Yesterday, the U.S. Supreme Court issued an opinion in Young v. UPS, in which it addressed the Pregnancy Discrimination Act’s requirement that employers treat pregnant employees the same way they treat other employees in the same job. The Court held that an individual pregnant worker who seeks to show disparate treatment may make out a prima facie case by showing that: she belongs to the protected class; she sought accommodation; the employer did not accommodate her; and the employer did accommodate others “similar in their ability or inability to work.” The employer can respond with legitimate nondiscriminatory reasons for denying accommodation which the employee may then rebut by showing the stated reason is pretextual. The Court then held that the plaintiff created a genuine issue of fact as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers.
As a practical matter, based on the Court’s decision, employers should tread very carefully when applying “light duty” policies and should not restrict light duty positions to employees with work-related injuries.
The decision is here: http://www.supremecourt.gov/opinions/14pdf/12-1226_k5fl.pdf
The Portland Business Journal has an interesting article about how to manage toxic employees who are also superstars. The article recommends that an employer’s approach to the toxic employee should take into account both the mission and goals of the employer. The employer’s approach should also involve consulting with counsel to consider the legal risks of terminating the employee, and whether it is possible to minimize those risks. For example, if you have a toxic employee whose bad behavior has not been well documented, putting the employee on a performance improvement plan could satisfy the goals of the employer and reduce legal risk: it gives the employee a chance to correct the toxic behavior and let’s the employer remedy its lack of documentation for the employee. The article is here: http://www.bizjournals.com/portland/how-to/human-resources/2015/03/how-to-handle-a-toxic-but-superstar-employee.html?page=all
The US Department of Labor has announced that the Occupational Safety and Health Administration (OSHA) has ordered the Union Pacific Railroad to pay an injured engineer $350,000 in punitive and compensatory damages, plus attorney’s fees. According to the DOL, this is the third time since 2011 that the railroad has violated the law by disciplining employees who reported workplace injuries and sought medical attention, and the company has faced more than 200 whistleblower complaints nationwide.
In this case, OSHA investigators determined that Union Pacific had disciplined one of its engineers who reported injuries sustained in a 2013 collision and who received medical attention. Prior to that incident, the employee had never been disciplined. To avoid these sort of whistleblower complaints, employers in all workplaces should train their supervisors and employees that workplace injuries should be promptly reported, and those employees who report injuries or unsafe conditions should not be disciplined or otherwise retaliated against for doing so. This, of course, does not mean that employees cannot be disciplined for disregarding workplace safety policies.
We frequently post about employer obligations to accommodate disabled employees. Generally, accommodation is required unless an employer can show that the requested accommodation imposes an undue hardship. Not surprisingly, litigation often focuses on whether a particular accommodation imposes an undue hardship, an analysis that considers the nature and cost of the accommodation, the financial resources of the employer, the number of employees and effect on expenses and resources of the employer, and the type of operation involved (among other facts and circumstances).
Recently, the EEOC announced a settlement with an Atlanta employer who was alleged to have refused to provide an employee with a mat to stand on to accommodate the employee’s scoliosis. The employer was also alleged to have fired the employee when she complained that she was being subject to discrimination. The EEOC’s news release does not include information about the employer’s explanation for why it terminated the employee, or whether the employer argued that providing a rubber mat created an undue hardship. However, it is unlikely an employer could establish that providing a rubber mat entailed significant difficulty or expense.
The Oregonian summarizes the proposed legislation and pros/cons of prohibiting questions on job applications about a prospective employee’s criminal background.
A Washington man was recently charged with 12 felonies for obtaining illegal and prescription drugs by fraud. On 17 separate occasions, the man visited hospitals or urgent care clinics and claimed to have suffered an on-the-job injury. At the medical facilities, he filled out workers’ compensation claim forms using his first name and the last name of a Seattle Seahawks football player or another professional ball player or coach. According to the Washington Attorney General, among “the last names of football players and coaches he’s accused of using: Harvin, Largent, Sherman, Mora, Richardson, Hollenbeck, Robinson, Okung, Marino, Bledsoe and Henderson. He also used the surnames of stars from other sports: Malone, Langston and Duckworth.” In addition, four of the employers listed on claim documents did not exist.
The scam was discovered when one of the employers listed told the Washington Department of Labor & Industries that it believed the claim was filed by a former employee and a handwriting expert confirmed that each of the injury and accident reports matched the employee’s handwriting. There is no lesson here, except maybe that truth is stranger than fiction. http://lni.wa.gov/News/2015/pr150303a.asp
Under the ADA, medical inquiries directed at existing employees are permitted when they are job related and consistent with business necessity. As explained by the EEOC, a disability-related inquiry or medical examination may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.
Earlier this week, an employer was ordered to pay more than $475,000, which included $202,287 in punitive damages, to a group of former truck drivers because the employer’s medical clearance policy was found to violate the ADA. The policy in question required drivers to notify the employer whenever they had any contact with a medical professional, including a routine physical. The employer had been ordered to limit medical inquiries of employees back in 2012, but apparently chose to ignore the court’s prior directions. http://www.eeoc.gov/eeoc/newsroom/release/3-4-15b.cfm
There are certainly circumstances when an employer may have a reasonable belief that an employee has a disability or a medical condition that may be impacting the employee’s ability to do their job or poses a direct threat, and substantiates an employer’s medical inquiry. However, a blanket policy that requires disclosure of any medical treatment for any condition will not pass muster under the ADA.
A recent EEOC press release is a reminder that employer obligations to provide reasonable accommodation extend to job applicants. According to the EEOC, during the interview and orientation process, a Texas employer discovered that two job applicants were hearing impaired (because the applicants were using sign language with each other). The employer refused to provide information about the open positions in writing to the applicants and then told them that it would not hire them. The EEOC does not disclose the employer’s explanation for its actions. However, the EEOC press release strongly suggests that providing information in writing about a job opportunity is a reasonable accommodation for an applicant’s disability and would not constitute an undue hardship.
The lesson here: if you discover that a job applicant needs an accommodation to compete the application process, carefully evaluate the burden to your organization before denying the accommodation.
The DOL announced today that it revised the definition of “spouse” under the FMLA. Under the revised definition, an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of whether the employee’s home state recognizes same-sex marriage. The change is consistent with the U.S. Supreme Court’s ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act provision that interpreted “marriage” and “spouse” to be limited to opposite-sex marriage for the purposes of federal law. Under the updated rule, employees in legal, same-sex marriages, regardless of where they live, will now have the same rights to federal job-protected leave under the FMLA to care for a spouse with a serious health condition as employees in opposite-sex marriages.
House Bill 2646 proposes to require employers to provide 8 hours of unpaid leave per year to employees to attend teacher conferences and school related activities during school hours, volunteer at school, and attend school sponsored events. The proposed law also makes it an unlawful employment practice for an employer to terminate or discipline an employee for taking unpaid leave to attend school activities, for attending a school conference at the request of a school administrator, or if the employee is notified during work hours of an emergency involving a child.
HB 2646 is backed by the Oregon Labor Commissioner. We will keep you posted on developments.