"This & That" Tuesday: ADA and Alcoholism, FMLA Mistake

August 4, 2015

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

Announcements

Special Announcement: If you have Independent Contractors, you need to review the latest Department of Labor Guidelines. They can be found on my website under the Resoures page.  http://www.humanresources4u.com/resources

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

Upcoming Events

August 27, 2015

Frederick’s Benefits

Leave of Absence Laws in CA

Information can be found on my website.

September 15, 2015

Irwindale Chamber of Commerce

Hiring Talent for Consistent Performance

Information can be found on my website.

Alcoholic Truck Driver Case and the ADA

The U.S. Court of Appeals for the 11th Circuit recently affirmed summary judgment for Crete Carrier Corporation. Crete fired one of its truck drivers working out of its Atlanta terminal after the driver was diagnosed with alcoholism. The driver had sued for disability discrimination under the Americans with Disabilities Act and also had interference and retaliation claims under the Family and Medical Leave Act.

The regulations of the U.S. DOT say that an individual is not qualified to operate a commercial motor vehicle if he has a “current clinical diagnosis of alcoholism.” The regulation doesn’t really define what this means, but it gives employers the authority to determine whether a driver is able to work. In Crete’s case, it had a policy providing for termination of any driver who had a diagnosis of alcoholism in the past five years. When Crete terminated the plaintiff he had been diagnosed for only six weeks.

Plaintiff contended that only a DOT medical examiner (who had issued him a six-month medical certification) could determine whether he had a current clinical diagnosis of alcoholism. However, the court rejected his argument, noting that the DOT regulations make clear that an employer makes the final determination regarding who is qualified to drive a commercial truck. Because the regulations “place the onus on the employer to make sure each employee is qualified to drive a commercial vehicle,” the court said, “the employer must determine whether someone suffers from a current clinical diagnosis of alcoholism.” Thus plaintiff was not able to meet an essential job function as set forth in his written job description.

FMLA Violation Costs Employer $536,000

An employee who was replaced by an outside consultant while on medical leave and later discharged recently won nearly $103,000 plus 100% liquidated damages, attorney’s fees and prejudgment interest for violations of FMLA. 

In Bissonnette v. Highland Park Market Inc., an IT employee went on medical leave.  The employer signed a contract with an IT firm to perform work for them while the employee was on leave.  The employer discharged the employee fifteen days after his return to work.  The employee sued, alleging violations of the FMLA. 

The Court also held the jury could reasonably have found the employer retaliated against the employee.  The employee’s performance reviews prior to his taking FMLA leave had always been positive.  The employer decided to permanently replacing him with the IT firm only after he had taken FMLA leave.  The Court also pointed out the employer’s explanation for the employee’s termination was contradictory and inconsistent – while the employer maintained the employee’s termination was due to the bad economy and a lack of work, they hired the IT firm to do all of the functions previously performed by the employee at no apparent cost savings.

The employer’s human resources manager admitted he was familiar with the FMLA’s requirements, and the Court once again focused on the timing of the IT firm’s hiring and the employee’s termination.  Though the Court did not explicitly state it, it suggested the employer was aware its actions could be seen as violating the FMLA.  In a subsequent decision, the Court also awarded attorney’s fees and prejudgment interest, bringing the total award to $536,000.

Cases like Bissonnette should serve as warnings for employers.  If you discharge an employee who takes FMLA leave without thoroughly documenting a legitimate reason, you run the risk that a court will find you in violation of the FMLA.  If the timing of a termination is suspect – as in this case, where the employer did not consider outsourcing the employee’s job duties until after the employee went on leave – a court will look askance at your explanation. If you wait until after the employee invokes his FMLA rights, the timing may look suspicious to a judge and jury.  If you are unsure whether the potential termination of an employee will violate the FMLA, you should consult legal counsel.

Factoids

• Cyber attacks on small companies increased by 11% from 2012 to 2013.
• Prescription drug premiums are expected to jump 8.6% in 2015
• About 1 in 3 small employers (50-99 employees) offer workplace flexibility options

What voluntary benefits workers want

• 60% Vision care
• 49% Accident insurance
• 44% Critical illness insurance
• 42% Cancer insurance

Quote of the Blog

“Intellectual growth should commence at birth and cease at death.”

~Albert Einstein~