AGC's Human Resource and Labor News - November 14, 2017 / Issue No. 08-17 (Print All Articles)

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7th Circuit Splits from Other Courts and Holds Extended Leave is not a Reasonable Accommodation

Of all the accommodations considered reasonable under the Americans with Disabilities Act (ADA), perhaps the most frustrating is when an employee requests additional time off after their 12 weeks of Family and Medical Leave Act (FMLA) leave ends. This is particularly true since the ADA, unlike the FMLA, provides no statutory or regulatory parameters indicating the amount of additional leave employers must provide. However, a federal appeals court has just handed employers a milestone victory in one such legal battle that might ease the frustration levels for some.

Of all the accommodations considered reasonable under the Americans with Disabilities Act (ADA), perhaps the most frustrating is when an employee requests additional time off after their 12 weeks of Family and Medical Leave Act (FMLA) leave ends. This is particularly true since the ADA, unlike the FMLA, provides no statutory or regulatory parameters indicating the amount of additional leave employers must provide. However, a federal appeals court has just handed employers a milestone victory in one such legal battle that might ease the frustration levels for some.

Employer Frustrations with Additional ADA Leave

For decades, employers have been vexed by the thorny issue of whether to grant additional leave – and how much to allow – as a reasonable accommodation under the ADA after an employee’s FMLA leave has expired. Further, the Equal Employment Opportunity Commission (EEOC) has aggressively sought to protect employees seeking such an accommodation, and courts have often sided with the federal watchdog agency.

For example, the EEOC filed a class action lawsuit in an Illinois district court against United Parcel Service (UPS) in August 2009, alleging that the employer violated the ADA with its allegedly inflexible policy of terminating employees rather than further extending their leave when they were unable to return to work after one year. Finally, just this year UPS settled the lawsuit for $2 million.

Light at the End of the Tunnel?

UPS may be grinding its teeth over that settlement in light of a recent decision that grants employers significant rights in similar situations. In the September 20, 2017 decision of Severson vs. Hartline Woodcraft, Inc., the 7th Circuit Court of Appeals rejected the EEOC’s position that offering a finite multi-month ADA leave to begin at the expiration of FMLA leave is a reasonable accommodation as a matter of law. 

The plaintiff, Raymond Severson, had performed physically demanding work for the fabricator of retail display fixtures in Wisconsin for seven years. In June 2013, he took FMLA leave because of a back condition. When he was unable to return to work at the end of his FMLA-protected leave, he requested two additional months of leave to have surgery. The employer denied his request and terminated his employment, but stated he could reapply when he was physically able to return. 

About two months later, Severson’s doctor cleared him for full duty. Rather than reapplying for work, he filed a lawsuit. The lower federal court rejected his claim, prompting Severson to file an appeal. In its recent decision, the 7th Circuit Court of Appeals rejected Severson’s argument that the additional leave was a reasonable accommodation, stating that the FMLA – not the ADA – governed long-term medical leave. The appeals court concluded that “a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the inability to work for a multi-month period removes the person from the class protected by the ADA.” 

This is a significant victory for employers. But it’s not necessarily time to pop the champagne. It is important to note that the 7th Circuit did not reject all leave as a reasonable accommodation; it expressly acknowledged that intermittent, episodic leave, lasting less than a month, could be reasonable. Moreover, this decision is only of immediate practical benefit for employers in Indiana, Illinois, and Wisconsin – those under the jurisdiction of this appeals court.

While this decision imposes a nice bright-line rule for employers (i.e., a multi-month leave is not a reasonable accommodation, regardless of whether it will enable the employee to return to work) in the 7th Circuit’s jurisdiction, it’s of no help to employers making leave decisions for their disabled employees outside of those three states, where circuits have few bright-line rules.

When is Enough Enough?

Virtually every other appellate court around the country has held that a leave of absence may be a reasonable accommodation even if it runs directly after an FMLA leave, provided it is finite and will enable the employee to return to work. Most courts agreed that there is no “bright-line rule defining a maximum duration of leave that can constitute a reasonable accommodation,” as the 6th Circuit ruled in a 2003 decision.

The 1st Circuit recently summarized the opinions shared by most other courts with regard to determining the amount of leave that is reasonable. In 2017’s Echevarria v Astrazeneca Pharmaceuticals decision, the court said that employers must do so on a case-by-case basis. In that instance, the court concluded that an employee’s request for 12 additional months of leave was not facially reasonable after having already received five months off, but noted that such a request would not be unreasonable in every case.

And therein lies the difficulty of analyzing a request for leave as an accommodation:  when is enough enough?

Some Practical Guidelines for Employers

Although there may not always be a black-and-white answer to that question, employers do have a few guidelines that can help them navigate these tricky situations.

