ANNUAL UPDATE OF LABOR AND EMPLOYMENT LAW

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ANNUAL UPDATE OF LABOR AND EMPLOYMENT LAW Powered By Docstoc
					Society for Human Resource Management
            September 30, 2011
            Annual Conference


   MANAGING WORKPLACE
PERFORMANCE IN COMPLIANCE
 WITH THE FMLA AND ADAAA


                    Patricia M. Olsson

                         Moffatt Thomas
The EEOC’s Final ADAAA
Regulations




               Moffatt Thomas
      The Final Regulations

 Implement Title I (Employment) of
  ADAAA
 Published March 25, 2011
 Effective May 24, 2011
 Found at 29 C.F.R. Part 1630
 Include changes to the Interpretive
  Guidance (Appendix)
     The Three Definitions of
            Disability
 A physical or mental impairment that
  substantially limits one or more of the
  major life activities of such individual (the
  “actual disability” prong);
 A record of such an impairment (the
  “record of” prong); or
 Being regarded as having such an
  impairment (the “regarded as” prong).
  The Purpose of the ADAAA

 The primary purpose of the ADAAA was
 to make it easier for people with
 disabilities to obtain protection under the
 ADA.
           29 C.F.R. § 1630.1(c)(4)
    Definition of Physical
 Impairment Is Little Changed
 Any physiological disorder or
  condition, cosmetic disfigurement, or
  anatomical loss affecting one or more
  body systems, such as:
  neurological                            musculoskeletal     special sense organs
  respiratory (including speech organs)                       cardiovascular
  reproductive                            digestive           genitourinary
  immune (new)                            circulatory (new)   hemic
  lymphatic                               skin                endocrine




             29 C.F.R. § 1630.2(h)(1)
     Definition of Mental
 Impairment Is Little Changed
 Any mental or psychological disorder,
  such as:
     an intellectual disability (formerly termed
      “mental retardation”)
     organic brain syndrome
     emotional or mental illness
     specific learning disabilities
            29 C.F.R. § 1630.2(h)(2)
         Major Life Activities

 The prior reg’s non-exhaustive list of MLAs
  included caring for oneself, performing manual
  tasks, seeing, hearing, walking, speaking,
  breathing, learning, and working.
 The new reg adds eating, sleeping, standing,
  sitting, reaching, lifting, bending, reading,
  concentrating, thinking communication, and
  interacting with others to the non-exhaustive list
  of MLAs.
               29 C.F.R. § 1630.2(i)(1)(i)
       Major Bodily Functions
              as MLAs
 ADAAA included the operation of major bodily functions
  as MLAs and gave as examples: functions of the immune
  system, normal cell growth, and digestive, bowel,
  bladder, neurological, brain, respiratory, circulatory,
  endocrine, and reproductive functions.
 The final regs add other examples: special sense organs,
  skin, genitourinary, cardiovascular, hemic, lymphatic, and
  musculoskeletal functions
 The operation of a major bodily function includes the
  operation of an individual organ within a body system.
                  29 C.F.R. § 1630.2(i)(1)(ii)
Rules for Determining Whether
  Other Activities Are MLAs
 In determining other examples of major
  life activities, the term “major” shall not
  be interpreted strictly to create a
  demanding standard for disability.
 Whether an activity is a “major life
  activity” is not determined by reference
  to whether it is of “central importance to
  daily life.”
             29 C.F.R. § 1630.2(i)(2)
     “Substantially Limits” Is
           Undefined
 The final regs do not define the term
  “substantially limits” because a definition would
  cause greater focus on the disability issue.
 The final regs adopt nine rules of construction
  to be used in determining whether an
  impairment “substantially limits” a MLA.
 Congress passed these rules to make it easier
  to establish an actual disability.
            29 C.F.R. § 1630.2(j)(1)(i)-(ix)
   Rule of Construction No. 1:
   Not a Demanding Standard
 The term “substantially limits” shall be
  construed broadly in favor of expansive
  coverage and is not meant to be a
  demanding standard.
         29 C.F.R. § 1630.2(j)(1)(i)
      Rule of Construction No. 2:
      Significant Restriction Not
               Required
 An impairment is a disability if it substantially
  limits the ability of an individual to perform a
  MLA as compared to most people in the
  general population. An impairment need not
  prevent, or significantly or severely restrict, the
  individual from performing a major life activity in
  order to be considered substantially limiting.
  However, not every impairment will constitute a
  disability.
              29 C.F.R. § 1630.2(j)(1)(ii
   Rule of Construction No. 3:
 Extensive Analysis Not Required

