When is a Doctor Visit a “Treatment” for FMLA Purposes?

Ordinarily, where an employer is covered by FMLA and a qualified employee has a serious health condition, that employee may take FMLA leave to receive treatment for the condition. That makes sense because, generally, a person who is undergoing a medical procedure is unable to perform the essential functions of his or her job at the same time. For example, the employee may have to report to a hospital or other care facility. Alternatively, the employee’s care may involve medication that induces sleep or extreme nausea. Whatever the reason for incapacity, the critical factor is that the employee is unable to work while undergoing treatment.

This issue became critical in a recent Seventh Circuit case. The employee, Jones, had a chronic serious health condition and a record of non-FMLA absences from work. Jones was at the limit of his attendance points when he requested and received authorization to be absent one afternoon for a medical appointment. On the day of the appointment, Jones took the whole day off. He claimed FMLA leave time for the morning absence because he made an unscheduled visit to a doctor’s office to pick up a prescription. His employer did not see it that way and terminated Jones for his last-straw attendance violation.

Jones sued. He lost at trial and he lost again on appeal. The Seventh Circuit Court of Appeals treated Jones’ morning excursion as an errand, no different from picking up the dry cleaning or going to the grocery store. The reason? Jones was not physically examined by a doctor. Consequently, there was no evidence that Jones had to be physically absent from work to receive medical treatment. For example, Jones may have been able to have the physician’s office call the prescription in to a pharmacy. Jones may not have been out of medication, so there may not have been any treatment-related reason for Jones to pick up his prescription at that particular time.

Although the Seventh Circuit only establishes precedent for the federal district courts of Illinois, Indiana, and Wisconsin, this reasonable interpretation of FMLA may catch on. Even so, you should always contact your employment law attorney before terminating an employee where both FMLA and attendance issues are involved.

Record Retention in Light of Litigation

Most employment law statutes have a document retention requirement. Here are a few of the essentials:

  • The Age Discrimination in Employment Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 all impose a one-year retention policy on records pertaining to employment decisions. Several types of documents are covered, including recruitment advertisements, job applications, information about promotion decisions, layoff decisions, termination decisions, and requests for religious or disability accommodation.
  • The Fair Labor Standards Act imposes a three year retention period on several payroll related items, including gender.
  • The Equal Pay Act requires employers to retain documents explaining pay disparity for two years.
  • The Family and Medical Leave Act requires document retention for three years.
  • The Immigration and Control Act requires employers to hold I-9 documents for three years from the date of hire or one year after termination, whichever is longer.

State laws may impose longer periods. However, there is an exception to all minimum retention periods. If litigation is reasonably foreseeable, all the parties have a duty to preserve relevant documents, including electronic documents such as email and blog posts.

So the question becomes, when is litigation “reasonably foreseeable?” An old joke among lawyers comes to mind. “How can you tell if an employee is properly categorized under the Fair Labor Standards Act?” The punch line is, “if he’s happy.” Obviously, one’s status as exempt or non-exempt is not determined by mood, but its a good rule of thumb that unhappy employees are more likely to sue. “Reasonably foreseeable” means, “if the jury thinks you should have seen it coming.” That wisdom is key to understanding your obligation to retain documents beyond the normal statutory retention periods.

When litigation is reasonably foreseeable, you must have some sort of “litigation hold” process to ensure relevant documents are not destroyed, regardless of your policies or statutory minimum retention periods. Importantly, it’s not enough to simply tell people to hang on to documents. Instead, HR Professionals have to actively work to ensure documents that may be requested during pre-trial discovery are preserved. Depending on all the surrounding facts and circumstances, that may require putting a hold on all document destruction.

If your company fails to execute a proper “litigation hold,” it can be fined. Additionally, the plaintiff can add a claim for destruction of evidence to his or her lawsuit. Perhaps worse, your defense may be substantially weakened because the judge can tell the jury the employer destroyed evidence. If the jury remembers nothing else, it will remember “the employer destroyed evidence,” leading to the natural conclusion, “the employer has something to hide.” And, naturally, if the employer has something to hide, the company did something wrong.

A well drafted retention policy ensures that, in the normal course of business, documents are not retained longer than required by law. However, your plan must provide for a litigation hold. Where litigation is foreseeable, the law requires a longer, non-specific retention period for documents potentially of interest.

