Minnesota has not passed a medical marijuana law, but 14 states and the District of Columbia have, and occasionally such laws have employment law implications.  The American Civil Liberties Union filed a lawsuit two weeks ago against Wal-Mart Stores, Inc. and the manager of its Battle Creek, Michigan store for wrongfully firing an employee for using medicinal marijuana in accordance with state law.

Joseph Casias, the Battle Creek Wal-Mart’s 2008 Associate of the Year, was fired from his job at the store after testing positive for marijuana, despite being legally registered to use the drug under Michigan’s medical marijuana law.  Casias has sinus cancer and a brain tumor in the back of his head and neck that was the size of a softball when it was first diagnosed. His condition has forced him to endure extensive treatment and chemotherapy, interferes with his ability to speak and is a source of  constant pain. Nonetheless, he had been employed for more than five years by Wal-Mart in Battle Creek, where he began as an entry-level grocery stocker in 2004 and worked his way up to inventory control manager.

In 2008, Michigan voters enacted the Michigan Medical Marihuana Act, which provides protection for the medical use of the drug under state law. After the law was enacted, Casias’ oncologist recommended that he try marijuana for pain relief, and so Casias obtained the appropriate registry card from the Michigan Department of Community Health

Michigan’s medical marijuana law protects patients registered with the state of Michigan from “arrest, prosecution, or penalty in any manner” for the use of medicinal marijuana as prescribed by a doctor and also protects employees from being disciplined for their use of medical marijuana in accordance with the law. The law does not require employers to accommodate the ingestion of marijuana in the workplace and does not protect employees who work under the influence of the drug.   Casias’ lawsuit claims that he complied with both of these conditions.

If the allegations in the Complaint are true, it is hard to see how Wal-Mart can win this one (either legally or in the court of public opinion!)  So stock up on the Doritos and stay tuned in !

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Employers often struggle, and rightly so, with deciding how best to treat employees who have some physical or mental impairment, especially if the impairment seems to be affecting their work performance.  It is often very hard to balance the demands of expected workplace performance with an employee’s rights under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).  A Court of Appeals decision last week provides a good review of some of the most important principals.

Factual Background

Charlene K. Wisbey worked as an Emergency Dispatcher for the City of Lincoln, Nebraska.   The position required her to receive calls for emergency service and dispatch emergency service units on a regular basis.  Prior to 2007, Wisbey’s performance evaluations were positive.

From January through February 2007, Wisbey used a significant amount of sick leave due to an upper respiratory infection. Because she had previously exhausted her allotted sick leave, the City issued her a written warning for taking excessive leave and recommended that she apply for intermittent leave under the FMLA.  On February 27, 2007, Wisbey applied for intermittent FMLA leave on the basis of depression and anxiety, claiming on the application that she had a serious health condition that rendered her “unable to perform the essential functions of her job.” Attached to the FMLA application was a medical certification from her physician, Dr. Pothuloori, stating that Wisbey suffered from recurring depression and anxiety which interfered with her sleep, energy level, motivation, and concentration.  Dr. Pothuloori’s certification also indicated that, although Wisbey was able to perform any one or more of the essential functions of her job,  she would need to take time off work intermittently over the next six months or longer.  

Because the medical certification from Dr. Pothuloori indicated that Wisbey’s concentration and motivation could be affected, the City scheduled an appointment for Wisbey with Dr. Eli Chesen, a psychiatrist, requesting that he perform a fitness-for-duty exam to determine whether Wisbey was qualified to continue her work as an emergency dispatcher.  After the examination, Dr. Chesen submitted a three-page report on his findings. The report stated that Wisbey suffered from chronic relapsing depression which intermittently interfered with her ability to function at full capacity at work, and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”

After receiving this report on March 28, 2007, the City expressed to Wisbey its concern that she could not perform her job, and placed Wisbey on administrative leave with pay. On April 3, 2007, the City met with Wisbey and provided her with a letter explaining that she was being terminated based on Dr. Chesen’s determination that she was unfit for duty. The letter also encouraged Wisbey to apply for long term disability benefits.  Wisbey filed suit instead. 

Legal Analysis

Wisbey first argued that she should not have been required to submit to a fitness-for-duty exam.  The ADA prohibits an employer from requiring a medical examination or inquiring into the disability status of an employee “unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  The employer bears the burden to show the asserted business necessity is actually vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary.  At the same time, employers are permitted to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims, and fitness-for-duty exams are a reasonable means of making this determination.  Courts will readily find a business necessity if an employer can demonstrate a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties (such as frequent absences), or whether an employee’s absence or request for an absence is due to legitimate medical reasons, especially where the employer has reason to suspect the employee is abusing its attendance policy.  The Court concluded that in light of Wisbey’s position as a dispatcher making life and death decisions supports, the City’s request for a fitness-for-duty exam was proper.

