©2018 Jackson Lewis P.C.
Presented By:
Stephen Paterniti, Jackson Lewis PC
Matthew F. Nieman, Jackson Lewis PC
Yvette Politis, RELX Group
Keerthi Sugumaran, Jackson Lewis PC
How to Manage the
“Difficult” Employee
Overview of Presentation
Agenda for Today’s Presentation
Introduction to Core Legal Principles
• Part I: Refresher on FMLA intermittent leave
• Part II: Refresher on the ADA
• Part III: Substance Abuse in the Workplace
• Part IV: Wage & Hour
• Part V: Class Action Waivers/Mandatory Arbitration – Epic Systems
Scenarios and Discussion
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CORE LEGAL PRINCIPLES
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The Family and Medical Leave Act (FMLA) of 1993 allows eligible employees to take job-protected leave for certain family and medical reasons.
Employees may generally take up to 12 weeks of unpaid leave in a 12-month period
Intermittent leave is available
No retaliation, interference, restraint or denial
Applies to employers with 50 or more employees
Part I: The Family and Medical Leave Act
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Lengthy definition in FMLA regulations
Not a high standard to meet
Depends on health care provider’s input. Procedures exist to authenticate and clarify the doctor’s opinion and, if necessary, seek a second and third opinion.
Will generally include anxiety, depression, PTSD, bipolar disorder, etc.
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Employees must request or put employer on notice of need for leave due to an FMLA-covered reason, but
Employees need not say any “magic words” or refer to the FMLA. They need not even know that the FMLA exists.
An oral request to a supervisor is sufficient. A written request, or a request made to a particular person, is not required.
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Medical leave need not be taken in a large or continuous block.
FMLA can be taken intermittently in days, hourly increments or fractions of hours.
FMLA can also be taken on a “reduced schedule” basis.
Intermittent or reduced schedule leave may be taken for a serious health condition of the employee or for care of a family member
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A doctors’ note cannot be required for each absence
Exempt employees can be docked in partial day increments, if they have no paid leave available.
Group health benefits must be maintained.
Employees can be required to re-qualify each year, on the anniversary of the start of intermittent leave.
No “return to work” certificate can be required.
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The ADA prohibits discrimination against individuals with a disability and requires reasonable accommodations for qualified individuals with disabilities.
Under the ADA Amendments Act (ADAAA), effective January 2009, the term “disability” “shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]”
As a result, it is no longer very useful to analyze whether an employee is “disabled” under the ADA, except in very marginal cases.
Part II: ADA
Disabilities?
Bipolar disorder
Attention Deficit
Disorder
Depression
Learning issues
Post-traumatic
stress disorder
Obsessive
compulsive
disorder
Schizophrenia
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Reasonable Accommodations
Employers must make “reasonable accommodations
to the known physical or mental limitations of an
otherwise qualified individual with a disability … ”
“In general, an accommodation is any change in the
work environment or in the way things are customarily
done that enables an individual with a disability to
enjoy equal employment opportunities.” EEOC’s
Enforcement Guidance on Reasonable
Accommodation and Undue Hardship.
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“Accommodations” may include:
making facilities accessible;
job restructuring, part-time or
modified work schedules;
acquiring or modifying equipment;
changing tests, training materials,
or policies;
providing qualified readers or
interpreters;
reassignment to a vacant position;
medical leave.
Reasonable Accommodation
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What is NOT A Reasonable Accommodation?
Removing essential job functions
Diluting uniformly enforced productivity standards
Excusing or forgiving misconduct or poor performance before accommodation request is made
Tolerating current misconduct
Changing supervisors; a “stress free” workplace
Bumping another employee from a job, creating a new position
Anything creating an “undue hardship.”
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What Triggers Reasonable
Accommodation Obligations?
Generally, the burden is on the employee to request accommodation.
Some exceptions where the employee is incapable of doing so – e.g., intellectual disabilities.
But: what counts as a “request?” No “magic words” are needed.
A request for a change in the work environment or policies, OR
Raising a medical issue to explain a performance or conduct problem.
