WIRTW #54

As I celebrate the Phillies first World Series title in 28 years, and Philly’s first title in any of the major sports in 25 years (believe it or not, the Phillies, Eagles, 76ers, and Flyers played a combined 9,029 games without producing a championship until Wednesday), we move our attention to more mundane issues, like next week’s Presidential election. Given the lack of media coverage over the last few months, I’m sure November 4 has snuck up everyone. So, I’ll try to catch everyone up on the labor and employment implications of next week’s vote:

• The Word on Employment Law with John Phillips gives us one last look at where the candidates stand on various pieces of legislation that impact employers.

• The HR Capitalist focuses on one key issue likely to be taken up by Congress early in 2009, the Employee Free Choice Act, and gleans some lessons from converse legislation in England three decades ago.

• The Workplace Prof Blog gives its take on politicking by employers, captive audience meetings for employees warning about the dangers of an Obama administration and how it could cause more economic pain by making it easier for unions to organize.

BLR’s HR Daily Advisor reminds everyone that it is fairness, and not the technical ins and outs of the law, that matters most to employees and juries.

On an issue I’ve spent some time discussing this week already, Law.com clues everyone in that the time is nearing to re-learn the ADA.

Fair Labor Standards Act Law addresses a very interesting issue, whether time waiting for a computer to boot at the beginning of the work day in considered “hours worked” under the FMLA.

The Connecticut Employment Law Blog asks what happened to the flood of ERISA fiduciary litigation that was supposed to come in the wake of Larue v. Wolff.

The Labor & Employment Law Blog reports that the Department of Homeland Security has reissued its final rule on the No-Match Safe Harbor Regulations. Recall that it was first issued last summer, and enjoined by the 9th Circuit. The rules have been in limbo since, and the new rules aim to address the 9th Circuit’s concerns.

The Federal Civil Practice Bulletin examines a decision that denied a motion to dismiss in a Title VII racial harassment case.

Will end this week with a little humor – HR World presents the annual list of the best employee excuses for missing work. The best, in my humble opinion:

• Employee said he had a heart attack early that morning, but that he was “all better now.”
• Employee was kicked by a deer (better not to ask for details).
• Employee contracted mono after kissing a mailroom intern at the company holiday party and suggested the company post some sort of notice to warn others who may have kissed him.
• Employee’s wife burned all his clothes and he had nothing to wear to work.
• Employee was up all night because the police were investigating the death of someone discovered behind her house.
• Employee’s psychic told her to stay home.

More on smoking as a disability

In commenting on my post on workplace smoking bans from earlier this week, Michael Moore at the Pennsylvania Employment Law Blog suggests that that the recent ADA Amendment Act (ADAAA) could make nicotine addiction a protected disability.

The recent ADA amendments significantly change the statutory definition of “disability.” In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity must be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of “disability.” The ADAAA expressly reverses that ruling by requiring the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures. Thus, when the amendments go into effect on January 1, 2009, a diabetic will be “disabled” under the ADA whether or not insulin is used to control the diabetes.

Michael argues:

The Americans with Disabilities Act was recently amended to expand the definition of “disability” to the point that it may encompass nicotine addiction. The few ADA cases on “smoking” as a disability have not recognized a claim based on the pre-amendment definition of disability. However, the rationale for denying disability status to “smoking” or “nicotine addiction” is squarely predicated on the remedial nature of the condition exempting it from coverage of the ADA as expounded in Sutton v. United Airlines, Inc. The ADA Amendments expressly abrogated Sutton.

Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.

I recognize that the ADAAA is going to expand the protections of the ADA beyond the scope of where courts have taken it in recent years. I do not believe, however, as some have argued, that it has been taken so far to encompass things such as nicotine addiction. We will have to take a wait-and-see approach on the post-amendment scope of ADA until courts start weighing in on exactly how broad the definition of “disability” has become. I stand by my earlier prediction, though, that smoking is not a protected disability under the ADA, a classification that should not change after January 1.

New FMLA regulations are on their way

On October 20, the Department of Labor forwarded its final draft of new Family and Medical Leave Act regulations to the Office of Management and Budget for its review. The OMB’s review process could take up to a month, and the OMB is expected to publish the new regulations some time in November.

In February 2008, the DOL proposed new FMLA regulations. It also asked for public comment. It is unknown what comments were received, and what changes, if any, were made to the proposed regulations as a result.

What we do know is that the proposed regulations suggested the following 12 key changes:

Changes to improve employers’ ability to plan and schedule around FMLA leaves:

1. An employee simply calling in sick does would no longer suffice as a request for FMLA leave. This change will greatly improve employers’ ability to plan and schedule around employees’ medical leaves.

2. Employers would be given greater latitude to deny a request for foreseeable leave if an employee do not provide sufficient notice.

