Erickson Living Management Will Pay $151,000 to Settle EEOC Retaliation Lawsuit
Erickson Living Management, LLC, a Catonsville, Md.-based company which builds and manages retirement communities in 11 states, will pay $151,000 in monetary relief and furnish significant equitable relief to resolve a federal retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC's suit, Erickson Living's director of health services, talent development and global programs complained to a human resources representative that she believed the company had mistreated a subordinate employee because of manifestations of the employee's disabilities. She also said she feared she would be retaliated against for reporting what she believed was a discriminatory abuse of the company's performance management system. Erickson Living terminated the director and her subordinate employee as part of a purported company restructuring, but the EEOC charged that retaliation was the real reason for the director's termination.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from retaliating against employees for opposing workplace discrimination or because they filed a charge with the EEOC. The EEOC filed suit (EEOC v. Erickson Living Management, LLC, Civil Action No. 1:19-cv-00585-CCB) in U.S. District Court for the District of Maryland, Baltimore Division after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to the $151,000 in lost wages and compensatory damages to the director, the two-year consent decree resolving the case enjoins Erickson Living from engaging in retaliation. Erickson Living will provide training on the ADA, post an anti-discrimination notice, and report to the EEOC on how it handles any future complaints or reports of disability discrimination.
"We appreciate Erickson Living working with us to resolve this matter amicably," said EEOC Regional Attorney Debra M. Lawrence. "In addition to the just compensation to the director for her losses, this resolution is designed to protect other employees from discrimination or retaliation."
EEOC Baltimore Field Office Director Rosemarie Rhodes added, "The anti-retaliation provisions, which are vital to the Commission's ability to enforce our laws, also protect witnesses who oppose perceived discrimination suffered by another employee. We applaud the courage of this director who spoke out against perceived mistreatment of her employee."
Federal Court in North Carolina Rules Regarding Reasonable Accommodations
On February 24, 2020, the U.S. District Court for the Middle District of North Carolina issued an opinion in Brown v. Martin Marietta Materials, Inc. regarding disability discrimination, reasonable accommodations, and retaliation involving an employee who was unable to return to work following expiration of Family and Medical Leave Act (FMLA) leave. The case offers employers some guidance regarding the undue hardship analysis at a micro and macro level, ensuring compliance with the interactive process, and the best practice for handling requests for finite leave when the possibility of additional future leave is evident.
Utah State Legislature Clarifies: Private Employers Not Required to Accommodate Use of Medical Cannabis; Public Employers Held to Different Standard
Utah’s medical cannabis program officially launched this month, and the Utah State Legislature timely enacted Senate Bill 121, which amends and clarifies various provisions of Utah’s medical cannabis laws, including a pronouncement that private employers are not required to accommodate the use of medical cannabis.
The Utah Medical Cannabis Act (the “Act”) passed in 2018 contained, among other things, antidiscrimination provisions protecting public employees. Under the Act, state and political subdivision employees cannot be discriminated against on the basis of their use of medical cannabis, as long as they are otherwise in compliance with the law. The law was, however, previously silent as to whether private employers would also be obligated to accommodate or tolerate medical cannabis use by applicants or employees. Senate Bill 121, signed into law by Governor Gary Herbert on February 28, 2020, amends the law to make it clear that private employers are not required to accommodate the use of medical cannabis. The new provision states:
Nothing in this section requires a private employer to accommodate the use of medical cannabis or affects the ability of a private employer to have policies restricting the use of medical cannabis by applicants or employees.
According to the Utah Department of Health, this means that “Private employees are subject to their employers’ policies, which may include zero-tolerance for cannabis and/or drug testing.”
Senate Bill 121 also amended the law to amend the scope of the protections for public sector marijuana users. The law now provides that “[a] state or political subdivision employee who has a valid medical cannabis card is not subject to adverse action … for failing a drug test due to marijuana or tetrahydrocannabinol without evidence that the employee was impaired or otherwise adversely affected in the employee’s job performance due to the use of medical cannabis.” However, the protection for public employees does not apply where the use of medical cannabis would jeopardize federal funding, a federal security clearance, or any other federal background determination required for the employee’s position, or if the employee’s position is dependent on a license that is subject to federal regulations.
The obligation for public employers to accommodate the use of medical cannabis in Utah differs from current federal law. Although the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for qualified employees with a disability, the ADA does not protect or require accommodation of illegal drug use. Although the ADA protects status-based discrimination against drug-dependent individuals in recovery, marijuana is still an illegal drug under federal law with no exception for medical use recognized under the ADA.
