WHD Expands FMLA Protections for Employees with Disabled Adult Children

On January 14, 2013, the Wage and Hour Division (WHD) of the Department of Labor published an interpretation on the definition of “son or daughter” as it applies to someone 18 years old or older and incapable of self-care because of a mental or physical disability.

This means that an otherwise eligible employee will be entitled to take FMLA leave to care for an adult child if that child meets all of the following:

•Has a disability as defined by the Americans with Disabilities Act, as amended (ADA),

•Is incapable of self-care because of that disability,

•Has a serious health condition, and

•Is in need of care due to the serious health condition.

The guidance states that the FMLA utilizes the definition of a disability from the ADA: a physical or mental impairment that substantially limits a major life activity.  Employers, in considering an employee’s request for FMLA leave to care for an adult child, must first consider if the child has a disability.  Under the new definition, while pregnancy itself is not a disability, pregnancy-related impairments, such as gestational diabetes, may be disabilities if they substantially limit one or more major life activities. Therefore, employees may be entitled to take FMLA leave to care for their adult, pregnant daughters who suffer from such conditions.

The FMLA defines “incapable of self-care” as when an adult child requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

The determination of whether an adult child is incapable of self-care because of a disability will depend upon the specific facts involved in the situation. It must be made based on the individual’s condition at the time of the requested leave. The determination must focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs. It must also be based on all relevant factors that might impact the individual’s ability to perform ADLs or IADLs without active help or supervision, including, for example, the current effect of any episodic impairment.  If an adult child is determined to have a disability but is capable of self-care, he or she will not qualify as a “son or daughter” under the FMLA.

The adult child would also need to have a serious health condition. However, most impairments will satisfy both the ADA’s definition of “disability” and the FMLA’s definition of “serious health condition,” even though the criteria are different.

The final requirement is that the employee must be “needed to care” for his or her child because of the serious health condition. This can include the child being unable to care for his or her own basic medical, hygienic, or nutritional needs; safety; or transportation to the doctor. This also includes providing psychological comfort and reassurance that would be beneficial; for instance, simply holding the child’s hand. The child need not be receiving inpatient care.

The DOL also clarifies that the age of the onset of the disability is irrelevant to the determination of whether an individual is a “son or daughter” under the FMLA.

A child whose disability did not begin until adulthood could be considered a “son or daughter” for purposes of the FMLA. For example, if an employee’s 26-year-old son was involved in a serious accident that left him disabled and the employee was needed to care for the son because the son was incapable of self-care because of the disability, the employee would be entitled to take FMLA leave to care for his or her son.

Conclusion

The result of the changes in the ADA, as pointed out by the DOL, is that more employees may take FMLA leave to care for their adult children with disabilities. Employers should be aware of these interpretive changes in such situations.

So What Exactly Is A Supervisor? An Important Question to be Answered by the USSC!

The United States Supreme Court will hear the case of Vance v. Ball State University in its upcoming term.  The issue in Vance is whether an employee who oversees and directs other employees’ daily tasks, but lacks authority to hire, fire, demote, promote, transfer, or discipline them, is a “supervisor” as defined in Title VII of the Civil Rights Act of 1964. Since an employer is strictly liable for severe or pervasive harassment by a supervisor, but is only liable for actions of a coworker when it is negligent, the manner in which the Supreme Court defines “supervisor” will have important implications for employers under Title VII, and likely other employment statutes that similarly define a supervisor.

Different federal appellate jurisdictions have reached varied conclusions on specifically how expansive the definition of supervisor under Title VII should be. This decision can have a very broad impact on employer liability for discrimination issues.

FCRA Background Check Notices to be Updated

Effective January 1, 2013, employers are required to update their Fair Credit Reporting Act (FCRA) notices to reflect modest changes to the mandatory Summary of Rights Form.  The recent notice changes are a result of the Consumer Financial Protection Bureau taking over responsibility for enforcing the FCRA from the Federal Trade Commission. The Summary of Rights Form must be included with a “pre-adverse action” notice, as well as with disclosures for “investigative consumer reports” based on personal interviews conducted by consumer reporting agencies.

