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Issues In Employment Law – June 2001


Posted on June 1, 2001
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When an employee seeks a change in the terms or conditions of her employment pursuant to the Americans with Disabilities Act, Employers must consider a range of options in order to meet its obligations regarding an interactive process to reach an accommodation, according to a recent Federal Appeals Court decision.

The Americans with Disabilities Act requires that an employer of an employee covered by the act, seek “reasonable accommodations” for that employee, to alleviate the employee’s disability. This means that an employer must consider a number of possible accommodations, and cannot rely on just one option, or give up if that option proves unsatisfactory, according to a recent Federal Appeals Court decision. In Humphrey v. Memorial Hospitals Association, 239 F.3rd 1128, (9th Cir. February, 2001), an employee with obsessive/compulsive disorder requested as accommodation from her employer, a flexible start time. When this proved to be an ineffective remedy, the employer terminated her employment. The Federal Court of Appeals for the 9th Circuit, which covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, held that an employer has an affirmative duty to enter into an interactive process, to explore further arrangements for reasonable accommodation. In short, an employer’s duty is continuing, and that is must consider a number of alternatives until all reasonable accommodations are considered.

Employers faced with employee absences due to the serious bouts of the flu should notify such employees that it can and will consider such absences as leave under the Family and Medical Leave Act, in light of a recent Federal Court of Appeals decision.

The Fourth Circuit Court of Appeals, which decides the application of federal law in Virginia, West Virginia, Maryland, North Carolina, and South Carolina, recently outlined the manner in which an employee could effectively claim FMLA leave while suffering from the flu. Ordinarily, conditions like the flu are not covered by the Family and Medical Leave Act, but under some circumstances, such as those present in Miller v. AT&T Corp., — F.3d —, 2001 WL 475934 (4th Cir. (Va.)), the flu might be covered. In the Miller case, the employee requested FMLA leave while she suffered through the flu. A Physician had instructed the employee to rest, take over-the-counter medications, and increase her fluid intake. These types of instruction do not normally meet the level of a “regimen of continuing treatment” as required by the FMLA’s definition of “serious medical condition.” However, the employee in this case sought medical treatment twice during the pendency of the flu, the physician drew blood, and conducted tests on the second visit. The Court held that the second and any subsequent visit to a physician for the same ailment would constitute a serious medical condition for the purposes of applying FMLA leave. As such, the employer violated the employees FMLA rights in denying her the appropriate coverage, and terminating her employment.

It is our advice to employers to require any employees who seek to claim FMLA coverage, to submit documentation of any and all treatment that they sought in connection with a particular ailment. If the employee sought follow-up or subsequent care, employers may wish to ere on the side of caution and permit any leave to be FMLA leave, even if the ailment is not one usually considered to be a “serious medical condition.”

Employers should not make promises to rehire employees who resign due to a medical condition or to seek treatment for a medical condition, or for any other health related reason, as such promises could be actionable under the American’s with Disabilities act should the employer fail to actually rehire the former employee, says a Federal Court of Appeals.

A delivery truck driver who suffered from a severe regional allergy sought transfer within his company to another city. When this request was denied, he was told that he should resign his present employment, and apply for rehire at the new site. The employer failed to rehire him at the new location. In EEOC v. UPS, Inc., 2001 WL 473062 (6th Cir. (Ohio) May 2001), the Court of Appeals for the 6th Circuit, which covers Kentucky, Tennessee, Ohio, and Michigan, held that the employee’s resignation was not really voluntary when it was encouraged by the employer as a way to accommodate his disability, thereby permitting as ADA claim to be made. The Court stated that the employer has a duty to consider transferring an employee, where the disability was local in nature-like here, where the toxin to which the employee was allergic was of local origin and disbursement. Further, the Court held that since transfer was a legitimate accommodation option, the fact that he was induced to resign, instead of being transferred, made the failure of the same company to rehire him into an “adverse employment action” covered by the act.

When employers are asked to consider a transfer as a “reasonable” accommodation, it would be best for employer to actually consider this option, versus passing the decision on to the next office by suggesting resignation. Further, employers should suggest no methods which it is not prepared to defend, as every suggestion made by an employer can be construed as binding upon it.

Employers does not need to adjust the terms and conditions of an employee who seeks an accommodation due to limitations on commuting to work by provided a shorter commuting distance or other accommodations, since a Federal Appeals Court rejected the idea that driving to work could be considered a “major life activity” under the Americans with Disabilities Act.

In Chenoweth v. Hillsborough County, 2001 WL 497374 (11th Cir. (Fla.) May 10, 2001), a nurse who had to drive a significant distance to work, was directed by her physician to refrain from driving for six months. She sought accommodation from her employer for this driving limitation which her employer refused. The employee suffered from a form of epilepsy, and medication controlled her seizures. Her epilepsy had no appreciable affect on her work performance. In order to be qualified as “disabled” under the ADA, an employee must be substantially limited in one or more “major life activities” which include caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working. This court held that driving was of a different character than these other life activities, and that the “deprivation of being self-driven to work cannot be sensibly compared to inability to see or to learn.” Further, since driving was not part of her actual work, and her condition didn’t effect her ability to do her actual work, the limitation of driving also did not substantially impair her ability to work. Thus, she was not disabled within the meaning of the ADA, and the employer was not obligated to accommodate her inability to drive to work.

What this means for employers is that while they have an extensive obligation to employees to make accommodations, some things are still too much to ask of employers…namely that it needs to accommodate an employee’s commuting method.

Employers using 401(k)’s or other qualified retirement plans may face substantial penalties if revisions to its plans fail to meet an upcoming IRS deadline.

The IRS has imposed several deadlines, the earliest of which is December 31, 2001, for submission of certain retirement plan revisions which are required by several changes in pension law over the last seven or so years. For many employers this can be a complex and daunting task, but with penalties exceeding $20,000.00, even for small business, all providers of pension plans should review their plan, and consult with pension experts, either us or another, to ensure that they are in compliance. As these processes can take time, employers are well advised to act now. Further, we suggest that unless your plan has been revised since 1994, there are many requirements which have probably not been met, and which may result in your plan losing its “qualified” status.

Employers will want to review the content of any summary plan descriptions (SPD) required for employee benefit plans subject to the Employee Retirement Income Security Act (ERISA), in light of new amendments to the regulations of the U.S. Department of Labor.

The Department of Labor recently issued amendments of its regulations which update the disclosure rules applicable to pension and welfare plans and which are generally effective as of January 20, 2001. Under the new regulations, Group Health Plans must include the following information in their SPD’s: any cost sharing provisions, any annual or lifetime caps, limitation on preventative services, extent new or existing drugs are covered, what tests devices or procedures are covered, network and out of network provisions, limitations on emergency medical care, and any provisions about pre-authorizations or review. Additionally disclosures include method of incorporating Qualified Medical Child Support Orders, COBRA information, method of funding the plan, claims procedures, listing of providers, and permissible length of hospital stay after child-birth. There are additional requirements for Pension plans and Pension and Welfare Benefit Plans.

Employers will want to review its plans to ensure compliance with these new disclosure requirements.

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