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The Labor & Employment Report

Ebola in the Workplace – The Law

Posted in Employee Leave (FMLA and ADA), Employment Discrimination, HR Compliance, Laws & Regulations, Workplace Trends

This is the second in a three-part series on Ebola in the workplace.  In the last blog posting, I discussed the actual facts about Ebola as set out by the Centers for Disease Control – exposure, symptoms, and self-monitoring.  In this posting, I will discuss the legal framework with regard to developing and implementing Ebola policies.  Primarily, there are three laws that come into play: the Occupational Safety and Health Act, administered by the Occupational Safety and Health Administration (OSHA), and the Americans with Disabilities Act (ADA) and Title VII, both of which fall under the authority of the Equal Employment Opportunity Commission (EEOC).

In a webpage discussing Ebola, OSHA states, “Employers must protect their workers from exposure to Ebola virus on the job.”  OSHA has identified workers in certain industries as being at risk of Ebola exposure, including healthcare employees.  OSHA has developed an Interim General Guidance for workers in these industries, identifying applicable OSHA standards and providing recommendations on infection control and prevention specific to each industry.

While employers in other industries may not be subject to those OSHA standards, they are still bound by the General Duty Clause, which requires employers to maintain a workplace free from hazards that can cause injury or death to workers.  OSHA has also issued a Guidance for Workers and Employers in Non-Healthcare/Non-Laboratory Settings on “Cleaning and Decontamination of Ebola on Surfaces.”

For most employers, the issue of exposure in the workplace will typically arise when an employee, or an employee’s family member, returns from travel to a country with an Ebola outbreak.  The concern is that these employees may have been exposed to Ebola and might subsequently develop an Ebola infection and thereby infect his or her co-workers.  In developing an approach to address this concern, employers must be aware of potential issues under the Americans with Disabilities Act (ADA) and Title VII.

Under the ADA, medical inquiries and examinations are permitted only where they are job-related and consistent with business necessity.  Determining whether a person poses a “direct threat,” meaning a substantial risk of substantial harm to the health or safety of him/herself or others, would be a sufficient reason for a medical inquiry or examination.  As the EEOC notes in its Interpretive Guidance on the ADA regulations, this determination must be based on “objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes…”

The EEOC has not offered its views regarding Ebola in the workplace.  However, in 2009 in in connection with the H1N1 pandemic, it issued a Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which offers some assistance to employers in determining the parameters of appropriate medical inquiry and examinations. There, the EEOC states that employers should look to the latest assessment by CDC or public health authorities, although it acknowledges that the public health recommendations issued by these agencies may change, and may even differ from each other.  Under these circumstances, the EEOC stated, “employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”

In the context of Ebola, the types of medical inquiries and examinations can involve the following:

  • Asking employees where they traveled and whether they were exposed to Ebola
  • Requiring employees who have symptoms to go on leave and obtain medical treatment
  • Requiring employees to obtain medical clearance before returning to work
  • Checking the temperature of employees during the 21-day incubation period, or requiring them to report on self-monitoring (including temperature checks)

In determining whether and what medical inquiries and examinations are justified by a direct threat, the EEOC states that employers should look to the latest assessment by CDC or public health authorities.  The EEOC acknowledges that the public health recommendations issued by these agencies may change, and may even differ from each other.  Thus, according to the EEOC, “employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.”  Thus, the information from the CDC, as discussed in the last blog post, will define the parameters of the employer’s requests for medical information and examinations.

On the question of what inquiries an employer may make of employees returning from travel, the EEOC notes that asking about the location of travel and exposure to infection during the trip is not a medical inquiry, and is therefore not subject to the ADA.  Thus, given the CDC’s pronouncements on the outbreaks in certain countries, it is permissible for employers to ask about where employees traveled and whether they were exposed to the Ebola virus.  Similarly, it would be permissible to ask about the travels of the employee’s household members.

An employee who has developed symptoms of Ebola – either before or after returning to work – clearly poses a direct threat and can be directed to not come to the workplace and to obtain immediate medical treatment.  Although this is self-obvious, the CDC also states that employees showing signs of Ebola should seek medical care.  Similarly, the EEOC, in its Pandemic Guidance, states that employees with symptoms of infection may be sent home, in order to remove any direct threat from the workplace.

