FMLA

Cases in the Third Circuit Court of Appeals have great importance for New Jersey employers in connection with the FMLA.  The case of Hansler v. Lehigh Valley Hosp. Network, 790 F.3d 499 (2015 U. S. App. LEXIS 10444) (3d Cir. June 22, 2015) is worthy of study.  It involved a technical partner who was hired in 2011 and began to have shortness of breath, nausea, and vomiting in 2013.  The cause of these symptoms was unknown at the time she submitted her medical certification for intermittent leave under the FMLA.  The medical certification form requested intermittent leave at a frequency of two times weekly starting March 1, 2013 and lasting for a probable duration of one month – or until April 1, 2013.

Hansler was unable to work on March 13, 14, 23, 24 and 25.  Lehigh Valley terminated her employment at the end of her shift on March 28, 2013 for excessive absenteeism.  The hospital did not seek further information about the medical certification submitted on March 13^th.   Hansler protested that she had requested FMLA leave but the hospital advised her that her request was denied.  However, Hansler was unaware of this until she got a letter around the last day of her absences.  This letter stated that her leave request was denied because her condition did not qualify as a serious health condition.  In early April 2013 Hansler was diagnosed with diabetes and high blood pressure.  She alleged in her law suit that these previously unknown diagnoses were the cause of her absences.

In her law suit for interference with her FMLA rights, Hansler argued that she had a chronic serious health condition and the hospital failed to allow her seven days to cure the vague certification she submitted. Lehigh Valley countered that a chronic condition must continue over an extended period of time, and one month is not enough.  The District Court agreed with Lehigh Valley but the Third Circuit Court of Appeals reversed in favor of Hansler.  It said there is a difference between a negative medical certification and an incomplete or vague certification in that the latter requires the employer to allow the employee seven days to cure.

The Court gave an example of a negative certification as one in which the medical certification flatly says that the employee is not incapacitated from working.   There would be no need to ask the employee to cure this sort of certification.  But in this case, the court found:

In short, we hold today simply that when a certification submitted by an employee is ‘vague, ambiguous, or non-responsive’ (or ‘incomplete,’ for that matter) as to any of the categories of information required under 29 U.S.C. 2613(b), the employer ‘shall advise the employee . . . what additional information is necessary to make the certification complete and sufficient’ and ‘must provide the employee with seven calendar days . . . to cure any such deficiency.’ 29 C.F.R. 825.305(c). The plain and mandatory language of the statute and regulations requires no less.

The Third Circuit presented the following rationale for its holding: “Rather, because a ‘sufficient certification’ for intermittent leave under 29 U.S.C. 2513(b) must address both ‘the expected duration of the intermittent leave’ and the ‘probable duration of the condition,’ and because the certification here failed to specify whether the ‘probable duration of the one month’ referred to the duration of the leave request, the duration of the medical condition, or both, the certification was not a ‘negative certification,’ but was instead ‘vague, ambiguous, or non-responsive,’ meeting the definition of ‘insufficient.’”  In short, the Court felt that the certification was vague in regard to the meaning of duration:  was it the duration of the leave request or the medical condition?

The Court said that Lehigh Valley should have advised Hansler that the certification was insufficient and stated in writing what additional information was required.  In addition, the hospital should have allowed her an opportunity to cure or clear up the ambiguity.  The Court was also critical of Lehigh Valley for not advising Hansler right away that her request had been denied.  The Court concluded, “Faced with nascent symptoms from a yet-to-be diagnosed condition, an employee’s physician may need some additional time to provide the required elements of a certification.”

This case is important because it focuses on a situation where an employer is faced with a termination decision right around the same time as the employee has requested FMLA leave.  If in doubt, the employer should allow the seven days to cure unless it is absolutely clear from the certification that the employee is not incapacitated from working and therefore does not have a covered serious health condition.

Charlesetta Jennings worked as a Support Services Assistant (SSA) at Womble Carlyle, a 500 lawyer firm based in North Carolina. Her job required performing a wide variety of tasks, including managing supplies, delivering or picking up packages, copying and scanning documents, setting up conference rooms, filing for receptionists, operating copy and scanning machines, and binding documents.

Jennings took FMLA leave in 2008 when she was diagnosed with breast cancer and intermittent leave during periods of chemotherapy.  In November 2009, she noticed tenderness and swelling in her left arm, a condition diagnosed as lymphedema related to the breast cancer treatment.  Jennings continued to work but devised ways to avoid doing heavy lifting such as lifting packages or boxes of paper.

In June 2010, Jennings suffered a work injury occasioned by heavy lifting.  She was working alone at the Liberty Plaza location of the office and had to tape up and move about 14 boxes weighing 32 to 38 pounds in addition to moving some paper boxes weighing 50 pounds.  Her doctor then restricted her to lifting no more than 10 pounds.

The law firm met with Jennings and broke down the duties which Jennings could no longer perform.  There were two or three times more duties that she could not perform than the ones she could perform within the 10 pound restriction.  She could still copy and scan documents and deliver light weight envelopes as well as fill in for receptionists on breaks.   The law firm continued to accommodate her for six months on light duty because it had a large scanning project going on.  After the scanning project ended, the law firm could only keep Jennings busy 20% of the time.