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How Does the ADA Interact with FMLA?
When an employee requires medical leave, look first
to the FMLA. Is she eligible? Has she exhausted
FMLA leave?
If the employee is not eligible, or FMLA is
exhausted, we then look to the ADA as a possible
source of additional medical leave.
When FMLA leave is ending, always consider
whether additional leave might be required under
the ADA.
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Leave as a Reasonable Accommodation
The Key Questions:
– Is leave really necessary (i.e., are ANY reasonable accommodations available short of leave)?
– How much time off is an employee entitled to receive?
Issues:
– Indefinite leave
– Multiple leave extensions
– Unpredictable absences
First Step: How much leave does the employee need?
“Inflexible leave” policies are not allowed.
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Undue Hardship
An employer does not have to provide a reasonable accommodation that would cause an "undue hardship."
It is a difficult standard to meet.
Generalized conclusions will not suffice.
Requires “significant difficulty or expense.”
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Part III: Substance Abuse in Workplace
46 states (plus Washington D.C., Guam, Puerto Rico, and a number of native
tribes) have laws permitting or decriminalizing marijuana or marijuana-based
products.
• 30 states have a “medical marijuana” law
• Often very different (e.g., NYS does not permit smoking, etc.)
States with medical marijuana laws that do not address employment issues
at all: California, District of Columbia, Maryland, Michigan, New Mexico,
North Dakota, and Texas.
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Recreational Marijuana–Legalized?
Jurisdictions with recreational marijuana laws:
• “Class of 2012:”
- Colorado and Washington State.
• “Class of 2014:”
- Alaska, Oregon, and District of Columbia.
• “Class of 2016:”
- California, Maine, Massachusetts, and Nevada.
• “Class of 2018:”
- Vermont…
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Massachusetts
Medical Marijuana: A qualified patient is protected from state criminal and
civil penalties related to the possession and use of up to a 60-day supply of
marijuana, if the patient: (1) has been diagnosed with a debilitating medical
condition by a physician; and (2) has a valid registration card issued by the
state.
The law does not require employers to accommodate any on-site medical
use of marijuana in any place of employment. Nothing in the law is to be
construed to limit the applicability of any other law as it pertains to the rights
of employers. 105 Code Mass. Regs. §§ 725.001 to 725.800 (2013).
Despite this, there is a significant Supreme Judicial Court case supporting an
employee-favorable view of this law—at least as it related to possible
reasonable accommodation dialogue.
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Massachusetts
Recreational Marijuana: Massachusetts’ The Regulation and Taxation of Marijuana Act passed (approximately 54% “Yes” and 46% “No”). The law went into effect on December 15, 2016, but subsequent measures delayed retail sales until July 1, 2018.
• The law permits individuals 21 and older to use or possess up to 1 ounce of marijuana, keep up to 10 ounces of marijuana at home, and to cultivate up to 6 marijuana plants.
• It does not require an employer to permit or accommodate conduct allowed by the law and does not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees. The law also does not amend existing penalties for the operation of a vehicle or machinery while impaired by marijuana or marijuana products or for performing a task while impaired by marijuana that would constitute negligence or professional malpractice.
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Colleagues Regulated By Federal Agencies
Safety standards imposed by federal agencies, such as the Federal Mine
Safety and Health Administration and the Department of Transportation, do
not provide for the use of medical or recreational marijuana by regulated
colleagues.
The Department of Transportation issued a statement that “the Department of
Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at
40.151(e) – does not authorize “medical marijuana” under a state law to be a
valid medical explanation for a transportation employee’s positive drug test
result… It remains unacceptable for any safety‐sensitive employee
subject to drug testing under the Department of Transportation’s drug
testing regulations to use marijuana.”
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States With The Most Risk For Employers
Up until 2017, employers had always prevailed in litigation
involving medical marijuana users.
That is no longer true – recent cases in CT, MA and RI have
ruled against employers (in the pre-employment drug testing
context).
Employers now must consider carefully the risks under
applicable state law before making employment decisions
concerning medical marijuana users, especially if the state
medical marijuana law contains language prohibiting
discrimination.