Indefinite Leave Is Never Reasonable

First of all, indefinite leave is never a reasonable accommodation. Both the EEOC and the courts agree that employers will be in an advantageous position if they can obtain a statement from the employee’s medical provider through an interactive process that “indefinite” leave is needed.

Be Wary of “De Facto” Indefinite Leave

Next, “de facto” indefinite leave requests – those repeated requests for additional time where the employer receives a note extending the employee’s leave another month, and then another, and then another – are generally not reasonable. The 3rd, 4th, 6th, 7th, 8th, and 9th Circuit Courts of Appeal have all held that an employer is not required to grant repeated requests for extensions of leave because, in essence, the employee is actually requesting indefinite leave.

The EEOC’s own Fact Sheet on Applying Performance and Conduct Standards to Employees with Disabilities states that, where an employee seeks a second six-week extension after an initial 12 weeks of leave, an employer is entitled to inquire why the physician’s estimated return-to-work date was incorrect and why additional leave would enable the employee to return to work. Still, employers must exercise deliberate judgment in determining when the leave has become de facto indefinite.

Seek Information About the Purpose of the Leave

Further, time off that does not enable an employee to return to work is generally considered not reasonable. Therefore, the employer should ask for information from the employee’s physician about what objective medical basis exists to support the belief that the leave will enable the employee to return to work. Just last year, in fact, the 11th Circuit upheld an employer’s refusal to extend an employee’s medical leave for one week even though that week would have allowed the employee to become eligible for FMLA leave (Luke v. Florida A&M University).

However, the court did so in that case because the plaintiff had already been on leave for nine months and there was no evidence that she “would have been able to perform her job duties even after an additional twelve weeks of FMLA leave.” That seems to suggest the additional leave might have been reasonable had there been evidence the employee could have returned at the end of the FMLA leave. The court said that for leave to be reasonable, it had to enable the employee to return “in the present or the immediate future,” whenever that is. 

Last Resort:  Undue Hardship

If the leave request is finite and there is evidence it will enable the employee to return to work, the employer may still may deny it if the leave would impose an undue hardship on the business. Most employers immediately think of financial considerations when they hear the phrase “undue hardship,” which is a high hurdle to overcome. But courts have applied the undue hardship defense in other situations, such as when coworkers are forced to work harder or longer because they are performing the disabled employee’s work while they are on leave, or when coworkers are not getting their own work done because they are filling in for the absence, or when there is significant disruption to company operations.

Further, a particular leave may not initially cause undue hardship, but it may develop as time goes on and problems arise. In fact, although an undue hardship analysis may not be used to deny FMLA leave for an employee’s own serious health condition, the company may start to experience such hardship before the FMLA leave ends. If that occurs and the employee requests additional leave under the ADA, the analysis can include not just a review of the issues associated with the additional leave, but whether undue hardship already exists. 

Conclusion

Although the Severson case currently aids only those employers in Illinois, Indiana, and Wisconsin, there is a chance that courts in other parts of the country will look to the logic contained in this most recent decision and decide to apply it in future cases. Until that day occurs, however, employers should handle “leave after leave” requests cautiously.

Employers should require the employee to provide a note from the treating physician stating an estimated return to work date and providing the objective medical basis for the belief that the leave will enable the employee to return on that date. It’s possible that the information provided by the physician will allow the employer to apply some of the standards described above in a way that is beneficial to the company’s operation.

Editor’s Note:  This article was written by guest author Myra Creighton, a partner in the Atlanta, GA, office of the law firm Fisher Phillips. She can be reached at MCreighton@fisherphillips.com or (404) 240-4285.


DOL Appeals Ruling in Overtime Case, Sets Stage for Upcoming Rulemaking

On November 30, the U.S. Department of Labor (DOL) appealed a Texas judge’s decision to toss out an Obama administration rule that would have nearly doubled the Fair Labor Standards Act’s (FLSA) salary threshold for exemption from overtime pay. The Trump administration DOL is defending its authority to create an overtime rule, but not the salary limit set by the Obama administration. The agency filed its notice to appeal the decision to the U.S. Court of Appeals for the Fifth Circuit, and once docketed, the agency — through the Department of Justice — will file a motion to hold the appeal in abeyance while the DOL undertakes further rulemaking to determine what the salary level should be.

On November 30, the U.S. Department of Labor (DOL) appealed a Texas judge’s decision to toss out an Obama administration rule that would have nearly doubled the Fair Labor Standards Act’s (FLSA) salary threshold for exemption from overtime pay. The Trump administration DOL is defending its authority to create an overtime rule, but not the salary limit set by the Obama administration. The agency filed its notice to appeal the decision to the U.S. Court of Appeals for the Fifth Circuit, and once docketed, the agency — through the Department of Justice — will file a motion to hold the appeal in abeyance while the DOL undertakes further rulemaking to determine what the salary level should be.