The FCRA requires employers that obtain “consumer reports” (background reports) from consumer reporting agencies to clearly disclose to the applicant/employee that such a report may be obtained and to seek his or her written permission to obtain such a report.  Employers seeking to utilize “investigative consumer reports” must likewise disclose intent to obtain such reports and inform applicant/employee of his or her right to request additional information about the “nature and scope” of the investigation.

Employers that wish to take adverse action against the applicant/employee based on such reports must first provide the individual with a “pre-adverse action” notice, a copy of the consumer report and a copy of the FCRA Summary of Rights. Thereafter, an employer that intends to proceed with the adverse action must then provide the individual with a formal “adverse action” notice, which includes additional information governed by statute. Employers are encouraged to review this new requirement or seek advice about the scope and implementation of the FCRA.

Do You Know The EEOC Targets?

The EEOC has made it clear exactly what problems it intends to target going forward in its Strategic Enforcement Plan, including systemic recruitment, harassment and hiring practices that are intentionally biased or have an unintentional adverse impact on minorities, women and people with disabilities. Although the draft plan has been submitted for public comment and must be approved by the commission before it is finalized, it gives a clear vision of the agency’s roadmap for future enforcement.

The agency has also elevated to the status of “national priorities” a list of currently “emerging issues” that the EEOC specifically intends to target:

• § ADA Amendments Act issues, particularly coverage issues, and the proper application of ADA defenses, such as undue hardship, direct threat, and business necessity;
• § LGBT coverage under Title VII sex discrimination provisions, as they may apply; and
• § Accommodating pregnancy when women have been forced into unpaid leave after being denied accommodations routinely provided to similarly situated employees.

Targeted and integrated enforcement efforts. The EEOC engage in targeted enforcement efforts as one of its “guiding principles.” According to the agency, “targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace.” The EEOC will also “undertake an integrated approach to its work, one that mobilizes all segments of agency operations and emphasizes effectiveness, efficiency and consistency.”

The draft Strategic Enforcement Plan also delineates five “nationwide priorities”:

1. Eliminating systemic barriers in recruitment and hiring;
2. Protecting immigrant, migrant and other vulnerable workers;
3. Addressing emerging issues;
4. Preserving access to the legal system; and
5. Combating harassment.

Recruitment and hiring. In order to eliminate systemic barriers in recruitment and hiring, the EEOC intends to “target class-based intentional hiring discrimination and facially neutral hiring practices that adversely impact particular groups.” The plan notes that racial and ethnic minorities, older individuals, and people with disabilities continue to face biased policies, including exclusionary policies and practices, channeling and/or steering of individuals into specific jobs due to their status as a group, restrictive application processes, and the use of screening tools, such as pre-employment tests, background screens, and date-of-birth screens on online applications.  It’s evident that the EEOC will be looking very closely at these particular employer practices.

The EEOC intends an aggressive effort in targeting these emerging discrimination issues: “Swift and responsive attention to events, recently enacted legislation, and developing judicial and administrative interpretations and theories has the benefit of preventing the spread of discriminatory practices by promoting greater awareness and enabling voluntary compliance.” With the EEOC’s recipe for enforcement and targeted practices in hand, employers should consider an updated audit of their own employment practices.

Retaliatory Hostile Work Environment Claim Recognized in Eleventh Circuit

The Eleventh Circuit is the last appellate circuit to formally recognize a retaliatory hostile work environment claim.  In Gowski v. Peake, 682 F.3d 1299 (11th Cir. June 4, 2012) the court found that recognition of such a cause of action is consistent with the statutory text of Title VII, congressional intent, and the EEOC’s own interpretation of Title VII. Additionally, the court held that recognizing a retaliatory hostile work environment claim is consistent with Title VII’s remedial goal and prevents supervisors from deterring protected conduct, such as filing an EEO complaint against one’s employer.

