Southwest Florida Employment Law Blog

What to Expect When Your Employee is Expecting

Posted in Discrimination, Family Medical Leave Act (FMLA)

This month, the EEOC issued its controversial Enforcement Guidance: Pregnancy Discrimination and Related Issues. Of course, we all knew that pregnancy discrimination was unlawful, but did you know that according to the EEOC Guidance:

  • Many short term pregnancy related conditions are considered disabilities under the ADAAA, and thereby implicating a duty to reasonably accommodate.
  • Employers must offer temporary light duty assignments to pregnant employees with work restrictions if the employer provides the same accommodations to non-pregnant employees with similar work restrictions.
  • Lactation is a covered pregnancy related medical condition under the ADAAA.
  • An employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drug devices and services that are used to prevent the occurrence of medical conditions other than pregnancy. (At least the EEOC at least recognized the Hobby Lobby decision by stating that the Guidance does not address whether an employer may be exempt from Title VII’s requirements under the Religious Freedom Restoration Act or the First Amendment!)
  • Parental leave (which is distinct from FMLA leave and medical leave associated with child birth and recovery) must be provided to similarly situated male and female employees on the same terms and conditions.

pregnant business woman in the officeThe EEOC Guidance is not law, but it is the enforcing agency’s non-binding interpretation of the law. Will courts agree with the EEOC’s broad interpretation of the Pregnancy Discrimination Act (“PDA”) and the ADA? We will know more after the Supreme Court hears the case of Young v. United Parcel Services, Inc. next term. In the UPS case, the Supreme Court agreed to review a Fourth Circuit decision finding that the PDA does not require employers to offer light duty to pregnant employees with work restrictions even if light duty is available for certain categories of non-pregnant employees.

Until we hear more from Those Who Wear Black Robes, be forewarned. Dealing with pregnant employees may be more complicated than you ever expected! And more costly!

Employment Law IQ: Nursing Mothers in the Workplace

Posted in Fair Labor Standards Act (FLSA), Wages & Overtime

Consider this scenario:newborn - flickr cc gabi_menashe

Eve is employed as a counter person at Cars-R-Us, an auto parts store with twenty employees. Eve recently returned to work after giving birth. She asked Cars-R-Us for periodic breaks to express her breast milk. She also asked the company provide her with a dedicated, private room to use her breast pump.

Which of the following statements is correct?

A.  Cars-R-Us can deny Eve’s request because it has less than 50 employees.

B.  Cars-R-Us can deny Eve’s request unless she has worked for the Company more than 1,250 hours during the consecutive twelve-month period preceding her request.

C.  Cars-R-Us should permit Eve reasonable lactation breaks, but it may require her to use the women’s bathroom to express milk.

D.  Cars-R-Us should permit Eve to take a reasonable lactation break in a private location, unless to do so would pose an undue hardship.

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Employment Law IQ: Unemployment Benefits and Handbook Headaches

Posted in Employee Handbooks

Time to test your Employment Law IQ again! Consider this scenario:employee handbook

Mike R. Clean hired Tommy as a night-time janitor at Squeak E Clean, Inc. During the first month of his employment, Tommy was a super star, but his performance went downhill quickly after that. Mike tried to coach Tommy, but Tommy just could not get it together. At the end of Tommy’s second month at Squeak E Clean, Mike terminated Tommy’s employment. A couple of weeks later, Mike was shocked when he found out Tommy would not only get unemployment, but it was going to be charged to Squeak E Clean’s account.

Why are Tommy’s unemployment benefits being charged to Squeak E Clean’s account?

A.  Because Tommy was not terminated for gross misconduct.

B.  Because Squeak E. Clean did not notify Tommy of the probationary period within the first 7 days of his employment.

C.  Because Mike did not write Tommy up before he was terminated.

D.  None of the above.

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Employment Law IQ: Reasonable Accommodation, Termination and the ADA

Posted in Disability Discrimination (ADA), Discrimination

ergo chair via Kare Products FlickrConsider this scenario:

Carmen Parada worked for Banco Industrial de Venezuela in New York as a credit analyst, a largely sedentary job that involved organizing credit letter applications, ensuring that certain documents complied with various standards, and issuing credit letters. In 2007, she fell on the sidewalk and suffered a spinal injury in her lower back. As a result, the employee was directed by her doctor to avoid “prolonged sitting” and to stand after 10 or 15 minutes of sitting. She borrowed a colleague’s ergonomic office chair temporarily, and was able to sit using that chair without the need for standing breaks. The employee asked her employer (a bank) multiple times for a permanent ergonomic chair as a “reasonable accommodation” under the Americans with Disabilities Act of 1990 (ADA). However, she never received the chair and was ultimately terminated.