Rhode Island -- On May 23, 2017, a Rhode Island state
court held that employers cannot refuse to employ a
medical marijuana card holder, even if the applicant would
fail the pre-employment drug test. The Court held that there
is an implied right of action under the state medical
marijuana law, and drew a distinction between medical and
nonmedical use of marijuana, holding that “what an
employee does on his or her off time does not impose any
responsibility on the employer.” Callaghan v. Darlington
Fabrics Corp., No. PC-2014-5680 (R.I. Super. Ct., May 23,
2017).
States With The Most Risk For Employers
Massachusetts -- On July 17, 2017, the Massachusetts
Supreme Court held that employers cannot refuse to
employ a medical marijuana card holder based solely on a
positive pre-employment marijuana test result without
engaging in the “interactive dialogue”. The Court did not
foreclose the possibility that accommodating medical
marijuana use could pose an undue hardship on the
employer (citing examples of associated significant safety
risks or potential loss of contracts), but left that issue open
for the employer to prove at a later date. Barbuto v.
Advantage Sales & Marketing LLC, SJC-12226 (MA. July
17, 2017).
States With The Most Risk For Employers
Connecticut -- On August 8, 2017, a federal court in
Connecticut held that federal law does not preempt the
Connecticut medical marijuana statute’s prohibition on
employers’ firing or refusing to hire qualified medical
marijuana patients, even if they test positive on an
employment-related drug test. The Court further held that
there is an implied right of action under the state medical
marijuana law, and that employers who are federal
contractors or are otherwise regulated by federal law are
not exempt from the state law’s discrimination prohibition.
Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride
Brook Health & Rehab. Ctr., (D. Conn. Aug. 8, 2017).
States With The Most Risk For Employers
Balancing State And Federal Laws
Employers in states that have legalized medical marijuana will need to
balance a number of competing interests:
• Complying with federal law, versus
• Complying with state law.
and
• The employer’s right and duty to establish and maintain a safe and productive workforce,
versus
• The employer’s obligation to accommodate, when reasonable, colleagues with disabilities
that may require provide for the use of medical marijuana.
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Managing The Risk
In the states with anti-discrimination provisions, when analyzing
accommodation requests, consider:
• Can the applicant/colleague really perform the essential functions of the job with or
without a reasonable accommodation? (Consider nature of colleague’s illness; when and
how frequently must he/she use medical marijuana).
- Engaging in the “interactive dialogue” (even if accommodation of medical marijuana use is not
likely to be granted).
• Is the job “safety-sensitive”? If yes, the applicant/colleague may pose a “direct threat” to
the health and safety of himself/herself and/or others.
• What is your tolerance for risk? How important is it to have one nationwide policy with
regard to marijuana use?
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Supervisor’s Role
Enforce safety and performance standards
Document policy violations
Recognize the warning signs of drug and alcohol abuse
• Document not diagnose
• Writing down the observed signs of change in an employee’s work pattern as it relates to
policy violations.
• Observed phenomenon not reasons or opinions.
Confront abuse in a constructive and effective manner
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Managers have a responsibility to focus on problem situations and make the
employee aware of his or her options for help.
Managers need to actively respond to substance abuse problems just as
actively as you respond to other problems that affect performance.
Managers working with HR must identify potential substance abuse in the
workplace, constructively confront coworkers suspected of drug or alcohol
abuse, and refer them to appropriate, professional assistance.