In Bowski v. Peake, the jury found that the plaintiffs, two doctors employed at a Florida hospital, were subject to a retaliatory hostile work environment after they filed EEO complaints against the hospital management. The Eleventh Circuit affirmed the finding that plaintiffs demonstrated that they were retaliated against after they filed EEO complaints. The retaliatory acts included changing duty assignments, denying privileges, reprimands, suspensions, soliciting complaints, lowering proficiency reports, and denying access to the grievance and appeals process, among other retaliatory acts. The plaintiffs further demonstrated that the hospital management carried out a “retaliatory scheme” designed to remove employees who filed EEO complaints by (a) targeting employees who filed complaints; (b) spreading rumors about those employees; (c) attempting to ruin the employees’ reputations and careers; and (d) collecting reports against those who filed complaints in an effort to terminate them. Several doctors left the hospital out of fear of being targeted, and others refrained from submitting EEO complaints for fear of being retaliated against. The court concluded that this evidence was sufficient for the jury to conclude that the hospital management created a workplace filled with intimidation and ridicule that was sufficiently severe and pervasive to alter the plaintiffs’ working conditions.

To establish a retaliatory hostile work environment claim, an employee must demonstrate that he or she has fallen victim to actions that are sufficiently severe or pervasive to alter the terms and conditions of employment, thus constituting an adverse employment action. The requirement that the harassment be “severe or pervasive” contains both an objective and subjective component–the employee must demonstrate not only that he or she subjectively perceived the conduct to be abusive, but also that a reasonable person would find the conduct to be abusive. In evaluating the objective severity of the harassment, the Eleventh Circuit looks at the totality of the circumstances, including: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.

It is important to note that an adverse employment action standing alone, such as a failure to promote or job reassignment, cannot form the basis for a retaliatory hostile work environment claim. However, a jury is permitted to consider discrete employment actions in evaluating a retaliatory hostile work environment claim because a series of separate acts can collectively constitute one unlawful employment practice. The employee must demonstrate that the unlawful employment practice occurred because of retaliation, or in other words said the Eleventh Circuit Court, that the adverse actions were motivated at least in part by retaliatory animus.

EEOC Decides That Title VII Prohibits Transgender Status Discrimination

On April 20, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) decided in Macy v. Holder, to overturn the Department of Justice’s refusal to give full consideration to the EEO claim of a transgender federal employee, that discrimination based on gender identity, change of sex, and/or transgender status is discrimination on the basis of sex, prohibited by Title VII of the Civil Rights Act of 1964 (Title VII).

Prior to transitioning from a male to a female, Macy worked as a police detective in Phoenix, AZ. Macy decided to relocate to San Francisco, and applied for an opening in the Bureau of Alcohol, Tobacco, Firearms and Explosives Agency’s crime laboratory and interviewed by phone with the Director of the lab. After discussing background, credentials, and the proposed salary and benefits, the Director conditionally hired Macy, pending a background check. In a subsequent phone call, Macy alleges that the Director advised that he was hired pending completion of the background check. Macy was then contacted by a staffing firm to begin the necessary paperwork for the position, and an investigator was assigned to conduct the background check.

Macy emailed the staffing firm to inform them that she was transitioning from male to female and asked that this information be passed on to the Lab Director. A few days later, the staffing firm told Macy that the Agency had been made aware of upcoming gender transition. Five days later, the Director of the lab sent Macy an email stating that the position was no longer available due to budget cuts.

Macy then contacted an EEO counselor at the Agency to discuss her concerns that the job offer had been withdrawn based on her gender identity. The counselor told her that the job had not been closed for budgetary reasons, but rather was filled by another employee. The counselor stated that the other applicant was hired because that person was farthest along in the background check process. Suspecting this reason was pretextual, Macy filed a formal EEO Complaint, citing discrimination based on sex, specifically citing “gender identity” and “sex stereotyping” as the basis for her complaint.

The Department of Justice informed Macy that it intended to pursue her claim for discrimination on the basis of sex under Title VII, but that it considered her claim for gender identity discrimination to be a separate claim, which would not be afforded the right to request a hearing before an EEOC judge or the right to appeal the final Agency decision to the EEOC because it was not covered by the federal statute.

