Q&A on applying performance and conduct standards to employees with disabilities

It is an oversimplification to simply say that employers should hold disabled employees to the same conduct standards as non-disabled employees. Certain conditions may require modifications of conduct and performance standards as a reasonable accommodation to enable an employee to perform the essential functions of the job adequately. To clarify these issues, the EEOC has published a comprehensive Q&A on Applying Performance and Conduct Standards to Employees with Disabilities.

According to the EEOC:

Although, an employee’s disability typically has no bearing on performance or conduct, sometimes an individual's disability may contribute to performance or conduct problems. When this is the case, a simple reasonable accommodation often may be all that is needed to eliminate the problem. However, EEOC continues to receive questions from both employers and employees about issues such as what steps are appropriate where a disability is causing – or seems to be causing – a performance or conduct problem, when a request for accommodation should be made, and when an employer can properly raise the issue of an employee’s disability as part of a discussion about performance or conduct problems. Even when the disability is not causing the performance or conduct problem, some employers still have questions about what action they can take in light of concerns about potential ADA violations.

The Q&A covers topics such as:

• Seeking medical information when there are performance or conduct problems
• Attendance issues
• Dress codes
• Alcoholism and illegal use of drugs
• Confidentiality issues arising from granting reasonable accommodation to avoid performance or conduct problems

It's a must read for any company dealing with a disabled employee who is not meeting standards or who is having conduct or discipline problems potentially attributable to a disability.

Sometimes the little things go a long way

Often times, we forget that the law is a floor and not a ceiling. For example, just because the FMLA caps unpaid leave at 12 weeks does not mean that every employee who cannot return to work at the end of 12 weeks should be terminated (in fact, the ADA may require otherwise).

De la Rama v. Illinois Dept. of Human Servs. (7th Cir. 9/2/02) illustrates this point. De la Rama called in sick from July 19, 2004 through August 19, 2004. Although she was diagnosed with fibromyalgia in early August, she did not tell her employer until much later. Instead, she continued to call in sick without explaining the nature of her illness. Ultimately, in October she submitted a medical certification and requested for a leave of absence, for which the employer granted FMLA leave. De la Rama was out on unpaid FMLA leave for 17 weeks, and upon her return assigned to a different unit under a new supervisor at her request. Her absences in July and August, however, were treated as unauthorized.

She sued, claiming that the classification of her July and August absences as unauthorized interfered with her rights under the FMLA. The court disagreed:

[I]n light of the fact that de la Rama was permitted to take seventeen weeks of leave—five weeks more than the twelve weeks the Department was required to give her under the FMLA—we find it difficult to see how the Department interfered with her entitlement to leave at all.

The employer's generosity in giving de la Rama the leave she needed once she documented her need was very persuasive to the court in deciding whether its designation of her prior leave as "unauthorized" violated the FMLA. In other words, its willingness to go above and beyond for an employee demonstrated that it did not harbor an intent to violate the Act. Keep this in mind the next time you are faced with the prospect of terminating an employee at the end of the 12th week of leave, or extending the leave for a few extra weeks to allow the employee to return to work.

Employer's failure to provide written notice does not save employee who failed to return to work following FMLA leave

Under the FMLA, an employer must provide an employee taking FMLA leave "with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." 29 CFR 825.301(b)(1). In fact, the Department of Labor provides a convenient form for employers use. Among other items, the notice must provide whether the employer will require the employee to "present a fitness-for-duty certificate to be restored to employment." 29 CFR 825.301(b)(1)(v). If an employer fails to provide the required notice, "the employer may not take action against an employee for failure to comply with any provision required to be set forth in the notice." 29 CFR 825.301(f).

Tucker v. Middleburg-Legacy Place (6th Cir. 8/29/08) answers the question of what happens if an employee mistakenly assumes that a fitness-for-duty certificate is required before she can return to work. When Sonia Tucker started her FMLA leave, she claims that her employer did not provide her with the written notice required by 825.301(b)(1). She also claimed that while she was cleared to return to work on January 17, 2007, she failed to do so because she believed her employer required a fitness- for-duty certificate. When she failed to show up for work on January 17, the employer fired her for job abandonment.

The Court held that even if the employer failed in its obligation to provide Tucker with the required written notice, her FMLA claim warranted dismissal because she did not claim that the fitness-for-duty certification was an actual requirement:

Plaintiff has further failed to allege she was terminated for failing to present the fitness-for-duty certificate. In ¶ 12 of her Amended Complaint, Plaintiff alleges, “defendants unlawfully terminated plaintiff from her employment for alleged job abandonment.” (Emphasis added). She does not allege her employment was terminated for failure to provide a fitness-for duty certificate. Plaintiff clearly alleges she “had been initially cleared to return to work from her medical leave on January 17, 2007.” (Amended Complaint at ¶ 9). She did not return to work on that date. Rather, she went to her physician on that day to be examined and to obtain a fitness-for-duty certificate. (Amended Complaint at ¶ 11). Nowhere does Plaintiff indicate she advised Defendants of the doctor’s appointment, or otherwise communicated with Defendants on the date of her scheduled return. As the Magistrate Judge noted, the provision in 29 C.F.R. § 825.301(f), barring employer action against an employee for failure to present a fitness-for-duty certificate “is only triggered if the employer actually required the employee to present a fitness-for-duty certificate.” (Emphasis added).

Typically, ambiguous employment policies do not help an employer. In this case, however, the ambiguity was fatal to the employee's claim. Because the employer did not tell the employee, in writing, that a fitness-for-duty certificate was required, the court overlooked its failure to tell the employee that the certificate was not required.

