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

Regulating Speech at Work

Q: Can a private employer limit its employees’ speech and political activity in the workplace?

A: Yes, but not speech that is considered part of a “concerted activity.”

Last year, former San Francisco 49ers player Colin Kaepernick, kneeled during the national anthem to bring attention to racial injustice. On Saturday September 23, 2017, in a series of tweets, President Trump demonstrated his displeasure with NFL players who do not stand during the national anthem and called for their termination.  In response to President Trump’s comments, NFL players across the country have been “taking a knee,” locking arms or staying in the locker room during the national anthem.  These demonstrations have generated a lot of discussion about whether a private employer can limit an employee’s speech and political activity in the workplace.

Although the right to freedom of speech is fundamental, it is not absolute. The First Amendment prohibits the government from interfering with an individual’s freedom of speech and religion; however it does not protect private-sector employees.  There is a common misconception that freedom of speech applies to anything and everything an individual has to say, but the First Amendment protections only apply in cases of government interference.

Private-sector employees are typically employed at-will, meaning that their employers can fire them at any time for any reason, with or without cause. There are many exceptions to the employment at-will doctrine, but the First Amendment is not one of them.  As a result, as a general matter, a private sector employer may discipline or even terminate an at-will employee for statements made both inside and outside of the workplace, including statements made on social media posts, blog posts, political opinions, t-shirts, and bumper stickers.  But the employer’s right has limits.  Under federal labor laws, an employer cannot discipline or fire an employee for speech that involves “concerted activities,” such as discussing the terms and conditions of employment, wearing a union shirt, discussing wages, and/or forming a union.

Even though the First Amendment does not apply to private workplaces, employers should be careful when regulating speech. Although an employer may have a right to regulate employee speech on political or social issues, doing so may have a detrimental effect on the workplace.  And, there are times when employers have a duty to regulate employee speech.  For example, employers have a responsibility to maintain a work environment that does not violate laws prohibiting discrimination and harassment, or create a hostile environment.  Employers often have to investigate and act in response to speech in the workplace, and even outside the workplace, that creates or contributes to a hostile work environment from the standpoint of race, sex and other protected characteristics.

Employers should consult a labor and employment attorney if they have any questions about what speech is appropriate to regulate, and for assistance in establishing policies and procedures that govern speech in the workplace.

Renee Manson

Important Additions to NYC’s Fair Chance Act Limit Employers’ Ability to Perform Background Checks

Q: What do I need to know about the recent additions to New York City’s law about the use of criminal history in employment decisions?

A: While the New York City Fair Chance Act (“FCA”) has been in effect since October 2015, the New York City Commission on Human Rights (“Commission”) recently enacted final rules, which clarify many aspects of the law.  The final rules went into effect on August 5, 2017.

The key provision of the FCA prohibits employers from inquiring about an applicant’s criminal history until after a conditional offer of employment has been made. The final rules explain the meaning of a conditional offer, and clarify the steps an employer must take before revoking a conditional offer or taking an adverse employment action.

A conditional offer is defined as an offer of employment, promotion, or transfer. It is essential for employers and all relevant decision makers to understand that the FCA’s provisions cover far more than just an initial offer of employment – they also cover promotions and transfers.  The FCA provides that a conditional offer can only be revoked based on one of the following:

  • The results of a criminal background check (in which case the “Fair Chance Process” must be followed); or
  • The results of a medical exam, as permitted by the American with Disabilities Act; or

Other material information the employer could not have reasonably known before making the conditional offer if, based on the material information, the employer would not have made the offer.If an employer wishes to rescind a conditional offer based on a criminal background check, the employer must follow the “Fair Chance Process,” which is described in section 8-107(11-a) of the New York City Administrative Code. This includes providing the applicant with a copy of the background check report and an analysis of the factors that went into the decision (the list of acceptable factors is in Article 23-A of the New York State Correction Law), and allowing the applicant to address the criminal history at issue before the offer is rescinded. A sample notice approved by the Commission is available here:

http://www1.nyc.gov/assets/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdf.

