Category Archives: Handicap/Disability Discrimination

Handicap Discrimination Based on Association Decision Handed Down by Seventh Circuit

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The Americans with Disabilities Act (ADA) is one of the youngest anti-workplace discrimination statutes on the books. The ADA became effective on July 26, 1992 and prohibits employers from discriminating against qualified employees and job applicants with disabilities. In order to meet the definition of “handicap” under the ADA, the employee or job applicant must: (1) have a physical or mental impairment that substantially limits one or more major life activities; (2) have a record of such an impairment; or (3) be regarded as having such an impairment.

Recently, in Dewitt v. Proctor Hospital, the 7th Circuit Court of Appeals issued an interesting decision, which confirms that employees who prove the they were discriminated against because of the disability of a family member or another associate state a viable claim for handicap discrimination under the ADA. This is known as association discrimination.

In Dewitt v. Proctor Hospital, a nursing supervisor at a hospital alleged she was fired because of, among other things, the expense associated with treating her husband’s prostate cancer. In the three years preceding the nurse’s termination, her husband’s medical expenses totaled more than $300,000. The hospital, which was was self-insured, took issue with cost of medical care, going so far as to suggest a less-expensive hospice option. In discharging the plaintiff-employee, the hospital conceded that performance was not an issue without saying much more. In concluding that the plaintiff-employee states a viable claim for handicap association discrimination, the 7th Circuit reasoned:

That the powers-that-be at Proctor were interested specifically in the high cost of Anthony’s medical treatment is obvious. Davis, Dewitt’s supervisor (and the person who ultimately fired her), pulled Dewitt aside twice in five months to inquire about Anthony’s condition. … She also asked Dewitt whether Anthony’s doctor had considered hospice placement—a far cheaper “alternative” to the costly chemotherapy and radiation Anthony was receiving. Finally, the timing of Dewitt’s termination suggests that the financial albatross of Anthony’s continued cancer treatment was an important factor in Proctor’s decision. Dewitt was fired in August 2005—five months after her last chat with Davis and three months after Proctor warned employees about impending “creative” cost-cutting measures. … A reasonable juror could conclude that Proctor, which faced a financial struggle of indeterminate length, was concerned that Anthony—a multi-year cancer veteran—might linger on indefinitely.

This is an important win for employees who must care for family members with serious medical conditions.

Family Medical Leave Act (FMLA) Sees Changes

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The Family and Medical Leave Act (FMLA) may undergo a shake up. The United States Department of Labor (DOL) has proposed regulatory changes to the FMLA. The changes, which are 500 pages long and have a 60 day comment period, make significant modifications to the FMLA. A sampling include:

Serious health condition: The definition of “serious health condition” would be substantially revised to require two or more treatments within a 30 day calendar period. In addition, to qualify as a chronic condition, an employee would be required to see a physician for the particular condition at least two times each a year.

Medical Certification: An employee’s burden to provide medical certification would be set higher, which allows an employer to dig deeper into an employee’s medical file, raising privacy concerns.

Notification: The notification period that employers are required to provide would be watered down. Under the proposed changes, employers will be given five days, versus the current requirement of two days, to provide employees with notice of FMLA eligibility.

The changes, which were initiated by President George W. Bush, are not employee friendly. Senator Hillary Clinton’s campaign issued the following Press Release:

The Bush Administration is seeking to make it more difficult for employees to claim paid leave when it is available to them by requiring the employers leave policies to take precedent over the FMLA; requiring employees with chronic health conditions to obtain an annual certification that they are able to do their job or risk being transferred to a different job; allowing employers to communicate directly with medical providers, which raises privacy concerns; and much more. The proposed regulation is 500 pages long.

We will keep you posted on what the 60 day comment period yields.

Medical Leave Eligibility and Handicap Status in the Workplace Explored

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An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD’s MMLA Guidelines for more information.

Medical Leave Eligibility and Handicap Status in the Workplace Explored

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An all-to-common employment law issue was raised in today’s Boston Globe article entitled, Several Laws Protect Pregnant Workers Injured on the Job. The article sought to answer various questions posed by employees who, for different reasons, find themselves at a crossroad with their employer.

The question to which I refer dealt with pregnancy and medical leave:

I suffered an on the job injury when I was 32 weeks pregnant. I was ordered out of work by three different doctors. It has now been almost eight months and I continue to be out of work from injury. However, I recently found out that when and if I am cleared to return to work, I do not have a position to return to. Is this legal? And do I have any recourse as far as losing my job after maternity leave and while out on work-related injury? Is this considered discrimination?

As the article points out, this particular employee may avail herself of either the Family Medical Leave Act (FMLA) or the Massachusetts Maternity Leave Act (MMLA). Both statutes require that an employee returning from leave be restored to his or her previous or a similar position. Among other things, the position must have the same status, pay, and responsibilities.

Key differences between these two statutes exist. Under FMLA leave, employers must grant an eligible employee up to 12 workweeks of unpaid leave during any 12 month period. FMLA leave can be taken for: (1) the birth and care of the newborn child of the employee; (2) the placement with the employee of a son or daughter for adoption or foster care; (3) to care for an immediate family member (spouse, child, or parent) with a serious health condition; or (4) to take medical leave when the employee is unable to work because of a serious health condition. A few hurdles apply: the employee must have completed at least 12 months of employment, must have worked at least 1,250 hours in the preceding 12 month period, and the company must employ at least 50 workers within 75 miles. Consult the Department of Labor’s FMLA Fact Sheet for more information.