On February 1, 2011 Jennings provided an updated doctor’s note allowing her to lift permanently no more than 20 pounds.  However, there were still many tasks which Jennings could not perform with a 20 pound restriction.  The law firm therefore placed her on a medical leave of absence effective February 9, 2011 and when the leave ran out, the firm terminated her employment in August 2011.

Jennings sued under the ADA and contended that Womble Carlyle failed to make reasonable accommodation.  The EEOC brought the suit on behalf of Jennings.  The District Court dismissed the law suit, holding that even with reasonable accommodation, Jennings could not lift more than 20 pounds.  The Court of Appeals for the Fourth Circuit affirmed.

The Court of Appeals rejected the EEOC’s argument that Womble Carlyle could not consider job tasks that Jennings had not performed for quite some time. It said, “That an employee may typically be assigned to only certain tasks of a multifaceted job ‘does not necessarily mean that those tasks to which she was not assigned are not essential.’” (citations omitted). The Court pointed out that many of the tasks of an SSA required lifting substantially more than 20 pounds.  When Jennings had tried to life more than 20 pounds, she had in fact injured herself in 2010.

To be sure, Jennings was able to devise ways to do some tasks, but she remained unable to do many more.  She could not work alone at Liberty Plaza or Winston Tower or on Saturdays, assist with office moves, deliver or pick up packages from offsite or among any of the three Womble Carlyle buildings, set up conference rooms, or any of a number of tasks.  Thus, even though Jennings’ work-around methods enabled her to perform a small subset of the job’s responsibilities, the ability to lift over 20 pounds was inextricably tied to the vast majority of them.

The Court concluded that Jennings was not a qualified individual under the ADA because she could not perform the essential job functions, even with accommodations.  The Court also said it would be unreasonable to require the law firm to reallocate essential functions and noted that the ADA does not require such reallocation. See 29 C.F.R. pt. 1630 app. 1630.2.(o).

This case is helpful for practitioners because it focuses on a fairly common situation where an employer temporarily accommodates an employee for a period of time until permanent restrictions are issued.  The mere fact that the employer temporarily made accommodations does not require the employer to permanently make those accommodations if the employee cannot perform the essential functions of the job with or without reasonable accommodation.  Nor must the employer ignore other essential functions of the job that the employee has not performed in quite some time. The case may be found at EEOC v. Womble Carlyle Sandridge & Rice, LLP, 31 AD Cases 1349 (4^th Cir. 2015).

Colleen Pizzo worked as a custodian for the Lindenwold Board of Education in Camden County, New Jersey.  She went out of work beginning June 19, 2012 for depression.  She filed the formal FMLA request on June 26, 2012.  The Board approved the leave beginning June 19, 2012.  While she was out, Pizzo requested an extension of her FMLA leave until September 10, 2012.

The Board policy stated that an employee’s twelve-month FMLA cycle begins “after the request for leave.”  However, in actual practice, the Board used a method measuring FMLA forward from the date an employee actually began leave. In this case, the difference was about seven days between the date Pizzo left work and the date she requested FMLA leave. The Board advised Pizzo that her 12 weeks of FMLA leave would expire on September 10, 2012.  The Board also advised Pizzo that she used up all sick, vacation and personal leave time as of August 20, 2012.

Pizzo returned to work but continued to miss work sporadically due to her depression.  She missed five days of work in December 2012 and January 2013 combined.  She missed three days of work in February 2013.  The Board did not terminate Pizzo for these additional absences.  However, after Pizzo accumulated eight more absences in March 2013, the Board terminated her employment on March 28, 2013.  Before the termination occurred, Pizzo submitted a request for a “sick bank” for “work-related stress.” The Board denied her sick bank request (where employees donate their unused paid sick days to another employee) due to past abuse of attendance over the years.

The circumstances regarding termination are important.  Pizzo called out sick on March 21, 2012 and told her supervisor that her doctor would fax a letter to the Board.  She did not say anything about what specific condition she had and did not say when she would return to work.  The supervisor said Pizzo told him she would be out indefinitely, but Pizzo denied this in her law suit.  The Board made the decision to terminate employment partly because Pizzo said she would be out indefinitely and partly because of excessive use of sick time. Prior to her termination, Pizzo had never been disciplined for her absences.  After termination occurred, the Board received a letter from Pizzo’s doctor stating that Pizzo requested leave for an indefinite period of time.

Pizzo sued alleging violations of the FMLA and NJLAD.  The Board filed a motion for summary judgment on all of Pizzo’s claims.  The federal court found that the Board’s FMLA policy was equivocal in stating on the one hand that FMLA begins after a request for leave but in practice starting FMLA at the beginning of leave.  However, the court felt summary judgment was appropriate for the Board because Pizzo failed to give sufficient notice to her employer that she was requesting leave under the FMLA in March 2013.  Merely calling out sick is not sufficient for FMLA notice. 

