October 11, 2002

OSHA Sets a Diverse Agenda for Fiscal Year 2003

Holland & Knight Alert
Howard Sokol

Employees with Monocular Vision Not Disabled

A vision impairment that does not substantially limit an employee's ability to see as a whole for purposes of daily living is not a disabling condition under the Americans with Disabilities Act, the Ninth Circuit Court of Appeals (CA, WA, OR, ID, MT, AZ, NV, AK, HI) has ruled. In EEOC v. United Parcel Service, the court addressed the claims of drivers who could only see out of one eye. The employees claimed their one-eyed sight substantially limited their major life activity of seeing, and that UPS' policy of not allowing employees with their condition to have truck-driving positions was discriminatory under the Americans with Disabilities Act and the California Fair Employment and Housing Act. The Ninth Circuit reversed the trial court's finding for the drivers and, applying the Supreme Court's recent decision in Williams v. Toyota, held that because the employees were able to drive, read, use tools and play sports, the court reasoned that their "impairment does not keep either one of them from using his eyesight as most people do for daily life," and therefore, they were not disabled within the meaning of the ADA. The court remanded the matter to the lower court to determine whether UPS regarded the individuals as disabled under the heightened ADA standard and/or FEHA.

Right to Intermittent Leave Protected under FMLA

Two recent decisions have supported employees' right to job-protected leave on an intermittent basis, if required by a chronic condition that flares up sporadically. In Johnson v. Moundsvista Inc., the federal district court in Minnesota held that a restaurant violated the FMLA when it reduced the hours and then fired a waitress who suffered from Hepatitis C, on the basis of excessive absences related to her condition. The Court rejected the restaurant's reliance on a policy that requires employees to give six hours' notice before taking a sick day, explaining that the notice provision may not be applied to deprive employees of FMLA-protected leave when symptoms appear suddenly, as in this case.

In Lara v. Central Grocers Co-op. Inc., an Illinois federal district court found that a grocery wholesaler violated the FMLA when it denied intermittent leave and then fired a truck driver for violating the company's attendance policy. The employee, who suffered from heart disease and diabetes, provided a doctor's certification that he might need to be absent on a periodic basis because of his illness. The employer's attendance policy provides that employees will be discharged for 12 absences in a 12-month period, regardless of the reasons for the absence. After his twelfth absence within a year, the employee was discharged. The Court held that the application of the attendance policy to absences related to a serious health condition undermined the employee's rights under the FMLA. This case underscores the importance of excluding absences for FMLA-protected reasons from attendance bonus or penalty programs.

Employee Cannot Count Work Hours Lost During Grievance Process Toward FMLA Eligibility

A wrongfully terminated employee who is reinstated by an arbitrator cannot count the hours he would have worked during his arbitration period as "hours of service" to determine eligibility for FMLA benefits, the First Circuit Court of Appeals (MA, RI, NH, ME, PR) has ruled. In Plumley v. Southern Container, Inc., the plaintiff invoked the arbitration procedure provided in the collective bargaining agreement when the employer attempted to fire him. The arbitrator ultimately ordered Plumley reinstated and ordered the company to compensate Plumley in full for the wages and benefits that he had lost during the period when his grievance was being processed and he had not been working - a span of approximately six months. Shortly thereafter, Plumley was fired for taking unauthorized time off to see his ill father. He filed suit, claiming, among other things, that he was terminated in violation of the FMLA. The court found that Plumley was not protected by the FMLA because he had not worked 1,250 hours for his employer during the 12 months prior to his termination as required by the FMLA. Plumley appealed, arguing that the time he would have worked for the company during his arbitration period should be counted toward the FMLA eligibility requirement because he was wrongfully denied the opportunity to work during that period. The First Circuit rejected this argument, concluding that "only those hours actually worked in the service and at the gain of the employer" may be counted as hours of service within the meaning of the FMLA. Accordingly, the court affirmed the judgment in favor of the employer.

Appeals Court Adds to Administrative Exemption Case Law

The Ninth Circuit recently overturned a federal district court's grant of summary judgment to an employer in a FLSA case because the appellate court did not believe that the employee qualified as an administrative, exempt employee. Both the Ninth Circuit's and the district court's analysis turned on the requirement that, in order to be exempt, the employee's primary duties must involve the performance of nonmanual work directly related to the management policies or the general business operations of the employer. Whereas the district court determined that the employee performed nonproduction duties that were ancillary to the employer's core business, the appellate court was more impressed by the employee's evidence that his main responsibilities related directly to maintaining the employer's products. Thus, the appellate court vacated the district court's grant of summary judgment and sent the case back to the district court for trial. This decision further underscores the critical importance of the administrative/production dichotomy and the necessity of careful analysis before a determination can be made as to whether an employee's work is related to the management policies or general business operations of a company, and thus exempt; or rather, the employee's work is directly related to the production operation of the employee's business.

OSHA Sets a Diverse Agenda for Fiscal Year 2003

Howard Sokol

October 1, 2002, marked the beginning of fiscal year 2003 for the Occupational Safety and Health Administration. OSHA intends to increase the number of worksite inspections to nearly 38,000 during this fiscal year, an increase of 3.5 percent from fiscal year 2002. Prominent on OSHA's agenda for this fiscal year include an intent to enforce ergonomics violations under the general duty clause, expand the Voluntary Protection Program, which began 20 years ago and currently has 850 sites, continue to form cooperative health and safety programs and alliances with both public and private professional and labor organizations, reconvene various advisory committees to assist OSHA and keep it current in its regulation of specialty industries, and considerations regarding OSHA's role in instructing and assisting employers in evaluating their risks for terror attacks.

Worker Awarded $500,000 in Connecticut FMLA Claim

An Internet marketing executive for Stamford, Connecticut-based Cendant Corp. has been awarded $500,000 in damages for the company's violation of the state Family and Medical Leave Act. An administrative hearing officer for the Connecticut Department of Labor ruled in a proposed decision that Cendant violated the law when it failed to return Kim Persky to an equivalent position following maternity leave. The state FMLA imposes a strict liability standard on an employer who interferes with an employee's right to reinstatement, the hearing officer explained. Although Cendant contended it told Persky of four other positions to which she could be returned, the hearing officer determined only one was actually offered, and Persky was justified in refusing it because "it was not substantially equivalent in terms of status and responsibility." The hearing officer determined that Persky was entitled to her old salary of $136,000 and stock options, plus the same bonuses she would have otherwise earned, totaling approximately $500,000. Under the state FMLA, Persky is also entitled to an award of attorney's fees. The proposed decision is subject to approval, rejection, or modification by the state labor commissioner.

Related Insights