Where Must an Attendee Attend for Attendance Purposes?

A recent federal court of appeals ruled that attendance obligations have changed as a result of technological achievements.

Jane Harris was a resale steel buyer for Ford Motor Company. Her primary function was to ensure Ford’s parts manufacturers had sufficient steel to maintain supply lines. Although many of her tasks were individual, a key component of her job was group problem solving. Ford argued this required her to be available to others, such as members of her team, suppliers, and manufacturers. During her tenure with Ford, her performance appraisals were adequate, except in 2007 and 2008 when reviewers assessed her to be the lowest contributor in her group.

During her employment, Harris suffered from irritable bowel syndrome (IBS), which can cause bowel incontinence. That is, it can cause the sufferer to soil his or her clothing with little or no warning. Harris’ symptoms worsened over time. There were days when she could not drive or stand up from her desk without a serious IBS incident.

Her supervisors allowed Harris to work a flexible schedule and telecommute on a trial basis. Even so, Harris could not establish consistent working hours. To make up for that, Harris worked nights and weekends, but because she could not access critical information during off hours, she made mistakes or missed deadlines. Thus, her managers determined the experiment was a failure.

Consequently, Harris formally requested telecommuting as an accommodation under the Americans With Disabilities Act. Ford’s policy permitted telecommuting up to four days per week. Some buyers in Harris’ group telecommuted one day per week. Harris’ supervisors declined her request, saying that email and teleconferencing were insufficient substitutes for face-to-face problem solving meetings. Ford’s HR Department offered alternatives such as moving Harris’ cubicle nearer to the restroom and moving her to a different job. Harris declined both and was subsequently put on a performance improvement plan. Unable to meet the goals set forth in the plan, Harris was terminated

Harris filed a charge with the Equal Employment Opportunity Commission (EEOC) and the Commission sued Ford on Harris’ behalf. Refusing to second guess Ford’s assessment that telecommuting four days per week was unreasonable, the District Court granted summary judgment in favor of the company. The EEOC appealed to the Sixth Circuit.

There was no question Harris was a person with a disability. The question was whether she was a qualified person, meaning a person who could perform the essential functions of the job with or without accommodation. Harris argued she was qualified if either she was not required to be physically at her worksite, or if telecommuting was granted as an accommodation. After making such an argument, the burden shifted to Ford. Ford had to prove either physical presence was an essential function of the job or telecommuting was an undue hardship on the company.

The Court reversed its past decisions holding that attendance meant physical presence at the workplace. The Sixth Circuit’s rationale was that technology has made the workplace porous: the workplace could technically be anywhere an employee could perform her job duties. Through this line of reasoning, the Court changed the question from whether attendance was an essential function of the job to whether physical presence at the worksite was essential for attendance.

Observing that much of the work was performed by email or phone and that other people with the same job were allowed to telecommute, the Court held that telecommuting did not interfere with the essential function of “attendance.” Ford’s other main argument was its claim that four day telecommuting posed an undue hardship on the Company. However, given its vast resources, Ford was unable to equate telecommuting with an “undue hardship.”

As a result, the Sixth Circuit reversed the District Court’s decision and sent the case back for further proceedings, up to and including trial.

The Sixth Circuit Court of Appeals has jurisdiction over Michigan, Ohio, Kentucky, and Tennessee. The federal Court of Appeals with jurisdiction over Oklahoma is the Tenth Circuit. Under the Tenth Circuit’s historical rulings, on-site attendance may be an essential function. However, the Tenth Circuit could embrace technology and change its prior policies on this point just like the Sixth Circuit did. Moreover, because we have widely divergent rulings at the Circuit Court level, a Supreme Court showdown is more likely now. What that means for Oklahoma employers is that a seemingly run-of-the-mill ADA accommodation dispute could become destined for the Supreme Court: an arduous and expensive proposition.

HR Professionals should be concerned about this case for two reasons. First, it signals courts may no longer give great deference to a business’ judgment about whether a job function is essential. Second, it signals courts may become increasingly skeptical of the notion that an employee’s place of work is the physical location designated by the employer. Despite a history of employer-friendly rulings in this area by the Tenth Circuit, HR professionals should examine telecommuting accommodation requests closely. The employer’s accommodation decision should consider technology options and include a cold, hard look at what is really necessary to perform the job.

Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.