 Nor is there any evidence that Defendant received other notice from Plaintiff in the days after March 21^st.  Plaintiff did not return to work after that day and she specifically testified that her physician never sent her employer a doctor’s note about her ailment.  Although Defendant eventually received a letter from Dr. Murphy excusing Plaintiff for her absence, the letter was dated March 28^th, the same day Plaintiff was fired, and was not received by Defendant until April 8^th.

The court held that calling out sick did not provide enough information to the Board that Pizzo was suffering from a serious medical illness. Nor did the phone call provide enough information to trigger the Board’s obligation to ask for additional information to determine if the absence was FMLA protected. Similarly, because the Board had no idea that Pizzo was invoking her FMLA rights, the court dismissed the claim for FMLA retaliation as well.

One other interesting aspect of this case pertained to the request of Pizzo for a sick bank. Pizzo argued that the failure of the Board to consider this request violated the New Jersey Law Against Discrimination.  Failure to make reasonable accommodation constitutes a potential violation of the law.  The court denied the Board’s request for summary judgment on this claim because the court believed that a reasonable jury could find that the Board failed to accommodate Pizzo when it denied her request for a sick bank, where other employees donate their unused paid sick time.   The court noted that the request for a sick bank was made on March 12, 2013, a mere 16 days before her termination.  Pizzo never heard back from the Board and never had a chance to even discuss her request with the Board prior to her termination.  This issue was therefore permitted to go to a jury.

This case is important for employers for a number of reasons.  First, it is a New Jersey federal court case that deals with key provisions of the FMLA, particularly the quality of notice that must be given by employees for an employer to know that absences from work are FMLA protected.  Second, it is one of the few published FMLA cases pertaining to school boards.  Third, it deals with issues pertaining to measuring the FMLA period and problems when there is inconsistency between a written policy and the actual implementation of the policy.  In this case, Pizzo was arguing she was entitled to more FMLA time because technically her request for leave was not transmitted until a week after she went out of work.  Finally, the case also deals extensively with the requirements on employers to engage in an interactive dialogue when dealing with reasonable accommodation requests.

This decision is very well written and easy to follow.  Readers who are interested can request a copy from the undersigned. The cite is Pizzo v. Lindenwold Bd. Of Educ., No. 1:13-cv-03633 (D. N.J. March 31, 2015).

Intermittent leave can be extremely difficult for employers.  One important point for employers to realize is that an employee on intermittent leave who comes to work in between flare-ups may be held to all customary performance standards.  The case of Parks v. UPS Supply Chain Solutions, Inc. 2014 U.S. DIST LEXIS 13538 (E.D. Kentucky 2014) illustrates this concept.

Gene Parks worked for UPS since 1999 as a material handler.  He drove a forklift, moved boxes, picked products and controlled inventory.  He began taking leave for medical reasons in 2003, and he conceded that UPS never interfered with his leave during his early years with the company.

In 2009, Parks was transferred to a new account.  Parks began experiencing severe neck pain and applied for up to 12 weeks of intermittent leave.  The company granted this request.  In May 2010 the company issued a verbal warning to Parks for failure to meet standard productivity goals in either replenishment or picking.  The company noted that Parks had a record of poor quality in receiving, but Parks attributed his errors to a medical condition that affected his ability to concentrate.  The HR Director advised Parks that his current FMLA paperwork only authorized intermittent leave and indicated that he could perform all essential job functions between flare-ups.  She also spoke to him about additional training opportunities which Parks declined.  Parks countered that he himself had asked his doctor not to label him as disabled because he feared losing his job.  The HR Director suggested that Parks should update his FMLA paperwork; otherwise he would be held accountable for production expectations.

A few days later Parks received a first written warning for poor quality in picking.  By late 2010 the write ups became more frequent.  Parks was written up numerous times for errors.  He would put cartons away but record an incorrect location in the computer system or fail to enter their location in the computer system, or put boxes away upside down.  Parks told his supervisors that his medical condition was impacting his performance.  His supervisors advised him again that FMLA only covers missed time, not performance at work.  They recommended again that if he could not do his job for medical reasons, he should update his FMLA paperwork.

Parks next was issued warnings for conduct and behavior violations.  Around this period of time, Parks began a course of physical therapy and cortisone injections, but this treatment was also ineffective.  His doctor told him that he would need surgery some time in the future. He submitted an new FMLA certification in January 2011 stating that he would need continuous leave for neck surgery in the near future.  No specific date was given until a medical appointment in May when Parks’s doctor advised that the surgery date would be June 16, 2011.  Parks claimed he told his supervisors about the scheduled surgery at the beginning of his shift the following week.  The company denied being told any specific surgery date. Rather, they knew only that surgery would take place in the future.

On the same date that Parks says he told the company about his need for surgery on June 16, 2011, his supervisor discovered that Parks had logged an incorrect location in the computer system for a container.  Under the company’s progressive discipline system, Parks was already on a final written warning status for performance and conduct.  The company met with Parks at the end of his shift and terminated his employment.  They offered him COBRA information but Parks threw away the COBRA packet because he felt COBRA was too expensive. Parks then sued under the FMLA for interference and retaliation.