3. An employee on intermittent leave for a chronic serious health condition would need to follow an employer’s standard call-in procedures for unscheduled absences. The employee would no longer be able to use intermittent leave and designate it as such after the fact.

Changes to the medical certification process:

4. The current process of employer conditionally designating FMLA leave as such pending the receipt of medical certification would be abolished. Instead, an employer would first advise an employee of his or her general eligibility for FMLA leave, and only approve the leave as FMLA-qualifying after the employee submits all of the required paperwork, including the medical certifications. This is one instance where bifurcating a process into two steps actually simplifies it.

5. Employers would be given more time to issue FMLA notices – five days instead of two – to employees requesting FMLA leave.

6. The DOL’s current medical certification forms would be revised.

7. Employers would be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of once.

8. Employers would be permitted to contact an employee’s healthcare provider directly to seek clarification or additional information about a medical certification, and would no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee’s doctor. While this change may have some effect on employee privacy, it will greatly improve the flow of information and streamline the ability of employers to make proper decisions based on full and complete medical information. This rule will also eliminate the expense and burden of companies having to retain their own doctors simply to ensure that a form is properly filled out.

9. Healthcare providers would be able to provide information on the diagnosis of the employee’s health condition on medical certification forms.

Changes to the meaning of “serious health condition”:

10. The meaning of “continuing treatment” under the definition of a serious health condition would be changed to specify that the two required visits to a healthcare provider must occur within 30 days of the beginning of the period of incapacity.

Other changes:

11. Employees would have a five-year cap on years of service for FMLA eligibility. This change would eliminate the problem of an employee working for a company for six months, leaving, returning 10 years later, and qualifying for FMLA leave after another six months of employment.

12. For employees that also qualify as disabled under the ADA, employers would be able to suggest reasonable accommodations that could preclude the need for FMLA leave without violating the FMLA.

I’ll have more on these new regulations, including which of the above changes made the final cut, when they are published in final form.

[Hat tip: BLR, c/o The FMLA Blog]

Do you know? Time off to vote on election day

Do you know? Ohio law requires that employers provide all employees a reasonable amount of time off to vote on election day. According to O.R.C. 3599.06:

No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.

The time off does not have to be paid, but companies should be wary of docking salaried employees.

Next Tuesday is election day. Voter turnout is expected to reach an all-time high. Don’t make the mistake of disciplining employees if they arrive late, leave early, or take a long lunch because they are exercising their right to vote.

Are there legal risks with smoking bans?

I had the privilege of speaking last week at the COSE 2008 Small Business Conference. I received a question on the legality of workplace policies that prohibit employees from smoking at all – during the work day, off work, anywhere, any time. As The Cincinnati Enquirer reports, there is a definite trend of businesses refusing to employ smokers. Companies view these policies are part of wellness programs that are used to control health insurance costs. Often, the programs not only prohibit smoking, but offer programs to smokers to aid in their efforts to quit:

Taking the employee wellness program to another level, a local company is refusing to hire smokers unless they enter a program to help them quit.

USI, the insurance and financial services company located downtown, started the program this year. The program applies only to new employees, who are tested when they are hired.

"We decided not to hire smokers because they add additional expense to our health plan and our ongoing operation," said Dennis Curran, chief human resources officer for USI's Midwestern region….

Nationally, the Scotts Miracle-Gro lawn-care company and the Cleveland Clinic have started similar programs. Locally, the Hamilton County Public Health agency also doesn't hire smokers.

29 states and the District of Columbia have so-called “smoker protection” laws – laws that elevate smokers to a protected class, making it illegal to discriminate against an employee because he or she smokes. Ohio is not such a state. Thus, in Ohio, there is nothing per se illegal about making employment decisions based on one’s status as a smoker.

As far as I know, this type of smoking ban has never been tested in an Ohio court. I have three thoughts, though, of possible laws that could be implicated by a blanket smoking prohibition:

1. The ADA: The ADA and its Ohio counterpart protect “addiction” as a disability. For example, a company cannot terminate an employee because that employee has a record of drug or alcohol addiction, or is perceived as a drug addict. There is a potential claim out there that employees who are addicted to nicotine are protected by the ADA. However, to be legally disabled under the ADA, it is not enough to simply suffer from some affliction. That affliction must substantially limit a major life activity. While a smoker is often addicted to nicotine, I fail to see how that addiction could be a disability protected by the ADA.

2. ERISA: Section 510 of ERISA prohibits employment actions taken with the specific intent of interfering with an employee’s ERISA benefits. Section 510, however, generally does not apply when the loss of benefits is a consequence of, but not a motivating factor behind, a termination of employment. There are lots of reasons why an employer may not want smokers in the workplace – the odor and the frequent smoke breaks are two reasons in addition to the added health costs. Moreover, the employee is not being hired because of an intent to interfere with health benefits, but the loss of benefits is coincident to the loss of employment. In other words, I think this claim has some sex appeal to it, but ultimately will fail on its merits.