Macy appealed to the EEOC, claiming that the EEOC had jurisdiction over her entire claim under Title VII. She argued that the separate procedure for adjudicating her gender identity claim was a “de facto dismissal” of that claim. The Agency responded that Macy’s appeal was premature because her claim for discrimination on the basis of sex was being adjudicated under Title VII. Macy then withdrew her claim for discrimination based solely on sex, as the Agency had identified it, and informed the EEOC that she intended to pursue only her claim for discrimination on the basis of gender identity, change of sex, and/or transgendered status.

The EEOC accepted Macy’s appeal and ruled that the EEOC had jurisdiction over her entire claim. The Commission rejected the Agency’s argument that her claim of discrimination was actually two separate claims–one for discrimination “because of sex” under Title VII, and one for discrimination based separately on “gender identity stereotyping.”  Instead, the Commission established that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition.”

Explaining that Title VII prohibits any discrimination based on sex, the Commission clarified that the definition of sex includes both biological differences and gender, which includes “cultural and social aspects associated with masculinity and femininity.” Relying on the Supreme Court’s plurality in Price Waterhouse v. Hopkins, the Commission explained that “gender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.”

The Commission recognized that several lower courts have used the sex-stereotyping theory when analyzing transgender discrimination under Title VII, but concluded that sex stereotyping is only “one means of demonstrating disparate treatment based on sex” in the context of transgender discrimination. The Commission instead held that discrimination based on transgender status, in and of itself, is discrimination “based on . . . sex” in violation of Title VII. The Commission explained that “[t]his is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person.”

In short, the Commission concluded that “intentional discrimination against a transgender individual because that person is transgender, is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.”

The Commission’s ruling is a landmark decision. Federal employers are bound by the Commission and will now be found to have violated Title VII’s prohibition on sex discrimination if they discriminate against transgender individuals. Although the Commission’s ruling is only binding on federal employers, it represents a significant development in Title VII as it applies to employers and transgender individuals in the private sector. First, the EEOC will likely use the ruling when deciding charges of discrimination against private employers. Additionally, lower courts may adopt, or at least consider, the Commission’s reasoning. The Commission’s ruling, therefore, may result in an overall expansion of Title VII protection. Employers should be prepared for claims of discrimination relating to transgender status.

EEOC Criminal Background Check Guidance Raises Issues for Employers

On April 25, 2012, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII. You can read a full press release on the updated Enforcement Guidance here.

The press release includes a link to questions and answers about the EEOC’s Enforcement Guidance. A summary of the most important points for employers are as follows:

1. Title VII does not prohibit employers from obtaining criminal background check reports about job applicants or employees. Although the Fair Credit Reporting Act, among other laws, establishes procedures for obtaining such reports. Local laws may also apply.
2. Title VII prohibits employers from using criminal history information to discriminate against job applicants because of their race, color, religion, sex, or national origin. But that’s old news. As the EEOC notes, the Third Circuit in El v. SEPTA offered in-depth analysis on this issue. How might discrimination based on these factors arise? Biased statements, inconsistencies in the hiring process, similarly-situated comparators, employment testing, and other statistical evidence.
3. Employers are reminded that “even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin”. This is known as disparate impact discrimination. “If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.
4. The fact of an arrest does not establish that criminal conduct occurred. Conversely, criminal convictions are probative and federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim. Note, however, that the EEOC takes the position that state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.
5. The Enforcement Guidance contains some best practices to consider for employers who are considering criminal record information when making employment decisions. (a) Eliminate policies or practices that exclude people from employment based on any criminal record; (b) Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination; (c) Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct; (d) Identify essential job requirements and the actual circumstances under which the jobs are performed; (e) Determine the specific offenses that may demonstrate unfitness for performing such jobs; (f) Identify the criminal offenses based on all available evidence; (g) Determine the duration of exclusions for criminal conduct based on all available evidence; (h) Include an individualized assessment; (i) Record the justification for the policy and procedures; (j) Note and keep a record of consultations and research considered in crafting the policy and procedures; (k) Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII; (l) When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; (m) Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Are you using the correct FLMA Forms?