 The primary object of attention should be
  whether discrimination has occurred.
  Whether an impairment “substantially
  limits” a MLA should not demand
  extensive analysis.
         29 C.F.R. § 1630.2(j)(1)(iii)
  Rule of Construction No. 4:
  Lower Functional Limitation
 Whether impairment substantially limits a MLA
  still requires an individualized assessment.
 However, in determining whether a particular
  individual’s impairment substantially limits a
  MLA, the term “substantially limits” shall be
  interpreted to require a lower degree of
  functional limitation than the standard applied
  prior to the ADAAA.
               29 C.F.R. § 1630.2(j)(1)(iv)
    Rule of Construction No. 5:
  Scientific Analysis Not Required

 The comparison of an individual’s
  performance of a major life activity to the
  performance of the same major life
  activity by most people in the general
  population usually will not require
  scientific, medical, or statistical analysis.
 However, such evidence may be used if
  appropriate.
           29 C.F.R. § 1630.2(j)(1)(v)
   Rule of Construction No. 6:
  Beneficial Effects of Mitigating
             Measures
 The determination of whether an
  impairment substantially limits a major
  life activity shall be made without regard
  to the ameliorative (positive) effects of
  mitigating measures (other than ordinary
  eyeglasses or contact lenses).
           29 C.F.R. § 1630.2(j)(1)(vi)
         Non-exhaustive List of
          Mitigating Measures
 Medication
 Medical Supplies, Equipment, and Appliances
 Low-vision Devices (Not Ordinary Eyeglasses or Contact
    Lenses)
   Prosthetics
   Hearing Aids and Cochlear Implants
   Mobility Devices
   Oxygen Therapy Equipment
   Learned Behavioral or Adaptive Neurological
   Modifications
   Psychotherapy, Behavioral Therapy, and Physical
    Therapy
                   29 C.F.R. § 1630.2(j)(5)
    Relevance of Mitigating
   Measures to Other Issues
 The use or non-use of mitigating
  measures, and any consequences
  thereof, including any ameliorative and
  non-ameliorative effects, may be
  relevant in determining whether an
  individual is qualified or poses a direct
  threat to safety.
       Appendix to 29 C.F.R. Part 1630
          Eyeglasses and
          Contact Lenses
 The ameliorative effects of ordinary
  eyeglasses or contact lenses shall be
  considered in determining whether an
  impairment substantially limits a MLA.
        29 C.F.R. § 1630.2(j)(1)(vi)
     Rule of Construction No. 7:
     Impairment Episodic or in
             Remission

 An impairment that is episodic or in
  remission is a disability if it would
  substantially limit a MLA when active.
        29 C.F.R. § 1630.2(j)(1)(vii)
   Rule of Construction No. 8:
 Limitation of Only One MLA May
          Be a Disability
 An impairment that substantially limits
  one MLA need not substantially limit any
  other MLA in order to be considered a
  substantially limiting impairment.
        29 C.F.R. § 1630.2(j)(1)(viii)
Rule of Construction No. 9: Short
Term Impairment May Be Disabling

 The effects of an impairment that lasts or
  is expected to last less than six months
  can be substantially limiting.
         29 C.F.R. § 1630.2(j)(1)(ix)
        Predictable Assessments

 Applying the 9 rules of construction in conducting
   individualized assessments of some types of impairments
   will result in a finding of an actual disability in virtually all
   cases because the impairment substantially limits a MLA:
       Deafness
       Blindness
       Intellectual Disability (fka Mental Retardation)
       Partially Or Completely Missing Limbs
       Mobility Impairments Requiring Wheelchair Use
       Autism
       Cancer
       Cerebral Palsy
    Predictable Assessments
            (cont’d)
   Diabetes
   Epilepsy
   HIV Infection
   Multiple Sclerosis
   Muscular Dystrophy
   Major Depressive Disorder
   Bipolar Disorder
   Post-Traumatic Stress Disorder
   Obsessive-Compulsive Disorder
   Schizophrenia
             29 C.F.R. § 1630.2(j)(3)
             Other Impairments

