Now That Same-Sex Marriage is a Constitutional Right, How Do Employers Administer FMLA Leave?

Posted in Court Decisions, Eligibility, Regulatory Activity

gay marriageOn Friday, June 26, the United States Supreme Court ruled that same-sex marriage is a fundamental right under the Fourteenth Amendment to the Constitution.

So, I’ll give you one guess as to the topic of my blog post today.

How is the FMLA Impacted by the Supreme Court’s Ruling on Same-Sex Marriage?

Earlier this year, the Department of Labor issued a final rule allowing an otherwise eligible employee to take FMLA leave to care for a same-sex spouse, regardless of whether the employee lives in a state that recognized their marital status.  Now that the Supreme Court has declared that same-sex marriage is a Constitutional right, states can no longer prohibit same-sex marriage.  Obergefell v. Hodges (pdf)

As a result of the Supreme Court’s decision, it appears any questions regarding the DOL’s Final Rule have been all but eliminated.  This means that employers must permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons.

What About the Four States Covered by the Texas Court Decision Halting Issuance of the DOL’s Final Rule?

As  I reported in a previous post, four states (Texas, Arkansas, Louisiana and Nebraska) obtained an injunction stopping enforcement of the DOL’s final rule. Although we don’t know how these four states will proceed in light of the Supreme Court’s decision, the Court’s decision validates the DOL’s definition of “spouse.” The DOL has not yet issued any statement on enforcement in these four states, but employers in these states that elect not to provide FMLA leave to same-sex spouses are taking on significant risk.

What Do Employers Need to do Now?

In another of my previous posts, I gave employers extensive guidance on what they should do in light of the new DOL rule on same-sex spouses. Among other things, employers should:

1. Update FMLA policies and forms.

2. Train supervisors and administrators on the new rule.

3. Determine whether any state leave law applies, as they may differ on their definitions of same-sex marriage, civil unions and domestic partnerships, and may offer different leave rights depending on the protected category.

4. Be mindful that the DOL’s new rule covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater leave rights than those provided for under the FMLA.

Introducing Our "CALM" Service: The Key to an Employer's Compliance with FMLA and ADA

Posted in Uncategorized

CALMFMLA and ADA friends: You’ve known me long enough to appreciate that I don’t engage in a whole lot of shameless self-promotion.  But can you indulge me one time to do so here?

Let me explain.

Over the past few years, employers have increasingly asked me to develop a service in which I provide practical guidance on troublesome FMLA and ADA issues they face for a flat monthly fee.  They’ve grown weary of running up a costly and unpredictable legal bill with their attorneys, and they need an alternative.

Here is your alternative.

Beginning July 2015, I am offering employers CALM — Compliance in Accommodations and Leave Management — which is a flat $750 per month service to assist them with day-to-day FMLA and ADA questions. Under our CALM service, I am delighted to answer whatever FMLA/ADA question you throw at me, but the value of this kind of retainer is to provide employers and third party administrators practical guidance and clear direction on the most complex and difficult leave management and accommodation questions you face, answers to which you won’t find online or even with a ton of research. You and I develop the arrangement in a manner that works best for you – whether it’s a series of short calls, quick email communications, or several calls or emails that require longer, strategic discussions. The arrangement is flexible, allowing you to designate the individual(s) to contact me directly.

A more detailed outline of our CALM service can be accessed here.

Examples of Issues Covered by our CALM Service

Over the past few months, the following is a sampling of the questions I have helped employers address with our CALM service:

  • How to deal with FMLA administration where an employee returns certification after the 15-day deadline or never returns one at all
  • Helping an employer analyze whether a handful of text messages from an employee constituted sufficient notice of the need for FMLA leave
  • Administering FMLA leave in a workforce where employees hours vary from week to week (requiring analysis and application of 825.205(b)(3))
  • Whether a TPA should designate an absence as FMLA leave where an employee sought leave to care for a spouse, but where the only “caring for” function was babysitting the kids (this issue is hardly a slam dunk – it required discussion and analysis of the Gienapp case, which I highlighted in a previous blog entry)
  • Best practices in applying the same-sex spouse FMLA regulations in the four states covered by an injunction issued by a federal court in Texas
  • Providing critical guidance to an employer in responding to DOL inquiries during an audit of FMLA administration
  • Addressing potential light duty accommodations for a pregnant room attendant at a luxury hotel who was placed on restrictions throughout her pregnancy
  • Helping employers draft and revise model correspondence to an employee seeking a workplace accommodation
  • Reviewing a customized FMLA medical certification form and reasonable accommodation questionnaire an employer wanted to implement for its multi-state locations

Why Jeff?

