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Hospitality Industry: Changes to Gift Card Laws May Impact Hotel Gift Card Programs Alert - November 4, 2009

As hotels seek to expand their customer bases during these difficult economic times, one potential source of income and customers has been the rather prolific growth in gift card sales. Everyone is getting into the gift card game – restaurants, retailers, hotel companies, gas stations and more. Sales in 2008 alone totaled approximately $90 billion. For hotel companies, when someone purchases or gives a hotel gift card, it creates an opportunity to attract a new or returning customer to spend money at a hotel. However, implementing these programs requires careful consideration of both state and federal laws – which are complicated, sometimes inconsistent but necessary to understand in order to avoid fines and penalties for improperly designed programs.

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Environment: Alert - November 6, 2009

Although California continues to lead the nation on developing regulations to address greenhouse gas emissions, especially with respect to land use planning decisions, two recent regulatory developments involving the Regional Targets Advisory Committee (RTAC) and California Natural Resources Agency (CNRA) demonstrate the challenges of providing clear advice on how, as a practical matter, this should be done. This alert examines the RTAC and CNRA matters in detail, and explains how they are likely to further influence the manner in which climate change considerations are taken into account as part of the land use planning and environmental review process.

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Labor, Employment and Benefits
Newsletter - January 2000
 
In this Issue...
Pregnant Worker Fired After Work Restriction Imposed by Doctor
 
 January 1, 2000
 
Mark G. Alexander- Jacksonville

The Eleventh Circuit Court of Appeals (Florida, Georgia and Alabama) held in Spivey v. Beverly Enterprises (11th Cir., Nov. 30, 1999) that an employer is not required to offer modified duty to pregnant employees even though the employer offers modified duty to employees injured on the job. The court held that pregnant employees must be treated the same as every other employee with a nonoccupational injury. Thus, an employer need not accommodate pregnant employees unless the employer generally accommodates other employees suffering nonoccupational injuries.

In Spivey, the employee was a certified nurse's assistant at a rehabilitation center. Her primary responsibilities included lifting and repositioning patients, assisting with patient baths and meals, and providing general patient care. Soon after becoming pregnant, the employee became concerned that lifting heavy patients might cause harm to her unborn child. She requested assistance in lifting heavy patients as an accommodation to her pregnancy. In response, the employer told her to get a doctor's verification of the work restriction.

Consequently, the employee obtained a 25-pound lifting restriction from her doctor, but was then told that she would not be given an accommodation because her disability (pregnancy) was not the result of a work-related injury. According to the employer's policy, the employee would be excused from heavy lifting only if the restriction were the result of a work-related injury. As a result, the employer told the employee she would be terminated unless the work restriction were removed by the doctor. The doctor would not remove the work restriction, and as a result, the employee was terminated since she was not able to perform the heavy lifting her job required.

The employee filed suit claiming violation of the Pregnancy Discrimination Act of 1978 which declares that for employment-related purposes, pregnant women must be treated the same as other persons in the work place. The Eleventh Circuit held that, since the employer did not generally give any kind of accommodation to other employees who were injured off the job, the employer was not required to give any kind of accommodation to the pregnant employee. The court reasoned that this employer's policy did not treat pregnant employees differently from other persons because all employees "injured" off the job were treated the same.

Simply categorizing pregnant employees as "injured," the court avoids discussion of employees who were disabled for a reason other than injury. The court also avoided an evaluation of whether heavy lifting was an essential function of employee's job, but the analysis implies that heavy lifting was so integral to the employee's duties to justify a termination if the employee were unable to do so.

The result would have been different if this employer had generally granted accommodations for nonoccupational injuries. The foci of the Eleventh Circuit's analysis are consistency and uniformity of treatment between classes of injured workers. The court evaluated the consistency of treatment of workers injured off the job and concluded that pregnant employees were treated no differently from everyone else in this group. However, the court's analysis leads to the conclusion that employers who generally accommodate the disabilities of workers injured off the job are required to accommodate work restrictions imposed because of pregnancy.

The Eleventh Circuit's ruling is consistent with the Fifth Circuit's position on the same question in Urbano v. Continental Airlines (5th Cir. 1998)(Louisiana, Mississippi and Texas). However, the Sixth Circuit in Ensley-Gaines v. Runyon (6th Cir. 1996) ruled differently (Kentucky, Michigan, Ohio and Tennessee). Therefore, an employer's assessment of this question should include consideration of the rulings in the part of the country where the employer's operation is located.

For more information please call Mark G. Alexander at 1-888-688-8500.

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