 For other impairments, the “condition, manner or
  duration” framework may help to determine whether an
  individual is substantially limited by the impairment. The
  employer may consider:
      the difficulty, effort, or time required by the individual to
       perform a MLA;
      the pain experienced by the individual when performing
       a MLA;
      the length of time the individual can perform the MLA;
       and
      the length of time it takes the individual to perform the
       MLA;
as compared to most people in the general population.
                29 C.F.R. § 1630.2(j)(4)(i)-(ii
Condition, Manner or Duration

 Other considerations may include:
     the way an impairment affects the
      operation of a major bodily function; and
     the non-ameliorative effects of mitigating
      measures (e.g., negative side effects of
      medication, burdens associated with
      following a particular treatment regimen).
           29 C.F.R. § 1630.2(j)(4)(ii)
Condition, Manner or Duration
           (cont’d)
 The focus is on how a MLA is substantially
  limited, and not on what outcomes an individual
  can achieve.
 For example, someone with a learning disability
  may achieve a high level of academic success,
  but may nevertheless be substantially limited in
  the MLA of learning because of the additional
  time or effort he or she must spend to read,
  write, or learn compared to most people in the
  general population.
              29 C.F.R. § 1630.2(j)(4)(iii)
 Major Life Activity of Working

 The discussion of the MLA of working has been
  removed from the regs.
 In most instances, an individual with a disability
  will be able to establish coverage by showing
  substantial limitation of a major life activity other
  than working.
 Impairments that substantially limit a person’s
  ability to work usually substantially limit one or
  more other major life activities.
            Appendix to 29 C.F.R. Part 1630
  The Second Prong: “Record
         of” Disability
 An individual will be considered to have
  a record of a disability if the individual:
      has a history of an impairment that
      substantially limited one or more major life
      activities when compared to most people in
      the general population,
     or was misclassified as having had such
      an impairment.
            29 C.F.R. § 1630.2(k)(2)
  Reasonable Accommodation
   for a “Record of” Disability
 An individual with a record of a substantially
  limiting impairment may be entitled, absent
  undue hardship, to a reasonable
  accommodation if needed and related to the
  past disability.
 For example, an employee with an impairment
  that previously limited, but no longer
  substantially limits, a MLA may need leave or a
  schedule change to permit him or her to attend
  follow-up or “monitoring” appointments with a
  health care provider.
               29 C.F.R. § 1630.2(k)(3)
  The Third Prong: “Regarded
         as” Disabled
 The third prong of the definition of
  disability protects an individual who is
  “regarded as” having a disability.
 This means that an individual cannot be
  subjected to an action prohibited by the
  ADA because of an actual or perceived
  impairment that is not both transitory and
  minor.
          29 C.F.R. § 1603.2(g)(1)(iii)
    “Substantially Limits” and
      “MLAs” Are Irrelevant
 An individual is “regarded as” disabled if the
  individual has been subjected to a prohibited
  action because of an actual or perceived
  impairment, whether or not:
      the impairment substantially limits a MLA;
      the impairment was perceived to substantially limit
       a MLA, or
      the individual has a record of an impairment that
       substantially limits a MLA.
       29 C.F.R. §§1630.2(g)(3) and 1630.2(l)(1)
 No Reasonable Accommodation
  for “Regarded as” Disabilities

 An individual who is disabled solely
  because he or she is “regarded as”
  having an impairment is not entitled to a
  reasonable accommodation.
           29 C.F.R. §1630.9(e)
    Liability in “Regarded as”
                Cases
 The “regarded as” prong should become the
  primary means of establishing liability in ADA
  cases that do not involve reasonable
  accommodation, because the claimant need not
  establish an impairment that substantially limits
  a MLA or a record of such an impairment.
 Consideration of coverage under first two
  prongs will generally not be necessary unless
  reasonable accommodation is an issue.
               29 C.F.R. §1630.2(g)(3)
   Liability in “Regarded as”
         Cases (Cont’d)
 A “regarded as” claimant who merely
  establishes that he or she was “regarded
  as” impaired does not establish liability
  under the ADA.
 The “regarded as” claimant must
  establish that he or she was subjected to
  a prohibited action because he or she
  was regarded as impaired, in order to
  establish liability under the ADA.
           29 C.F.R. §1630.2(l)(3)
            Prohibited Actions

