In this issue:
- Federal Jury Says State Trooper Was Denied Family Leave Based On Gender
- Extended Leave May Be Reasonable Accommodation Of Disability
- Failure To Provide Medical Information Dooms Accommodation Claims
- Differences In Qualifications Must "Jump Off The Page And Slap You In The Face," Fifth Circuit Holds
Federal Jury Says State Trooper Was Denied Family Leave Based On Gender
A federal jury in Maryland recently awarded $375,000 in emotional distress damages to a male helicopter paramedic employed by the state police. The jury found that Kevin Knussman was denied permission to take family leave after the birth of his daughter because he was a man. Knussman v. Maryland, D.Md. No. B-95-1255 (verdict February 2, 1999). Knussman sued the Maryland State Police under the Equal Protection Clause of the U.S. Constitution, the Family Medical Leave Act ("FMLA"), and Maryland state law. Knussman requested four to eight weeks' paid leave to care for his newborn, but was required to return to work after two weeks off. The FMLA gives workers the right to 12 weeks of unpaid leave after the birth of a child, and allows an employee to substitute paid vacation, personal leave or family leave for the unpaid leave. According to his complaint, Knussman had accumulated more than 1,200 hours of sick leave and more than 250 hours of personal leave. A Maryland law also at issue in the case allowed state employees to use up to 30 days of earned sick leave as family leave if they were "primary care providers."
Knussman claimed that his supervisors failed to inform him that he was entitled to paid leave under the FMLA, but led him to believe that the statute provided only for unpaid leave. He also claimed that when he asked for leave under Maryland law, he was told that he could not be a "primary care provider" because he was a man, and only women could breastfeed. According to his testimony, Knussman was told that he could not get more than two weeks of leave "unless your wife is in a coma or dead."Employers should ensure that employees are provided with both forms of notice required by the FMLA: the general notice of FMLA rights, which should be posted at the worksite, and an individual letter detailing the employee's FMLA rights and the employer's procedures, which must be sent to an employee who requests leave for an FMLA-qualifying purpose.
Extended Leave May Be Reasonable Accommodation Of Disability
A recent decision of the Ninth Circuit Court of Appeals reinforces the necessity for employers to tread with caution when deciding how to treat employees seeking extended leaves of absence for medical conditions which may be "disabilities" under the Americans with Disabilities Act ("ADA"). See Nunes v. Wal-Mart Stores, 1999 US App. LEXIS 1048 (9th Cir. Jan. 28, 1999). Compliance with the ADA may require leaves of absence extending beyond the twelve weeks required by the FMLA.Nunes, a cashier for Wal-Mart, suffered from a disorder causing occasional, unpredictable episodes of fainting. After fainting a few times at work, Nunes took a three-month medical leave of absence. She returned to work and worked the next six months without incident, but then fainted three times at work in less than two months, the last time breaking her glasses and cutting her eyebrow. In March of 1995, Wal-Mart encouraged Nunes to take an extended leave of absence for diagnosis and treatment of her condition. Nunes applied for state disability benefits, and her doctors certified that she was completely unable to work, and would be disabled until November or December of 1995. In October, Nunes' condition was diagnosed as stress-related, and she was hospitalized and taught stress-reduction techniques to control her disorder. In October 1995, while Nunes was in the hospital, and without contacting her, Nunes' store manager terminated her for failure to submit leave of absence forms and because Wal-Mart needed to fill her position during the holidays.
The trial court found that Nunes was not a qualified individual with a disability because of the statements on her disability application verifying that she was completely disabled from working, and because she could not perform the essential functions of her job on the date she was terminated. The trial court also determined that, even if Nunes was a qualified individual under the ADA, she posed a "direct threat" to the safety of others in the workplace.
In reversing summary judgment for the employer, the Court of Appeals noted that it previously has held that neither application for nor receipt of disability benefits automatically bars a claimant from establishing that she is a qualified person with a disability under the ADA. (The Supreme Court will definitively decide this issue this term; see January 1999 Update.) Additionally, according to the appellate court, in determining that Nunes was completely disabled and thus not a "qualified individual with a disability" under the ADA, the district court mistakenly focused on Nunes' disability during the period of her medical leave. Since an extended medical leave may be a "reasonable accommodation" required by the ADA, Nunes' inability to work during the leave period would not automatically make her unqualified.
In holding that a jury should decide whether Nunes' medical leave was a reasonable accommodation that would not put an undue burden on Wal-Mart, the court noted that Wal-Mart's regular practice is to hire temporary help during the holidays, that Wal-Mart's benefit policy provided for short-term medical leaves of up to one year, and that Nunes was learning to control her condition. The appellate court also found that the evidence was insufficient to conclude that Nunes posed a "significant risk" to others.
Employers should beware the temptation to quickly conclude that an employee is permanently disabled or has requested too long a medical leave of absence. While the FMLA was not an issue in Nunes, the implication of the court's reasoning is that, depending upon the circumstances, an employer may be required to accommodate a disability by providing a leave of absence longer than the 12 weeks required by the FMLA. The employer must decide the appropriate course of action based on the medical facts, and investigate the possibility that sufficient time off may allow an employee to return to work.
Failure To Provide Medical Information Dooms Accommodation Claims
While the ADA envisions "an interactive process" leading to accommodation for disabled employees, that process requires the participation of both sides. An appellate court recently ruled in Templeton v. Neodata Services, Inc., 162 F.3d 617 (10th Cir. 1998), that an employee's refusal to provide medical information reasonably requested by her employer precluded her claim that the employer refused to accommodate her under the ADA.
Plaintiff Templeton was put on disability leave after she was seriously injured in a car accident in June 1994. In August 1995, her doctor wrote a letter to the employer's insurance carrier stating that she could expect to return to work that October, but that there might be further delays in her recovery. The doctor noted that she had not been given a detailed job description for Ms. Templeton, and thus could not state which duties plaintiff could not perform. That October, when plaintiff still had not returned to work, the employer asked plaintiff for an updated medical certification. The plaintiff refused to authorize the doctor to release the requested information, because she believed she would be placed on medical leave against her will. After allowing her a second chance to provide the medical certification, the employer terminated plaintiff's employment.
The Tenth Circuit agreed with the district court that the plaintiff did not establish a violation of the ADA. According to the appellate court, "an employer cannot be expected to propose reasonable accommodation absent critical information on the employee's medical condition and the limitations it imposes."
Differences In Qualifications Must "Jump Off The Page And Slap You In The Face," Fifth Circuit Holds
A recent decision of the Fifth Circuit Court of Appeals emphasizes that a court should not act as a super-personnel department in deciding employment discrimination cases. In Deines v. Texas Dept. of Protective Services, 1999 U.S. App. LEXIS 577 (5th Cir. Jan. 19, 1999), the plaintiff sued an employer for its failure to hire him, claiming that the decision was based on his national origin. The jury concluded that Deines' Hispanic national origin was not the motivating factor in the employer's decision not to hire him. Deines appealed on the grounds that the jury instruction given by the trial court placed too heavy a burden on him to show that the employer's reasons for not hiring him were pretextual. The instruction said that "disparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as virtually to jump off the page and slap you in the face." The Court of Appeals found that the jury instruction was a proper description of the kind of evidence that would be necessary to create an inference that the employer intended to discriminate.