Matt’s Analysis of Quirky Question # 193: Pregnancy Complications and the FMLA, PDA and ADA
[Readers: Quirky Question # 193 was posed to my colleague, Matthew Kipp. His analysis is set forth below.
By way of background, Matt spent many years working in our Fargo office. He recently made the move to Minneapolis and we are very pleased he did. If you have any questions about the analysis below, don't hesitate to contact Matt directly. His email is: kipp.matthew@dorsey.com; his phone number is: 612.492.6162. Additional information about Matt is available at: http://www.dorsey.com/kipp_matthew/.
I hope you find Matt's analysis helpful. Regards, Roy]
Quirky Question # 193:
An employee experienced complications with her pregnancy toward the end of her second trimester. As a result of these complications, her physician placed her on bed rest for the remainder of the pregnancy. If she carries the baby to term, this employee will exhaust her Family and Medical Leave Act leave by the time of the birth. Are we required to give the employee additional leave after the baby is born?
Matt’s Analysis:
The answer to this question is complex because there are two different leave considerations at issue – (1) the leave while the employee is on bed rest and (2) any leave the employee may be entitled to after the baby is born – and it implicates the Family and Medical Leave Act (FMLA), the Pregnancy Discrimination Act (PDA), and, potentially, the Americans with Disabilities Act (ADA), in addition to whatever state laws may apply in your jurisdiction. Furthermore, employers are advised to tread very carefully in this situation, and those like it, because the Equal Employment Opportunity Commission (EEOC) recently brought renewed focus on the issues of discrimination against pregnant women and caregivers. See Press Release, EEOC, Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities Widespread Problem, Panelists Tell EEOC (Feb. 15, 2012) (http://www.eeoc.gov/eeoc/newsroom/release/2-15-12.cfm).
As you likely know, the FMLA provides the employee with certain leave rights. Unlike the PDA or the ADA, the FMLA applies in this situation to both the pre- and post-birth leave. The FMLA requires covered employers to grant leave to employees for reasons including: (1) “a serious health condition that makes the employee unable to perform the functions of the position of such employee” and (2) “the birth of a son or daughter of the employee and in order to care for the son or daughter.” 29 U.S.C. § 2612(a).
The PDA prohibits discrimination against pregnant women. This Act applies only to the determination of the leave issue while the employee is on bed rest. The PDA requires an employer to treat the pregnant employee the same as if she were not pregnant. In the case of a request for additional leave beyond that permitted under the FMLA, an employer must treat the pregnant employee the same as it would any other employee with a medical condition that prevented the employee from working for a set period of time. If your company has a policy providing for additional leave, that leave must be offered to the pregnant employee under the same circumstances as it would be offered to any other employee with a health condition requiring leave.
Depending on the types of complications caused by the pregnancy and the extent of the bed rest restriction, an employee may also be disabled under the ADA. She will qualify as disabled if the unusual physical impairments caused by her pregnancy affect a major life activity and that major life activity is substantially limited by the impairment. Prior to the passage of the ADA Amendments Act of 2008 (ADAAA), there were court decisions ruling both ways on the issue of whether pregnancy complications constituted a disability. Some of these cases relied on the specific nature of the limitation caused by the pregnancy complications, but other cases relied on regulations that indicated short-term impairments were not “substantially limiting.” Because pregnancy is inherently short-term, some courts found that the pregnant employee was not disabled.
Following the passage of the ADAAA, the U.S. Department of Labor (DOL) revised its regulations to be in harmony with and implement the new law. As part of these revisions, the DOL eliminated the regulations that included duration of the impairment as part of the “substantially limits” consideration. The regulations also now specifically state: “The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.” 29 C.F.R. § 1630.2(j)(1)(ix). In conformity with the ADAAA, the regulations also lower the standard required to meet the “substantially limits” definition. Thus it is much more likely that a pregnant employee who experiences unusual complications from her pregnancy, which limit her activities, will be “disabled” under the ADA.
In this situation, the employee’s physician has restricted her to bed rest with only short periods away from the bed to use the bathroom or to prepare a meal. This sedentary life style for, potentially, three months is sufficient to establish that she is limited in at least one major life activity “as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Therefore, this employee would be considered disabled under the ADA for the duration of her bed rest.
Once it is determined that this employee is disabled, and she has asked for an accommodation, then it is the employer’s obligation to engage in the interactive process with the employee to determine whether there is a reasonable accommodation available. The EEOC has issued guidance finding that a reasonable accommodation includes permitting an employee to take unpaid leave. In this situation, given the extent of the employee’s restriction and the nature of her work, the only accommodation that is being requested is additional leave beyond that permitted by the FMLA. (For other employers, depending on the nature of the employee’s work, it may be possible to make arrangements that would permit the employee to work while she is lying in bed at home.)