Which of the following statements is correct?

A. The bank may deny the employee’s request for the ergonomic chair as a reasonable accommodation under ADA, since she is not precluded from sitting at all times.

B. The bank must grant the employee’s request for breaks to allow her to stand after 10-15 minutes of sitting as a reasonable accommodation under ADA but is not required to provide the chair at the employer’s expense.

C. The bank must grant the employee’s request to either stand periodically or use an ergonomic chair, but not both, and the employee has to pay for her own chair.

D. The bank must grant the employee’s request and provide the chair at the employer’s expense, if the employee can show that she is a qualified individual with a disability and the chair will allow her to perform the essential functions of her job.

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The Calculation of Florida Workers’ Compensation Benefits May Change

Posted in Workers' Compensation

firefighter by DVIDSHUB on flickrThe Florida Supreme Court will hear oral argument in the Westphal v. City of St. Petersburg early June 2014, a case that employers, insurance carriers, and workers compensation attorneys are closely watching. The First District Court of Appeal, which hears all workers compensation appeals from the Judges of Compensation Claims, certified the following question:

Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at “maximum medical improvement” (MMI) by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?

“Date of maximum medical improvement” is defined as “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” The date an injured worker reaches MMI is a significant milestone in workers compensation, as it has historically determined the end of eligibility for temporary disability benefits.

Background of the Westphal Case

Bradley Westphal, a firefighter, felt a sharp pain in his back as he was moving heavy furniture while fighting a fire. By the time he returned to the fire station, he reported extreme pain and a loss of feeling in his left leg from the knee down. The City of St. Petersburg accepted compensability of his low back and left knee injuries and provided both indemnity and medical benefits.

Mr. Westphal sought and obtained temporary total disability (TTD) benefits for a period of 104 weeks but he was still totally disabled at the time those benefits expired. He filed a petition for benefits seeking permanent total disability (PTD) benefits, but the judge of compensation claims denied the petition after agreeing with Mr. Westphal’s treating physician that he was not at MMI.

This controversy stems from a supposed “gap” in the statute, in which some totally disabled workers are ineligible to apply for PTD benefits if they are not medically deemed to be at MMI. The First DCA was deeply concerned about this “gap,” with the majority finding that “the notion that there can be a period of time during which a disabled worker is not entitled to be compensated for his or her workplace injury is contrary to the basic purpose of the Workers’ Compensation Law.”

The First DCA’s Opinion

The First DCA withdrew an earlier decision which declared the 102 week statutory limitation on TTD benefits unconstitutional. In place of the earlier opinion, it issued an “en banc” decision holding that a worker who is totally disabled as a result of a workplace accident, and remains totally disabled by the end of his or her eligibility for temporary total disability benefits, is deemed to be at maximum medical improvement by operation of law.  Therefore, the worker is eligible to assert a claim for permanent and total disability. In doing so, the First DCA rejected its prior decisions that held an employee whose temporary benefits have run out, or are expected to do so imminently, must be able to show not only total disability at the end of temporary benefits but also that total disability will be existing after the date of MMI.

The court observed that employers and workers compensation carriers are not without recourse, since the Workers Compensation Law (§ 440.15(1)(d), Fla. Stat. (2009)) allows them to discontinue the payment of disability benefits to a worker who has regained earning capacity through rehabilitation: “When an employee is deemed to be at maximum medical improvement by operation of law, the employer is not stuck with that determination forever. The worker’s status and eligibility for benefits can change with the circumstances.”

However, the dissenting judges characterized the court’s decision as an “end run” and “brazen defiance of a clear statutory directive” that limits temporary benefits to two years under Florida law.

The Bottom Line

Given the importance of the First DCA’s ruling to future workers’ compensation benefits and cases, employers, insurance carriers, and attorneys are anxiously waiting to see how the Florida Supreme Court rules on these issues. We will of course keep you posted—stay tuned to our blog for updates.

Photo Courtesy of DVIDSHUB on Flickr

Employment Law IQ: Retaliation and Whistleblower Liability

Posted in Retaliation

Consider this hypothetical.whistleblower Qiqi Green Whistle by Steven Depolo under Creative Commons

Erin Bragovich works in the permitting department of Shortcut Land Development Company (“Shortcut”). In a phone call, Erin tells her supervisor that she believes that Shortcut is violating a local zoning ordinance enacted by Sunshine City. Immediately after telling her manager about the suspected zoning violation, Erin files a sworn complaint with the Sunshine City Zoning Department reporting the violation. Shortcut fires Erin after it learns about her complaint.