For the past five years, I have maintained this FMLA Insights blog to provide you practical guidance in handling extremely difficult and sensitive FMLA and ADA issues.  I also have built a national practice counseling and defending employers ranging from small family-owned businesses to Fortune 100 companies on some of the most difficult leave management and workplace accommodation issues. I have developed this practice by providing employers practical advice that matches their business objectives. If you know me at all, you know that your questions will be answered directly, with a specific recommended course of action that is reliable, practical and lawful.

It’s worth noting that I will be the attorney helping you address these issues – I am not going to pass you off to another colleague less experienced in the area.

Who is the Ideal CALM client?

That’s the beauty of this service.  It matches your needs with one flat, monthly cost.  It’s predictable, and I am convinced it beats any current arrangement you have with your current counsel.

If you need to touch base several times each month on questions for your workforce of 200 employees, I address your needs.  If you are a busy in-house counsel or HR professional who doesn’t specialize on leave or accommodation issues or you simply need timely answers for internal clients to help lighten your workload, I am a mere phone call away.

Why a Flat Fee and Why is this Particular Rate Effective?

You face increasing pressure to lower your legal and HR costs, so you need to engage counsel that can help you solve problems in the most cost-effective manner.  This flat-fee service helps you maintain predictable legal costs in one of the most troublesome areas of employment law.  You don’t have to worry about how much each phone call or email is going to cost — everything is included in a flat, monthly cost.

Why $750?  I find that many of my clients contact me several times each month and for several hours at a time.  This flat fee assures you that you will always get your money’s worth without having to worry about your attorney dinging the bell every time you call.  We will re-evaluate after three months to ensure your leave management and accommodation needs have not changed.

CALM clients also receive reduced costs on FMLA training, audits and state updates in the leave management area.  Our CALM brochure explains more.

How Do We Begin?

Let’s discuss this service further.  Email me at or by phone at (312) 786-6164.

FMLA FAQ: If Your Employee Checks into the Hospital After Midnight, Is It an "Overnight Stay" under the FMLA?

Posted in Court Decisions, Interference, Serious Health Condition

midnightQ: One of my employees complained of chest pains at work and later went to the emergency room at the local hospital. However, we have learned through his medical certification that he was not admitted to the hospital until after midnight.  He spent most of the day in the hospital and was discharged later that same day. In total, he missed two days of work. Is this absence covered by the FMLA?

A: Under the FMLA, an employee can take job-protected leave for “any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital.” So, your employee’s protection under the FMLA hinges on whether his visit to the hospital is considered an overnight stay.

Consider this scenario, which answers our question:  Jeff (a fabulous name, as an aside) worked for a tool manufacturer and had a history of heart problems. One day he was having chest pains at work — curiously, they occurred as he was being disciplined for sleeping on the job — and he asked his supervisor if he could leave work to go to the hospital. The supervisor granted his request to leave work.

Jeff arrived at the hospital before midnight, but was not admitted until after midnight.  He remained in the hospital for 14 hours, at which point he was released.  He missed work that day and was fired for “walking off the job.” There must be another story we’re missing here, but we’re not privy to it.  Jeff (which may not be a fabulous name after all), filed suit, claiming FMLA interference and retaliation.

The Court Ruling

The FMLA regulations define “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as defined in 29 C.F.R. Sec. 825.113(b), or any subsequent treatment in connection with such inpatient care.”

Therefore, the appellate court reviewing Jeff’s case was charged with defining “overnight stay” under the FMLA.  Earlier, the trial court had determined that the employee had to stay at the hospital from “sunset on one day to sunrise the next day.”  That was not workable, according to the appellate court.  After all, how could that principle work on a wintry December day in Fairbanks, Alaska, where those poor souls live in near darkness the entire day?

