When is Enough, Enough? Limiting Leave as a Reasonable Accommodation under the ADA

Q: How long does an employer have to accommodate an employee’s disability in the form of a leave of absence?

A: The law in most jurisdictions is unclear. In fact, in most jurisdictions, including Pennsylvania, New Jersey, and New York, there is no bright line rule as to the length of leave time that is reasonable under the ADA.  Typically courts look at the surrounding circumstances to determine whether the amount of time off is a “reasonable accommodation” and have held that leaves longer than three months were required in some circumstances as a reasonable accommodation.

Given this lack of certainty, employers are left with the daunting task of determining how much leave is “reasonable,” thus forcing many employers to typically extend leaves beyond what they may believe is proper.  To add to the uncertainty, the EEOC, which is the employee’s first pit stop in bringing an ADA claim, has taken the position that a two-to-three month leave, or longer may be reasonable.  Moreover, state laws protecting disabled individuals, such, for example, the New Jersey Law Against Discrimination, may provide for even greater protections to the employee.

A recent Seventh Circuit Court of Appeals case, however, has provided some concrete direction, at least to employers with employees located in Illinois, Wisconsin, or Indiana, regarding the amount of leave required as a reasonable accommodation under the ADA. In that case, the Court held that a multi-month leave likely was not required as a reasonable accommodation under the Americans with Disabilities Act.

In Severson v. Heartland Woodcraft, Inc. No. 15-3754 (7th Cir. Sept. 20, 2017), the employee brought a lawsuit after the employer terminated his employment rather than give him two to three months of additional leave to recuperate from back surgery after he had used up his Family and Medical Leave Act allotment.  The Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, stated that the ADA is “not a medical leave entitlement” and specifically held that “a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  In particular, the Court held that a such a multi-month leave cannot be a reasonable accommodation because a reasonable accommodation allows a disabled employee to work and perform the essential functions of the position, which the employee in this case could not do, thus disqualifying him from the protections of the ADA.  The Court noted however, that a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be a reasonable accommodation.  Although the Severson case provides support for the position that extended, multi-month leaves of absence may not be required under the ADA, employers should not take it as a green light to reject all requests for a leave of absence under the ADA.

The Severson case is binding law only in the Seventh Circuit.  It remains to be seen whether other courts will follow the Seventh Circuit’s lead in limiting the amount of leave that is considered to be “reasonable.” Until that occurs, however, employers should tread lightly when making these decisions and consider all of the risks and benefits associated with rejecting a leave request.

Kali T. Wellington-James

Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

In New York, the law goes even further, providing that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. A patient with a prescription for medical marijuana in New York State is considered to have a “disability” under the New York State Human Rights Law.  This means that New York employers must provide reasonable accommodations to employees or prospective employees who are certified to use marijuana for medical reasons.

The Massachusetts Supreme Judicial Court recently ruled that employers may be held liable for disability discrimination under Massachusetts state law if they fire an individual for using medical marijuana. In that case, the employee was fired after her first day of work for failing a drug test, despite the fact that the employee had informed the company that her doctor has prescribed marijuana as a way to manage her Crohn’s disease.  The court held that using medical marijuana is as lawful as using any other prescription medicine, despite the fact that it is illegal under federal law.  Further, the court stated that it would be a reasonable accommodation for an employer to allow its employees to use medically-prescribed marijuana away from the employer’s place of business unless the employer can show undue hardship.

It is quite possible that the growing number of states that have enacted medical marijuana legislation will follow the lead of the New York legislature and the Massachusetts court in adding medical marijuana use – at least outside of the workplace – to the list of accommodations that are considered to be reasonable. That means that employers will not be able to rely on positive drug test results for marijuana for employees working in non-safety-related positions without engaging in the interactive process with the employee or applicant.  The employer will have to analyze whether the employee’s use of marijuana outside of working hours will prevent the employee from performing the essential functions of his or her job.  Moreover, the employer will want to monitor the employee to ensure that the accommodation does not impact the employee’s job performance.

– Tracey E. Diamond

 

Employers and Election Day: Voting Leave

Q: Now that the election is finally here, am I required to give employees time off to vote?