The court noted the timing issue in this case between Parks’ alleged discussion about his upcoming surgery and his termination.  It said that the close timing between Parks’s request for leave and his termination established a prima facie case of FMLA retaliation, shifting the burden to UPS to explain a non-discriminatory reason for its actions.  UPS produced detailed information regarding the poor performance of Parks in the months leading up to his discharge.  The Court was impressed with the company’s detailed documentation:

Defendant has produced thorough documentation of Plaintiff’s performance issues at UPS.  Plaintiff received multiple written warnings for his sub-par performance, all of which indicated that he could face termination if his work did not improve.  Despite this admonition, Plaintiff declined additional training opportunities.  Although Plaintiff’s errors became more frequent as his neck condition worsened, Lovelace, Valdez and Welch repeatedly told him that, while his FMLA paperwork authorized time off to cope with his condition, it did not excuse poor performance.  As long as Plaintiff chose to work, he would have to meet the standards expected of all employees.  If Plaintiff felt that he could not do so, then he needed to update his paperwork again.  Defendant has not only demonstrated that Plaintiff had consistent performance issues, it has shown that Plaintiff failed to heed warnings or take advantage of opportunities for improvement, knowing full well that termination could result from continued errors.  Therefore, the Court finds that Defendant has articulated a legitimate, non-discriminatory reason for terminating Plaintiff, thus shifting the burden back to Plaintiff.

The court granted summary judgment to UPS and dismissed Parks’s law suit.  One important concept which this case demonstrates is that the FMLA provides only for leave.  It does not insulate an employee or an exempt an employee from meeting performance standards while at work.  The employer has a right to assume that if an employee on intermittent leave comes to work, he or she will be able to meet work requirements.  In this case, UPS did an extraordinary job in documenting each and every performance issue, and this excellent documentation was the chief reason that the company prevailed.

Very few cases have focused on the relationship between COBRA and FMLA.  The case of Neal v. City of Danville, Virginia, 2014 U.S. Dist LEXIS 17126, W. D. Va. (December 11, 2014) provides employers with important insight on this issue.

Barry Neal, a firefighter, was severely injured in a non-work accident on February 1, 2013.  He began using his sick time for the first two weeks.  The City then placed him on FMLA.   Neal did not want to utilize FMLA time but the City so designated the leave.  Neal then continued to draw on sick leave resulting in continuous pay throughout the 12 weeks of FMLA leave.

After the 14 weeks of leave, (two weeks of sick leave and 12 weeks of FMLA), the City advised Neal that his health insurance benefits would be cancelled on May 14, 2013 due to the exhaustion of his FMLA leave.  The City policy specifically stated:  “in all cases, at the point of FMLA leave exhaustion, the employee’s benefits will be subject to COBRA and/or direct billing, as applicable, based upon the benefit.”

Neal was not able to return to work after the expiration of his FMLA leave, but the City did not terminate his employment.  On May 15, 2013, the City cancelled his health insurance under its policy that it “will not pay health insurance benefit coverage for employees that are unable to return to work upon the exhaustion of [the FMLA] benefit period.  The City of Danville does not provide coverage in excess of the requirements of the FMLA.”

Neal was given the opportunity to continue his health insurance benefits through COBRA, which meant that he had to pay all the premiums. He paid about $1,871 in premiums after his FMLA leave was exhausted. On July 17, 2013, he was cleared to return to work and all benefits were restored.

Neal sued in federal court and argued that the City violated COBRA when it cancelled his insurance benefits.  The court first noted that COBRA allows an employee the opportunity to continue health insurance coverage under the same terms of the employer’s health plan after a “qualifying event” that would otherwise end the employee’s health insurance coverage.  Among the qualifying events as defined in 29 U.S.C. 1161 (2014) is termination or reduction of hours.

The City argued that when Neal did not return to work following exhaustion of his FMLA leave, his hours reduced to zero, constituting a reduction in hours.  The court observed that the regulations say a reduction of hours occurs when there is a decrease in the hours that a covered employee is required to work or actually works.  26 C.F.R. 54.4980B-4(A-1)(e).

The court also said that it was crucial in this case that the City had a policy which made clear that if any employee does not return from FMLA leave, “the employee’s benefits will be subject to COBRA and/or direct billing, as applicable, based upon the benefit.”

Neal argued that sick leave is no different than FMLA leave and that if FMLA leave is excluded from constituting a “reduction in hours,” then the same should be true for sick leave.  The court disagreed with this because only FMLA leave is specifically excluded from the COBRA definition of a reduction in hours.  The court said, “Moreover, the FMLA regulations make clear that an employee has no obligation to continue providing health benefits if any employee continues on leave following the exhaustion of FMLA leave.”

This case is extremely important to employers as they try to determine what a reduction of hours means in relation to someone who has a large bank of sick leave that carries well beyond the FMLA leave period.  This employee was never fired and he had a very large bank of accrued sick leave but nonetheless, he had to pay his health insurance premiums after FMLA leave expired.

It should be emphasized that in this case the City had a specific policy stating that once FMLA leave is exhausted, the employee’s benefits will be subject to COBRA.  The City won this case both because it was right about the definition of reduction of hours and because it had instituted a clear policy in regard to COBRA after exhaustion of FMLA leave.