 Include (but are not limited to):
      refusal to hire
      demotion
      placement on involuntary leave
      termination
      exclusion for failure to meet a qualification standard
      harassment
      denial of any other term, condition, or privilege of
       employment
                  29 C.F.R. §1630.2(l)(1)
     “Transitory and Minor”

 The employer has a defense to the
  “regarded as” claim if the employer can
  show that the impairment is (in the case
  of an actual impairment) or would be (in
  the case of a perceived impairment) both
  “transitory” and “minor.”
             29 C.F.R. §1630.15(f)
      “Transitory and Minor”
             (Cont’d)
 “Transitory” is defined as lasting or
  expected to last six months or less.
 “Minor” is undefined.
            29 C.F.R. §1630.15(f)
      “Transitory and Minor”
             (Cont’d)
 The employer must establish that the
  impairment is both transitory and minor to avoid
  coverage under the ADA.
 An impairment that may last for six months or
  less, but is not minor, is covered.
 An impairment that is minor, but lasts or is
  expected to last for more than six months, is
  covered.
                29 C.F.R. §1630.15(f)
  “Transitory and Minor” Is an
      Objective Standard
 Whether the impairment is or would be
  “transitory and minor” is determined by
  an objective standard.
 The employer cannot defeat a “regarded
  as” claim simply by demonstrating that
  the employer subjectively believed the
  impairment was transitory and minor.
             29 C.F.R. §1630.15(f)
   Examples of “Regarded as”
        Discrimination
 An employer who terminates an employee because the
  employer believes the employee has bipolar disorder has
  violated the ADA even if the employer believed the
  employee’s impairment was transitory and minor,
  because bipolar disorder is not objectively transitory and
  minor.
 Likewise, an employer who terminated an employee with
  an objectively “transitory and minor” hand wound,
  mistakenly believing it to be symptomatic of HIV infection,
  has violated the ADA, since the covered entity took a
  prohibited employment action based on a perceived
  impairment (HIV infection) that is not “transitory and
  minor.”
               Appendix to 29 C.F.R. Part 1630
              Summary Points

 Discrimination claims, other than failure to accommodate
  claims, will be brought under third prong, where individual
  need not prove that impairment substantially limits a MLA
  or is perceived to substantially limit a MLA.
 “Predictable assessments” reg provides a list of
  impairments that will almost always be disabilities.
 Regs provide “condition, manner and duration” analysis,
  which may be helpful in analyzing impairments that are
  not in the “predictable assessments” category.
 Analysis of effect of impairment on MLA of working will
  generally be unnecessary.
                 Take-Aways

 The definitions of “disability,” “substantially
  limits” and “major life activities” are now so
  broad that some lawyers recommend that
  employers:
      assume that everyone has a disability,
      treat every impairment as a disability,
      treat every employee request as a potential ADA
       claim, and
      regard every adverse employment action related to
       an applicant’s or employee’s physical, mental or
       emotional condition as a potential disability
       discrimination claim under the ADA.
          Take-Aways (Cont’d)

 Train supervisors and managers how to spot ADA issues
    and when to call HR.
   Expect more accommodation requests especially
    involving scheduling and leave.
   Refresh your understanding of “reasonable
    accommodations.”
   Read EEOC’s Enforcement Guidance: Reasonable
    Accommodation and Undue Hardship Under the
    Americans with Disabilities Act. -
    http://wws.eeoc.gov/policy/docs/accommodation.html
   Watch for EEOC to update its publications on reasonable
    accommodations.
           ADAAA Resources

