1. Leave Me Alone Handling FMLA Intermittent Leave Abuse and Post-FMLA Accommodation October 7, 2014 Association of Corporate Counsel

2. PRESENTED BY: Casey Kurtz, Esq. Shareholder Littler, Pittsburgh 412.201.7633 (direct) 412.613.2431 (cell) ckurtz@littler.com Mark T. Phillis, Esq. Shareholder Littler, Pittsburgh 412.201.7636 (direct) 412.327.9031 (cell) mphillis@littler.com

3. AGENDA FMLA Medical Documentation ADA Attendance as Essential Function Punctuality as Essential Function FMLA Honest Belief Defense ADA Indefinite Leave as an Accommodation Automatic Termination Provisions

4. Issue Spot: Is This A Disability? FMLA 2013-2014 – Trends and Hot Cases

5. Medical Documentation of Leave Usage

6. Oak Harbor Freight Lines, Inc. v. Antii 998 F.Supp. 2d 968 (D. Ore. Feb. 2014) Employer’s new HR Manager instituted a policy of requiring a doctor’s note for each incidence of intermittent FMLA leave Lawsuit by two employees who incurred discipline for attendance issues after failing to provide notes

7. Oak Harbor Freight Lines, Inc. v. Antii 998 F.Supp. 2d 968 (D. Ore. Feb. 2014) Employer claimed: –Doctor’s visit not required; –Note requirement differs from the FMLA certification form –Note requirement is a reasonable way to verify proper FMLA usage and deter employee fraud

8. Oak Harbor Freight Lines, Inc. v. Antii 998 F.Supp. 2d 968 (D. Ore. Feb. 2014) Court: –Employer must follow FMLA’s specific procedures for ensuring absence is for qualifying reason –Medical certification requirement not permitted for every use of intermittent FMLA

9. Lessons Learned: Do not impose a medical information requirement not authorized by FMLA Address patterns of FMLA usage through individual case investigation, not by general procedures

10. And remember... EEOC v. Dillard’s – requirement for employee to provide a doctor’s note identifying illness on sick days = “medical examination” in violation of ADA $2 million settlement http://www.eeoc.gov/eeoc/newsroom/ release/12-18-12.cfm

11. Hansen v. Fincantieri Marine Group, LLC, 2014 U.S. App. LEXIS 15928 (7 th Cir. Aug. 18, 2014) Employee with attendance problem obtained FMLA certification for depression –Doctor certified intermittent FMLA : 4 episodes every 6 months Employee exceeded frequency (8 episodes) –Employer asked doctor to confirm employee’s absence needs – request unclear –Did not advise employee of request; did not ask employee’s permission to communicate with provider –Doctor confirmed need for intermittent leave but did not address frequency or duration

12. Hansen v. Fincantieri Marine Group, LLC, 2014 U.S. App. LEXIS 15928 (7 th Cir. Aug. 18, 2014) Employer denied FMLA leave for excess occurrences –Employee terminated for unexcused absences –Employee sued Summary judgment for employer reversed - on to a jury trial

13. Lessons Learned: Provider’s certification for frequency and duration are ESTIMATES Do not communicate with provider outside the FMLA-approved mechanisms If employee exceeds frequency or duration noticeably, ask for recertification Requested intermittent time remains pending during recertification process

14. Managing Intermittent Leave Six Practical Solutions: –Certification Process –Post-Certification Leave Administration –Recertification Process –“New” Certifications –Surveillance –Preemptive Changes to Policies/Procedures

15. Issue Spot: Is This A Disability? ADA 2013-2014 – Trends and Hot Cases

16. Attendance as an Essential Function

17. The vast majority of courts that have considered the issue have concluded that attendance is essential for most jobs.

18. The Basic Concept “An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones.” Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir. 1999), cert denied, 528 U.S. 1050 (1999). “An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones.” Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 848 (8th Cir. 1999), cert denied, 528 U.S. 1050 (1999).

