medical marijuana statute provides certain employment-related protections that, for obvious reasons, were not at issue in the case.  Nonetheless, the case highlights the continuing divide between federal and state law and the need for employers to proceed with caution in this area.

Avoiding a Severance Agreement Trap

This is a true and cautionary tale and one that can be readily avoided.  You have finally completed negotiations with a problem employee you have wanted to get rid of and a severance agreement has been signed.  The terms are generous, with full salary for a number of months, plus health insurance benefits, but it was worth it to get that release signed.  No need to worry about unemployment, because surely the employee will find a new job sometime before a month’s of severance payments run out.

One small problem with the plan.  To get things over, you decided to pay the severance payment in one lump sum.  Much to your surprise, after receiving the severance payment, the employee files for unemployment.  Lo and behold it is granted for all but the week that the severance payment was made.  You say to yourself, “How can that be?”  The severance agreement explicitly states that he’s receiving x months of pay and benefits.  No matter, the Unemployment Insurance Division of the Department of Labor has a rule which states that severance payments are credited to the week that they are paid, only, no matter the amount or the period covered.  The law says that an employee should not receive unemployment for the period of time when he/she is receiving severance payments.  The State says that means only when that payment is paid, not the period of time that it covers, even if there is an explicit written agreement.

The solution is to pay the severance payments over time on the regular pay dates.  Unemployment will then be deferred until all payments have been made.  A difference that is hard to understand?  You bet.