ADA Claim Brought by Claustrophobic Attorney Allowed to Proceed

This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania.

When the Americans with Disabilities Act definition of “disability” was expanded by the ADA Amendments Act of 2008, we told you to expect an increase in accommodation requests and disability discrimination claims. Many of you have experienced increased claims, and the courts are starting to feel your pain.

For example, a claustrophobic attorney has filed a claim against her former law firm alleging violations of the Americans with Disabilities Act and the Pennsylvania Human Relations Act. The crux of the attorney’s claim is that the firm failed to accommodate her claustrophobia and anxiety. The facts of the case are interesting, and the eventual outcome could provide some helpful guidance to employers contemplating requests for accommodation.

The employee was previously assigned to one of the firm’s offices in Moosic, Pennsylvania. However, she requested and was granted permission to transfer to the firm’s Center City Philadelphia office. She was assigned an office on the 23rd floor.

Apparently, problems began on her first day at the Philadelphia office. According to her complaint, she began suffering from anxiety and claustrophobia immediately following her first elevator ride. [INSERT BIG CITY JOKE HERE]. She claimed that as a result of her anxiety at work, she was unable to eat or sleep.

The attorney allegedly sought accommodations from the firm as a result of her anxiety and claustrophobia, which she claims were denied. Under the ADA, covered employers must provide reasonable accommodations to qualified individuals with disabilities, except when such accommodations would cause an undue hardship. The attorney claimed that the firm was aware of her disability and that it had denied her requests for accommodation, including at least two requests to transfer to other office locations. The attorney claimed that the firm’s failure to accommodate her ultimately led to her discharge.

The attorney’s claims are interesting because, according to press reports, she had been to the Philadelphia office previously and as noted, specifically requested the transfer! In addition, the firm argued that it did in fact provide the attorney accommodations (including the ability to work from home for a period of time). Nonetheless, the court concluded that the case would survive the firm’s motion to dismiss because the attorney had made the minimum showing necessary to proceed.

Certainly this does not mean that the attorney will succeed on her claim, and more interesting facts will probably come to light. While trying to keep the bad jokes to a minimum, this case will be interesting to watch for a number of reasons:

  • What happens when an employee’s own request triggers the need for an accommodation?
  • If the firm told her to take the stairs, would that be a form of reasonable accommodation?
  • If she could not work in the office away from windows, how could she work in another office under similar circumstances?
  • Will the courts in the Third Circuit rule that telecommuting is a reasonable accommodation?
  • Is telecommuting a reasonable accommodation for an attorney?
  • Is an attorney who cannot ride an elevator or work in an office away from a window able to perform the essential functions of her job?

As requests for accommodation become more common, and employers are diving deeper into the interactive process, additional guidance from the courts on specific types of accommodation requests will prove helpful. The real question here is how far will employers need to go to be in compliance? Stay tuned.

You’re fired! Want to continue to work for us as an Independent Contractor?

This post was contributed by Jennifer E. Will, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania.

If you do, you’ll need to sign a release and waive all of your employment law claims first. Oh, and if you don’t, you’ll still be bound by your noncompete. Huh?

The facts are more complicated than that, but after Allstate Insurance decided to reorganize and shift all of its agents to an independent contractor model, it became a target of the EEOC. In its attempts to avoid litigation, Allstate decided to terminate all of its agents who were classified as employees. At the same time, the Company offered those employees a series of choices, which included a $5000 conversion bonus for those who wished to become independent contractors and a year of severance pay, for those who didn’t. In either event, a release of all discrimination claims was required.

After a few of those terminated employees filed charges, the EEOC filed a civil action of its own, seeking to invalidate the release itself, on the ground that it constituted retaliation. The EEOC took issue with Allstate only permitting employees to continue their careers if they waived all discrimination claims. What’s wrong with that?

Nothing, said the District Court (twice). Nothing, said the Court of Appeals (after a remand). Turning to well-established law, the Court rejected the EEOC’s claims that offering to convert an employee to independent contractor status was “illegal” and that the conversion bonus was insufficient consideration for a release.

How’s this for a quote? “[W]e are not persuaded by the [EEOC’s] efforts to arbitrarily limit the forms of consideration exchangeable for a release of claims by a terminated employee.” In sum, it is the employer, and not the EEOC, that gets to decide what post-termination benefits to offer an employee in exchange for a release. The act of refusing to sign a release is NOT protected activity and, therefore, cannot give rise to a claim of retaliation.

While this is certainly a piece of good news for employers, we continue to offer caution to employers in the area of severance agreements, as caselaw and statutes (such as the Older Workers Benefits Protection Act) continue to refine what it takes to achieve an enforceable release. Please contact any member of the McNees Labor & Employment Law Practice Group for assistance.

Philadelphia Mayor Signs Paid Sick Leave Ordinance

With the signature of Mayor Michael Nutter on February 12, 2015, Philadelphia became the 17th city in the United States to mandate paid sick leave for employees. The law goes into effect in 90 days (May 13, 2015) and applies to businesses with 10 or more employees. Covered employers will be required to give workers at least one (1) hour of paid sick leave for every 40 hours worked.

The law defines an “employee” as one who works within the geographic boundaries of the City of Philadelphia for at least 40 hours each year. There are a number of exceptions to the definition including independent contractors, seasonal/temporary workers, interns, and workers covered by a collective bargaining agreement.