A related issue is whether an employer can keep an employee who is not showing symptoms of Ebola out of work for 21 days (the length of the incubation period).  Requiring a 21 day mandatory leave, particularly if it is without pay, could be considered an adverse action based and be treated as “regarding” an individual as being disabled.  The employer imposing such a requirement must be able to demonstrate a business need for implementing it.  Notably, with regard to individuals who were not exposed to the Ebola virus, the CDC states, “During the time you are monitoring your health, you can continue your normal activities, including work.”  Further, given the CDC’s current thinking on Ebola exposure and infection, the argument that the ADA’s  “direct threat” exception would permit mandatory medical testing of anyone traveling to a country of outbreak at this time, would be problematic, particularly if there is no evidence of exposure to Ebola.  Local authorities, however, may have a different perception of these concerns, so it is worth checking to see what their recommendations are with regard to non-exposed travel.  With regard to employees who were exposed to the virus, however, the CDC is more equivocal, suggesting that the employee have his/her doctor evaluate the situation in consultation with public health authorities.  Given the CDC’s approach with regard to this category of travelers, an automatic leave requirement for employees exposed to Ebola may be sustainable – particularly if supported by local public health authorities.

Whether an employer can require medical clearance from employees before returning to work is similarly complicated.  If an employee has symptoms of Ebola, it is entirely appropriate to require medical clearance before permitting him/her to return to work.  In its Pandemic Guidance, the EEOC acknowledges that this action would be justified under the ADA standards.  If an employee was exposed to Ebola but exhibits no symptoms, the CDC’s recommendation that the employee should consult with his/her doctor would presumably support a requirement that the employee be cleared by that doctor before being allowed to return to work.  If an employee was not exposed to Ebola, however, the CDC’s current pronouncement that such employee could continue to engage in normal activities while self-monitoring will make such a requirement legally questionable.  While a direct threat exception clearly applies to employees with symptoms or those who have been exposed to the virus, this exception is less persuasive as to non-exposed employees given the CDC’s current position on such travelers.

On the question of whether an employer may require an employee to report on the results of self-monitoring or even to check the temperature of the employee, these actions are medical inquiries/tests under the ADA.  In its Pandemic Guidance, the EEOC states that “measuring an employee’s body temperature is a medical examination,” and thus its permissibility is governed by the risk assessment of the CDC and local and state public health authorities.  Based on the fact that the CDC is now requiring those who travel from the Ebola zone to check in daily with health officials to report their temperature and any symptoms, it seems likely that a requirement that the employee report the same information to the employer, or even allowing the employer to participate in the monitoring by checking the employee’s temperature, would be permitted under the ADA.  As the EEOC notes, however, employers must keep in mind that a temperature can be caused by conditions other than the one of concern.

Further, there may also be discrimination concerns under Title VII, which is potentially implicated whenever an employee is treated differently because of his or her race or national origin.  For example, an Ebola policy or procedure that addresses travel generally to the African continent could have a negative and disparate impact based on national origin if employees who are native to countries that are not actually experiencing an Ebola outbreak were treated as “health risks” simply because of traveling “home” (even as we recognize that American born employees might also be treated as such if they traveled to those same countries without that same legal risk).  To avoid the potential risk, it is important to ensure that any Ebola policy is appropriately targeted to accomplish the business need of protecting the workers without being overly broad and relying on unwarranted assumptions.

Given this legal background, we’ll next turn to practical suggestions in addressing Ebola in the workplace.

Ebola in the Workplace – The Facts

Posted in Employee Leave (FMLA and ADA), Employment Discrimination, HR Compliance, Laws & Regulations, Workplace Trends

Media reports of the Ebola outbreak in West Africa, along with the recent infection of two nurses in Dallas, have raised fears of the potential spread of Ebola in the United States, and employers are increasingly concerned about what they should do to address the possibility of Ebola in the workplace.  These concerns are heightened by the highly infectious nature of the disease and its high mortality rate.  Drawing on resources from the Centers for Disease Control (CDC), the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA), we offer guidance in a three part series on Ebola in the workplace.  In this posting, we focus on facts about Ebola.  In the next, we will address legal issues, and the third part will offer practical suggestions for developing an Ebola policy or procedure.