Ultimately, the court determined that an “overnight” stay had to constitute a “substantial period of time” from one calendar day to the next calendar day “as measured by the individual’s time of admission and time of discharge.”  Here, Jeff did not satisfy this test — although he arrived at the hospital before midnight, he was not admitted until after midnight.  Thus, his hospital stay did not span one calendar day to the next and was not protected by the FMLA.

Although it was not applicable in this case because Jeff did not stay overnight, the court also advised that the individual must remain overnight for a substantial period of time.  In other words, if the employee is admitted at 11:59 p.m. and discharged one hour later at 1:00 a.m., this would not constitute an overnight stay protected by the FMLA.  Short of creating a bright line rule, the court suggested that “a minimum of eight hours would seem to be an appropriate period of time.”  But it left closer analysis of this eight-hour time frame to another day.

A 57-page decision to decide all of that.  Must have been written by a true FMLA wonk, and I like it!  You can read the decision here: Bonkowski v. Oberg Industries

How Fowl! Is An Employee's Text and His Girlfriend's Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast...

Posted in Interference, Notice, Retaliation

chickenThis one just smells fowl.  Delbert (not sure if he goes by Del or Bert, so I’ll just call him Delbert) decided not to show up for work at Tyson Fresh Meats on December 28. Instead, he asked his girlfriend, who also worked for Tyson, to report his absence for him. She obliged and told Delbert’s supervisor that he “would be absent or late” on December 28. On that same day, Delbert texted his supervisor, stating that he was “having health issues, would be out a few days, and needed to see a doctor.”

Delbert then missed the next couple days of work (Dec 29 and 30), but aside from the one text and his girlfriend’s vague report on December 28, he did not notify Tyson of his absences.  Not a word. On January 2, he was diagnosed with back pain and depression (which, usually go hand in hand, don’t you know?).  On January 3, he returned to Tyson’s health services office with a vague doctor’s note in hand stating “Delbert . . .  has been under my care  . . . for illness and was unable to work.”  At the time, Delbert signed a leave of absence application, which allowed the employee to check one of two boxes explaining the reason for leave — one box for FMLA leave and another box for non-FMLA leave.  The “non-FMLA leave” box was checked on Delbert’s application, although he later denied checking the box.

Tyson investigated Delbert’s time off and determined that he failed to follow Tyson policies for properly reporting his absences.   After all, Tyson call-in policies clearly stated:

“All management team members are expected to personally call their direct supervisor to report an unplanned absence or to report that they will be late.”

Note that the policy does not allow notice by text, by girlfriend, or even by carrier pigeon.  To the contrary, it specifically required Tyson employees to “personally call their direct supervisor.”  Seems fairly straightforward to me, you think?  Tyson investigated Delbert’s absences, and the Company Tyson relied on this policy to terminate Delbert’s employment because it considered all of his December absences to be unexcused.

So, you might understand my surprise when Delbert not only filed suit claiming FMLA interference and retaliation, but that a court found that he had thrown up enough evidence to try his case in front of a jury. Although the trial court had dismissed Delbert’s FMLA claims, the appellate court breathed life into his case, finding that Delbert’s vague text message and nondescript report from his girlfriend could have constituted notice of the need for FMLA leave.

Insights for Employers

Wow, this decision absolutely stinks.  And I use that as a legal term!  Access the court’s short-sighted decision here (Hudson v. Tyson Fresh Meats).

Bucking precedent established by other courts, this court ignored Tyson’s unambiguous call-in policy and allowed an employee ‘s personal texting practice to trump the Company’s call-in policy.  Yet, several other courts unreservedly have upheld policies of Tyson’s kind and specifically rejected FMLA claims where employees reported their absence by text.  If it doesn’t follow the call-in policy, they say, it’s not notice of the need for FMLA leave. Take, for instance, Lanier v. Univ. of Texas Southwestern Medical Cntr. (pdf), where the court found that the employee’s text message requesting to be taken off 24-hour-call duty on one night was insufficient to put the employer on notice that she was requesting FMLA leave to care for her father who was in the emergency room. Or even Banaszak v Ten Sixteen Recovery Network (pdf), where the employee simply texted that she was not well, and even after much prompting, texted, “As of today, I will be off until July 12th per my doctor for medical reasons.” Here, the court found that even these messages were insufficient to trigger FMLA protections and the plaintiff’s FMLA claims were dismissed.