Supervisor’s Role in Handling
Substance Abuse
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Objective and job-related behaviors and/or characteristics
• OBSERVATIONS are what we can experience with our five
senses:
- Hearing, Seeing, Feeling, Smelling, Tasting
• INFERENCES are the conclusions we draw from what we
observe
Seriousness of conduct
• relation to job and/or safety risks
Supervisor action(s)/recommendation(s)
Coworker action(s)/reaction(s)
Supervisor signature and incident date
(“S/he said, I said” approach is effective)
Documentation
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General Signs/Symptoms of
Substance Abuse
Pills in unmarked bottles; no Rx labels
Abrupt changes in behavior
Secretiveness and avoidance of straight friends
Moodiness and short attention span
Weight Loss
Disregard for personal property
No ambitions
Carelessness about appearance
Tendency to lie about whereabouts and activities
Loss of short term memory and lack of judgment; often fails to carry out promises
Distinct lessening of family closeness
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Physical Signs & Symptoms
of Drug Use
• Red, glassy eyes; distinctive odor on clothing
• Slow speech - “wow man”; “I don’t care”
• May develop “munchies”, desire for fluids
• Distorted sense of time, speed; slowed reactions
• Irritating cough, chronic sore throat
• Chronic fatigue, lack of motivation
• Runny nose; reddened and
sore nose; cold or chronic sinus/nasal problems; nosebleeds
• Unusual energy, accelerated movements and activities
• Excessive Sweating & shakiness
• Irritability, anxiety &
aggressiveness
• Panic & nervousness
• Impaired tracking (ability to follow moving objects with eyes)
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Mental Signs & Symptoms
of Drug Use
• Talkative but conversation often lacks continuity
• Changes subjects rapidly
• Getting “hung up”, disoriented
• Agitated, depressed, euphoric, mood-swings
• Poor concentration, tendency to isolate
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Signs and Symptoms of Alcoholism
Absenteeism
Mental slowdown
Fatigue
Weight loss
Facial changes
Difficulty getting to sleep at night
Use of breath sweeteners
Impairment in social functioning
Part IV: Wage and Hour
Nonexempt employees must be paid for all hours worked.
All nonexempt employee hours over 40 must be paid at 1.5x regular rate
Employers are responsible for accurate timekeeping.
Employee time from 1 to 7 minutes may be rounded down, and thus not
counted as hours worked, but employee time from 8 to 14 minutes must be
rounded up and counted as a quarter hour of work time.
Wage and hour suits are often filed on a class-wide basis, profoundly
impacting the cost and value of litigation
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Part V: Class Action Waivers and
Mandatory Arbitration
Epic Systems changed the landscape…
More than 50% of private employers already use arbitration agreements;
more than 30% use class action waivers.
Epic Systems is important because it provides certainty. The Court held that
an employer can require employees to agree to resolve disputes in arbitration
and can include a waiver of the right to participate in a class or collective
action in the agreement. The Supreme Court rejected the argument that
Class Action Waivers violate employee’s rights to act collectively.
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SCENARIO
Instructions: Divide into four teams. A four-part scenario will be presented, in which each team will be responsible for leading a discussion on their assigned scenario.
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Part I – Identifying Leave Issues
Joe is chronically late to work. Some days he
says he is sick, but not always. Joe’s
supervisor would like to terminate Joe’s
employment as his chronic tardiness is
effecting productivity and morale.
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Part 1 - Discussion
Has Joe sufficiently placed the Company on notice that he may need leave
due to an FMLA-covered reason?
Can Joe use intermittent leave under the FMLA to continue coming to work
late?
Can Joe be disciplined if the Company discovered that some of his tardiness
is attributable to non-medical issues?
To address co-worker morale, should the Company explain that Joe has a
medical condition which impacts his ability to come in on time?
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Part 2 – Reasonable Accommodations
Joe is disciplined for his chronic tardiness.
During the disciplinary meeting, Joe indicates
that he is suffering from a psychiatric medical
issue, which affects his ability to get to work
on time. He asks to start work at a later time.
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Part 2 - Discussion
Is a schedule change a reasonable accommodation in this situation?
Assuming a schedule change is not possible, is that the end of the road for
Joe, or should the Company think about other options?
As a result of Joe’s tardiness, morale is at an all-time low because
employees are forced to work extra hours to make up for Joe’s work. While a
schedule change may help Joe arrive on time, it will not address morale and
productivity. Is this an undue hardship for the Company?
Instead of granting Joe a schedule change, can the Company force him to
use FMLA on an intermittent basis?
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Part 3 – Drug Testing
During a drug test, Joe tests positive for
marijuana use. In discussion, he attributes his
tardiness in part to his marijuana use, which
makes him feel groggy in the morning.