Ebola Facts

The CDC has an Ebola webpage on its website, containing a number of documents relevant to the Ebola outbreak and its impact on U.S. citizens.  At this time, the CDC has issued a Level 3 Travel Notice for Guinea, Liberia and Sierra Leone, meaning that all non-essential travel to those areas should be avoided.  The CDC has also issued a lower level Travel Notice for the Democratic Republic of the Congo (a Travel Notice for Nigeria has now been pulled).  No other countries have yet been identified by the CDC as being of concern.

Any possible infection arises from exposure to the Ebola virus.  According to the CDC, exposure to the Ebola virus includes the following:

  • Touching a person who was sick with or died of Ebola
  • Touching items that may have been in contact with an infected person’s blood or bodily fluids (urine, saliva, sweat, feces, vomit, and semen)
  • Caring for or staying with someone who is sick with Ebola
  • Spending a long time within 3 feet of someone who is sick with Ebola (including during travel)
  • Coming in contact with animals (such as bats and monkeys) or with raw or undercooked meat
  • Visiting a hospital where Ebola patients are being treated

Exposure to the Ebola virus does not mean that the person will become infected.  There is a 21-day incubation period following exposure, during which time an infection may develop.  If any signs of infection manifest, the individual must seek immediate medical treatment.  The signs of Ebola infection include:

  • Fever of 101.5 or more
  • Severe headache
  • Muscle pain
  • Vomiting
  • Diarrhea
  • Stomach pain
  • Unexplained bleeding or bruising

 In its Level 3 Travel Notices for the countries identified above, the CDC recommends that an individual who has been exposed to the Ebola virus contact his or her doctor.  The doctor should evaluate the individual’s exposure level and consult with public health authorities to determine whether any actions, such as medical evaluation and testing for Ebola, monitoring, or travel restrictions, are needed.

In addition, the CDC recommends that anyone traveling to an area with an Ebola outbreak, even if not exposed to Ebola, should self-monitor for the 21-day incubation period.  This means taking his/her temperature every morning and evening, and watching for the other signs of infection.  The CDC will also monitor all travelers returning from the Ebola zone, by requiring contact information including email, two phone numbers and a physical U.S. address for all people coming to the U.S. from Liberia, Guinea or Sierra Leone.  These travelers will be required to check in daily with health officials to report their temperature and any symptoms of Ebola.

The CDC offers fact sheets on What You Need to Know About Ebola and Facts About Ebola in the U.S. that may be helpful in educating employees.

In the next post, I’ll talk about the legal issues associated with Ebola in the workplace.

Employees May Discuss Their Discipline

Posted in Labor Law & NLRB

Wise employers know that management should keep individual employee discipline on a need to know basis.  In other words, an employee’s written warning or counseling should not be shared by management with the employee’s co-workers or even with managers who are not in the employee’s chain of command.  Some employers may also take the position that the employee should not discuss his/her discipline with co-workers because it may be disruptive if the employee does so, and therefore disciplinary matters should be considered confidential.  This position, however, could be problematic under the National Labor Relations Act, as one employer learned to its dismay in Philips Electronics North America Corp.

In this case, an employee received a final warning for disruptive behavior during meetings and harassment of colleagues and management.  After receiving the warning, the employee continued to harass a co-worker who complained about him by driving a forklift into the co-worker’s area and, while seated 10 feet away, making comments to her (Seriously?  Even my crazy teenagers are more mature than that!).  He also showed the warning to some of the other co-workers, while blaming the co-worker.  The company investigated these additional actions, and prepared a summary report of its findings.  This included a statement that the employees “are aware that disciplinary forms are confidential information and should not be shared on the warehouse floor, at any time…”  The employee was then fired. His termination notice stated that he was being terminated, in part for sharing confidential information.  It further stated that he had been told that his discipline was confidential at the time it was issued to him.

The National Labor Relations Board found that the employer had maintained an unwritten rule that discipline is confidential and prohibiting employees from discussing their discipline with co-workers.  It further found that this rule was a violation of Section 8(a) of the NLRA, which protects the rights of employees (both union and non-union) to discuss their terms and conditions of employment.  Specifically, the Board emphasized the importance of employees being able to discuss their discipline with each other, so that other employees would be aware of the nature of the discipline, how to avoid it, and how to defend themselves.