These might seem like harsh results to some, but the FMLA regulations (requiring employees to follow the employer’s usual and customary call-in policies) are there for a reason.  And as employers, we follow the regulations to be treat our employees fairly and consistently and to ensure predictable results if these practices are challenged in court.  This court decision does not give employers, including Tyson, the result they deserve.

A hard lesson.  But it should be a lesson to the rest of us employers in a few ways:

1.  Texting: The court certainly was influenced by evidence indicating that Delbert and his supervisor regularly communicated by text message and, in particular, on previous occasions when he would be absent.  Keep in mind that an employer can uphold its usual and customary call-in procedures (e.g., requiring that an employee personally call (and not text) their supervisor) only if these call-in procedures are  . . . usual and customary, which means the employer must be consistent in how it handles employee call-ins.  This may be a hurdle for Tyson if its approach was inconsistent.

2.  Leave of Absence Applications: I typically counsel against an employer using a leave of absence application that requires the employee to check a box indicating whether the request for leave amounts to FMLA leave or not.  Why? Do you think the employee actually knows whether the FMLA applies to any given absence or not? Do all of your employees even know what FMLA stands for?  Sure, some or even most of them do, and you have a better argument in those situations that they understood what F-M-L-A meant, but I come across plenty of other employees who don’t.  Therefore, I counsel my clients to use a form that requires the employee to state more specifics about the reason for their absence (for any leave of absence), but not one in which they are required to determine at the outset whether FMLA applies or not.  Your employment counsel should have a model form you can implement right now.  If not, they aren’t an employment attorney.

3.  Use the Employee’s FMLA History Against Him: Delbert sounds like he was a serial (or kinda serial) absentee. Therefore, he knew — or by any objective measure should have known — what the rules were for calling in his absences.  So, use his history against him to defeat his FMLA claims here! Where an employee has regularly utilized FMLA or medical leave in the past, courts have held that the employee should be aware of the employer’s practices for reporting an absence.  If you can show the employee had followed the policy in the past and did not do so here, you have a strong defense on the FMLA notice requirement.  See, for example, Ritenour v. State of Tennessee, which I blogged about here.  In that case, the court effectively held the plaintiff to a heightened standard because it was clear she took leave on previous occasions and knew what the call-in requirements were.  Delbert should be held to the same standard here, and on remand to the trial court, Tyson should use this argument to their advantage.  If Delbert correctly used the call-in policy in the past (i.e., occasions when he actually called into his supervisor to request time off), then he knew how to use it for his December absences.  When he didn’t, his absences lost the protection of the FMLA.

As for the ending of this story above, I’d put my money on Tyson to win at trial if I were a bettin’ man.

DOL Publishes New FMLA Forms -- Good Through May 2018

Posted in Regulatory Activity

wh380f.jpgThose sneaky little rascals! While the rest of us were enjoying our Memorial Day holiday, those crazy kids over at the Department of Labor were still working away. This time, they were busy posting the new model FMLA notices and medical certification forms. Expiration: May 31, 2018!

No more month-to-month extensions or lost sleep over when the long-awaited forms would be released. Now, we can rest easy through spring 2018. Relief.

That said, it couldn’t have taken DOL a whole lot of time to draft the updated forms.  After a relatively close review of the *new* forms, I can find only one (somewhat) notable change: a reference to the Genetic Information Nondiscrimination Act (GINA).  In the instructions to the health care provider on the certification for an employee’s serious health condition, the DOL has added the following simple instruction:

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).

DOL added similar language to the other medical certification forms as well.  This is nothing new.  For years, employers have included GINA disclaimers in their FMLA paperwork, and those disclaimers typically have been far more robust (and reader-friendly) than the cryptic one endorsed by DOL above. In fact, many employers have used a GINA disclaimer I recommended in a previous post a few years back, and I still advise you to use that disclaimer in your forms.