19. Cautionary Notes Re “Attendance Is an Essential Function” Defense Some courts have rejected the concept. See, e.g., Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 783 (6th Cir. 1998)(noting various problems with the “presumption that uninterrupted attendance is an essential job requirement,” including the fact that Congress has already determined in the FMLA “that uninterrupted attendance in the face of a family medical emergency is not a necessary job requirement and does not unduly burden employers,” to conclude that “no presumption should exist that uninterrupted attendance is an essential job requirement”).

20. Basden v. Professional Transport. Inc., 714 F.3d 1034 (7th Cir. 2013) “Regular attendance” is generally “an essential job requirement” and an employer “need not accommodate erratic or unreliable attendance.” Plaintiff, an employee with MS, could not show she was qualified where she had no prescribed treatment and “no anticipated date by which she could have been expected to attend work regularly.”

21. Basden v. Professional Transport Inc. 714 F.3d 1034 (7th Cir. 2013) Employers are generally permitted to treat regular attendance as an essential job requirement and do not have to accommodate erratic or unreliable attendance. Therefore, a plaintiff whose disability prevents her from regularly attending work fails the essential function test and doesn’t fall under the ADA.

22. Mecca v. Florida Health Servs. Center, Inc., 29 AD Cas. (BNA) 698 (M.D. Fla., Feb. 3, 2014) “PICC” nurse sought accommodation of being able “to go home or be absent from work if he was experiencing episodic flare-ups of depression and anxiety/panic making it difficult to function.” Held: Coming to work is essential function of the nurse’s job.

23. Mecca v. Florida Health Servs. Center, Inc., 29 AD Cas. (BNA) 698 (M.D. Fla., Feb. 3, 2014) “A request to arrive at work at any time, without reprimand, is not a reasonable accommodation because it would change the essential functions of a job that requires punctual attendance.” Since no accommodation would allow the plaintiff to have punctual attendance, he was not a qualified individual with a disability.

24. Lesson Learned: Employers who believe “regular and predictable attendance” is an essential function of a position(s) should communicate that requirement to employees early and often.

25. Punctuality as an Essential Function

26. EEOC: “Punctual attendance” is not an essential function because “only job duties — that is, specific tasks to be performed — can be essential functions.” EEOC Brief in Conneen v. MBNA America Bank, N.A., No. 02-1504 (Brief filed in the Third Circuit, 5/13/02).

27. McMillan v. City of NY, 2013 U.S. App. LEXIS 4454 (2d Cir. 2013) Punctual arrival at the workplace might not be an essential function for a case worker with the City’s HR Administration Dept. Long tenure; employer had flex-time policy Morning meds made employee drowsy, he arrived late to work, overlooked for 10 years New manager, denied request for flex time because no supervisor there past 6 p.m.

28. McMillan v. City of NY, 2013 U.S. App. LEXIS 4454 (2d Cir. 2013) City: timely attendance is an essential function of the job Court: “physical presence at or by a specific time is not, as a matter of law, an essential function of all employment.”

29. Lessons Learned: If you want people to actually come to work: –review telecommuting and remote-work policies and practices for appropriate disclaimers –review job descriptions and include physical attendance as an essential function If you are going to change a rule or enforcement of a rule, communicate in writing and give adequate advance notice.

30. But See: Murphy v. Samson Resources Co., 2013 U.S. App. LEXIS 9328 (10th Cir. 2013). –Employer not required to give employee a modified schedule, allowing her to make up time missed due to her migraines, because her job required punctual, timely performance of certain duties under close supervision. and Olsen v. Capital Region Medical Center, 2013 U.S. App. LEXIS 9278 (8th Cir. 2013). –Mammography tech with frequent incapacitating seizures not qualified because job required tending to immediate patient care and operating sophisticated medical equipment.