The case of Budhun v. Reading Hospital and Medical Center, 765 F.3d 245 (3d Cir. 2014) shows how complex return-to-work issues can be under FMLA.  The plaintiff in that case, Vanessa Budhun, worked as a credential assistant for Reading Hospital.  About sixty five percent of her job required typing.  Budhun took about four weeks of FMLA leave between March 31, 2010 and May 7, 2010.  An employee from a different department filled in for her during that time.

On July 30, 2010, Budhun broke the fifth metacarpal of her hand and came to work with a metal splint on her hand.  An HR manager emailed her stating, “Your supervisor has made us aware that you have an injury that prevents you from working full duty.”  Budhun was given FMLA forms and she left work to see a doctor.  She told her doctor that she could type with the five fingers on her left hand and just her thumb and index finger on her right hand, so Dr. Battista provided a note dated August 10, 2010 stating that Budhun could return to work “no restrictions in splint.”

Budhun returned to work on August 16, 2010.  She advised HR that her doctor would complete the FMLA form she gave him within 10 to 15 days. She advised in an email that she could “type slowly and write a little bit, but not as fast as I used to . . . I could work but not fast.”   The HR manager wrote back replying that because her return to work note provided no restrictions, Budhun should be able to work at full speed.  She added that if she could not work full speed, she needed to contact her physician and ask for a note keeping her out of work.  The HR representative advised Budhun that she needed to be able to perform at the same capacity she had before her hand injury.

Budhun left work again and made contact with her physician, who then supplied a note keeping her out of work until August 16, 2010.  He checked off “yes” on the box referring to her being unable to perform all of her job functions.  He did not clarify which job functions she was unable to perform.  However, the final page of the medical certification was inconsistent in that it stated Budhun needed to be out of work until September 8, 2010.  Budhun underwent occupational therapy. On September 8, 2010, she faxed another note in which Dr. Battista stated she would be out of work until her next appointment in November.

The hospital extended her FMLA leave until September 23, 2010, when her 12 weeks would run.  It approved non-FMLA leave until November 9, 2010. In mid-September the hospital offered  Budhun’s job to another employee.

On September 29, 2010, Budhun emailed the Hospital a note saying she could return to work on October 4, 2010. She was then told that she had been replaced by another employee.  Because of a prior written discipline charge, Budhun was unable to transfer to another position.  She was given the option to apply to the hospital essentially as an outsider for a position but Budhun did not pursue this route, and when her non-FMLA leave ran out in November, she was terminated.

Budhun sued under the FMLA and argued that she had been able to return to work full duty on August 16, 2010 but the hospital prevented her from working.  The court sided with Budhun:

At the time she entered her place of work on August 16, all of the information that she had from her treating physician, and all of the information that she had provided to Reading, indicated that she intended to return to work as of that day, and could do so with ‘no restrictions.’

The court said that Budhun’s fitness for duty certification stated she could return to work with no restrictions.  The court noted that Reading did not provide Budhun a list of essential functions for her to present to Dr. Battista, essentially laying the blame on the hospital for the lack of clarity in this area.  The court suggested that the hospital could have contacted Dr. Battista to clarify any issues but failed to do so.  However, it could not delay the return to work of an employee with a full duty return-to-work note. The court criticized the HR manager for overruling the doctor on the return-to-work issue.

This case is an important one for employers in the State of New Jersey, which is part of the Third Circuit.  The downfall of the hospital here was the failure to provide the essential job functions to the physician, so the physician perhaps did not fully understand the job duties.  The court focused on a strict reading of the FMLA, which provides job reinstatement rights when the employee’s physician indicates that the employee can return to work.

This case underscores an inherent dilemma in the FMLA for employers. Employees must be able to perform their job duties on return to work.  A return to work with restrictions is not a full-duty return-to-work note.  The question is who decides whether the employee has restrictions?  The FMLA does not allow employers to assess ability to perform essential functions; instead it places this obligation on the physician, who often may not fully understand the essential functions, particularly if the physician has no job description.  Further, physicians have limited time to address such issues with all the other competing demands on medical practices today.  In this case, the employee herself admitted she could only type slowly.  The response of the court on this point was very interesting: “Budhun admitted that it was not likely that she could type as quickly with seven fingers as she formerly could with ten.  But this alone does not mean that she could not perform this essential function.”

On July 14, 2014, the EEOC issued Enforcement Guidance on the Pregnancy Discrimination Act (PDA).  That law was passed in 1978 to make clear that discrimination based on pregnancy, childbirth or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

The basic premise of the law is that women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.

Several of the examples provided by the EEOC of possible discrimination concern light duty.  In Example 9 of the Guidance, the Commission provides an example of pregnancy-related animus motivating an employer’s decision to deny a pregnant employee light duty.

An employee requests light duty because of her pregnancy.  The employee’s supervisor is aware that the employee is pregnant and knows that there are light duty positions available that the pregnant employee could perform.  Nevertheless, the supervisor denies the request, telling the employee that having a pregnant worker in the workplace is just too much of a liability for the company.  It is not necessary in this instance that the pregnant worker produce evidence of a non-pregnant worker similar in his or her ability or inability to work who was given a light duty position. 