For easy reference, here are the links to the new FMLA forms:

The forms also can be accessed from this DOL web page.

Hat tip: Thanks to Holly Moyer for watching out like a hawk for these new forms and alerting me to them!

EEOC Commissioner Offers Helpful Guidance to Employers on Providing Accommodations to Pregnant Employees

Posted in Pregnancy, Regulatory Activity

eeocLast week, I had the pleasure of presenting with EEOC Commissioner Victoria Lipnic on the EEOC’s pregnancy discrimination guidance and how employers should address pregnancy accommodations in the workplace.  Our presentation was part of an outstanding FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition. You can access Bloomberg BNA’s coverage of our presentation here (pdf).

From the employer perspective, there were several key takeaways from Commissioner Lipnic’s comments about the recent Young v. UPS pregnancy discrimination case and her opinion on whether an employers have an obligation to provide accommodations to pregnant employees:

1.  We can’t really figure out what the Supreme Court is telling us in Young v. UPS.  As you may recall, I gave feedback to employers on the Young case here.  In that case, the Supreme Court gave pregnant employees a path to argue that a workplace accommodation provided to other non-pregnant employees but denied to them is illegal under the Pregnancy Discrimination Act (PDA). However, the Court was hardly clear in explaining how a pregnant employee actually establishes her case.

2.  Given the lack of clear guidance from the Supreme Court, Commissioner Lipnic bluntly concluded, “Why wouldn’t employers accommodate pregnant employees as they do others?” Refusing to do so carries a whole lot of risk.  Keep in mind: if one of the Republican EEOC Commissioners is telling us we need to provide accommodations to pregnant employees (ahem, that’s Cmmr. Lipnic), then we can expect that the EEOC clearly will be taking a fairly liberal position when it comes to providing accommodations to pregnant employees in the workplace.  Just giving fair warning now.

3.  Commissioner Lipnic and I both encouraged employers to consider how they have treated comparable employees before refusing to provide an accommodation to a pregnant employee. Although the Supreme Court didn’t give employers a clear road map in the Young case, the Court took pause over the fact that UPS offered light duty to several groups of employees (e.g., those injured on the job, those with an ADA disability, and those who temporarily lost their DOT license) but did not offer the same to Young when she sought an accommodation after her pregnancy restricted the work she could perform.

The Young court opinion raised a key question that I believe other federal trial court judges likely will pose to employers: “Why, when the employer accommodated so many, could it not accommodate the pregnant women as well?” It is critical that employers be prepared to address this question, so it should be central to our discussions now about how we implement the Young decision in our workplaces.

In short, before we deny accommodations to pregnant employees who are restricted in their work, employers must be prepared to distinguish accommodations provided to other employees. For instance, is there anything particularly unique about the accommodation provided to others but not to a pregnant employee? If only provided to one group of employees, what’s our rationale?

4.  Commissioner Lipnic confirmed that the EEOC already is revising its July 2014 pregnancy discrimination guidance in light of the Young decision, and the changes will focus largely on the evidence necessary to establish a pregnancy discrimination/accommodation claim under the “burden shift” analysis identified by the Supreme Court. Think the EEOC will allow employers to comment on any proposed changes?  Who wants to make a friendly wager with me?

Bloomberg BNA article above reproduced with permission from Daily Labor Report, 78 DLR A-7 (April 23, 2015). Copyright 2015 by The Bureau of National Affairs, Inc.

DOL Will Not Enforce Final FMLA Regulation Regarding Same-Sex Spouses in Four States

Posted in Court Decisions, Regulatory Activity

gavel - same sexLast week, I reported that a federal district court in Texas had halted the DOL’s enforcement of its final rule that would allow employees to take FMLA leave for their same-sex spouse.

Following that court order, the DOL now has represented that it will not enforce the rule in the four states covered by the decision — Texas, Arkansas, Louisiana and Nebraska. In a court filing, the DOL said in no uncertain terms:

[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .

In the same filing, however, the DOL confirmed it will enforce the rule as to employers located in the other 46 states. ¡Ay de mi! Best wishes to that poor employer with operations in multiple states, including some inside and outside those four states. Call your favorite employment counsel to assist with these land mines!

Today (April 10), the court heard the DOL’s motion to reconsider the court’s earlier ruling prohibiting enforcement, and it refused to overturn the ruling, according to a press release issued by the Texas Attorney General.

Does FMLA Cover In Vitro Fertilization? Does It Matter if Dad's Sperm is to Blame?

Posted in ADA, Serious Health Condition

spermIs that all it takes to get you to click on my blog entry — make a reference to “sperm” in the blog title and post a silly photo of this little guy?  That was like taking candy from a baby!

Now that we have that behind us, I was posed an interesting question a few weeks back: Can a woman take FMLA leave for in vitro fertilization treatments?

What Does the FMLA Say on the Issue?

Given that the FMLA regulations do not specifically address in vitro fertilization treatments and since the courts have not ruled definitively on the issue, it is an open question whether the FMLA covers absences for in vitro fertilization treatments.

The employee arguably can take leave in this instance if she has a serious health condition that renders her unable to perform the functions of her position. 29 U.S.C. § 2612(a)(1)(D). So, does a woman who undergoes in vitro fertilization (IVF) treatments have a “serious health condition” protected by the FMLA?

According to the only court in the land that has addressed the issue in the context of the FMLA, the answer generally is, “No” — there is no FMLA protection. In 2009, a federal appellate court determined that an employee who took leave for IVF treatments was not protected by the FMLA because she was not required to take leave for more than three days at a time for the treatments (rendering her unable to show that she suffered from a serious health condition).  In this case, the court closely reviewed the employee’s FMLA medical certification, which stated that the employee would be required to take two separate three-day periods of intermittent leave (for a total of six days of leave) and work a reduced work schedule of two to three days per workweek during the leave periods.  Culpepper v. Blue Cross Blue Shield of Tennessee (pdf)  Using a rather straightforward analysis — that the employee had not required “continuing treatment” by a health care provider — the court determined that the employer was not required to provide FMLA leave in this instance.

As a related aside, I don’t see how the quality of dad’s sperm impacts this issue, as the female employee in question still would have to establish that she suffers from a serious health condition by way of the IVF treatments.  But I welcome your feedback if you think there is an angle here that would impact the FMLA question.

Not So Fast

The Culpepper case provides some authority as to the FMLA analysis of the issue.  But employers: let’s not be too quick to hit the FMLA denial button in these situations.  Why?  Keep reading…

Unless you’ve fit yourself securely under a rock lately, you know that the EEOC and United States Supreme Court recently have taken up the issue of pregnancy discrimination and accommodation. In short, given the authority below, employers run some level of risk in denying leave to an employee who seeks leave for IVF treatments.

Denial of Leave for Infertility Treatment May Lead to Gender/Pregnancy Discrimination Claims

In its July 2014 Enforcement Guidance on Pregnancy Discrimination, the EEOC told employers in no uncertain terms that failure to provide protected leave to an employee for IVF treatments will lead to an inference of gender discrimination:

Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.   (See example 5 in EEOC’s Guidance)

Notably, EEOC’s guidance cited to an unfavorable court case for employers: Hall v. Nalco. In this 2008 case, Cheryl Hall worked as a secretary at Nalco, and she requested leave to undergo IVF treatments, which was approved. When she was to begin a second leave of absence for IVF treatments, she was told that her office was merging with another office and that only the secretary from the other office would be retained. Unfortunately for the company, there was evidence that decisionmakers decided to RIF Cheryl because she had missed work due to her IVF, and her supervisor marked down her performance evaluation, citing “absenteeism—infertility treatments.”

Cheryl filed a pregnancy discrimination lawsuit, claiming that she was dismissed because she was a female with a pregnancy related condition — infertility.   Although a federal trial court dismissed Cheryl’s claims on the basis that infertile women were not a protected class under the Pregnancy Discrimination Act (PDA) because infertility is a gender-neutral condition, a federal appellate court disagreed and allowed Cheryl to proceed with her discrimination claim.  The Court noted the following:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure . . . Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Given the comments from supervisors and direct evidence of discrimination in comments made on her performance evaluation, the appellate court allowed her PDA claims to go to a jury.

