Rigid Leave Policies Can Get You Into Trouble

Recently, United Parcel Service, Inc. (“UPS”) agreed to pay $2 million to end a nationwide disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”). The EEOC had charged UPS with violating the Americans with Disabilities Act (“ADA”) by maintaining an inflexible leave policy, whereby the company fired disabled employees automatically after 12 months of leave, without affording them the opportunity of taking additional leave or otherwise accommodating their return to work.

The settlement with UPS highlights the danger employers face if they have inflexible leave policies, even if those policies are generous like that of UPS. To better understand what the UPS settlement means for employers, DiMuroGinsberg partner, Jonathan R. Mook, addresses a number of the major questions involving this important issue:

What is the EEOC’s view on leave caps under the ADA?

Put simply, the EEOC says absolute leave caps are verboten. That’s because they do not allow for the possibility of reasonably accommodating a disabled employee by extending that individual’s leave beyond the cap. Leave to allow a disabled employee to obtain medical treatment or to recuperate may be a reasonable accommodation under the ADA. Whether leave is appropriate in a given instance is an individualized, interactive process between the person with a disability and the employer. An absolute leave cap does not allow for this process to occur and, hence, is considered to be a per se violation of the ADA by the EEOC.

A 12-month cap on leave is lengthy. Why can this amount of leave not be enough under the ADA?

A 12-month leave cap is, indeed, extremely lengthy. Nonetheless, there is a possibility that within a short time following the 12 months, a disabled employee will be able to return to work. Hence, the EEOC takes the position that 12 months may not be enough leave required by the ADA.

Should employers consider doing away with their leave caps?

I would not recommend that employers do away with the leave caps they have instituted. There are many practical reasons for an employer to have a cap. The ADA simply requires that before an employer terminates an employee when that employee’s leave exceeds the cap, the employer make an individualized assessment as to whether providing some reasonable additional leave will be sufficient to allow the employee come back to work.

How long should a leave cap be?

In light of the EEOC’s position on leave caps and the fact that even a 12 month cap on leave may need to be lengthened as a reasonable accommodation, I would recommend that employers institute a leave cap of substantially less than 12 months. Due to the FMLA, larger employers will need to have a leave cap of at least 12 weeks of medical leave, and possibly longer depending upon state laws. Thus, an employer should consider instituting a leave cap of at least 12 weeks. However, how much more than 12 weeks will depend upon the nature of the employer’s business and its workforce.

How should employers address requests for leave beyond the employer’s leave cap?

Just as with any other ADA request for reasonable accommodation, an employer should evaluate an employee’s request for additional leave, as well as other types of accommodations that may allow the disabled employee to return to work. One such accommodation might be transfer to a vacant position that the employee who is out on leave could perform.

If the employee keeps requesting an extension of his or her leave, at some point, the employer will be in a position to document why granting more leave would create an undue hardship. That may be because the position must be filled or the employee cannot provide medical evidence that with some specific amount of additional leave, the employee will be able to return to work.

Do the courts follow the EEOC’s position on leave as a reasonable accommodation?

Most do, but recently the Seventh Circuit Court of Appeals, in Severson v. Heartland Woodcraft, Inc., ruled that the ADA does not require multi-month leave. The Seventh Circuit covers Illinois, Indiana and Wisconsin, so its decision does not directly apply to Virginia employers. However, the Seventh Circuit’s position clearly will be cited as persuasive reasoning that should limit the amount of leave an employer must provide.

Without question, the amount of leave that an employer may be required to provide to an employee as a reasonable accommodation will continue to be the subject of debate in the courts. At some point in time, it is likely the Supreme Court will be called upon to provide some definitive guidance as to the proper analysis.

What’s the takeaway for employers?

Compliance with the ADA requires an individualized approach. When dealing with a disabled employee, employers may not refuse to consider possible accommodations because those accommodations would conflict with an employer’s rules. A leave cap is one of those rules that may need to bend as a reasonable accommodation. Under the ADA, there are no absolutes. If an employer is going to deny a possible accommodation, including additional leave, the employer should be able to justify that denial with fact based reasons as to why implementing the accommodation would be unreasonable and create an undue hardship.

This article was written by Jonathan R. Mook. For more information about this topic and other labor and employment law topics, please contact Jonathan Mook at 703-684-4333 or by email at jmook@dimuro.com.