The Commission goes on to state that even if there are no statements showing an animus, a pregnant worker can establish a violation of the PDA by showing that she was denied light duty or reasonable accommodations.  In Example 10 the Commission states:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA.  An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy.  The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of pregnancy-related impairment that constitutes a disability under the ADA.  The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability to work.

However, the Commission goes on to say that if the employer has certain restrictions, such as limits on the number of light duty positions or the duration of light duty assignments, the employer can apply those restrictions across the board, including to pregnant workers.

The Commission also provides Example 12, demonstrating failure of an employer to apply restrictions equally.

An employer makes six light duty positions available to workers unable to perform one or more job duties due to an on the job injury, pregnancy, or an injury, illness, or condition that would constitute a disability under the ADA.  A pregnant worker applies for a light duty assignment as a result of work restrictions imposed by her pregnancy.  The employer denies the request, claiming that all six positions are currently filled.  The employee produces evidence that, in the past, the employer has provided light duty assignments to workers injured on the job even when all six assignments were filled.  The employee has provided evidence that the policy’s restrictions were not applied equally to the pregnant worker’s request for a light duty position. 

The Guidance is helpful to employers in understanding and avoiding potential acts of discrimination in relation to pregnant employees.  Employers who have a paternalistic approach to pregnant employees may easily stumble into violations of the PDA.  The focus should be on the ability of the pregnant employee to perform the essential job functions, not on speculative assessments of what a pregnant employee may or may not be able to do.  Stereotypes and assumptions that employers have about pregnant employees generally lead to ill-advised decisions.  For further information on the Enforcement Guidance on Pregnancy Discrimination, please contact the undersigned.

Mary Liu worked as a dealer at Bally’s Casino in Atlantic City.  On November 10, 2012, she was dealing a game of poker.  A customer whom she knew well “signified a check by forcibly striking the table very hard.” Petitioner was not facing the customer and felt startled by the noise.  She said her heart began to race and her hands cramped up.  Petitioner initially rejected an offer to take her to the hospital.

An hour or so later, petitioner felt her body shaking with numbness in the back of her head.  She felt her heart rate increase with chest pain and was transported by wheel chair to a taxi, having declined the use of an ambulance.  She was treated and released by the hospital.

The next day petitioner requested medical leave.  She saw Dr. Arvind Patel, M.D., an authorized physician, who diagnosed an acute anxiety reaction and suggested she could return to work.  The following day petitioner advised Bally’s that she did not feel well enough to return to work.  She said her own family doctor diagnosed a heart problem and took her out for a month.

On November 16, 2012, petitioner resumed working but again found her heart rate increasing with hand cramping.  She was taken to the ER by ambulance and discharged.

Dr. Patel saw petitioner again and suggested that she return to see him in a week.  Petitioner did not feel that Dr. Patel was helping her and was sent to Dr. Gary Glass, a psychiatrist.  He recommended a three-week absence from work. 

Petitioner saw Dr. Glass on January 7, 2013.  He recommended an additional two to three weeks before returning to work.  On January 23, 2013 Dr. Glass saw her for follow-up and recommended a neurological consultation given petitioner’s ongoing complaints of weakness and headaches.  When he saw her again on February 7, 2013, he also recommended that she return to work on February 11, 2013.  At that point petitioner became more animated and began complaining about cramping in her arms and fingers.

When Dr. Glass saw her on February 9, 2013, he kept her out of work again until March 4, 2013.  In the interim, the neurological evaluation was done, including an EMG, EEG, and MRI, all of which were normal.  The neurologist recommended physical and occupational therapy and found that her problems were caused by anxiety.

On March 1, 2013, Dr. Glass wrote that he disagreed with the neurologist and felt that petitioner had become accustomed to being off work and simply did not want to return to work any longer.  He cleared petitioner to return to work on March 7, 2013.

Petitioner claimed that her family doctor, Sun Miao, M.D., prescribed psychiatric care and put her out until May 31, 2013.  She never produced the report, however, from Dr. Miao.

On March 28, 2013, petitioner contacted Bally’s Las Vegas HR office and sought medical leave with a projected return to work date of May 31, 2013.  She was informed that she was not eligible for FMLA and would need to request a personal leave.  She also called Dr. Glass to report that her symptoms were severe.  Dr. Glass felt petitioner was exaggerating her symptoms and concluded that she was at maximal medical improvement.

Petitioner next applied for personal leave per the employee contract, which allowed for up to 60 days.  She also requested an IME.  Bally’s arranged a consultation  with Dr. Charles Meusburger, M.D.   When petitioner contacted HR she failed to inform Bally’s that she was departing for an extended trip to China to see her parents.  HR tried to reach her but she had already left for China.  She did reach Bally’s at one point and said that her “phone was not working and she was out of the country relaxing.” 

Petitioner missed the first appointment with Dr. Meusburger but when she returned from China, she rescheduled the exam for June 6 and June 13, 2013.  In the interim Bally’s notified her on May 9, 2013 that her employment was terminated for violating the personal leave policy. 