Despite this decision, it is not a real good idea for companies to ignore their obligations under 825.301(b)(1) to provide written notice to employees taking FMLA leave. Much more often than not, that failure will invoke 825.301(f)'s protections, and an employer will not be able to fire an employee who fails to meet some other FMLA obligation (such as returning to work).

Happy Labor Day

Like most, I'm happily taking this Labor Day off. If you're looking for something to read, hop over to the Connecticut Employment Law Blog, where Dan Schwartz gives us a brief history of this holiday.

WIRTW #45

Lawsuits come in all shapes, sizes, and levels of intrigue. One lawsuit filed this week in federal court in Connecticut is high on the latter -- check out the Connecticut Employment Law Blog's post on Scott Levy, et al. v. World Wrestling Entertainment. Scott Levy, who wrestles under the name "Raven", claims that the WWE mis-classified him and other similarly situated current and former WWE performers as independent contractors. Levy claims that he is owed compensation as a result of being an employee of the WWE. While the Complaint is vague, one would presume that at least some of the compensation owed is for unpaid overtime. We should continue to keep on this case, as the WWE and Vince McMahon are known for being aggressive litigants.

The Delaware Employment Law Blog continues the wage and hour theme by giving a good primer on the FLSA's executive exemption.

Fair Labor Standards Act Law rounds out this week's wage and hour posts by reporting on a case in which the court held that an employee's ability to work overtime was an essential function of her job, thereby dooming her disability discrimination claim.

Workplace Horizons gives detail on a potentially significant trial in which a transgender Plaintiff alleges that the Library of Congress engaged in sex discrimination in violation of Title VII by refusing to hire her. This case is being tried after the district court ruled that Title VII is broad enough to cover transgender persons under its provision banning discrimination based on sex. On the flip side, Dan Schwartz at the Connecticut Employment Law Blog reports on an opposite outcome in a case filed in federal court in Connecticut.

The FMLA Blog digests a case in which the court held that discouraging the use of FMLA leave can violate the FMLA even if the employer ultimately grants the leave.

Labor and Employment Law Blog has a top-5 list of  workplace privacy tips for employers.

Nolo’s Employment Law Blog bashes companies that use surveillance on employees taking FMLA leave. Linked are my thoughts on the Vail v. Reybestos case.

Finally, Rush on Business reminds us that honesty really is the best policy in business dealings.

LPGA Tour implements English proficiency requirement

From this morning's USA Today:

The LPGA tour will use the next four months to create evaluation procedures for its new policy requiring its member golfers to speak English or face suspension.

All players who have been on the tour for two years could be suspended if they fail to pass an oral evaluation of their English proficiency starting at the end of the 2009 season.

The evaluation will assess communication skills, including conversation. Players will be required to conduct interviews, interact with pro-am partners and fans and give acceptance speeches in English and without the help of an interpreter, according to LPGA deputy commissioner Libba Galloway.

"For an athlete to be successful in the sport-entertainment business we live in today, they need to perform on and off the field of play, and communicating effectively is a big part of that," Galloway said "We are a U.S.-based tour, and the majority of our pro-am players, our fans, our sponsors speak English."

I've written before about the legality of English-only rules. Generally, courts uphold English-only rules if the employer can show a legitimate business justification for the requirement. Examples include:

• Curbing employee hostilities.
• Promoting communication with customers, coworkers, or supervisors who only speak English.
• Enabling employees to speak a common language to promote safety or enable cooperative work assignments.
• Facilitating a supervisor's ability monitor the performance of an employee.
• Furthering interpersonal relations among employees.

The LPGA's rule is not a ban on the use of foreign languages, but, as the press has been reporting it, a requirement that its members are proficient in English. Thus, it is less onerous than a prohibition on the use of one's native language. Nevertheless, pundits are already decrying this proposal and opining on its illegality.

Let's look at the LPGA's rationale for this rule. 18 of this year's 23 LPGA tournaments have been won by players for whom English is not their native language, including all four of this year's majors. 45 of the 120 players on tour are South Korean, seven of which in the top 20. The LPGA has made the decision that to grow its sport in its home country, its stars need to be able to communicate effectively with the media. The LPGA is not requiring its members only speak English, but that they are able to communicate in English when the need arises (such as in press conferences or pro-am events). Because of this legitimate business purpose, the LPGA's proposed rule should pass muster under Title VII.

Background check protects employer from negligent hiring claim

A claim of negligent hiring requires proof of five elements under Ohio law:

1. the existence of an employment relationship;
2. the employee's incompetence;
3. the employer's actual or constructive knowledge of the employee's incompetence;
4. the employer's act or omission causing the plaintiff's injuries;
5. the employer's negligence in hiring or retaining the employee as the proximate cause of the plaintiff's injuries.

Prewitt v. Alexon Services (Butler Cty. 8/25/08) concerns an employee who was raped by a co-worker. When Alexon hired the co-worker, it conducted a background check that revealed a misdemeanor disorderly conduct conviction, but not past history of sexual assault or abuse. Prewitt claimed that Alexon's screening was negligent because it did not conduct any additional inquiry or investigation to discover that the disorderly conduct conviction was sexual in nature. The court disagreed, finding that Alexon was entitled to rely on the results of its background check.

No applicant vetting process is perfect. Applications ask for criminal histories, and some companies go one step further by actually ordering a background check. At that point, what else can a company do? The transaction costs associated with a typical background check are high enough. If every employer had to investigate every conviction that shows up on a report to discover its underlying facts, the hiring process would grind to a halt. Thankfully, the court in Prewitt realized that reasonable steps taken by an employer deserve a reasonable result - in this case, the dismissal of the claim against the employer.