Wisbey next argued that she was not actually disabled, but that the City terminated her because it illegally “regarded: her as disabled.   As the Court noted, however, the prohibition against making decisions because an employer inappropriately “regards” an employee as disabled was established to combat “archaic attitudes, erroneous perceptions, and myths” working to the disadvantage of the disabled or perceived disabled  By contrast, if a restriction is based upon the recommendations of a physician, then it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability.  Wisbey was terminated because she was not “fit for duty,” as reported by Dr. Chesen, and because she herself admitted in her FMLA application that she was suffering a serious health condition that rendered her unable to perform the essential functions of her job.  Accordingly,  there was no evidence of “regarded as” discrimination. 

In regard to her FMLA claim, Wisbey argued that  the fitness-for-duty exam was unwarranted because the City had previously accepted Dr. Pothuloori’s certification that she could perform any one of more of the essential functions of her job, although she would need to take time off work intermittently.  The Court found, however, that the FMLA does not provide an employee with a right to unscheduled and unpredictable, but cumulatively substantial, absences, or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.  Therefore, because Wisbey requested “intermittent leave” for “six months or longer” she did not have a right to FMLA leave.

Finally, the Court also rejected Wisbey’s argument that the City retaliated against her for taking FMLA leave because she could not establish a causal connection between her application for FMLA leave and her termination.  Rather, the City relied on the fitness-for-duty exam, and not Wisbey’s FMLA application, in its determination to terminate Wisbey’s employment. Generally, more than a temporal connection is required to present a genuine factual issue on retaliation,  and mere coincidence of timing can rarely be sufficient. 

Conclusion

In sum, then, employers struggling with these issues should keep the following points in mind:

• Employers are permitted to use reasonable means to ascertain the cause of troubling behavior as long as they have a business reason to do so.  Courts will readily find a business necessity if an employer can demonstrate a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties (such as frequent absences).
• Courts will give great deference to recommendations made by outside professionals such as physicians.
• Neither the FMLA nor the ADA provides an employee with a right to unscheduled and unpredictable, but cumulatively substantial, absences, or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.  And employers should make sure that their job descriptions specifically reference regular and reliable attendance as an essential requirement of the job.

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I’ve written previously, here and here, about Schwan’s efforts to quash a subpoena served by the EEOC as part of its investigation into claims of gender discrimination against female management trainees.  Magistrate Judge Mayeron rejected Schwan’s arguments back in March, and now Judge Tunheim has affirmed the Magistrate’s order, requiring Schwan’s to produce the sought-after documents.  I’ll try to post a copy of his very comprehensive Order once it is available.

A new twist on the old theme “You can’t fight city hall”?

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On June 22, 2010, the U.S. Department of Labor issued a new interpretation of the definition of “son or daughter” under the Family and Medical Leave Act which will expand the number of employees who are eligible for leave, especially those in a same sex relationship.

As background, the FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, because of the birth of a son or daughter of the employee and in order to care for such son or daughter, because of the placement of a son or daughter with the employee for adoption or foster care, and to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age, or 18 years of age or older and incapable of self-care because of a mental or physical disability.

The question addressed by the Department of Labor this week is how to determine whether an employee is “in loco parentis”.  The DOL suggests that in loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption.”

According to the DOL, the key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.  Thus, whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors, including the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised.

The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child. Significantly, employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave.  According to the DOL, the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.  For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child. Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

The fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child. Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.

The DOL letter provides examples of situations in which an in loco parentis relationship may be found, including where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

In sum, then, either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child. In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.

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A decision earlier this week by a Federal District Court Judge here in Minneapolis offers some very useful guidance on accommodating requests for religious accommodations by employees. 

Celestica Corporation operates a manufacturing plant in Arden Hills.  Adecco USA provides temporary employees to Celestica.  The plaintiffs are practicing Muslims who allege that Celestica discriminated against them by failing to accommodate their religious duty to pray five times each day.  In particular, Celestica permitted employees to take unscheduled breaks for personal reasons (such as to use the bathroom), but did not permit plaintiffs to take unscheduled breaks to pray.  Celestica instead argued that it offered the employees a reasonable accommodation by giving them the opportunity to transfer to a different shift which would be more amenable to pray breaks. 

 The Court first found that Celestica’s proposed accommodation — allowing the Muslim employees to transfer to the first shift — would not necessarily have resolved the conflict because different employees had different believes about when they were required to pray.  “Given the variance in the religious beliefs at issue in this case, the Court cannot conclude that, because the first-shift employees may be satisfied with their schedule, an offer to transfer to the first shift would have fully resolved the religious conflict for each of the plaintiffs in this lawsuit.”  While also recognizing that a company is not required to offer an accommodation that completely eliminates the conflict, the Court decided that the reasonableness of Celestica’s proposed solution was a factual issue that it could not decide at this stage of the case.    (In fact, as the Court recognized, an accommodation may be reasonable even if it does not completely eliminate the employee’s religious conflict.) At trial, Celestica could still argue that the proposed accommodation would result in an unreasonable hardship.

 The Court also offered guidance on how a jury might decide whether a proposed accommodation was reasonable:

“It turns on fact-intensive issues such as work demands, the strength and nature of the employee’s religious conviction, the terms of an applicable CBA, and the contractual rights and workplace attitudes of co-workers. Bilateral cooperation under Title VII requires employers to make serious efforts to accommodate a conflict between work demands and an employee’s sincere religious beliefs. But it also requires accommodation by the employee, and a reasonable jury may find in many circumstances that the employee must either compromise a religious observance or practice, or accept a less desirable job or less favorable working conditions.”