DiMuroGinsberg Partner Named to Law 360 Advisory Board

We are pleased to announce that DiMuroGinsberg partner, Jonathan R. Mook, has been named to the Editorial Advisory Board of Employment Law 360 – an online newsletter that provides daily legal news and analysis on labor and employment law developments. Law 360 subscribers include each of the top 100 law firms in the U.S., corporate legal departments, and major federal and state agencies.

As a member of the Editorial Advisory Board, Jonathan will provide Law 360 editors and reporters with suggestions about coverage of cutting-edge court decisions, important legislative developments, and emerging trends in labor and employment law.

Jonathan heads DiMuroGinsberg’s labor and employment law practice and represents employers and businesses on matters relating to employment law, business torts, and business disputes. Jonathan also is a nationally recognized authority on the Americans with Disabilities Act and is the author of two treatises on the statute, both published by LexisNexis.

New Developments Affecting Grimm Transgender Lawsuit

Issues involving the rights of transgender individuals continue to be in flux. President Trump’s ban on transgender individuals serving in the U.S. military has been stymied by the courts, and several states have enacted legislation prohibiting discrimination on the basis of sexual orientation or gender identity discrimination.

Here in Virginia, the efforts of Gavin Grimm to use the high school bathroom that corresponds to his gender identity continues to wend its way through the courts. As DiMuroGinsberg attorney Jayna Genti advises in her article in the November, 2017 issue of the Virginia Employment Law Letter, Grimm’s case is now back in Norfolk federal district court, where the judge presently is considering whether to dismiss the suit because Grimm graduated from high school in June, 2017.

Earlier this year, Grimm’s case was set for decision by the U.S. Supreme Court. At the last moment, however, the high court remanded the case to the Fourth Circuit Court of Appeals, based in Richmond, for further consideration in light of the position taken by the U.S. Department of Justice that federal education law does not protect transgender students. The Fourth Circuit, in turn, decided that the issues in Grimm’s case should be handled in the first instance by the federal district court in Norfolk, where the case was filed over three years ago.

If you would like to obtain a copy of Jayna’s article entitled “New Developments Affecting Grimm Transgender Lawsuit,” please contact Michele Kraftschik.

Employer to Pay Double Damages in FMLA Suit

When an employee takes leave under the Family and Medical Leave Act (“FMLA”), the employee is expected to specify a return-to-work date. If the employee fails to come back to work following the leave, as a general matter, the employer may terminate the wayward employee.

However, employers must be careful about acting too swiftly. The consequences of a premature termination can be quite significant, as a Virginia employer recently found out when a Virginia federal court awarded over $700,000 to a wrongfully terminated employee.

An article discussing the case, Perry v. Isle of Wight County, by DiMuroGinsberg attorney, Jayna Genti, appears in the October, 2017 issue of the Virginia Employment Law Letter. The article explores the facts that gave rise to the lawsuit as well as the rationale of the court in deciding to award the plaintiff double damages for the employer’s unreasonable conduct.

If you would like to obtain a copy of the article entitled “Employer Hit With Bad Faith Double Damages in FMLA Suit,” please contact Michele Kraftschik at mkraftschik@dimuro.com.

Avoiding ADA Accommodation Mistakes

There continues to be an increase in workplace accommodation requests by individuals with disabilities. Where a disabled individual requests a workplace accommodation, the Americans with Disabilities Act (“ADA”) requires employers to respond to the request and attempt to accommodate an individual’s disability.

Recently, DiMuroGinsberg partner, Jonathan R. Mook, was quoted in an article in the October, 2017 issue of HR Magazine about the various steps that employers should follow in managing ADA accommodation requests. As Jonathan observed, “employers are seeing more requests, and they are taking them more seriously.” This is because, as Jonathan explains, to litigate an ADA accommodation claim usually “will cost ten to twenty times the amount that it would have cost the employer” to implement a reasonable request. Additionally, an employer should designate one person or unit in the HR department to receive and manage all accommodation requests. As Jonathan advises, such requests, “should not be handled ad hoc by a supervisor.”

If you would like to obtain a copy of the article entitled “Trust the Process,” by Jennifer Arnold, please contact Jonathan at jmook@dimuro.com.

DiMuroGinsberg awarded 12 “Best Law Firms” rankings

We are pleased to announce that DiMuroGinsberg has received 12 practice area rankings on the 2018 “Best Law Firms” list published by U.S. News & World Report and Best Lawyers®.