Insights for Employers

Leave requested and taken for IVF treatments may very well not be protected by the FMLA unless the employee can establish an absence of more than three consecutive days plus continuing treatment. However, it’s likely a different story when the question is analyzed as one of pregnancy or disability discrimination.  And I have not even raised the issue of whether certain state laws would require leave or an accommodation in these situations. In fact, given the growing number of pregnancy accommodation laws at the state level, it is possible that IVF treatments may enjoy certain protection under various state laws.

So, don’t win the battle and lose the war: before you deny leave for IVF treatments, analyze your exposure to a gender or disability discrimination claim. As evidenced by the EEOC’s recent guidance and the Hall case, the EEOC and some courts suggest your exposure could be significant.

Hat tip: Thanks to my friends at UPMC WorkPartners for raising this issue with me. It’s a good one!

Texas Court Puts a Halt on DOL Enforcement of the New FMLA Rule Extending Leave Rights to Same-Sex Couples

Posted in Court Decisions, Regulatory Activity

gay_cityhall_gavelA federal judge in Texas granted an injunction on Thursday that (for the time being) has stopped enforcement of the DOL’s final rule regarding the definition of spouse.  Under the new rule, which was scheduled to take effect today, the FMLA would cover same-sex spouses if the marriage occurred in a state that recognizes same-sex marriage and allow those spouses to receive FMLA benefits even in states that do not recognize same-sex marriage. According to the court, the public has “an abiding interest” in protecting state laws from “federal encroachment.”

Earlier this month, Texas Attorney General Ken Paxton, along with the Attorneys General from the states of Arkansas, Louisiana and Nebraska, filed suit in federal court in Texas asking that the court strike down the DOL’s final rule. “The Obama Administration’s attempt to force employers to recognize same-sex marriages would have put state agencies in the position of either violating Texas law or federal regulations,” Texas AG Paxton said in a statement Thursday.

In issuing its order, Judge Reed O’Connor barred the DOL from enforcing the rule pending a final ruling on the merits of the Texas AG’s claim.  The ruling raises doubts about whether the DOL will enforce the new rule in the other states not covered by the court’s injunction.  My fellow employment blogger, Jon Hyman, thinks the DOL will stand down until a definitive ruling is issued.  While I can’t disagree with him, I am not so sure what the DOL will do.  I have a call into the DOL now about how it will administer the new rule in light of this ruling and will update when/if I receive official word from the agency.

The DOL has asked the court to reconsider its decision, and the oral argument on this request has been set for April 13.

As another blogging friend, Robin Shea, points out, this entire issue might become moot once the Supreme Court renders a decision in the four same-sex marriage cases it has agreed to decide this term.

For more information on the DOL’s final rule, access my post here.

Supreme Court Gives Pregnant Employees a Path Toward Securing Workplace Accommodations

Posted in ADA, Pregnancy

jumping-for-joyAll across America this morning, pregnant employees are screaming out in muted shouts of joy and giving each other belly bumps.

Last year, I reported on the EEOC’s recent pregnancy discrimination guidance, which interpreted the Pregnancy Discrimination Act as requiring workplace accommodations for pregnant employees even if impairments suffered during pregnancy do not rise to the level of a disability under the Americans with Disabilities Act.  In that post, I encouraged you to keep an eye on Young v. UPS, a case pending before the Supreme Court, which had the potential to turn this EEOC guidance on its head.

Yesterday, the Supreme Court issued a decision in the Young case, offering a mixed bag to employers and pregnant employees alike.  But in the end, the Court expanded the potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.

Oh yeah, the court also gave the EEOC a bit of a thumping, too.  I explain below.

The Facts

Peggy Young was unable to perform her job as a delivery driver for UPS during her pregnancy because her doctor imposed a lifting restriction. Young requested a temporary light duty assignment, but UPS denied her request. Pursuant to the collective bargaining agreement with Young’s union, UPS provided temporary modified work assignments only for drivers who: 1) were injured on the job; 2) suffered from a disability as defined by the ADA; or 3) lost their Department of Transportation certifications. As a result, Young went on an extended, unpaid leave of absence.