The answer to that question depends on which state you are in. There is no federal law that requires employers to give time off to vote, but many states do have such laws.  While the laws vary by state, in general, these kinds of laws provide that employers must provide time off to vote if employees do not have sufficient time to vote outside of working hours.  State laws vary as to whether the time is paid or unpaid, how much time must be given, and how much time is “sufficient” to vote outside of working hours.  Many states provide that employees are only entitled to voting leave if they provide advance notice to the employer.

In New York, for example, employers are required to provide up to two hours of paid voting leave to employees who are registered voters and who do not have sufficient time outside of work hours to vote, so long as eligible employees notify their employer of the need for voting leave at least two workdays before election day. If employees have four consecutive hours between the opening of the polls and the start of their work shift, or between the end of their work shift and the closing of the polls, that is considered sufficient time to vote, and leave does not need to be provided.  Employers can require that the leave be taken at the beginning or end of a work shift.  New York is the only state that requires employers to post a notice of employees’ voting leave rights.  But employers in New York must get these notices posted now, as the rules require that the notice be posted at least 10 workdays before every election and remain posted until the polls close on election day.

Pennsylvania and New Jersey do not have voting leave laws, but both states have similar laws providing that employers may not interfere with an employee’s right to vote, or use threats or intimidation to influence an employee’s vote for a particular candidate.  New Jersey also provides that, within 90 days of an election, employers may not exhibit any notice in the workplace that contains any information that could be construed as a threat intended to influence employees’ political opinions or actions.

Finally, it is important to note that while this year’s Presidential election is receiving the most attention, state voting leave laws also apply to other types of elections (general, special and primary, and ballot proposals, among others, depending on the state).

Jessica Rothenberg

Employer Planning Needed to Counter Zika and Influenza Viruses

Q.  Are there any issues I should be concerned about with regard to the Zika virus and upcoming flu season?

A.  Media attention about the Zika virus seems to have lessened now that temperatures in the Northeast have cooled.  If your business requires employee travel to Zika-infected areas, however, there are several issues for you to consider.  Zika concerns also highlight the need for employers to be prepared for issues surrounding other employee viruses, particularly as influenza season begins.

Click here to access an article by Pepper Hamilton’s Amy G. McAndrew highlighting these issues and discussing what employers should be doing with regard to Zika and other viruses.

-Tracey E. Diamond

 

Tolerating Tattoos in the Workplace

Q.  We have several employees with tattoos on their necks and forearms. Can we require them to cover up?

A. Many employers have in place employee dress codes, in an effort to maintain a certain brand image, comply with health standards, and foster professionalism. As tattoos, body piercings and other forms of body art are trending in today’s culture, some employers have struggled with whether such displays are in keeping with the company’s image.  To what extent can an employer place rules on an employee’s appearance at work without violating anti-discrimination laws?

Generally speaking, employers are free to require employees to dress in a certain way. So, for example, an employer may require that an employee wear a certain uniform, cover up a tattoo or remove a nose ring.  However, employers are required to reasonably accommodate an employee’s sincerely-held religious belief, including an employee’s dress or grooming practices that are for religious purposes, unless to do so would be an undue hardship on the employer’s business operations.

The EEOC has issued guidance stating that a religious accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. This is an easier standard for employers to meet than the “undue hardship” analysis under the Americans With Disabilities Act.

Thus, for example, it may not be a Title VII violation for an employer to require an employee of the Sikh faith to shave his beard if he (1) works with hazardous chemicals that require him to wear a respirator; (2) the beard prevents the required face seal to protect him from chemical exposure; and (3) there is no alternative device or method of doing the work that would not require him to shave his beard.

On the other hand, it would be a Title VII violation for an employer to prohibit an employee of the Muslim faith to wear her religious head covering where wearing the religious head covering does not pose an undue hardship, even if it results in complaints from other employees or customers who are not used to seeing such head coverings in the workplace.

As for tattoos and piercings, employees have no legal right to display body art, unless it is required for a sincerely held religious belief. Thus, employers may prohibit tattoos or may require employees to cover them up.  Employers also are free to create a tattoo policy that prohibits sexist and racist images, and images that promote violence, so long as the policy is applied evenhandedly throughout employees of all protected categories.

-Tracey E. Diamond & LaVelle S. King