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Part 3 - Discussion
Assume Joe is a DOT truck driver and discloses his marijuana use before the
test. What should the Company do?
Assume Joe works in a warehouse and hits a steel beam while operating a
fork lift. He fails his drug test for marijuana. What should the Company do?
Assume Joe is a data analyst and his drug test was part of a random drug
test pursuant to Company policy – should the Company act differently?
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Part 4 – Wage Act/Class Arbitration Issues
Joe retains a lawyer after the drug testing incident. The
lawyer sends a demand letter indicating that in addition to
the FMLA/ADA/medical marijuana issues, the Company
committed a wage act violation.
The demand letter claims that he and other employees
are not paid for all hours worked including overtime.
The Company looks into it and sees that accounting has
automatically set up timekeeping to round forward by 15
minutes.
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Part 4 - Discussion
Is there a potential wage and hour violation?
What should the Company do next?
Assuming the Company has a mandatory arbitration agreement, what are
some of the pros and cons of invoking the agreement?
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Additional Scenarios to Think About
Applicant who has PTSD applied for job as a lifeguard. At the pre-
employment physical examination, after reviewing the applicant’s
questionnaire, the doctor concluded, “he has PTSD; he can’t be a lifeguard.”
Should the employer refuse to hire him?
Employer (and doctor) assumed that he could not perform job duties of a
lifeguard. But he held the world’s record for the most lives saved! Applicant
prevailed in a similar lawsuit.
Don’t assume… Get the facts.
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Additional Scenarios to Think About
Manager of rental car location states he needs to bring his Shih
Tzu, “Sugar Bear” to work with him to help control his stress
related emotions and deal with his disability (depression and
adjustment disorder). Is an accommodation required?
Case allowed to proceed –
employer knew that emotional issues
were symptomatic of his disability.
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Managing Complicated Situations
Employee has been seen sitting in her car staring into space
during lunch and breaks. Coworkers report that employee is
distracted, “out of it.” She sometimes is heard crying loudly at her
desk for long periods of time while working. When asked, she
says nothing is wrong. All of her work is getting done and work
quality is fine. What, if anything, should the employer do?
Consider a fitness for duty letter if conduct is extreme. Even though work is
not suffering and there’s no “direct threat,” employee may not be medically fit
for duty.
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Managing Complicated Situations
Employee has told coworkers he is sad and depressed. One day,
he leaves work in the middle of the day and tells the receptionist,
“nobody cares about me. I should just end it all.” Managers call
the employee’s cell phone but he does not answer. What, if
anything, should the employer do?
Call police to locate him and/or do a wellness check. Call employee’s
emergency contact, if there is one.
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Managing Complicated Situations
Employee has had several angry outbursts at work. One day, he threatens to
fight another coworker, but the coworker refuses and the employee calms
down. The company’s workplace violence policy has “zero tolerance” for acts
or threats of violence. The company has been especially patient with this
employee because he is a combat veteran with PTSD. What, if anything,
should the employer do?
Employer should enforce its workplace violence policy. Doing otherwise
undermines the policy, sets a precedent for non-enforcement, and sends a
bad message to other employees. A diagnosed mental illness does not
excuse workplace misconduct.
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What if?
Same as last scenario BUT employee had requested medical
leave of absence one month earlier, and employer had never
acted on the request. Is the result the same?
Employer is at risk of liability because it failed to act on a request for
reasonable accommodation that might have averted this situation. Employer
needs to evaluate risk of retaining the employee vs. risk of liability to this
employee resulting from failure to accommodate.
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If you have further questions…
Stephen T. PaternitiJackson Lewis P.C.75 Park Plaza4th FloorBoston, MA 02116(617) [email protected]
Keerthi SugumaranJackson Lewis P.C.75 Park Plaza4th FloorBoston, MA 02116(617) [email protected]
Matthew F. Nieman
Jackson Lewis P.C.
10701 Parkridge Blvd.
Suite 300
Reston, VA 20191
(703) 483-8331
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