The US Department of Labor (DOL) recently posted updated versions of its model Family and Medical Leave Act (FMLA) notification and certification forms, effective through February 28, 2015. The forms do not contain any substantive changes, but the previous forms expired December 31, 2011; so, going forward, employers who use the DOL forms should begin utilizing the new ones. The updated model forms are as follows:

   WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (PDF)

       WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (PDF)

       WH-381 Notice of Eligibility and Rights & Responsibilities (PDF)

       WH-382 Designation Notice (PDF)

       WH-384 Certification of Qualifying Exigency For Military Family Leave (PDF)

       WH-385 Certification for Serious Injury or Illness of Covered Servicemember — for Military Family Leave (PDF)

In the alternative, employers using their own forms may continue to do so, provided they do not ask for more information than required by the FMLA.

Notably, the new forms still do not include the “safe harbor” language recommended by the Equal Employment Opportunity Commission’s (EEOC) regulations, to prevent the disclosure of genetic information as prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). Thus, regardless of whether employers use the DOL forms or their own forms, they should always add the following language in requests for employee health-related information to avoid liability under GINA for an inadvertent disclosure of genetic information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of any individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.  See 29 C.F.R. § 1635.8(b)(1)(B).

NLRB Posting Rule Delayed Indefinitely

On April 17, 2012, the D.C. Circuit issued an injunction delaying the effective date of the NLRB’s Final Rule requiring most employers to post a notice of employee rights in their workplaces. The Final Rule, previously scheduled to take effect on April 30, 2012, has now been postponed indefinitely due to conflicting opinions issued by federal district courts. Judge Amy Berman Jackson of the United States District Court for the District of Columbia issued a ruling on March 2, 2012 that upheld the NLRB’s authority to enact the Final Rule but invalidated the primary enforcement mechanisms. On April 13, 2012, Judge David C. Norton of the U.S. District Court for the District of South Carolina struck down the Final Rule in its entirety in Chamber of Commerce v. NLRB, No. 2:11-cv-02516-DCN. Judge Norton held that by enacting the Final Rule, the NLRB exceeded its statutory authority in violation of the Administrative Procedure Act. Judge Norton stated, “It can be said that the notice-posting rule ‘aids’ or ‘furthers’ the aspirational goals of Section 1 by notifying employees of their rights under Section 7, but defendants have not shown that the rule is ‘necessary’ to carry out any other provisions of the Act.” As a result of the conflicting opinions, the D.C. Circuit enjoined the enforcement of the Final Rule pending appeal. NLRB Chairman Mark Gaston Pearce expressed the Board’s opposition to the order but confirmed that all regional offices have been directed to comply with the injunction. The D.C. Circuit ordered an expedited briefing schedule and directed the court clerk to schedule oral argument in September.

Clarifying How the ADA Impacts a High School Diploma Job Requirement

In response to the considerable discussion resulting from an EEOC informal discussion letter released at the end of last year, the federal agency has posted on its website a question-and-answer guidance document explaining the relationship between high school diploma job requirements and the Americans with Disabilities Act.

The guidance explains that the letter, dated November 17, 2011, does not make it illegal for a business to require that applicants have a high school diploma. However, an employer may be required to permit someone who says she has a disability that prevented her from getting a high school diploma show by other means that she is qualified for the job. For example, the employer may consider work experience in the same or similar jobs, or permit the applicant to demonstrate performance of the essential functions of the job. The employer can also require the applicant to demonstrate, perhaps through documentation, that she has a disability and that the disability actually prevents her from meeting the diploma requirement.

The Q&A also clarifies that “the ADA only protects someone whose disability makes it impossible for him or her to get a diploma.” The statute does not protect an individual who simply decided not to get a high school diploma.

Moreover, even if an applicant with a disability is able to demonstrate the ability to do the job through a means other than possession of a high school diploma, the employer is not prohibited from choosing the best qualified person for the job — the employer does not have to give preference to the person with a disability over an individual who can perform the job better.