At issue in the case was the interpretation of the language of the Pregnancy Discrimination Act, which provides that, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. . . . ” In this case, UPS treated Young like employees who suffered off-the-job injuries and were not entitled to accommodations.

Young argued that the statutory language should be interpreted literally — in other words, that an employer must provide the same accommodations to pregnant employees as it does to non-pregnant employees who are similar in their ability or inability to work.  On the other hand, UPS urged that as long as an employer provided accommodations to pregnant women in the same way it provided accommodations to others in a facially neutral category (e.g., no accommodations for off-the-job injuries), the employer could not be liable for pregnancy discrimination.

The Court rejected both interpretations. It found that Young’s views – supported by the Obama administration – granted pregnant workers a “most-favored-nation” status, under which an employer would have to provide similar accommodations to all pregnant workers, regardless of the nature of their jobs, the employer’s requirements, or any other criteria, anytime the employer made an accommodation for any employee. The Court didn’t care much for UPS’ argument either, which the Court feared would permit employers to treat pregnancy less favorably than diseases or disabilities resulting in a similar inability to work.

The Decision

In reaching its decision, the Court determined that the commonly used balancing test (known as the McDonnell Douglas burden shift) should be used to determine whether a pregnant employee has suffered employment discrimination as a result of her pregnancy.

First, she must clear an initial hurdle (known as a prima facie case) by showing that: 1) she belongs to the protected class (i.e., she is or was pregnant);  2) she sought an accommodation; 3) the employer did not accommodate her; and 4) the employer accommodated others similar in their ability or inability to work. If the employer justifies its refusal to accommodate by providing a legitimate, non-discriminatory reason for its refusal – which normally cannot simply be that it is more expensive or less convenient to add pregnant women to the category of employees whom the employer accommodates – then the plaintiff may proceed to trial only by demonstrating that the employer’s reason is a pretext for discrimination. She may do this by showing that an employer’s policies impose a significant burden on pregnant workers and that the justification for not accommodating pregnant employees is not sufficiently strong, giving rise to an inference of intentional discrimination.

The Court determined that Ms. Young created an issue of fact (and thus potentially requiring a trial on the merits of her case) as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished to hers.  However, it sent the case back to the federal appellate court (the 4th Circuit Court of Appeals) to determine whether UPS’ reasons for having treated Young less favorably than other non-pregnant employees were pretextual.  So, although Young’s case may very well be dismissed yet again, the Court gave Young — and other pregnant employees — a path to victory.

Finally, as my fellow blogger, Walt Olson, points out, we can’t help but be amused by the Court’s smackdown of the EEOC’s decision to issue its Pregnancy Discrimination guidance while the case was pending in front of the high court.  As Olson points out:

the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DoJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, [Supreme Court Justice] Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.

Ouch.  So, the score after 7 innings = Young: 1, UPS: 0, EEOC: 0.

Insights for Employers

The Court’s decision made clear that an accommodation policy that is technically “pregnancy blind” will generally not, in itself, be enough to protect an employer from a pregnancy-related sex discrimination claim. Additionally, as the Court noted, its holding may be of limited significance in light of the ADA Amendments Act of 2008, which were enacted after this case began and therefore did not govern the case. The EEOC has interpreted the expanded definition of disability under the ADAAA to require employers to accommodate employees whose temporary lifting restrictions originate off-the-job, and courts have applied this requirement to pregnant employees.

The decision unwittingly extends to pregnant employees a “most favored nation” status among employees who may have workplace restrictions (even though the Court specifically reasoned that the PDA rejected such a notion).  Therefore, to minimize liability for either a PDA or an ADAAA claim, employers should evaluate their accommodations and light duty policies and the effects of those policies on pregnant employees.  Employers also must take seriously and review thoughtfully all employee requests for pregnancy-related accommodations to minimize liability to pregnancy discrimination claims.

Hat tip: My heartfelt thanks to my colleague, Lindsey Marcus, who drafted much of this post (with the caveat that the crass “belly bump” opening comment is not hers!).