Which of the following statements is correct?

A.  Erin has a claim for whistleblower protection if she had a good faith belief that Shortcut was violating a zoning ordinance, even if there was no actual violation.

B.  Erin has a claim for whistleblower protection because her complaint to the City’s Zoning Department represents a valid exercise of her First Amendment Right to Free Speech.

C.  Erin does not have a claim for whistleblower protection because she did not disclose the violation to her supervisor in writing, nor did she give Shortcut a reasonable opportunity to correct the violation before she made the report to the Zoning Department.

D.  Erin does not have a claim for whistleblower protection because the subject of her disclosure was the violation of a local ordinance, not a violation of state or federal law.

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Employment Law IQ: Disability, Termination, and the ADA

Posted in Disability Discrimination (ADA)

chemical allergyConsider this scenario. Cathy works for Clean As a Whistle, Inc. as a janitor. Cathy recently developed a sensitivity to all cleaning chemicals. Initially, Cathy brought in a doctor’s note limiting her to two hours of chemical exposure per eight hour work day. Clean As a Whistle agreed to limit her exposure to two hours. When that limitation failed to abate Cathy’s symptoms, her doctor modified the restriction to “no exposure to cleaning solutions.”

Clean As a Whistle tried to find a solution for Cathy, but ultimately determined there was no way to accommodate her because the chemicals were airborne so merely working in the building resulted in exposure, and providing a respirator was too expensive. After she was terminated, Cathy sued.

Did Clean As a Whistle violate the ADA?

A.  Yes, because Clean As a Whistle did not engage in the interactive process.

B.  No, because Cathy did not have a disability.

C.  Yes, because Clean As a Whistle should have provided a respirator.

D.  No, because Cathy was not “qualified” to do her job based on the doctor’s restriction.

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Employment Law IQ: Child Birth, Adoption and FMLA Leave

Posted in Family Medical Leave Act (FMLA), Leave Policies

newborn - flickr cc gabi_menasheConsider this scenario:

Valerie has worked full time for a local hospital since December 2012. In January 2014, Valerie takes six weeks FMLA leave following the birth of her baby. In April 2014, Valerie gives the hospital notice that she will need additional FMLA leave this calendar year after she adopts her twelve-year old niece.

Which of the following statements is correct?

A. The hospital does not need to grant Valerie any more FMLA leave because she is adopting a family member.

B. The hospital must grant Valerie an additional twelve weeks of FMLA leave for the adoption since childbirth and adoption are separate qualifying conditions under the FMLA.

C. The hospital must grant Valerie up to an additional six weeks of FMLA leave only if the niece she adopts has a serious health condition.

D. The hospital must grant Valerie up to an additional six weeks of FMLA leave following the adoption.

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Employment Law IQ: Social Media Policies and Handbook Headaches

Posted in Social Media, Workplace Policies

social media iconsApple Blue Ivy Moonbeam, a Generation X HR Director who considers herself super savvy when it came to all things Interweb, drafted a social media policy to include in FacePlace, Inc.’s employee handbook. FacePlace is a non-union workplace with over 300 employees, most of whom work from various “virtual” offices away from FacePlace’s home office. Convinced she created the best social media policy ever, Apple submitted the policy to the NLRB for review.

 

Which of the following policies do you think the NLRB found lawful?

A. You should never share confidential information with a team member unless the person has a need to know the information to perform their job.

B. Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.

C. Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between team workers online, even if it is done after hours, from your home network.

D. The NLRB found all three unlawful.

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Employment Law IQ: Workers’ Compensation Claims and Retaliation – What Would You Do?

Posted in Retaliation, Workers' Compensation

hurted hand and work injury claim formConsider the following scenario:

Wynona Whiner is hired as a file clerk for a local law firm. Wynona gets a paper cut on her second day at work and files a workers’ compensation claim. Wynona’s doctor takes her off work for three days after the cut becomes infected over the weekend. On Monday, Wynona presents the law firm with the doctor’s note stating that she can return to work on Tuesday. However, Wynona does not return to work until the following Monday. When she returns to work, the law firm terminates Wynona under the firm’s no call, no show policy.

Which of the following statements is correct?

A.  Wynona may not bring a retaliation claim if her workers’ compensation claim is denied.

B.  Wynona may not bring a claim for retaliation because she was fired during her 90-day probationary period.

C.  Wynona will prevail on a claim for retaliation because she was fired within three months of filing a workers’ compensation claim.

D.  Wynona may have a claim for retaliation if the no call, no show policy has only been enforced against employees who have filed workers’ compensation claims.

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