 The Court did offer some rules for determining whether a given accommodation is reasonable. For example:

• An employer is not required to deprive other employees of their contractual rights in order to accommodate an employee’s religious needs.
• An employer is required to offer a reasonable accommodation, not the accommodation preferred by the employee. Thus, if the employer has offered one reasonable accommodation, the employee cannot insist on a different reasonable accommodation, even if the preferred accommodation would not inflict undue hardship on the employer.
• An accommodation may be reasonable even though it imposes some costs on the employee.  At the same time, the extent of and justification for the costs imposed on the employee are relevant to the reasonableness of the employer’s efforts to accommodate.  
• An accommodation might be unreasonable if it imposes a significant work-related burden on the employee without justification.  However, if  there are two possible accommodations, neither of which would impose any cost whatsoever on the employer, but one of which would inflict such drastic personal hardship on the employee that the employee could not possibly accept it. In such a case, the employer’s decision to offer the accommodation that inflicts drastic personal hardship — with no corresponding benefit to the employer — would not seem “reasonable.”
• The reasonableness of any accommodation also depends on the nature of the employee’s religious beliefs and how they conflict with the employee’s work duties.

In summary the Court indicated that what is “reasonable” is difficult to boil down to a set formula. Instead, the determination of reasonableness is quintessentially a fact-bound inquiry that depends on the unique circumstances of each case.  Of course, this makes it more difficult for defendants to obtain summary judgment on this type of case, and easier for plaintiffs to get their case in front of a jury.

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No surprise to this big firm refugee, but a new study by a legal recruiter confirms that the recession has helped drive Fortune 500 clients tosmall, midsize and boutique law firms. “Because of their lower overhead and operating costs, small firms can offer the same legal services for significantly less than large firms. This makes both new and established small firms attractive to cost-conscious clients,” according to the report from Robert Half Legal, “Future Law Office: Delivering Maximum Value in a Cost-Conscious Legal Era.”

Providing large-firm expertise at small-firm rateshas become even easier because many small and midsize firms have picked up talent that was unavailable to them before the recession. This has helped arm boutique firms with the capability to serve middle-market companies that can’t afford big-firm rates.  Technology, of course, has also leveled the playing field, allowing small firms to compete with their bigger brethren.

Small is the new big.  Only more efficient and more responsive.

By the way, Minnesota CLE’s Solo and Small Firm conference will be August 1-3 in Duluth.  See you there.

Hat Tip: Larry Bodine

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A new study by the American Bar Foundation shows that plaintiff’s chances of winning in federal court are actually quite slim.    The article, “Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States,” published in the June 2010 issue of the  Journal of Empirical Legal Studies, studies employment discrimination cases filed in federal courts between 1987 and 2003. The study found that the overwhelming majority of employment cases are brought by a single plaintiff; while cases involving multiple plaintiffs, class actions and representation by the EEOC or a public interest law firm are rare. More than 40 percent of plaintiffs either have their cases dismissed or lose at summary judgment. The other half are likely to settle very early in the process. Only six ercent of those filing employment discrimination lawsuits in federal court go to trial, where their chances of winning are one in three.  What is not clear is how many of the plaintiffs in the cases were represented by lawyers.

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Madeleine Baran at Minnesota Public Radio has an interesting story about the use of non-competes in the health care profession.  (Disclosure: I was interviewed for the piece).  A mother has two children with severe mental health problems.  For the past year, her 8-year-old and 10-year-old daughters had been receiving services from a mental health worker who helped the girls learn how to adjust to school and reduce behaviors like bedwetting and self-injury. After years of chaos and struggle, the mother believed that her children had finally found an adult they could trust.

But two months ago, the family’s mental health worker changed employers.  Because she had signed a non-compete agreement with the agency she was leaving, she was not allowed to continue seeing any of her clients for one year.  The agency that she left would not allow an exception for the two children.

Non-compete agreements are commonly used – and enforced - in the health care profession in Minnesota.  In some states, courts have refused to enforce them on public policy grounds; i.e. patients should be able to chose their health care provider.  That issue has not been resolved yet here in Minnesota, though. 

Perhaps medicine is really just a business like any other?

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Debrahlee Lorenzana is suing Citibank, alleging that she was fired not because her work was inadequate, as the bank claims, but because she is “too hot”.  Really.  She says that her bosses told her they couldn’t concentrate on their work because her appearance was too distracting. They ordered her to stop wearing turtlenecks. She was also forbidden to wear pencil skirts, three-inch heels, or fitted business suits. When Lorenzana pointed out female colleagues whose clothing was far more revealing than hers, “They said their body shapes were different from mine, and I drew too much attention.”

 

There is more attention being paid to discrimination on the basis of appearance, like this article by a Stanford Law professor, but being “too hot”.  C’mon!

 

If you’d like to judge for yourself, Ms. Lorenzana’s photo gallery is at the Village Voice.

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