 The EEOC’s Final Regulations Implementing the ADAAA
 Questions and Answers on the Final Rule Implementing
  the ADA Amendments Act of 2008
 Questions and Answers for Small Businesses: The Final
  Rule Implementing the ADA Amendments Act of 2008
 Fact Sheet on the EEOC’s Final Regulations
  Implementing the ADAAA
 The ADA: A Primer for Small Business
       http://www.eeoc.gov/laws/types/disability.cfm
Recent Developments
Under the FMLA


        Patricia M. Olsson
        September 30, 2011

                 Moffatt Thomas
   GOAL OF PRESENTATION

 Several recent U.S. Supreme Court and
  Ninth Circuit Court of Appeals FMLA
  cases.
 Review both facts and holdings of the
  Court.
 Then, if relevant, apply ADAAA and
  2011 ADAAA Regulations to the facts in
  cases.
Nevada Dep’t of Human Resources
   v. Hibbs, 538 U.S. 21 (2003)

 State employee took twelve (12) weeks
  intermittent FMLA leave to care for his
  sick wife.
 Before leave expired, state agency told
  employee to return to work or lose his
  job.
 Employee lost his job and sued for
  damages.
Nevada Dep’t of Human Resources
   v. Hibbs, 538 U.S. 21 (2003)
              (cont’d)

 State defendant based on the Eleventh
  Amendment.
 HELD: Congress abrogated State
  immunity via the FMLA and State can be
  sued for money damages.
Nevada Dep’t of Human Resources
   v. Hibbs, 538 U.S. 21 (2003)
              (cont’d)



 Analysis under the ADAAA: N/A
Ragsdale v. Wolverine World Wide,
       533 U.S. 81 (2002)

 Private employer gave employee thirty
  (30) weeks of medical leave under its
  own policy.
 Employer failed to immediately send
  employee notice of FMLA leave and
  employee’s rights and obligations under
  FMLA.
 Employer terminated employee at the
  end of leave, telling her FMLA
  exhausted.
Ragsdale v. Wolverine World Wide,
       533 U.S. 81 (2002)
             (cont’d)
 Employee sued, arguing she had more leave
  because employer did not give timely FMLA
  notice.
 Lower courts held, pursuant to the D.O.L.
  Reg’s, that leave did not start until notice given.
 U.S. Supreme Court accepted the case for
  argument.
 HELD: D.O.L. could not expand the quantity of
  leave authorized by Congress merely by
  passing a regulation.
Analysis Under the ADAAA
 Lewis v. United States, __ F.3d __
  2011 WL2043241 (May 26, 2011)

 Lewis employed as director of a child
  development center on Elemendorf Air
  Force Base.
 In 2006, Lewis requested 120 days leave
  without pay under the FMLA.
 Employer requested medical certification
  and completion of the D.O.L. medical
  certification form (WH-380).
Lewis v. United States, __ F.3d __
 2011 WL2043241 (May 26, 2011)
                (cont’d)

 In response, Lewis submitted:
  a) Prescription from her psychiatrist;
  b) A letter from her psychiatrist; and
  c) Completed WH-380 form.
 Lewis v. United States, __ F.3d __
  2011 WL2043241 (May 26, 2011)
                  (cont’d)

 Employer told Lewis documents
  insufficient.
 Lewis refused to submit more information,
  and said that according to her doctor, she
  had provided all necessary information.
 Employee deemed AWOL and
  terminated.
 Lewis sued under Title VII and FMLA
  retaliation.
Lewis v. United States, __ F.3d __
 2011 WL2043241 (May 26, 2011)
                (cont’d)

 HELD: Employer may request a
  medical certification that provides
  sufficient medical facts supporting the
  conclusion that employee suffers from a
  serious health condition.
   Lewis v. United States, __ F.3d __
    2011 WL2043241 (May 26, 2011)
                       (cont’d)

 Lewis’s WH-380 form stated:
       Diagnosis post traumatic stress disorder,
       employee needs therapy, medical treatment,
       bed rest, two (2) prescription medications, and
       120 days off work.
 Because form did not explain why Lewis was unable
  to perform her work duties, and because there was
  no discussion about whether additional treatments
  would be required, it did not provide “a summary of
  the medical facts supporting the diagnosis,” pursuant
  to 5 U.S.C. § 6383(b)(3): Certification must state the
  “appropriate medical facts.”
 Lewis v. United States, __ F.3d __
  2011 WL2043241 (May 26, 2011)
                 (cont’d)