The final rules also added a number of per se violations. Engaging in such action is considered a violation regardless of whether the employer takes an adverse action against an employee. Fines for per se violations range from $500 to $10,000, depending on the facts and whether the employer has previous FCA violations. Per se violations include making any inquiry or statement about an applicant’s criminal history before a conditional offer is made, and using applications that require applicants to consent to a background check and/or provide information about criminal history. The use of such applications is a violation even if the application contains a disclaimer that states New York City applicants should not answer certain questions. This prohibition is quite unusual and runs counter to many employers’ practices of using nationwide or multi-state employment applications.To ensure FCA compliance, employers should review their existing policies and practices, and ensure key personnel are up to date with the FCA requirements. Employers should consult a labor and employment law attorney with any questions.

— Jessica Rothenberg

Paying Employees during a Shutdown due to Natural Disasters and Inclement Weather

Q: Do I need to pay my employees if my company has closed or temporarily shut down operations due to a natural disaster or inclement weather?

A: It depends.

In the aftermath of Hurricanes Harvey and Irma, and in anticipation of the upcoming winter snow season, many employers are questioning whether they need to pay employees when their company cannot open due to a natural disaster or inclement weather.

Whether an employee needs to be paid will typically turn on whether the employee is exempt or nonexempt under the Fair Labor Standards Act (FLSA). Under federal law, nonexempt employees only are entitled to payment for “hours worked.” Therefore, if a business is forced to shut down for a period of time due to a hurricane, blizzard, or other challenge imposed by Mother Nature, there is no obligation under federal law for an employer to pay nonexempt employees. This makes sense because, quite simply, if a non-exempt employee does not work, there is no requirement to pay them. Employers do have the option of permitting non-exempt employees to use vacation or other paid time off during periods of inclement weather.

Companies generally will be required to pay salaried nonexempt employees in the event of a natural disaster unless the employer’s operations are shut down for more than one workweek. Under the FLSA, salaried exempt employees are entitled to receive their full salary for any workweek in which they perform any work (regardless of the number of days or hours worked). As such, if an employer closes its facilities due to natural disaster for less than a full workweek, an exempt employee must still be paid his or her full salary for the workweek. An employer only is entitled to withhold payment of wages to salaried exempt employees if the employer is closed for an entire workweek and the salaried exempt employee performs no work during that workweek. Should an employer decide to close its facility for more than one workweek, an employer can permit an exempt employee to take vacation/paid time off or allow the employee to work remotely.

Paying employees when a business is closed due to weather concerns is not always legally required but doing so will certainly improve employee morale—especially in instances of a life-altering hurricanes like Harvey and Irma where employees have suffered the loss of a home or personal property. If questions arise regarding payment of employees during natural disasters, consult a labor and employment law attorney.

Lee E. Tankle

Employers Not Required to Submit Pay Data or Follow Higher Salary Basis Threshold for Exempt Employees

Q.  What is the status of the EEOC’s requirement that we submit pay data with our annual EEO-1 Form?  Also, have there been any updates on the lawsuit blocking the DOL’s rule raising the salary basis for certain non-exempt employees?

A.  As we reported previously, the EEOC, as part of its effort to detect and remedy pay discrimination, amended its EEO-1 Form to require that employers with 100 or more employees submit detailed pay data on their workforce.  On August 29, 2017, the OMB sent a memorandum to the EEOC, staying implementation of this requirement.  Thus, at least for now, employers may limit the information provided on the EEO-1 Form to data on race, ethnicity and gender by occupational category (but not data on pay or hours worked).

There is similar relief for employers on the DOL overtime issue.  As we reported in a previous blog post, the United States District Court for the Eastern District of Texas granted a preliminary injunction last November, blocking the implementation of the Department of Labor’s amendments to the overtime provisions of the Fair Labor Standards Act.  On August 31, 2017, the Court took a further step, granting summary judgment blocking the rule.  The Court concluded that the Department of Labor exceeded its authority in enacting a rule raising the minimum salary threshold for executive, administrative and professional exemptions.  This likely is the official end to President Obama’s Final Overtime Rule, although President Trump may revisit the issue of the minimum salary threshold in the future.

For more information on these issues and their impact on employers, please see our Client Alert.

Lee Tankle