So employers, keep in mind that employees can disclose their own discipline if they want.




Employee’s Claims Undermined By Her Facebook Posts

Posted in Litigation, Social Media

As I’ve said before, it amazes me what people will put on their Facebook (and other social media) pages.  Many users, particularly Gen-X’ers, Y’ers, and millienials (and my crazy teenagers), tend to think of Facebook as being a private conversation (with 500 of their dearest friends).  Savvy employers should keep this in mind when faced with defending a (meritless) lawsuit brought by an employee.  It is amazing what you can find on a Facebook page, as the employer learned to its delight in Mealus v. Nirvana Spring Water NY Inc.

An employee told her supervisor that she had accepted another job.  The job offer was subsequently withdrawn, apparently because the employee had talked to others about what she would be making, which the new company viewed to be a breach of confidentiality.  (I question whether the company’s “confidentiality” policy violates the right of employees to discuss their pay under the National Labor Relations Act, but that’s a whole other issue…).  The employee ranted about this on her Facebook page.  There was conflicting testimony about whether the employee then asked for her job back, but in the end, she had a verbal altercation at work and claims that she was “forced to quit.”  That evening, she sent an email to the employer, claiming that she had been sexually harassed by the chairman of the Company’s Board of Directors (and brother of the CEO).

The employee then sued the employer, claiming that the sexual harassment made her physically ill, and that the harassment was the sole cause of her illness.  But, as the employer pointed out when asking the court to dismiss her claims, within days after her resignation, the employee had posted on her Facebook page that her boyfriend’s ex-girlfriend “caused utter chaos in our lives and he let it happen and I was so upset that I got sick every day for 4 months.”  Months later, she described her relationship with the then-ex-boyfriend as a “10-month nightmare.”  The court found that these posts, as well as other evidence including the employee’s own emails, directly contradicted the claims and allegations in her complaint.  The court then threw out her lawsuit.

So, the lesson for employers here is that an employee’s social media activity can contain incredibly helpful information for a defense, particularly since it’s in the employee’s own words.  In the course of litigation, employers should always seek access to the employee’s social medial activity.  But caution – if an employer wants to view an employee’s social media activity before a lawsuit is filed (like during an internal investigation into possible employee misconduct), there may be state laws that restrict access by an employer to private social media accounts.  And you can’t get around those restrictions by asking another employee who is “friends” with the employee to access the private account.  But hey – anything that is publicly available is fair game, and it is astounding how many people do not put privacy settings on their social media accounts!

Religious Accommodation in the NFL!

Posted in Employment Discrimination, Reasonable Accommodation

So, as we all know, the NFL is having a rough patch.  (And as a Baltimore Ravens fan, the past month has been particularly painful for me).  I was particularly intrigued by the latest (non-Ray Rice-related) gaffe – the penalty imposed on Kansas City Chiefs’ Husain Abdullah for bowing in Muslim prayer after intercepting a Tom Brady pass and running it back for a touchdown.

The NFL’s rule is ”Players are prohibited from engaging in any celebrations or demonstrations while on the ground.”  After the touchdown, Abdullah slid on his knees and then touched his forehead to the ground in prayer – the Muslim “sajdah.”  He immediately received a 15-yard unsportsmanlike penalty for violating the rule.  This sparked a social media firestorm, with people wondering how this was different than a Christian athlete dropping to one knee in prayer following a touchdown (Tim Tebow, famously, for example…).

The good thing is that the NFL stepped up the next morning to acknowledge the problem.  In a tweet, the NFL’s  vice president of football communication, Michael Signora, stated, “Abdullah should not have been penalized. Officiating mechanic is not to flag player who goes to ground for religious reasons.”

As any employer knows (or they should), accommodations should be provided for an employee’s religious practices, as long as the accommodation is reasonable (meaning that it does not pose an undue hardship on the employer). In this case, the NFL will refrain from applying a workplace conduct rule – no celebrations on the ground – to thanks given in religious prayer.  That doesn’t seem unreasonable!

“Wal-Mart Door Greeter” = Old?