 Also held: certification did not
  provide the minimum information
  required by 5 U.S.C. § 6383(b).
Analysis Under the ADAAA
     Brownfield v. Yakima,
  612 F.3d 1140 (9th Cir. 2010)
 Brownfield began employment as a
  police officer for the City of Yakima in
  1999.
 In 2000, Brownfield suffered a closed
  head injury while working.
 Employee was off work with symptoms
  including reduced self awareness.
 Employee returned to work in July 2001.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                 (cont’d)
 In 2004, Brownfield complained about
  fellow officer, citing what Brownfield
  called “unethical work practices.”
 His memorandum actually complained
  about unfairness to him, Brownfield.
 Brownfield felt his partner was allowed to
  work on other stuff when he had not
  been allowed to work on SWAT because
  he was assigned to DARE, as was his
  partner.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                   (cont’d)
 During the next year, Brownfield kept notes
  about partner’s alleged failure to follow
  procedures, partner’s abusive amounts of
  overtime and comp time, and partner’s
  lackadaisical approach to Police Athletic
  League (“PAL”) duties, to which he was
  assigned in addition to DARE.
 Brownfield reprimanded for failing to
  schedule something, and forwarded his
  notes regarding partner to the police chief.
 Followed that with another memo
  complaining about his partner.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                 (cont’d)
 In 2005, Brownfield’s sergeant met with
  Brownfield and their lieutenant to discuss
  Brownfield’s problems with his partner.
 During that meeting, Brownfield began to
  swear and walked out of the meeting,
  despite being ordered to remain.
 Sergeant walked out and found
  Brownfield talking to another employee;
  Brownfield swore at the sergeant and
  told the sergeant to get out of the room.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                 (cont’d)

 Brownfield was temporarily suspended
  for insubordination.
 Later, Brownfield tried to explain his
  conduct, saying that he thought he was
  going to meet with the police chief, not
  with two supervisors in his chain of
  command.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                 (cont’d)
 Two months later, in September 2005,
  Brownfield had a disruptive argument
  with another officer during muster.
 When Brownfield learned that the police
  department was investigating him rather
  than the other officer, he became visibly
  upset, swore, and did not even speak in
  full sentences.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                  (cont’d)
 Later, Brownfield reported that he felt
  himself losing control during a traffic stop
  of a young child who was a passenger in
  a vehicle; young child taunted
  Brownfield, and he became so upset he
  shook and “he was not sure what he
  would do.”
 Backup was necessary.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                 (cont’d)
 Later still, Yakima Police Department
  (“YPD”) got a domestic violence call from
  Brownfield’s estranged wife.
 A fellow officer reported Brownfield
  making comments such as, “It’s not
  important anyway,” “I’m not sure if it’s
  worth it,” and “It doesn’t matter how this
  ends.”
        Brownfield v. Yakima,
     612 F.3d 1140 (9th Cir. 2010)
                    (cont’d)
 Based on this collection of incidents,
  Brownfield was placed on administrative
  leave in order to undergo a Fitness For Duty
  Examination (“FFDE”).
 October 2005, M.D. conducting the FFDE
  diagnosed Brownfield as suffering from “mood
  disorder due to a general medical condition
  with mixed features,” manifesting itself “in
  poor judgment, emotional volatility, and
  irritability,” which could be related to the 2000
  head injury on the job.
         Brownfield v. Yakima,
      612 F.3d 1140 (9th Cir. 2010)
                      (cont’d)
 M.D. concluded Brownfield unfit for duty, and
  disability permanent.
 Brownfield transferred from administrative to
  FMLA leave.
 While on FMLA leave, Brownfield had another
  car accident off duty involving neck and back
  injuries; was released to return to work from that
  incident by a doctor who focused on medical
  conditions yet said he would not defer to a
  different physician with respect to mental health
  qualifications.
        Brownfield v. Yakima,
     612 F.3d 1140 (9th Cir. 2010)
                    (cont’d)

