Key point 8-10. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.
Key point 8-21. The federal Family and Medical Leave Act requires employers with 50 or more employees and engaged in interstate commerce to allow employees up to 12 weeks of unpaid leave each year on account of certain medical and family needs. There is no exemption for religious organizations.
* A federal court in New York ruled that a church pension board did not violate the Americans with Disabilities Act of the Family and Medical Leave Act when it dismissed an HIV-positive employee. A man (the “plaintiff”) was employed by a church pension board (the “defendant”). The defendant had many different employment-related policies, which were printed in an employee manual. These included policies pertaining to equal employment opportunity; punctuality and attendance; sick leave; FMLA; leaves of absence; grievance procedures; and disciplinary procedures. The defendant also provided a Health Insurance Portability and Accountability Act (” HIPPA” ) handbook as an appendix to the employee manual to advise employees of the issues regarding confidentiality and disclosure of health and medical information. The defendant claims to maintain a ” zero tolerance policy” for discrimination and harassment.
With regard to sick leave, the employee manual requires employees to call their supervisor prior to the beginning of each workday if they will be absent due to illness. Moreover, the manual specifically states: “An employee who fails to report to work for two consecutive days and fails to notify his or her supervisor of absence due to illness, shall be considered to have abandoned his/her position and will be discharged, unless there are extenuating circumstances satisfactory to the defendant.”
Although the plaintiff received the employee handbook, he stated that he never reviewed it. Despite not reading the handbook, the plaintiff conceded that he understood that if he was going to be absent from work, he was required to contact the office.
On January 27, 2004, plaintiff called the defendant to report that he would not be coming into work that day. He did the same on the following day. On January 29, 2004, defendant received a handwritten note from a physician stating that the plaintiff was under his care “for an exacerbation of chronic illness and has been unable to work since this past Monday. He will be able to return to work February 9, 2004.” The note did not specify the nature of the illness. According to the physician, the chronic illness to which the note referred was Human Immunodeficiency Virus (“HIV”), and the exacerbation was part of the typical progression of the disease. The plaintiff had begun treatment for HIV infection in 1998. In late January 2004, his HIV condition had worsened considerably. The physician further stated that by January of 2004 the plaintiff was exhibiting the most severe signs of anxiety and depression that he had exhibited in the previous six years. The source of this anxiety, the physician concluded, was the plaintiff’s fear of his disease process.
During plaintiff’s time out of work pursuant to his doctor’s note, the defendant made several attempts to contact him, all of which were unsuccessful. On February 5, the defendant learned that the plaintiff was in Costa Rica. The plaintiff did not report to work on February 9, 2004, nor did he contact defendant that day.
On February 10, the defendant terminated the plaintiff’s employment due to his failure to contact the defendant despite his ability to do so, and that the defendant had no facts, such as a doctor’s statement, indicating any medical reason for his absence. The defendant asserted that had there been timely medical documentation that plaintiff was absent on February 9 and 10 for medical reasons, he would not have been terminated. Plaintiff was informed by letter that the termination was for job abandonment and cited the employee manual. Before plaintiff, no other employee of the defendant had abandoned his job by failing to call or report to work for two straight days.
On February 11, 2004, the day after the decision to terminate him. the plaintiff contacted the defendant from Costa Rica by telephone. He stated that he had had a nervous breakdown, described some of his symptoms, and said that a doctor’s note would be forthcoming.
On March 1, 2004, the plaintiff’s physician examined him and concluded that plaintiff would have been unable to work on February 9 and February 10, and that he remained incapable of working. Consequently, the physician wrote another note excusing plaintiff from work. The note indicated that plaintiff was under his care “for chronic illness recently complicated by a nervous condition requiring psychiatric care” and that plaintiff was “unable to work until he becomes stable on appropriate medication.”
The plaintiff sued the defendant for discrimination based on disability in violation of the Americans with Disabilities Act, and a violation of the Family and Medical Leave Act (FMLA).
Americans with Disabilities Act
The court noted that an evaluation of a disability discrimination claim requires the following “burden shifting” analysis: The plaintiff bears the initial burden of proving that the employer engaged in the discriminatory practice. This can be done by direct evidence of discrimination, but more often it is done by showing “disparate treatment”—that is, the plaintiff was treated less favorably than other employees who were not members of a protected group. The courts have ruled that a plaintiff can meet the initial burden of proof by establishing a “prima facie case” of discrimination by a preponderance of the evidence. This is done by showing that (1) the plaintiff is a member of a class protected by the Americans with Disabilities Act; (2) the plaintiff suffered an adverse employment decision (such as not being hired if a job applicant, or being dismissed or disciplined if an employee); (3) a direct relationship exists between membership in the protected class and the adverse employment decision. If the plaintiff is successful in making out a prima facie case of discrimination, then a presumption of discrimination exists, and the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment decision. If the employer demonstrates a nondiscriminatory reason for the adverse employment action, then the presumption is rebutted and the plaintiff must prove that the nondiscriminatory reason was a pretext for discrimination.