The DOL’s Wage and Hour Division (WHD) is currently reviewing submissions following a Request for Information (RFI) it published earlier this summer asking for public input on what changes the agency should propose in a new rulemaking revisiting the salary threshold. AGC submitted comments in response to the RFI, advising WHD to update the salary threshold to a reasonable level that makes sense for today’s workforce. AGC will continue to provide input to the DOL on the impact further changes might have on the construction industry and will notify members of any developments. 

For more information, contact Claiborne Guy at claiborne.guy@agc.org or 703-837-5382.


Circuit Court Rejects Operating Engineersí Claim to Forklifts and Skid Steers

Operating Engineers Local 18 has lost another battle in its war to regain jurisdiction over operation of forklifts and skid steers, this time in circuit court. The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) on October 31 upheld decisions by the National Labor Relations Board (“NLRB” or “Board”) that members of the Laborers were entitled to the work and ordering Local 18 to cease striking, threatening to strike, and maintaining grievances against the employers involved.

Operating Engineers Local 18 has lost another battle in its war to regain jurisdiction over operation of forklifts and skid steers, this time in circuit court.  The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) on October 31 upheld decisions by the National Labor Relations Board (“NLRB” or “Board”) that members of the Laborers were entitled to the work and ordering Local 18 to cease striking, threatening to strike, and maintaining grievances against the employers involved.

Local 18 has collective bargaining agreements with AGC chapters covering parts of Kentucky and Ohio.  Laborers Locals 310 and 894 have similar agreements with the chapters.  Each of the agreements have language supporting the respective unions’ claims to the disputed work.  For many years, the majority of the disputed work – particularly that assigned by the five contractors involved in the lawsuit – has been performed by the Laborers.  Starting in or around 2012, Local 18 began aggressive efforts to regain jurisdiction over the work – even as they admitted that they “gave away” the right to perform all the work “a long time ago.”  The efforts included strike threats, picketing, and a barrage of pay-in-lieu grievances.  The dispute advanced to the NLRB.  In multiple 10(k) hearings, the NLRB concluded that employer preference and past practice, area and industry practice, and economy and efficiency of operations favored the Laborers’ claim, and it ordered Local 18 to back down.  Local 18 refused to comply with the orders and continued to file pay-in-lieu grievances.  Local 18 also petitioned the court to review the NLRB’s orders, and the NLRB sought enforcement of its orders.

Section 8(b)(4)(D) of the National Labor Relations Act (“NLRA”) prohibits unions from using strikes and threats to force an employer to assign work to their members over members of another union.  It also prohibits a union from maintaining pay-in-lieu grievances after the Board has awarded the work to another union.  A union may, however, use these tactics in a “work preservation” situation, in which it merely seeks to preserve work that it previously performed.

Here, the court rejected Local 18’s argument that it was pursuing a lawful work preservation claim.  The court agreed with the Board that the union’s objective was not work preservation but work expansion, stating:

Granted, Local 18 members did similar work for [one of the five contractors in the lawsuit] on some occasions, and for different Employers companies (not involved here) on others. That gave Local 18 a claim to some forklift and skid-steer work under the agreements. Yet when Local 18 began striking, threatening strikes, and filing grievances, it was laying claim to more. A Local 18 representative said as much: the union wanted to “take back” what it “gave away,” and to replace Laborers members in the process. But the record shows that, even if Local 18 members have done this sort of work under the agreements, they have never done it to the exclusion of other unions—and certainly not for the five companies involved here. Thus, a reasonable mind could find that the evidence adequately supports the Board's conclusion that Local 18 was not trying to preserve work, but to acquire more.

The court also rejected Local 18’s argument that the work was “fairly claimable.”  The Board has held that contract clauses that restrict the subcontracting of, or otherwise reserve, work that is “fairly claimable” by the signatory union may be lawful.  This may even include work that unit employees used to perform but have subsequently lost.  The court here noted that the Board has applied the “fairly claimable” theory only in cases alleging violations of NLRA Sections 8(b)(4)(B) and 8(e), which cover secondary activity.  The Board has not applied the theory in cases like the present one which allege violations of Section 8(b)(4)(D) in a jurisdictional dispute between competing unions representing employees employed by the same employer.

For more information on jurisdictional dispute issues, visit AGC’s Labor & HR Topical Resources web page and select the main category “Unions/NLRA” and subcategory “Jurisdictional Disputes.”  AGC-member login is required to view the resources.


Senate Confirms Trumpís Nominee for NLRB General Counsel

The Senate has confirmed Peter B. Robb to be General Counsel of the National Labor Relations Board (NLRB) for a four-year term. Robb is presently a management-side labor and employment lawyer with the law firm Downs Rachlin Martin in Vermont. His prior employment includes serving as chief counsel to an NLRB member.

