FMLA and the ADA – New Workplace Standards

by Julie Lewis, Attorney, Principal, Lewis Law Office, LLC

Employers continue to adapt to court decisions that apply the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) to the workplace. School administrators should understand how to comply with current standards for reasonable accommodations, essential job functions and notice of a serious health condition.

This article reviews recent cases decided by courts in Wisconsin and in the Seventh Circuit on work injuries, work from home, mental health, job assistance and attendance policies as they relate to the FMLA and the ADA.

Introduction

FMLA requests and reasonable accommodation inquiries are now standard workplace practice. Administrators who understand the related legal parameters will be more effective on every level in these conversations. Recent court decisions in Wisconsin and in the federal circuit court for Wisconsin, the Seventh Circuit Court of Appeals, provide new guidelines for some of the most common and more challenging workplace situations including mental health conditions, concurrent worker’s compensation injuries, enforcing attendance standards and job aide/job coach assistance.

Mental Health Conditions

The assistant to the Wheeling, Illinois, high school principal experienced clinical depression and anxiety after six positive years of school district employment. She reported her conditions and struggles to the principal while exhibiting significant behavioral changes including excessive absenteeism, inability to concentrate and emotional volatility. The employee requested a ten-month contract but the principal declined. The employee resigned, attempted to rescind her resignation and ultimately left school district employment. A few days later she was admitted to the hospital for severe depression.

A jury found that the school district interfered with the employee’s FMLA rights by not placing her on FMLA leave. The court ruled that the employee did not have to request FMLA leave. The school district should have known that the employee needed FMLA leave based on the school district’s knowledge of her prior excellent work record and immediate mental health crisis.Valdivia v. Township High School District 241, 942 F. 3d 395 (7^th Cir. 2019)

Concurrent Worker’s Compensation Injuries – Two Cases

Tonyan v. Dunham’s Athleisure Corporation, 2019 WL 4195079 (W.D.Wis. Sept. 9, 2019)

In this case from the United States District Court for the Western District of Wisconsin, astore manager for Dunham’sinjured her left shoulder while working. The employer accommodated the employee with light duty for two years until she reached the end of healing at which point she received permanent restrictions for very limited arm and shoulder movement. The employee asserted that the physical requirements for the manager job (e.g., climbing ladders, pulling boxes from shelves) were minimal and should be delegated as a reasonable accommodation under the ADA. The employer responded that all managers across all stores nationally had to be able to physically move merchandise. The court held that delegating the physical job requirements would not be a reasonable accommodation because all managers had to be able to perform the physical requirements for the job.

Simon v. Cooperative Educational Service Agency #5, 2019 WL 7290841 (W.D.Wis. Dec. 30, 2019) (hyperlink not yet available).

In another case from the Western District of Wisconsin, alead teacher for an alternative education program suffered a work injury concussion caused by an altercation with a student. She was off work for two months and then administratively transferred to a special education position at a nearby school district. The alternative school lead teacher position was eliminated during her leave. A new combined position was created at the alternative school and filled with another teacher. In her special education position, the teacher received a slight increase in pay and her benefits remain unchanged. Her contract as a special education teacher was renewed.

Although her leave was covered under the worker’s compensation statute and she did not request FMLA leave, the lead teacher filed a claim alleging FMLA interference and retaliation because she was not returned to her lead teacher role at the alternative school. The court held that the lead teacher was protected under the FMLA even though she did not request and was not placed on FMLA leave and she was treated as being on worker’s compensation leave. FMLA entitlement can occur when the employer is placed on notice of a serious health condition through a work-related injury.

Similarly, an employer can unlawfully interfere with an employee’s FMLA rights when the employer changes the employee’s job duties, even when there is no salary or benefit impact. The failure to return the teacher to her lead position could be FMLA interference. The failure to consider her for the new position would not, however, be FMLA interference but could be FMLA retaliation. In this case, the court rejected the employer’s “head in the sand” defense that they did not know the teacher was entitled to FMLA protections. But the court also found that the employer did not show any intent to retaliate against the employee. This case is still under consideration by the court.

Attendance Standards and the ADA

Walmart employee Marlo Spaeth has Down’s Syndrome. She worked at the Manitowoc Walmart store for 16 years as a part-time associate. In 2014, based on a system-wide analysis of business analytics regarding shopper traffic, the store changed the employee’s hours from noon - 4:00 pm to 1:00 - 5:30 pm. Previously, Walmart had tolerated early departures (ten minutes) for the employee and others. After the change, the store began enforcing a less flexible point-based attendance policy. The employee reported to her manager that the later hours caused distress for her because she missed her regular bus and had to eat supper later than the normal time. Walmart’s internal investigation supported the decision to enforce the attendance policy and ultimately approved discharging the employee for excessive absence.

Walmart asserted that the employee was not qualified because she could not meet the essential function of regular attendance. Courts regularly agree that employers do not have to accommodate unreliable attendance under the ADA. In this case, the EEOC argued on the employee’s behalf that the employee was able to meet the regular attendance requirement for the previous 16 years but needed a reasonable accommodation to help her with the new schedule. The court held that Walmart’s refusal to consider a schedule change for the employee was a failure to offer a reasonable accommodation. Although employers can make regular attendance an essential job function, the extra two hours could have been covered by another associate. EEOC v. Wal-Mart Stores East LP, 2020 WL 475594 (E.D.Wis. Jan. 29, 2020) (hyperlink not yet available)

Job Coach/Job Aide as Reasonable Accommodation Under the ADA

Walmart employee Paul Reina is deaf and has developmental, visual and intellectual impairments. With the help of a job coach paid through the employee’s medical benefit, he worked at the Beloit Walmart store for 16 years as a parking lot cart attendant. In 2015, Walmart (under new local management) communicated to the employee that he could no longer work with a job coach. Walmart’s position was that the job coach was performing the majority of the employee’s work and that the ADA does not require employers to assign two people to one job.

The court held that a permanent, full-time job coach or job aide could be a reasonable accommodation depending on the type and amount of assistance required and the specific employee’s abilities. At a minimum, the employer would be required to engage in the interactive reasonable accommodation process regarding the request. This case was tried to a jury which found for the employee and awarded over $5 million in damages.EEOC v. Wal-Mart Stores, Inc., 345 F. Supp. 3d 1046 (W.D.Wis. 2018)

These recent court cases arising in Wisconsin remind us of the need to be mindful of employees’ rights under the FMLA and ADA. As you work with staff with health issues, keep in mind these key points to help navigate the legal implications of both laws.

*This article was written by Attorney Julie Lewis. The views expressed herein are exclusively those of Ms. Lewis. This article was designed to provide general authoritative information and commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic. You may also direct your Level I legal questions to Malina Piontek at 608-497-3037 or [email protected].