Posted in Employment Discrimination, Laws & Regulations, Litigation

So, I know there are a lot of jokes about retired folks becoming a Wal-Mart greeter, even though I’m sure Wal-Mart would say that their greeters can be any age.  But this joke has actually taken on legal significance – the term, “Wal-Mart door greeter” now apparently equates with calling someone “old.”  At least it did in the case of Davis v. Progressive Waste Solutions of Louisiana, Inc.

In this case, a truck driver was terminated, ostensibly for missing five days of work.  The driver sued his employer, claiming that the termination was based on his age, 59 years old, in addition to some other claims.  The employers asked the court for summary judgment, arguing that the driver’s claims had no merit as a matter of law and should be dismissed.  The court, however, disagreed, finding that the driver had offered direct evidence of age discrimination – two comments by the Site Supervisor:

  • Either during or immediately after the termination, the Site Supervisor told the driver, “[G]o get a job as a Wal-Mart door greeter.”
  • Another employee reported that the Site Supervisor said the following day, “I’m the one that got rid of the old bastard.”

Well, that second comment is clearly ageist – there’s no question about it when you use the word “old.”  But “Wal-Mart door greeter”?  Huh.  Well, I guess that now one of my crazy teenagers is in college, I feel like a Wal-Mart greeter.(!!!)

“Funny Walk” Is a Disability? That’s Just Screwy.

Posted in Employment Discrimination, Laws & Regulations, Litigation

I know that the amendments to the Americans with Disabilities Act (ADAAA) were intended to expand coverage of the Act, but sometimes I think the extent of the expansion is just ridiculous.  This was highlighted for me in a recent case, EEOC v. Staffmark Investment LLC, in which the court found that an employee was covered by the ADAAA because a supervisor thought she had a “funny walk.”  Seriously?

This case involved an employee with a temporary staffing agency, Staffmark, who was placed at a company that did work for Sony Electronics.  Her job was to check for loose screws on television sets.  (No, really.  I am not kidding.)  According to Sony, she was supposed to walk around the table on which the tv set was placed, loosening and then tightening all the screws to make sure the screws were tight.  On her first day of work, a supervisor had to counsel her twice about the proper way to check the screws.  ( I know – how hard could this really be?)  One supervisor noticed she had difficulty walking, and another thought she had a “funny walk,” but neither of them thought it affected her ability to do the job.  No one knew that she was an amputee with a prosthetic leg – she wore long pants and did not use a cane.  The following day, Sony decided to remove her from the project.  According to Staffmark, Sony was  afraid she would be knocked down, and she was sent home at Sony’s request “due to her limping.”

The Equal Employment Opportunity Commission sued Staffmark and Sony for disability discrimination on behalf of the employee.  Staffmark settled.  Sony filed a motion for summary judgment, asking the court to dismiss the claims against it because, Sony argued, the employee was not disabled within the meaning of the ADAAA.  Under the ADAAA, an employee is “disabled” if: (1) she has a current physical or mental impairment that substantially limits a major life activity; (2) she has a “record of” such an impairment; or (3) she is “regarded as” having such an impairment.  This last category was the one at issue, and Sony argued that it could not have regarded her as having an impairment because it did not know that she actually had an amputated leg.  Therefore, if it didn’t regard her as having substantially limiting impairment, she wasn’t disabled under the ADAAA.  Well that seems to make sense, doesn’t it?

The court, however, rejected Sony’s argument.  Prior to the amendments to the ADAAA, the employer had to regard the employee as being substantially limited in a major life activity in order to trigger the “regarded as” prong of the disability definition.  But now, as the court said, “Under the ADAAA, an individual need not prove that the employer had knowledge of an actual disability if she can demonstrate that she was subjected to a prohibited adverse employment because she was ‘regarded as’ having an actual or perceived physical or mental impairment, whether or not that impairment substantially limits or is perceived to limit, a major life activity.”  The court’s ruling simply follows the same position taken by the EEOC in its regulations implementing the ADAAA.  In this case, the employee did actually have a disability, but the court’s (and presumably the EEOC’s) reasoning would still apply even if she didn’t, and she just had a peculiar gait.  In other words, the employer doesn’t have to think an employee has a substantially limiting impairment to trigger the “regarded as” definition.  Any impairment will do.  At all.  Even something minor.  Even if no major life activity is affected.