3. Privacy: Ohio has no law the specifically protects employees in their private, off-duty conduct. For the same reasons that drug testing is legal, smoking inquiries should also be legal. The remedy for an employee who does not want to answer questions about smoking habits, or have a smoking panel included in a workplace drug test, is to look for employment elsewhere.

I think there should be little risk in enacting a workplace smoke-out, but these legal theories are untested. For small and mid-sized businesses then, the question becomes if you want to be the business that get such a policy challenged. There is nothing wrong with taking aggressive HR positions and testing the bounds of permissible policies. Make no mistake, though, it is not a questions of if a terminated employee will challenge such a policy, but when, and you better be prepared to defend the policy in court. In other words, as a small or medium-sized employer, are you better off taking a risk and implementing even a relatively safe policy such as an employee smoking ban, or letting larger, richer businesses test the bounds of the law and follow their lead when a court upholds the policy as lawful?

WIRTW #53

In honor of my beloved Phillies first World Series appearance in 25 years, I’m starting this week’s roster with a couple of sports-related posts. The HR Capitalist writes on the culture of losing, and the Trade Secrets Blog asks if Brett Favre misappropriated trade secrets when he left the Packers.

Work Matters discusses workplace vulgarity.

Case in Point picks up on the concept of the bulletproof employee in the context of a request for FMLA leave.

The Connecticut Employment Law Blog suggests that we look at the Presidential candidates’ resumes to help decide who to vote for.

Staying on the topic of politics, Suits in the Workplace gives some insight on the legality of discussing politics at work.

Bob Sutton takes the position that performance evaluations are broken and need to discarded, or at least reinvented and replaced.

World of Work and HR Observations both comment on the implications of mis-classifying an employee as and independent contractor.

Legalethics.com reports on a default judgment entered against a company for e-discovery violations and the destruction of evidence.

BLR’s HR Daily Advisor tells that employees cannot take the 5th in workplace investigations.

Until next week, “Why can’t us?” Go Phils!

Is administrative exhaustion a statutory or jurisdictional requirement?

It is axiomatic that a plaintiff must file a charge with the EEOC before filing a complaint alleging discrimination in federal court, and that the EEOC charge must contain a written statement sufficiently precise to identify the parties, to describe generally the action or practices complained of, and identify the specific type of discrimination alleged. Allen v. Highlands Hosp. (6th Cir. 10/21/08), which I discussed yesterday, may alter this conventional wisdom in a significant way. It held that exhaustion is a statutory element of a plaintiff’s discrimination claim, but not a jurisdictional requirement to filing suit.

In Allen, the plaintiffs’ EEOC charges alleged age discrimination, but not the specific disparate impact theory pursued in the case. The Hospital argued that the disparate-impact claim should be dismissed because the plaintiffs failed to exhaust their EEOC administrative remedies, and that identifying the specific claim of discrimination before the EEOC with sufficient precision is a jurisdictional prerequisite to maintaining that claim in federal court.

The 6th Circuit overturned its prior precedent and disregarded the employer’s argument. Six years ago, in Weigel v. Baptist Hosp. of E. Tenn. (6th Cir. 7/15/02), the 6th Circuit held that “federal courts do not have subject matter jurisdiction to hear [ADEA] claims unless the claimant explicitly files the claim in an EEOC charge or the claim can be reasonably expected to grow out of the EEOC charge.” In Allen, however, the court reversed court and held “that although administrative exhaustion is still a statutory prerequisite to maintaining claims brought under the ADEA, the prerequisite does not state a limitation on federal courts’ subject matter jurisdiction over such claims.”

The distinction between a jurisdictional and statutory requirement is significant. A jurisdictional requirement would serve as an absolute bar to any plaintiff pursuing a claim without exhaustion. By making this requirement statutory, the 6th Circuit makes available arguments such as equitable tolling, which would enable a plaintiff to stay in federal court even if the charge was filed late.

Practically, this ruling should have a minimal effect on discrimination claims in Ohio. Ohio’s state employment discrimination statute has no exhaustion requirement at all. Under Ohio Rev. Code 4112.99, an aggrieved employee can proceed directly to court without first filing any charge whatsoever with any administrative agency. Thus, in Ohio discrimination claims, exhaustion rarely becomes an issue. Where this decision may have some effect is in age discrimination claims. Age claims under Ohio law are subject to a short 180-day statute of limitations, as compared to all other forms of employment discrimination, which have a six-year filing period. An employee, however, has 300 days to file an age discrimination charge with the EEOC. For an employee who misses the shorter 180-day filing period under 4112.99, an EEOC charge and later federal lawsuit under the ADEA is always an option. Thus, this decision could impact those employees who miss the relatively short state statute and have to go the EEOC for relief to enable a federal court filing under the ADEA.