31. Issue Spot: Is This A Disability? FMLA 2012-2014 – Trends and Hot Cases

32. FMLA Honest Belief Defense

33. “The FMLA does not require an employer to ignore human nature and assume that each of its employees always tells the truth.” * Employers have a right to ensure that employees do not abuse FMLA leave Includes employer’s right to investigate *Nelson v. Oshkosh Truck Corp 2008 U.S. Dist. LEXIS (E.D. Wis. Sept. 28, 2008)

34. FMLA Honest Belief Defense Retaliation claims – –Require showing of employer intent to take adverse action due to exercise of FMLA rights –No retaliation if employer had an honest belief in the validity of its termination reason –Good faith but mistaken belief okay

35. FMLA Honest Belief Defense Interference claims – –Employer intent not an element –Circuit split on applicability of honest belief defense to interference claims –Employee is not entitled to FMLA protections if not using leave for intended purpose –Employer is still entitled to investigate

36. Tillman v. Ohio Bell Telephone Co. 545 Fed. Appx. 340 (6th Cir. Oct. 8, 2013) Employer hired surveillance on 2 FMLA days; video showed Tillman working in his garage, carrying things into the house, and running many errands in his car Medical expert gave opinion that video indicated Tillman was performing these activities without pain

37. Tillman v. Ohio Bell Telephone Co. 545 Fed. Appx. 340 (6th Cir. Oct. 8, 2013) Employer terminated Tillman for violation of policy prohibiting fraudulent conduct Tillman sued for retaliation and interference with FMLA rights Court: ample grounds for employer’s “reasonable belief” that Tillman was abusing FMLA

38. Tillman v. Ohio Bell Telephone Co. 545 Fed. Appx. 340 (6th Cir. Oct. 8, 2013) FMLA interference claim –Tillman had no FMLA protection because he had not used FMLA time for its “intended purpose” – flare-ups of a serious health condition when medically necessary –Termination did not interfere with the exercise of any FMLA right

39. Tillman v. Ohio Bell Telephone Co. 545 Fed. Appx. 340 (6th Cir. Oct. 8, 2013) What the employer did right: –had a written policy addressing the type of conduct –had indicators that Tillman was abusing FMLA time – pattern, advance notice of “unpredictable” flare-ups –used investigation to solidify evidence

40. Employee complained of back pain, and MRI and CT scan showed mild degenerative changes in lower lumbar spine since a prior surgery. Employee submitted medical paperwork stating that she was “completely incapacitated” for a stretch of several weeks due to the back issues. Jaszczyszyn v. Advantage Health Phys. Network, 504 Fed. Appx. 440 (6 th Cir. Nov. 7, 2012) 40

41. While off work, employee attended “Pulaski Days” festival, and was photographed Photos posted to her Facebook page Co-worker reported the photos to employee’s supervisor, who reviewed them Employee terminated after investigatory interview Jaszczyszyn v. Advantage Health Phys. Network, 504 Fed. Appx. 440 (6 th Cir. Nov. 7, 2012) 41

42. Jaszczyszyn v. Advantage Health Phys. Network, 504 Fed. Appx. 440 (6 th Cir. Nov. 7, 2012) 42

43. Court: No FMLA interference because employee received all the leave to which entitled Court: No FMLA retaliation because employer had an honest belief that employee committed FMLA fraud Jaszczyszyn v. Advantage Health Phys. Network, 504 Fed. Appx. 440 (6 th Cir. Nov. 7, 2012) 43

44. Ion v. Chevron USA, Inc. 731 F.3d 379 (5th Cir. 2013) Employee terminated for attendance issues and insubordination after requesting FMLA leave Employer relied in large part on report by a co-worker that employee was going to fake a nervous breakdown to get FMLA time Employer took co-worker’s statement as true

45. Ion v. Chevron USA, Inc. 731 F.3d 379 (5th Cir. 2013) “Honest belief” in employee’s FMLA abuse not established –employer did not talk with employee about co-worker’s statement –employer did not interview the co- worker –employer did not follow FMLA procedures for validating employee’s certification (e.g., 2nd opinion)

46. Issue Spot: Is This A Disability? ADA 2013-2014 – Trends and Hot Cases

47. Indefinite Leave as Accommodation

48. EEOC Has Been Inconsistent However, most recently, the EEOC has stated that employers “have no obligation to provide leave of indefinite duration,” because “granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations.” EEOC Fact Sheet, “Applying Performance and Conduct Standards to Employees with Disabilities” (2008) at Question 21.

49. Hwang v. Kansas State Univ., 753 F.3d 1159 (10 th Cir. 2014) “Reasonable accommodations...are all about enabling employees to work, not to not work.” Court: If an employee needs a “brief” absence from work, it may be “legally required” so that the employee can perform the essential job duties. However, anything longer likely is not defensible.