A few of the main provisions of the law are:

  • All covered employees must accrue one hour of sick time for every 40 hours worked in Philadelphia. Employers can cap the amount of accrued sick time at 40 hours per calendar year;
  • Employees may begin to use accrued sick time on the 90th calendar day after beginning employment;
  • Sick time is to be carried over to the following calendar year unless the employer guarantees at least 40 hours of sick time at the beginning of each calendar year;
  • Employers who already have sick/vacation/PTO leave policies are not required to provide additional sick time under the Ordinance – as long as the employer meets the minimum requirements of the law;
  • “Sick time” can be used for the employee’s own medical issue, in order to care for a family member with a medical issue, or for absences due to domestic abuse, sexual assault, or stalking;
  • Employers must give written notice to employees who are entitled to sick time or post a sign in a place where all employee will be able to see it; and
  • The City or a harmed employee may bring a civil action in court against an employer for violation of the Ordinance (after exhausting administrative remedies).

While President Obama has called on Congress to pass federal paid sick-leave legislation, there is no indication that mandatory paid sick leave will become the law of the land any time soon.

If your company has operations in Philadelphia, you should consider reviewing your sick-leave policies in the next 90 days to ensure your policies comply with the new city ordinance.

Workers’ Compensation Update: “Economic Circumstances” and “Fellow Employee”

This post was contributed by Paul D. Clouser, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Lancaster, Pennsylvania.

One tool available to employers to limit workers’ compensation benefit payments is the so called “fellow employee” limitation. In general, absent a full recovery from a work-related injury, an employer is obligated to pay partial disability benefits equal to 2/3 the difference between the pre-injury average weekly wage and the current earnings of the employee, who is often working with restrictions. In situations where that employee has an elevated average weekly wage due to significant past overtime, the partial disability rate can seem “artificially” high. Section 306(b)(1) of the Act contains a seldom used provision limiting the payment of partial disability benefits in these circumstance. It states:

[I]n no instance shall an employee receiving compensation under this section receive more in compensation and wages combined, than the current wages of a fellow employee in employment similar to that in which the employee was engaged at the time of injury.

Pennsylvania WC Act, Section 306(b)(1).

Likewise if an employer can prove that an employee’s shortfall in wages is the result of economic circumstances affecting all employees and unrelated to that employee’s work related physical impairment, a defense to the payment of partial disability benefits is also available.

On February 4, 2015, the Commonwealth Court addressed and affirmed these principles in the case ofJanice Donahay v. WCAB. Ms. Donahay was a team leader and residential services assistant for Skills of Central PA, which operates group homes for mentally challenged adults. In February 2011, Donahay sustained a ruptured biceps tendon while assisting a large resident. The resident had difficulty walking due to a leg problem and had been leaning heavily on Donahay while ambulating.

Donahay had surgery and was off work and received workers’ compensation total disability benefits for 5 months. She returned to her job with restrictions in August 2011, earning significantly less than her average weekly wage. Prior to the injury, she had been working 80-85 hours per week, as the group home was short-staffed. As such, her “average weekly wage” was unusually high.

Upon her return and with the resumption of normal staffing levels, Donahay was working only 45 hours per week. Additionally, due to funding cuts, the employer was limiting the amount of available overtime to all employees to help control costs.

The employer successfully argued that despite her restrictions and reduced hours, benefits should be suspended, with no ongoing payment of partial disability. After all, there was no medical limitation on the number of hours Donahay could work and her other restrictions did not prevent her from carrying out all aspects of her regular job. Donahay was not required to perform patient transfers, as clients in the group home were independent and required little direct care. Additionally, team leaders do more paperwork than direct care and Donahay had the flexibility to direct other employees to perform the tasks she could not perform.

Accordingly, the WC Judge found that despite some residual physical impairment, Donahay was able to perform all aspects of her pre-injury job. Furthermore, the extraordinary overtime she had worked prior to her injury was only temporary, pending the hiring of additional staff. As such, Donahay’s alleged loss of earnings was not due to her residual impairment, but rather to the employer’s new limitation on overtime which was applicable to all employees. Accordingly, any loss of earnings was due entirely to “economic circumstances” and unrelated to her physical limitations. To allow Donahay to continue collecting ongoing partial disability benefits, in addition to her regular wages, would place her in a better position than her fellow employees, who were performing similar duties. The Commonwealth Court found it unnecessary however, to formally address the “fellow employee” argument, as the WC Judge had adequate grounds under the “economic circumstances” argument, to suspend compensation benefits.

The legal analysis involving payment of partial disability benefits is somewhat technical and fact specific, so the best option is to consult legal counsel, if you feel an employee is being unfairly overcompensated for his or her work injury, Denise Elliott and Paul Clouser, in McNees Wallace & Nurick’s Lancaster office, specialize in the handling of workers’ compensation matters.

The National Labor Relations Board 2014 Year in Review

McNees Attorneys Bruce D. Bagley and Adam L. Santucci recently released their annual White Paper entitled “The National Labor Relations Board 2014 Year in Review.”

If the National Labor Relations Board seemed to be on the ropes in 2013, it certainly came out swinging in 2014. Last year, we reported that the Board faced a number of serious legal battles. Although the Board certainly got knocked down in 2014 by a blockbuster United States Supreme Court decision, it bounced right back and issued a number of important decisions that will undoubtedly have significant long-term implications for employers. And unfortunately, it was employers who “took it on the chin,” because the Board’s pro-union agenda was at the fore of most of its major actions.

Check out the comprehensive and informative White Paper by clicking here!

The White Paper can be downloaded as a PDF by clicking on this link.