National Awards:

Tier 3

  • Commercial Litigation
  • Real Estate Law

Metropolitan Washington DC Awards

Tier 1

  • Commercial Litigation
  • Criminal Defense: General Practice
  • Ethics and Professional Responsibility Law
  • Personal Injury Litigation – Plaintiffs

Tier 2

  • Criminal Defense: White-Collar
  • Real Estate Law

Tier 3

  • Business Organizations (Including LLCs and Partnerships)
  • Corporate Law
  • Employment Law – Management
  • Personal Injury Litigation – Defendants

Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise.

For further information about the Best Law Firms designations and to view our clients’ comments, visit our page at www.bestlawyers.com.

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The Impact of the Charlottesville Protests on Virginia Employers

By: Stacey Rose Harris and Noor Chughtai

Since 1924, a statue of Confederate general Robert E. Lee riding his horse Traveller has stood in what is now known as Emancipation Park in Charlottesville. Until last year, most people paid little heed to the statue. But that changed dramatically when the city voted to remove the statue as part of the recent national trend to reconsider public displays that may be perceived to honor those who fought to uphold slavery.

The Charlottesville Protests

We know all too well that on Friday, August 11th, white supremacists and neo-Nazis gathered to protest the removal of the statue. And, when counter-protestors from movements such as Black Lives Matter arrived on scene, chaos and brutality followed. Many were injured, and a young woman was killed after being rammed by a car driven by a person who had espoused white supremacist views.

Americans nationwide reacted in horror to the violence that occurred in Charlottesville and to the sight of neo-Nazis parading in a torch lit march on the grounds of the University of Virginia, founded by Thomas Jefferson. Such a sight certainly raised concerns about the prevalence of racism and anti-Semitism within our society.

Political Speech and Employment

In the wake of the violence in Charlottesville, it is not surprising that many persons have taken it upon themselves to pressure employers to fire those who attended the protest as white supremacists and neo-Nazis. Indeed, a twitter account with the handle @yesyoureracist has sought help in identifying those who participated in the protest that sided with the white nationalists. With the assistance of their followers, @yesyoureracist has managed to pressure a restaurant in California to secure the resignation of an employee who participated in the Charlottesville protest, and it is likely that other employers will come under similar public pressure.

Such pressure can be of significant concern to a business. It is important for a company to maintain its reputation and to take steps to prevent anything that could cause it to be the subject of disrepute. A business also may wish to use its position within the community to send a message that rejects ideologies that are threatening to the public good and are inimical to what the country stands for. Thus, many employers are now asking whether they should consider firing a worker for off-the-job political conduct or speech that is racist and beyond the pale, and if they do, could they face legal repercussions.

Legal Protections for Speech

Under Title VII of the Civil Rights Act of 1964, employees are protected from being fired based on such protected categories as race, color, sex, national origin and religion. Political beliefs, however, are not protected by Title VII. The First Amendment prohibits the government from interfering in a person’s ability to exercise his or her freedom of speech, and it protects governmental employees. Private employers, however, are not subject to the same constitutional restraints.

In addition to federal laws, certain states have laws that serve to protect employees due to their political involvement and activities. New York and California are two such states with laws on the books that do, in fact, limit the freedom of private employers to terminate employees for off-duty political speech. In New York, certain private employers are precluded by statute from terminating workers for “lawful” political speech outside the workplace, which can include anything from participation in an legally-sanctioned rally to social media posts. Similarly, in California, private employers are prohibited from retaliating against employees for any legal, off-duty political speech, and further, may not make any rule or policy that could be construed to forbid, or control, in any way, an employee’s political speech.

Virginia, however, is not one of those states. Virginia strongly adheres to the doctrine of at-will employment, and a private employer is entitled to hire or fire an employee for any reason that is not discriminatory (i.e., on the basis of race, gender, national origin, religion) or in violation of public policy (i.e. for refusing to commit a crime or engage in an otherwise unlawful act). Thus, a private employer in Virginia may terminate an employee because it does not approve of that employee’s participation in political protests, because it does not approve of the way the employee dresses, or for no reason at all. Indeed, if you are firing an employee for political speech in an at-will state such as Virginia, the best policy may be to give no reason except that the employee’s services are no longer needed. Refraining from providing any further explanation will also help avoid any potential defamation claims by the employee if a prospective employer inquires as to the reason for the termination.