Dr. Meusburger saw petitioner in June and opined that petitioner suffered from an adjustment disorder with anxiety and depression as well as a panic disorder related to work.  Petitioner filed a claim petition and motion for medical and temporary disability benefits relying on the opinion of Dr. Meusburger. 

The Judge of Compensation did not conduct a hearing on the motion.  Instead, he reviewed the papers filed by both parties and entered an order against Bally’s to retroactively reinstate temporary disability benefits.  He also ordered that such benefits would continue into the future.  The Judge of Compensation prepared a supplemental opinion stating that he “abided by Dr. Meusburger’s findings that petitioner’s condition, that of post-traumatic stress, was a direct result of her experience on November 10, 2012.”  He did not comment on why he disregarded the opinion of Dr. Glass, nor why he did not require testimony from the medical experts. The Judge also rejected the applicability of the decision in Cunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif.. denied. 188 N.J. 492 (2006).

The Appellate Division recited numerous reasons for its reversal of the Judge of Compensation in this matter. 

1. The court said that the Judge of Compensation erroneously relied on a statement Dr. Mesuburger made that petitioner’s family physician kept her out of work from March 26, to May 31, 2013.  No such report was ever produced.
2. When Dr. Glass wrote his report on March 7, 2013 stating that petitioner could work, there was no countervailing medical report from any doctor.  The Appellate Division noted, “Rather, the petitioner decided to take an extended vacation out of the country, claiming that leave was ordered by her family physicians.”
3. The Court noted that the Judge of Compensation made no causation findings and completely ignored Dr. Glass’s opinion that petitioner could return to work in March.  There was no analysis of why the Judge of Compensation chose to rely on the IME doctor, who saw petitioner twice, over Dr. Glass, who saw petitioner seven times over many months.
4. There was no discussion in the Judge of Compensation’s opinion about why the Judge disagreed with Dr. Glass’s view that petitioner was exaggerating her symptoms because she did not want to return to work, nor any discussion about the Judge’s disregard of Dr. Patel’s opinion.
5. The Court also pointed out that there was no support in the record for the Judge’s conclusion that Dr. Glass “mistakenly sent petitioner back to work.”  Nor did the Judge evaluate the normal neurological reports that showed no objective explanation for petitioner’s symptoms in her chest, arm or hands.
6. The Judge of Compensation also assumed facts that were not in the record in deciding that there was a traumatic event at work.  The Court observed that the Judge inaccurately described the work event as “a fight broke out at the petitioner’s table while she was dealing cards.”  There was nothing in the record about such a fight.
7. The Judge also failed to address the issue of petitioner’s choosing to go on an extended vacation to China without clearing the leave with HR.  The Judge of Compensation found petitioner “did not abandon her job.”  Yet he did not mention anything about the trip to China.
8. Most significantly, the Court concluded that the Judge erred in finding that Cunningham did not apply.  That case says that when an employee is terminated or quits, he or she is not eligible for temporary disability benefits unless the employee can prove that he or she would have been working but for the work injury.  In this case, Bally’s argued that petitioner was not entitled to temporary disability benefits because she had been fired and because she never proved she would have been working.  In an unusually blunt comment, the Court said, “We further note the legal conclusion that Cunningham is inapplicable is wrong.”   The Court commented that “[p]etitioner’s voluntary removal from the work force preceded Dr. Meusburger’s medical evaluation diagnosing her as suffering from post-traumatic stress and other disorders.”
9. Lastly, the Court cited to the Rules of the Division of Workers’ Compensation which require a Judge of Compensation to conduct a hearing and hear testimony from witnesses when a respondent rebuts the allegations of petitioner’s motion for benefits.  In this case, the Appellate Division concluded that petitioner should have produced live testimony, and the Judge of Compensation should not have ruled on the papers alone.

This decision can be found at Liu v. Bally’s Casino, A-0737-13T3 (App. Div. July 18, 2014).  Perhaps the most unusual aspect of the decision is the final paragraph: “Reversed and remanded to a different judge of compensation for review, including an evidentiary hearing, in accordance with our opinion.”

Beverly Ballard worked for the Chicago Park District.  Her mother, Sarah, who lived with her daughter, was diagnosed with end-stage congestive heart failure in 2006 and began receiving hospice support.  Beverly acted as the primary caregiver for her mother, cooking her meals, administering insulin and other medications, draining fluids from her heart, and bathing and dressing her.

Sarah met with a Horizon Hospice social worker in 2007 and discussed Sarah’s end-of-life goals.  Sarah said that she had always wanted to take a family trip to Las Vegas.  Through the Fairy-Godmother’s Foundation, the six-day trip was scheduled.

Beverly sought unpaid leave from the Chicago Park District to accompany her mother to Las Vegas.  The District ultimately denied the request, but Beverly said she was not informed of the denial prior to the trip. The two women then traveled to Las Vegas and participated in typical tourist activities.  Beverly continued to serve as her mother’s caretaker during the trip.  Once she drove her mother to the hospital when a fire  prevented them from reaching their hotel room.