When an employee may be entitled to leave under both the FMLA and the ADA, an employer should determine the employee’s leave rights under each law separately and then consider where the two laws may overlap. The first step in this situation would be to ask the employee how much leave she intended to use after the birth of her child. The typical leave is six to eight weeks. Assume for the sake of this discussion that the employee tells you that she already knows the birth will be by Caesarean section, so she will take eight weeks of leave following the birth. Thus, the total amount of leave she will take is approximately twenty weeks.
Twelve of those weeks are guaranteed under the FMLA. Part of the FMLA leave will cover the time after the birth and part of the FMLA leave will cover the time she is on bed rest. The remaining eight weeks of leave, which would be applied to the time she is restricted to bed rest, would be governed by the ADA. As the employer, you must determine whether this eight weeks of leave is a reasonable accommodation. If providing her with eight weeks of leave to accommodate her disability is going to place an undue hardship on you, then it is not a reasonable accommodation. There are a number of considerations that factor into whether an accommodation constitutes an undue hardship, so it is advisable to consult with an attorney before rejecting a requested accommodation on the basis of undue hardship.
As the foregoing illustrates, whenever the FMLA and ADA interact, there are a number of potential pitfalls for the employer. To avoid them, make sure you engage in proper communication with your employee, provide the employee with his or her full rights under the applicable laws, and, of course, consult with your attorney whenever you are uncertain about how to proceed at any particular stage in the process.
Roy’s Analysis of Quirky Question # 187, Who Is Responsible for Determining Whether Jobs Are Available for an Employee on Disability Leave — the Employer or Employee?
Quirky Question # 187:
One of our employees has been out of work on a disability. We’ve accommodated her by letting her take a prolonged leave of absence. During this time, she also has been availing herself of both our Short-Term Disability (STD) and Long-Term Disability (LTD) policies. She’s been out of work for a full year.
We’ve periodically conducted internal reviews to see whether we might have any jobs that would be appropriate for the employee on leave, but we just haven’t had any positions that fit both her qualifications and her limitations. Moreover, she has not contacted our company at all during her extended leave. She has not accessed our on-line position listings (we’d know because our system records all site visits), she has not come into the office where she could check bulletin boards with internal job listings, and she has not contacted either her former supervisor or our HR Department.
Given these facts, we terminated her employment at the end of the anniversary of her separation. She now claims that we have discriminated against her on the basis of her disability. She further contends that it was our company’s responsibility to determine whether there were any positions she could have performed during her leave of absence. Frankly, we think that was her responsibility. Who’s right?
Roy’s Analysis:
In my view, you and your company have the stronger, more compelling position. But, the case law on this topic is somewhat mixed. Moreover, my analysis would be affected by factors not revealed in your question. Let me explain.
As a prefatory observation, I commend your company for allowing your employee to take leave as one way of accommodating her disability. Many courts have recognized that a leave of absence, during which time your employee can recuperate from a disability (often involving the process of regaining mental health), is a reasonable accommodation for someone who is unable to perform the essential functions of a job because of a physical or mental impairment. (As you likely know, if your company is covered by the Family and Medical Leave Act (FMLA), there are separate obligations to provide your employee either continuous or intermittent unpaid leave of up to 12 weeks annually. This analysis does not address the FMLA issues.)
Another approach your company has adopted is to assist your disabled employee to utilize both short- and long-term disability insurance. This approach undoubtedly reduced the financial hardship associated with the leave your employee found necessary by providing some level of compensation (often quite substantial) during the period she has been absent from work. Read more
Roy’s Analysis of Quirky Question # 185; Accommodating a Disabled Employee Who Only Can Work a Partial Shift
Quirky Question # 185:
We run a manufacturing company. We are fortunate in that, despite the difficult economy, our products remain in high demand. One of our employees has a couple of related disabilities, the consequence of which is that he only can work a maximum of 8 hours each day. In the past, we have been able to accommodate this limitation. But, given the ever-increasing demand for our products, we have had to convert from 8-hour shifts to 12-hour shifts on all of our production lines.
Our employee has asked us to accommodate him further by allowing him to work just 8 hours each day. We don’t think that would be fair to our other employees, all of whom have to work 12-hour shifts. We also think it would be unfair to force us to incur the additional expense associated with this requested accommodation. What’s your reaction? Do we have to accommodate this employee by allowing him to work just 8 hours per day?
Roy’s Analysis:
My first thought is that your company deserves congratulations. It’s wonderful that your firm has been able to increase sales of your products in the difficult economic conditions of the last several years.