 May 2006, City was going to hold a pre-
  termination meeting with Brownfield.
 Brownfield provided release from another
  health care provider agreeing that he was unfit
  for duty due to “emotional, cognitive,
  behavioral, and physical problems.”
 Provider treated Brownfield throughout the
  calendar year of 2006.
 December 2006, Brownfield’s physician
  reported he could return to duty in the future
  with continued treatment.
        Brownfield v. Yakima,
     612 F.3d 1140 (9th Cir. 2010)
                    (cont’d)

 Employer asked Brownfield to submit to another
  exam by their physician.
 Brownfield attended first appointment, but not
  the second scheduled by that physician, was
  informed he would be terminated unless he
  cooperated, and when Brownfield refused, was
  terminated on the basis of insubordination and
  unfitness for duty.
 Employee argued that the ADA forbade medical
  examination unless his job performance
  suffered.
       Brownfield v. Yakima,
    612 F.3d 1140 (9th Cir. 2010)
                   (cont’d)
 HELD: Because he was a police officer, the
  business standard and the ADA allowed the
  Yakima Police Department to request an
  examination based on erratic behavior with
  fellow employees before actual job
  performance suffered.
    (a) “Business Necessity” standard is sometimes
    satisfied by prophylactic psychological
    examinations, absent abuse by the employer,
    when there is genuine reason (that meets the
    reasonable person test) to doubt whether the
    employee can perform job-related functions.
      Brownfield v. Yakima,
   612 F.3d 1140 (9th Cir. 2010)
                 (cont’d)

 ADDITIONALLY HELD: Employee’s
 argument that the FMLA was violated
 because employer requested second and
 third opinions fails, because they were not
 opinions on the same set of facts, but were
 rather opinions during the course of a fluid
 chain of events, and afforded the employee
 additional opportunities to be found fit to
 return to work.
Analysis Under the ADAAA
Traxler vs. Multnomah County,
 596 F.3d 1007 (9th Cir. 2010)
 Facts: Traxler was employed as a
  human resources specialist by
  Multnomah County.
 In 2002, Employee took medical leave
  under the FMLA – did not exhaust twelve
  (12) weeks.
 In 2005, Employee took medical leave
  due to a serious health condition.
   Traxler vs. Multnomah County,
    596 F.3d 1007 (9th Cir. 2010)
                   (cont’d)
 Traxler never took more than twelve (12)
  weeks leave under the FMLA in any rolling
  calendar year.
 In June 2005, Traxler was notified her
  position would be eliminated July 1, 2005,
  and was escorted out of the office.
 Traxler was placed on paid administrative
  leave.
 Traxler then transferred to a lower paying
  position (because her position had been
  eliminated).
  Traxler vs. Multnomah County,
   596 F.3d 1007 (9th Cir. 2010)
                  (cont’d)

 Traxler continued to take intermittent
  FMLA leave in the new position.
 In September 2005, Traxler received an
  unfavorable performance review, to
  which Traxler filed a written response.
 Traxler was terminated in late
  September 2005.
  Traxler vs. Multnomah County,
   596 F.3d 1007 (9th Cir. 2010)
                 (cont’d)

 Traxler sued, alleging she was
  terminated due to her legitimate use of
  FMLA leave.
 Jury awarded her $250,000 in damages
  and $1,551,000 in front pay.
 Issue on appeal was whether front pay
  was an issue to be decided by the judge
  or the jury.
  Traxler vs. Multnomah County,
   596 F.3d 1007 (9th Cir. 2010)
                  (cont’d)

 HELD: Front pay is an equitable remedy
  that must be determined by the Court,
  both as to the availability of the remedy
  and the amount of any award.
Analysis Under the ADAAA
            Conclusion

 Given new ADAAA and regulations,
 almost all FMLA cases are ADAAA
 cases. Employ a dual analysis.
For Further Information or
Questions, Please Contact:
           Patricia M. Olsson
   Moffatt, Thomas, Barrett, Rock &
             Fields, Chartered
    101 S. Capitol Blvd., 10th Floor
         Post Office Box 829
         Boise, Idaho 83701
          pmo@moffatt.com
             208.385.5410
            1.800.422.2889

				
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