The Senate has confirmed Peter B. Robb to be General Counsel of the National Labor Relations Board (NLRB) for a four-year term.  Robb is presently a management-side labor and employment lawyer with the law firm Downs Rachlin Martin in Vermont.  His prior employment includes serving as chief counsel to an NLRB member. 

The NLRB general counsel has significant influence over the administration of the National Labor Relations Act.  He or she is responsible for investigating and prosecuting unfair labor practice cases, with broad discretion to determine which cases to advance and which not to advance.  The general counsel is also responsible for supervising the NLRB’s field offices in the processing of cases and can issue memoranda instructing field staff on how to handle cases.

The business community is hopeful that Robb will help shift federal labor policy to a more neutral level than that during the Obama years.  However, once sworn in, Robb will have only a negligible amount of time to wield such influence before a change in Board composition may slow the pace of things.  As previously reported, the Board has been operating with a full complement of five members – three Republicans and two Democrats – since September 27.  But Republican Philip Miscimarra’s term is set to expire on December 16, and he is not interested in another term.  His departure will leave a two-to-two split until President Trump appoints, and the Senate confirms, a new member.  In the interim, the Board is unlikely to issue decisions of major consequence.

AGC will continue to monitor the situation and report on important developments.


Best Practices and Strategic Planning Take Center Stage at AGCís Annual HR & Training Conference

AGC’s 2017 Construction HR & Training Professionals Conference wrapped up Oct. 13 after two-and-a-half days of education, sharing of best practices and networking in Phoenix, AZ. The conference continues to be a must-attend event for HR and training professionals in the construction industry.

AGC’s 2017 Construction HR & Training Professionals Conference wrapped up Oct. 13 after two-and-a-half days of education, sharing of best practices and networking in Phoenix, AZ.  The conference continues to be a must-attend event for HR and training professionals in the construction industry.

This year’s conference was preceded by a Strategic Management Workshop for construction HR and training professionals, which was focused on helping participants understand their firm’s top business challenges and align HR and training with strategic corporate goals.  During this year’s workshop, How to Get a Seat at a C Suite Table, Andrew Patron and Sal DiFonzo from FMI identified proven succession planning tactics, discussed proactive talent development approaches, defined compensation concepts, and facilitated industry thinking around organizational development.

The official opening day of the Conference started off with an entertaining and engaging session led by innovation and creativity guru Jeff Tobe. Tobe’s high-energy presentation captivated the audience as he walked them through his “Four Pillars of Engagement.” Breakout sessions throughout the day covered such topics as rethinking recruiting, managing risks and costs of healthcare, an employment law update, and creating internal subject matter experts. There were several engaging and interactive sessions at the conference as well. For example, during the always popular roundtable lunch discussions led by HR and TED Forum Steering Committee members, participants approached recent hot topics in the industry and shared successes, challenges, and best practices. Later in the day, Sarah Froning Nodarse, with Willis Towers Watson, provided attendees with practical methods for ensuring that the key outcomes of diversity, inclusion and safety are accounted for in the organizations’ human capital strategies, workforce planning, and talent management processes.

On day two, FMI consultant Andrew Patron unveiled the results of the company’s 2017 Survey on Talent Development in the Construction Industry, followed by a panel of four HR and Training professionals in construction who shared their company’s challenges and solutions first-hand.  Survey topics include finding and retaining the best talent, hot trends in training, succession planning, measuring training results, using psychological and other assessments, and more.  The ensuing morning breakout sessions included topics such as challenges in workplace drug abuse, compensation practices, training and development, and worker shortages. The conference concluded with an engaging discussion by Seniye Groff & Tim Sissel from Fortis Construction about building an on boarding program from the ground up.

The conference was sponsored by the National Center for Construction Education & ResearchPAS, Inc.FMI, AGC Career Center, and BirddogHR

The 2018 conference will be held October 11-12 at the Worthington Renaissance Fort Worth Hotel in downtown Fort Worth, TX.  Stay tuned for more details.


AGC of America Accepting Applications for Diversity & Inclusion Council Steering Committee

Applications Due Thursday, Nov. 30, 2017

AGC of America is now accepting applications for AGC members to serve a four-year term (2018-2022) on its Diversity & Inclusion Council Steering Committee.

AGC of America is now accepting applications for AGC members to serve a four-year term (2018-2022) on its Diversity & Inclusion Council Steering Committee.  In order to be considered for the steering committee, the applicant must complete this application and submit it to Brynn Huneke at brynn.huneke@agc.org by close of business on Thursday, Nov. 30, 2017.  If you have additional questions, please contact Brynn Huneke.

For more information on AGC’s Diversity & Inclusion Council, visit www.agc.org/diversity.


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