Although I cannot provide you complete assurance regarding your treatment of your employee, there are reasons for your company to be quite optimistic about your position. Initially, I like the backdrop facts that you have shared in part. As you describe, your employee has had a disability for some time. Even more important, your company has been accommodating your employee’s disability by agreeing not to ask him to work more than 8 hours each day. This demonstrates that your firm did not discriminate against your employee when you discovered his physical limitations.
These facts would be enhanced even further if your company hired this individual knowing of his disability. Similarly, the longer the period you employed him while accommodating his disability, the more persuasive your arguments that your company does not discriminate against employees with disabilities and that your organization attempts to accommodate persons who need an accommodation to perform the essential functions of the job.
Due to your company’s success and the resulting demand for your products, however, it is apparent that the accommodations you have offered in the past (basically, limiting the employee’s workday to just 8 hours) no longer will suffice. With your new requirement of 12-hour shifts, your employee seemingly will not be able to perform the essential functions of the job. The job requires 12 hours of work; with an 8-hour limitation, your employee will come up four hours short each day. Read more
Roy’s Analysis of Quirky Question # 182, Accommodating Employee with Disabled Spouse
Quirky Question # 182:
One of our management employees has a spouse with some serious health problems. Until recently, this fact has not had an impact on his job performance.
Of late, however, he has been distracted by his wife’s recurrent illness (understandably) and her associated treatment. This problem now is affecting his performance. After a failed attempt to work with him to improve his performance, we fired him. He now claims that we violated the ADA and that we were obligated to accommodate him with regard to his care for his wife. He also claims that we violated the “associational” discrimination component of the ADA.
Did we screw up by ending his employment relationship with our company?
Roy’s Analysis:
Last week, my former partner, David Lauth, now Senior Associate General Counsel at UnitedHealth Group, and I conducted the Eighth Annual Quirky Employment Questions seminar. We used Question 182 during the session. Interestingly, I asked for a show of hands to ascertain how many members of audience believed that their companies were obligated to accommodate, under the Americans with Disabilities Act (ADA), an employee whose spouse was disabled. About 50 percent of the audience thought their companies had a legal obligation to do so in the context of the fact pattern above. They were wrong.
Of course, this is not to suggest that companies should not offer an existing employee some accommodation to help him or her deal with a serious health condition of a family member. There may be compelling ethical or moral reasons to make that kind of accommodation. Moreover, there may be persuasive practical reasons to accommodate an employee confronting this type of family crisis. These include, without limitation: a) the company’s desire to retain a skilled employee, which may not be possible without some kind of accommodation; b) the appreciation that the employee will feel for the employer’s actions, strengthening the employee’s commitment and loyalty to the company; c) the good will the company’s actions may generate among the employee’s co-workers, who recognize how the accommodation was consistent with the articulated values of the company; d) the avoidance of the costs associated with having to replace a highly skilled employee (from hiring to training to retention); and e) the avoidance of the resentment other employees may feel when one of their colleagues is fired as the result of assisting an extremely ill family member.
But, is there a LEGAL OBLIGATION to accommodate, under the ADA, an existing employee who has to care for a disabled family member? Nope! Read more
Sarabeth’s Analysis of Quirky Question # 178: Medical Marijuana and the ADA
[Readers: This inquiry was posed to my colleague, Sarabeth Ackerman. Her analysis is set forth below. If you have any questions about Sarabeth's analysis, don't hesitate to contact her at ackerman.sarabeth@dorsey.com, or at 612.492.6013. We hope you find this information helpful. Regards, Roy]
Quirky Question # 178:
We are a large company with operations in several states. Three of the states in which we operate permit medical marijuana use: California, Oregon, and Washington. One of our factory employees, working in an Oregon location, recently requested that we accommodate his medicinal use of marijuana. The employee claims that even if state medical marijuana law and discrimination law does not require accommodation, accommodation is required under the Americans with Disabilities Act because the marijuana is treatment for a disabling medical condition. Is this true? We have not been accommodating any employee use of medical marijuana. Are we going to be in trouble under the ADA?
Sarabeth’s Analysis:
Your questions provide a great example of the sometimes conflicting intersection between state and federal employment law. As a general matter, it is important to remember that conduct permissible under state law may not permissible under federal law, or vice versa. Thankfully here, however, the federal ADA appears to agree with the California, Oregon, and Washington state law on medical marijuana: An employer does not need to accommodate an employee’s use of medical marijuana.
It appears you are familiar with, and conform your practices to, California, Oregon, and Washington state law on employee medical marijuana use. The California Supreme Court was the first to hold that state employers are not required to accommodate employee medical marijuana use under the California Fair Employment and Housing Act (which prohibits discrimination on the basis of disability). We previously wrote about that decision, Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Cal. 2008), in Quirky Question #21. (All past Quirky Questions are accessible by using the search features above.) Read more
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