So who has a screw loose?  The court, EEOC, or Congress?  Regardless, the employer is, well, screwed.

“Maxiflex” Schedule May Be Reasonable Accommodation

Posted in Laws & Regulations, Reasonable Accommodation

This case caught my eye because I’ve never seen the term “maxiflex schedule” before.  It sounds so…well, extensive and overwhelming.  I’m sure that’s what the employer in Solomon v. Vilsack  thought when it denied the employee’s requested accommodation for this type of schedule, which  involves substantial flexibility in working hours.  The trial court stated that a maxiflex schedule was unreasonable as a matter of law under the Rehabilitation Act (which is the disability law that covers federal employees, and which applies the same legal standards as the Americans with Disabilities Act).  Sadly for the employer, however, the U.S. Court of Appeals for the D.C. Circuit disagreed with the trial court, stating that whether a maxiflex schedule is reasonable or unreasonable requires a case by case analysis.

In this case, an employee suffered from depression, which intensified.  Because of her worsening condition, the employee couldn’t maintain her normal work schedule.  She managed to complete all of her work, however, by taking leave during her normal workday and then working additional unscheduled hours.  She also performed much of her work from home.  Her supervisor was aware that the employee was working these irregular hours.  The employee’s work performance was not an issue.

After several months of this, the employee emailed her supervisor to apologize for her erratic leave and explain that she was being treated for depression.  The supervisor requested medical documentation of any need for accommodation.  The employee provided a doctor’s note requesting a “flexible work schedule” like the one that the employee had already been working.  Her request for accommodation was rejected, and she was no longer permitted to work the same unpredictable schedule that she had been working.  She subsequently requested to telecommute part-time, but this request was also denied.  Believing that she had no other options, the employee retired on permanent disability.  She then sued for denial of her request for reasonable accommodation, in addition to some other claims.

The trial court found that a maxiflex schedule could never be reasonable, as a matter of law, and dismissed the reasonable accommodation claim.  On appeal, however, the D.C. Circuit reversed the trial court’s ruling.  Observing that whether any accommodation is reasonable is a “contextual and fact-specific inquiry,” the D.C. Circuit went on to state that, “Technological advances and the evolving nature of the workplace” have increased the types of accommodations available.  Thus, the D.C. Circuit concluded, “it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law.”  With regard to the maxiflex schedule, the D.C. Circuit found that it should have been assessed to see if it would have enabled the employee to perform her essential job functions without undue hardship to the employer.

So the lesson for employers is don’t immediately reject an accommodations request out of hand, no matter how ridiculous it may appear.  Instead, go through the interactive process of discussing and assessing the requested accommodation and any potential alternatives to determine if the possible accommodations are reasonable or not.  In particular, be open-minded about technologically driven accommodations – because courts certainly are trending in that direction!

Don’t Just Drop Those FMLA Notices in the Mailbox!

Posted in Employee Leave (FMLA and ADA), Laws & Regulations, Litigation

As (most) FMLA-covered employers know, once an employee requests Family and Medical Leave Act Leave, there are certain notices that are required.  You have to provide the employee with an Eligibility Notice and a Rights and Responsibilities Notice within five business days of the request for leave, and once the employee has submitted enough information so you can determine if the leave is FMLA-qualifying, you must provide a Designation Notice within five business days.  But how are these notices given?  And more importantly, can you prove that they were?  This was the issue in a recent case, Lupyan v. Corinthian Colleges, Inc.

The FMLA regulations state that the Eligibility Notice  can be oral or in writing.  As a practical matter, we suggest that you ALWAYS give the notice in writing, using the DOL’s model form. As for the Rights and Responsibilities Notice  and the Designation Notice , they must be in writing.  Again, the DOL has prepared model forms for each (the Eligibility Notice and Rights and Responsibilities Notice are the same form), and we suggest you use them.  The regulations set out very specific items of information that must be included in each notice.  By using the DOL’s forms, there will be no dispute that the requisite items of information have been covered.  But this leads to the next question – how do you actually deliver these written notices?