The Chicago Park District months later terminated Ballard for unauthorized absences accumulated during her trip to Las Vegas, prompting Ballard to sue under the FMLA for interference with her FMLA rights. 

In the law suit, the Park District argued that the trip to Las Vegas was not related to a continuing course of medical treatment.  The Park District lost at the District Court level and appealed to the Seventh Circuit Court of Appeals.  The issue on appeal was whether “care” in the context of an away-from-home trip is limited to services provided in connection with ongoing medical treatment.

The Court noted that “the FMLA does not define ‘care,’ so perhaps there is room to disagree about whether Ballard can be said to have cared for her mother in Las Vegas.”  The Court also observed that there are various sections of the FMLA that refer to care in connection with treatment, but one section  2612(a)(1)(C) speaks in terms of “care” not “treatment.”  Additionally, the Court said, “Another problem is that the FMLA’s text does not restrict care to a particular place or geographic location. For instance, it does not say that an employee is entitled to time off ‘to care at home for’ a family member.”

In attempting to resolve confusion over the legislative intent in defining “care,” the Court examined the Department of Labor’s regulations, which read as follows:

What does it mean that an employee is ‘needed to care for’ a family member?

The medical certification provision that an employee ‘is needed to care for’ a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc.  The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

In the end, the Court was persuaded by the statement in the regulations that care includes psychological assistance and that there is no specific geographic limitation.  “Sarah’s basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas, and Beverly continued to assist her with those needs during the trip.”  The Court rejected the argument of the Park District that care must be connected to medical treatment because the regulations never use the word “treatment” in their definition of care.

The Seventh Circuit acknowledged that its decision was counter to decisions in the Ninth and First Circuit Courts of Appeal.  The Court was impressed by an inherent inconsistency within the FMLA:  “If Beverly had sought leave to care for her mother in Chicago, her request would have fallen within the scope of the FMLA. So too if Sarah had lived in Las Vegas instead of with her daughter, and Beverly had requested leave to care for her mother there.”

The case may be found at Ballard v. Chicago Park District, 741 F.3d 838 (7^th Cir. 2014).  Employers need to reflect on the judicial philosophy in their own circuit and should always try to obtain medical certifications from the physician treating the family member to see what care the physician thinks is necessary.

Maria Escriba worked for Foster Poultry Farms, Inc. for 18 years.  She met with her immediate supervisor on November 19, 2007, to request two weeks’ vacation time to care for her father in Guatemala who was very ill.  Her daughter purchased round-trip airfare for Escriba for November 23, 2007 with a return date of December 27, 2007, which was two weeks later than the request she made to her employer.

There was a dispute over Escriba’s conversation with her supervisor on November 19, 2007.  Escriba testified that she said she needed two weeks of vacation.  She also said that she asked for another free week or two over and above that; however, this alleged request by Escriba was disputed by her employer, who said no such request was ever made.  Escriba spoke primarily Spanish and her supervisor spoke only English, so her supervisor requested another conversation with her, this time with a translator. Another Foster Farms supervisor translated the dialogue into Spanish.  The supervisor twice asked Escriba if she needed more time to care for her father in Guatemala.  Escriba declined and said she only wanted to use two weeks of vacation time.   Escriba testified at trial that she did not go to human resources, because she intended to request vacation time, not family leave.

The supervisor filled out paperwork approving two weeks of vacation leave and told Escriba to go to HR if she decided she needed more time to care for her father.  Escriba never went to HR.  She did speak with the superintendent, who told her that if she found she could not return by December 10, 2011, she would have to fax a note to the HR office.

Escriba traveled to Gautemala, and soon recognized that she could not return by December 10, 2007 due to her father’s serious illness.  She did not contact HR to request additional leave, nor did she ask her husband to speak with HR, although he worked for the same company and was at work the entire time she was in Gautemala.Her employment was terminated for violation of the company’s three day no-call no-show policy.

Escriba sued under the FMLA, contending the FMLA prohibits waiving rights under the law and that her employer had a duty to designate her absence as FMLA regardless of her statements declining FMLA.  The Ninth Circuit Court of Appeals held that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”

The Court did note that regulations make clear that an employee does not have to expressly assert rights under the FMLA or even mention the FMLA.  It also conceded that an employer should inquire further of an employee to see whether FMLA leave is being sought by the employee.  However, the Court said as follows:

Holding that simply referencing an FMLA-qualifying reason triggers FMLA protections would place employers like Foster Farms in an untenable situation if the employee’s stated desire is not to take FMLA leave.  The employer could find itself open to liability for forcing FMLA leave on the unwilling employee.

Escriba argued that if an employer could require an employee to affirmatively decline FMLA leave it would be the same thing as making an employee waive rights under the FMLA.  The FMLA has a provision that prohibits waiver of prospective rights under the FMLA.  29 C.F.R. 825.220(d).  The Court said that this provision means only that an employee cannot trade off the right to take FMLA leave against some other benefit offered by the employer.  It did not mean that an employee could not expressly decline FMLA leave.

This case is significant because there are few, if any, reported cases that have recognized the right of employees to expressly decline FMLA leave where the reason for the leave would be protected under the FMLA.  It can be found at Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9^th Cir. 2014).