Bottom Line:

For a Virginia employer, ultimately the question of whether to terminate an employee for off-duty conduct—political or otherwise—of which the employer disapproves—will likely come down to a common-sense balancing test. On one hand, you should ask whether the employee’s conduct may be harmful to your business, or simply represents the type of conduct you choose not to support. This should be balanced against potential distraction and upheaval at the work place that may be generated by the termination of the employee, and any potential perceived unfairness by other employees or the public.

That being said, if you truly are interested in taking a moral stand against racism and anti-Semitism in the wake of the horrific events in Charlottesville, terminating employees who have racist views you find abhorrent may not be the best way to do so. Rather, a more productive response may be to reinforce in your workplace what Mary T. Barra, CEO of General Motors, has said are the “values and ideals that unite us – tolerance, inclusion, and diversity.” We all know that acting responsibly and leading by example is the best way to work toward what Kenneth Frazier, CEO of Merck, has said is the “American ideal that all people are created equal.” Charlottesville has reminded us that we have a ways to go before we achieve that ideal. We cannot rest on our laurels.

Noor Chughtai was an intern this past summer with DiMuroGinsberg, P.C. Stacey Rose Harris is a partner at DiMuroGinsberg. She may be reached at sharris@dimuro.com.

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Is Your Workplace Going to the Dogs (or Pigs)?

We all are familiar with individuals who have sight impairments and use a service dog to navigate public spaces or assist an employee in the workplace. The Americans with Disabilities Act (“ADA”) contains specific provisions entitling an individual with a disability to bring a service animal into businesses open to the public in most situations.

However, the employment provisions of the ADA “do not limit the types of animals that an employee may need in the workplace as a reasonable accommodation,” according to DiMuroGinsberg partner, Jonathan R. Mook, in an article in SHRM Online. If a disabled employee has a snake, bird or, even, a pig as a comfort animal, an employer may need to assess the employee’s request to bring the animal to work and decide whether the request would create an undue hardship on the employer’s operations. The article discussing the assessment process, entitled “Set Ground Rules for the Different Types of Service Animals,” may be found at here.

If you are interested in obtaining additional information about an employer’s obligation to reasonably accommodate disabled employees, you may contact Jonathan at jmook@dimuro.com.

Best Practices for Addressing Workplace Crime

How should an employer react when an employee is accused of committing a crime? How can an employer protect its rights while shielding the business from legal scrutiny? Should you talk to the accused employee about the accusations?

Answers to these and other questions are the subject of an article by DiMuroGinsberg partner, Andrea Moseley. The article entitled, “My Employee Is Accused of a Work Related Crime – What Should I Do?” appears in the online employment law newsletter, HR Hero, by BLR publications. As Andrea’s article explains, properly dealing with an employee who has been accused of criminal behavior will depend upon the specific circumstances.

Where an employee is formally accused of wrongdoing and is represented by counsel, Andrea advises that an employer should not discuss the matter without first speaking with the employee’s attorney. Additionally, in situations where an employer has received a request for records or a subpoena, it usually is advisable for the employer to retain its own counsel to evaluate the propriety of the records request, especially where the request may be invasive, expensive or burdensome to comply with.

Click here for a copy of Andrea’s full article.

Seven DiMuroGinsberg partners recognized by The Best Lawyers in America©.

DiMuroGinsberg is proud to announce that the following attorneys will be listed in the 2018 edition of The Best Lawyers in America© for their achievement in certain fields of law.

  • Bernard J. DiMuro
    • Commercial Litigation
    • Ethics and Professional Responsibility
  • Nina J. Ginsberg
    • Criminal Defense – General Practice
    • Criminal Defense – White-Collar
  • Michael S. Lieberman
    • Appellate Practice
  • Jonathan R. Mook
    • Employment Law – Management
  • Harvey B. Cohen
    • Commercial Litigation
    • Personal Injury Litigation – Plaintiffs
    • Personal Injury Litigation – Defendants
  • Stacey Rose Harris
    • Commercial Litigation
  • C. Thomas Hicks III
    • Business Organizations including LLCs and Partnerships
    • Corporate Law
    • Real Estate Law

The Best Lawyers in America selection process involves a rigorous peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys. We are very proud of our attorneys for being recognized by their peers for excellence in their specialties of law.