Oddly, the regulations don’t specify the means of delivery for the Eligibility and Designation Notices, but they do for the Rights and Responsibility Notice.  They state that, if leave has already begun, the Rights and Responsibilities Notice “should be mailed to employee’s address of record.”  The regulations also provide that it “may be distributed electronically.”  Because the regulations don’t talk about delivery of the other two Notices, we can presume that these methods are also acceptable for those documents.  So most employers will drop the notices in the mailbox, and the U.S. Postal Service takes it from there.  And that is fully compliant with the regulations.

But the issue that came up in the Lupyan case is whether the employee actually received the notices.  Under the regulations, the failure to provide notice may be viewed as an interference with an employee’s FMLA rights – and this can subject the employer to a wide range of damages, including back pay and benefits, other actual monetary losses, and reinstatement.

The employer argued that the “mailbox rule” should apply – this is a longstanding rule that presumes a properly-addressed and mailed letter was received by the recipient.  In this case, the HR Coordinator testified that she prepared the letter designating the employee’s leave as FMLA-covered and placed it in the outgoing mail bin.  The problem here is that the presumption fails because the employee testified that she never received the letter, and therefore never knew she was on FMLA leave or what was required of her under FMLA.  Had she known, she argued, she would have handled her leave differently and, therefore, would not have been terminated for failing to return at the end of her FMLA leave entitlement.

The U.S. Court of Appeals for the Third Circuit observed that there was no evidence that the employee had received the letter – the employer had not used registered or certified mail or use any other “now common” tracking methods.  The Court stated, “In the age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing something as important as a legally mandated notice.”

What this case emphasizes is that wise employers might wish to take extra steps to be able to prove that the required notices were actually delivered.  If the notices are sent by mail, you could require a signature receipt (i.e. certified mail) or use a tracking number for delivery.  If they are sent by e-mail, use some sort of electronic receipt.


Don’t Let the Harasser Back – Even as a Volunteer

Posted in Employment Discrimination, Litigation

This one seems like a no-brainer.  If you determine that an employee is behaving badly and you terminate him, you shouldn’t allow him back into the workplace.  But that is what happened in the case of Frias v. Spencer.

A Hispanic employee complained that an African-American manager yelled at her.  No action was taken by her African-American supervisors.  According to the employee, the manager then made her job performance difficult by yelling at her and criticizing her.  After other employees also complained of the manager’s conduct, the employer conducted an investigation and ended up issuing a warning.  The manager subsequently acted inappropriately to a supervisor, and the decision was made to terminate him.  At this time, the employer also hired a security guard (which seems to speak volumes…)  But the termination decision was then reduced to a suspension.

When the employee heard the manager was going to be allowed to return, she sent a letter to management, expressing concern about her safety.  The decision to terminate was then reinstated.

Five months later, however, the employee saw the manager back on the premises.  He was there as a volunteer. (?!!)  The employee then left work and did not return.  She filed an internal EEO complaint, explaining that she had experienced a hostile work environment, and the manager’s return was “the last harassment [she] could humanly, emotionally and physically endure.”  She further said that she had repeatedly told her supervisors that she was scared of the manager and did not want him to be around her workplace.

The employee also filed suit, and the employer asked the court to dismiss the claims, arguing that permitting the manager to return as a volunteer was not any kind of employment action on which a claim of discrimination can be based.  But there doesn’t need to be an employment action in a claim for a hostile environment – where the working environment itself is so objectively and subjectively hostile that is creates an abusive working environment.  Under the law, the employer is liable for failing to remedy or prevent a hostile work environment.

In this case, the court found that there was sufficient evidence to send the case to trial for a jury to determine if a hostile work environment existed.  The court found that the employee had presented many examples of how she felt threatened or harassed by the manager – sufficient to show a subjectively hostile environment.  Of particular note, the manager was allowed to return to the workplace even after his termination – which could allow him to continue his negative interactions with others, including the employee.

What the jury will decide is yet to be seen.  But as a practical matter, the employer is left with a difficult situation – trying to explain why it found the manager’s conduct sufficiently concerning to warrant termination, but then allowing him back into the workplace.  Really, if his conduct towards others was bad enough to result in his firing (and in the hiring of a security guard!), there doesn’t appear to be any rational basis for allowing him back at all.