In contrast, under MMLA leave, employers must grant an eligible employee only 8 workweeks of unpaid leave. MMLA leave can be taken for: (1) giving birth, (2) adopting a child under the age of 18, or (3) adopting a child under the age of 23, if the child is mentally or physically disabled. In general, the threshold to become eligible for MMLA leave is lower. First, the MMLA only requires 3 months of full-time employment or the completion of a probationary period. Second, the company must only employ 6 workers. As the Massachusetts Commission Against Discrimination’s (MCAD) Guidelines point out, MMLA leave can be taken more than once in a 12 month period:

Under the MMLA, an employee may take a maternity leave each time she gives birth or adopts a child. Thus, for example, if an employee gives birth in January and adopts a second child in March, she would be entitled to two separate eight-week maternity leaves under the MMLA for a total of 16 weeks. By contrast, under the FMLA, leave is limited to a maximum of 12 weeks in a 12-month period.

Consult the MCAD’s MMLA Guidelines for more information.

As the article further points out, because this particular employee has been out of work for about 8 months, FMLA and MMLA leave have long run out. I agree that this is where Chapter 151B and the American with Disabilities Act (ADA) come into play. I also agree that an employer may be required to provide additional leave as a reasonable accommodation. I disagree, however, with the following analysis:

However, the fact that you were injured on the job may be significant because employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability.

The ADA and Chapter 151B may obligate an employer to provide additional leave as a reasonable accommodation only where the employee is deemed handicapped. To be considered handicapped, an employee must be substantially limited in a major life activity. The case law is generally clear that working constitutes a major life activity when the medical condition precludes the employee from a broad class of jobs. Thus, “employees who are injured at work are protected under the Massachusetts antidiscrimination statute, even if their injuries are not otherwise severe enough to constitute a handicap or disability ” … where the injury substantially limits an employee in a major life activity.

Lastly, don’t forget that, under the ADA and Chapter 151B, employers have a duty to participate in what is called the “interactive process,” which requires a dialogue between the employer and employee with the objective of finding a means by which a disabled employee can perform the essential functions of a job in the employer’s workplace.

Massachusetts Commission Against Discrimination (MCAD) Issues Probable Cause Finding in Handicap Discrimination Case

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Last week, I received a Probable Cause finding from the Massachusetts Commission Against Discrimination (MCAD) in a case involving handicap discrimination.

The decision confirms that, where an employer requests medical documentation from an employee to verify a medical condition and make accommodations, the inquiry must be appropriately focused:

The MCAD Guidelines state than an employer may request medical documentation to determine the existence of a disability and identify effective accommodations. However, the guidelines also that the inquiry must be appropriately focused. In the instant case, the Respondent’s inquiries were not appropriately focused. The Respondent allowed a line supervisor to determine that an accommodation was to be denied. The Respondent then engaged in a protracted and obtuse series of inquiries by various individuals who lacked the knowledge or authority to determine what if any accommodation was needed.

Click here for the full decision.

The MCAD Process has multiple stages. First, a Charge of Discrimination must be filed within 300 days from the date the discrimination occurred. In response to the charges, the employer submits its Position Statement. The complainant next submits his or her Rebuttal in the final stage of the pleadings. Once all pleadings are submitted, the MCAD conducts its investigation and determines whether Probable Cause for discrimination exists.

The Probable Cause finding means that the MCAD has found sufficient evidence to support a conclusion that unlawful discrimination may have occurred. The case then proceeds to a conciliation conference where efforts at resolution between the Complainant and the Respondent are attempted. If the parties are unable to resolve the dispute, the case goes to Public Hearing.

MCAD Issues Probable Cause Finding in Handicap Discrimination Case

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Last week, I received a Probable Cause finding from the Massachusetts Commission Against Discrimination in a case involving handicap discrimination.

The decision confirms that, where an employer requests medical documentation from an employee, the inquiry must be appropriately focused:

The MCAD Guidelines state than an employer may request medical documentation to determine the existence of a disability and identify effective accommodations. However, the guidelines also that the inquiry must be appropriately focused. In the instant case, the Respondent’s inquiries were not appropriately focused. The Respondent allowed a line supervisor to determine than an accommodation was to be denied. The Respondent then engaged in a protracted and obtuse series of inquiries by various individuals who lacked the knowledge or authority to determine what if any accommodation was needed.

The MCAD Process has multiple stages. First, a Charge of Discrimination must be filed within 300 days from the date the discrimination occurred. In response to the charges, the employer submits its Position Statement. The complainant next submits his or her Rebuttal in the final stage of the pleadings. Once all pleadings are submitted, the MCAD conducts its investigation and determines whether Probable Cause for discrimination exists.

The Probable Cause finding means that the MCAD has found sufficient evidence to support a conclusion that unlawful discrimination may have occurred. The case then proceeds to a conciliation conference where efforts at resolution between the Complainant and the
Respondent are attempted. If the parties are unable to resolve the dispute, the case goes to Public Hearing.