50. Hwang v. Kansas State Univ., 753 F.3d 1159 (10 th Cir. 2014) Caution: Only one appellate court. --A 6-month LOA will almost always satisfy the ADA/Rehabilitation Act. --Continue to observe/participate in the interactive process. --Be consistent with your no-fault leave policies. --Stay tuned for EEOC Guidance.

51. Courts: Indefinite Leave Not a Reasonable Accommodation Santandreu v. Miami Dade County, 2013 U.S. App. LEXIS 5542 (11th Cir. 2013). –“While a leave of absence may be a reasonable accommodation, the ADA does not require an employer to provide leave for an indefinite period of time because an employee is uncertain about the duration of his condition.”

52. Courts: Indefinite Leave Not a Reasonable Accommodation Murphy v. Samson Resources Co., 2013 U.S. App. LEXIS 9328 (10th Cir. 2013). –Employee “must provide an expected duration” for the leave he needs; otherwise, the employer “cannot determine whether an employee will be able to perform the essential functions of the job in the near future and therefore whether the leave request is a “‘reasonable’ accommodation.”

53. Courts: Indefinite Leave Not a Reasonable Accommodation Smith v. Sturgill, 2013 U.S. App. LEXIS 7091 (11th Cir. 2013). –Employee with severe back condition not entitled to an “indefinite period of leave” from her Security Officer position. Wilson v. Dollar General Corp., 2013 U.S. App. LEXIS 9929 (4th Cir. 2013). –“In leave cases, the accommodation must be for a finite period of leave.”

54. Courts: Indefinite Leave Not a Reasonable Accommodation Larson v. United Natural Foods West, Inc., 2013 U.S. App. LEXIS 9956 (9th Cir. 2013) (unpublished) –“an indefinite, but at least six-month long” leave of absence was not a reasonable accommodation.

55. Related Issue: Automatic Termination Provisions

56. EEOC Focus on Inflexible Leave Policies CompanyDateAmountPolicy Princeton HealthCare System July 2014$1.35 millionLimiting employees to 12 weeks of leave and requiring return without restrictions Interstate Distributor Co. Nov. 2012$4.85 millionTerminating employees who were not 100% healed and able to return to work full time/full duty at end of the medical leave, and limiting leave to 12 weeks Verizon Communications July 2011$20 millionFailing to make exceptions to “no fault” attendance plans for individuals with disabilities as an ADA accommodation Supervalu, Inc., Jewel Food Stores, Inc., etc. Jan. 2011$3.2 millionTerminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence rather than considering return to work with a reasonable ADA accommodation Sears, Roebuck and Co. Sept. 2009$6.2 millionTerminating employees following exhaustion of workers’ compensation leave without engaging in the interactive accommodation process to consider workplace accommodations or leave extension as an accommodation

57. EEOC: Claims automatic termination policies can amount to a “100% healed” policy; thus, an impermissible qualification standard as it screens out individuals with disabilities in violation of the ADA.

58. EEOC v. UPS, Inc., No. 1:09-CV-05291 (N.D. Ill. Feb. 12, 2014) UPS’s motion to dismiss denied. UPS leave policy: administrative separation of employment after 12 months of leave. Although noting that courts in the 7th Cir. have held that regular job attendance is an essential job function, Court held that UPS’s policy is a qualification standard subject to the ADA as it imposes a medical requirement that an individual must meet in order to maintain his position with UPS—and not an essential job function.

59. Lesson Learned Take note of EEOC Regional Attorney John Hendrickson’s suggestion that employers ask “Can we get this employee back on the job with a reasonable accommodation?” instead of “Has this employee been on leave long enough for us to get rid of him?” But, note with happiness: The Honorable Eric Melgren: “RAs are about enabling employees to work, not to not work.”

60. PRESENTED BY: Casey Kurtz, Esq. Shareholder Littler, Pittsburgh 412.201.7633 (direct) 412.613.2431 (cell) ckurtz@littler.com Mark T. Phillis, Esq. Shareholder Littler, Pittsburgh 412.201.7636 (direct) 412.327.9031 (cell) mphillis@littler.com