The defendant conceded that the plaintiff had proven the first two elements of a prima facie case, but it vigorously challenged the third element (a direct connection existed between plaintiff’s HIV status and his termination). The defendant insisted that it had no knowledge that the plaintiff was HIV positive at the time it fired him. The court agreed that the defendant was unaware of the plaintiff’s illness, and noted that “at a minimum, the employer must have knowledge of the disability.” Similarly, the court ruled that the defendant was not aware that the plaintiff had a mental condition that was a disability.
But even if plaintiff had established a prima facie case, the court concluded that he had failed to demonstrate that the defendant’s reason for the termination was a “pretext” for what amounted to discrimination. It noted that the plaintiff’s actions “provided a reasonable basis to terminate his employment. His behavior was simply conduct which an employer could legitimately determine was inappropriate and unacceptable in the workplace. Plaintiff was terminated for violating company policy requiring an employee to call in to work if he or she was going to be absent for any reason. Certainly, an employer is entitled to discharge an employee who fails to follow company rules and fails to appear for work without notification, even if the absences are attributable to a medical problem. The record indicates that plaintiff was capable of complying with the call-in policy despite his alleged disability, especially in light of the fact that he was in daily telephone contact with his mother while in Costa Rica before his termination.”
In summary, the evidence disclosed “no connection between plaintiff’s alleged disabilities and his termination. The record contains no statement that plaintiff was terminated due to a disability, no comments were made to indicate a bias against HIV positive individuals or those suffering mental health impairments. Plaintiff has contended that defendant would have wanted to terminate him because of the costs associated with employing people with disabilities, however, no such cost considerations are contained in the record. Plaintiff has not established that defendant knew he had a qualifying disability, that the disability was the reason for his discharge or even actions to show a prior bias by defendant against individuals with disabilities. The failure to call in during audit time constituted an abandonment of his obligations as [an employee]. Moreover, he has not demonstrated that this policy was unevenly applied. To the contrary, plaintiff was the only person who ever failed to call or appear for work for two consecutive days. In short, he has failed to establish that the termination was due to discrimination based on disability status.”
Under the FMLA, eligible employees are entitled to twelve weeks per year of unpaid leave “because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” At the conclusion of an employee’s FMLA leave, he is entitled to return to the same position or its equivalent. The FMLA allows employees to seek money damages against any employer that violates their FMLA rights. The plaintiff claimed that the defendant interfered with his FMLA rights.
The court noted that to state a claim for interference with FMLA rights, plaintiff must demonstrate that: (1) he was an eligible employee under the FMLA; (2) the defendant is an employer under the FMLA; (3) plaintiff was entitled to leave under the FMLA; (4) plaintiff gave notice to defendant of his intention to take leave; and (5) plaintiff was denied benefits to which he was entitled under the FMLA. The defendant asserted that plaintiff failed to prove the fourth and fifth elements of his interference claim (i.e., notice and denial of benefits).
The court noted that under FMLA, employees are required to provide, whenever possible, at least 30 days’ notice for leave that is foreseeable. However, where the need for leave has arisen unexpectedly, the regulations provide that:
(a) When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved.
(b) The employee should provide notice to the employer either in person or by telephone, telegraph, facsimile (“fax”) machine or other electronic means. Notice may be given by the employee’s spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee or spokesperson will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.
Employees seeking FMLA leave need not expressly invoke the FMLA in the notification to their employer; it is sufficient that they “give a basis for their leave that qualifies under the FMLA.” After the employee provides the required notice, “the burden shifts to the employer to inquire further if it needs further information to ascertain whether the leave is FMLA-qualifying.” The plaintiff insisted that his phone call to defendant on January 27, and his physician’s letter of January 29, constituted adequate notice under the FMLA. The court disagreed: “Merely calling in sick, as plaintiff did on January 27, is insufficient to put a company on notice that an employee is requesting leave that may be eligible under the FMLA. There is no evidence in the record that plaintiff provided any information in his calls that his absence was due to a condition that could be eligible for FMLA coverage. [His physician’s] letter was similarly vague, in that it stated that plaintiff was suffering from ‘an exacerbation of chronic illness’ and in any event stated that plaintiff would be able to return to work on February 9.” Finally, the court noted that communications that the plaintiff’s mother and sister made to the defendant did not constitute FMLA notice, since the FMLA regulations specify that a spokesperson for the employee may give notice on his behalf “only if the employee is unable to do so personally …. There is nothing in the record to suggest that plaintiff was unable to contact defendant himself; indeed, the record indicates that plaintiff was in fact able to do so. Thus, the statements of plaintiff’s mother and sister do not constitute adequate notice under the FMLA.” Brown v. The Pension Board, 488 F.Supp.2d 395 (S.D.N.Y. 2007).
* See also “Clergy—removal,” Leavy v. Congregation Beth Shalom, 490 F.Supp.2d 1011 (N.D. Iowa 2007), in the recent developments section of this newsletter.