Key Takeaways
Private employers in Utah now definitively know that they are under no legal obligation to accommodate employee use of medical cannabis, either at the workplace or away from work. Employers that do not intend to accommodate the use of medical marijuana are advised to clearly communicate their policies so employees are aware that the use of marijuana, medical or otherwise, violates company policy. Be aware that employees who ask about medical cannabis may also have underlying disabilities that may qualify them for reasonable accommodations in addition to or other than the ability to use marijuana and marijuana products.
Regardless of the choice each employer makes, managers and HR professionals should be prepared to answer questions about the company policy on medical marijuana and to engage in the interactive process with employees who raise questions about the policy due to a disability. Employers are encouraged to consult with counsel in drafting and implementing these policies and procedures.
EEOC Finds that Walmart’s Attendance Policy Likely Violates ADA, In the Midst of COVID-19 Pandemic
The EEOC recently issued a determination finding probable cause that Walmart’s attendance policy violated the rights of Walmart workers under the ADA. The letter was made public by Virginia James, an A Better Balance client and disability rights advocate, in her Medium post published today: “Walmart’s Attendance Policy Penalizes Workers With Disabilities Like Me. The EEOC Agrees.” The determination is timely for those workers with disabilities who may feel particularly vulnerable during the COVID-19 public health emergency.
Ms. James’s Op-Ed details her experience as a worker with severe asthma and diabetes who was fired from her job at Walmart because of disability-related absences when she was not feeling well, pursuant to Walmart’s “no-fault” attendance policy. After she was terminated, A Better Balance filed a charge, along with several others, with the EEOC on Ms. James’s behalf in 2017 following the release of our report, “Pointing Out: How Walmart Unlawfully Punishes Workers for Medical Absences,” published in collaboration with United For Respect.
The legal team at A Better Balance has been advocating for changes to Walmart’s attendance policy for years. Last year we applauded Walmart’s major change to its attendance policy for pregnant workers, following A Better Balance’s class action lawsuit filed in New York challenging the policy for violating the state’s Pregnant Workers Fairness Act. However, A Better Balance has continued to call on the retail giant to ensure that no worker is punished for a lawful, medical absence – especially workers with disabilities like Virginia James, who the CDC has said are at higher risk of severe health effects due to COVID-19.
Yesterday, Walmart announced a temporary suspension of its attendance policy in certain circumstances and other changes in response to the public health threat posed by COVID-19.
“This decision by the EEOC shows that employers cannot get away with discriminating against workers with disabilities by punishing them for lawful and medically necessary absences, and is especially important during times like these,” said Dina Bakst, Co-Founder & Co-President of A Better Balance. “This decision is a huge step forward for our clients but also for all workers with disabilities at Walmart, especially amidst the current public health crisis. We have been encouraged by the changes Walmart has made to its attendance policies and remain hopeful that the company will make further changes necessary for workers with disabilities so that no worker at Walmart has to sacrifice their health on the job even after the health crisis posed by COVID-19 has ended.”
Federal Court in North Carolina Tackles Associational Discrimination Claim Brought by Teacher With Disabled Son
On February 26, 2020, in the case of Schmitz v. Alamance-Burlington Board of Education, the United States District Court for the Middle District of North Carolina granted in part and denied in part a motion to dismiss claims for associational discrimination under the Americans with Disabilities Act (ADA), retaliation under the ADA, and wrongful termination in violation of public policy. In the opinion and order, the court paved the way for the plaintiff to pursue associational discrimination claims.
Background
Theresa Schmitz worked as a fourth-grade teacher for the Alamance-Burlington Board of Education from October 2016 through May 2017. Shortly after she started, Schmitz’s son “was diagnosed with a brain tumor and required emergency surgery,” which rendered her son “unable to walk or care for himself.” Schmitz returned to work one week after her son’s surgery. Upon her return to work, Schmitz requested permission to leave work 45 minutes early, at 2:30 p.m. daily, “to care for her son.” The principal gave Schmitz permission to leave early for one week, until December 5, 2016.
On December 5, 2016, Schmitz’s son’s doctor informed her that her son “would not be able to return to school for several weeks.” As a result, Schmitz asked permission “to leave [work] at 2:30 p.m. for another week.” The principal stated he could not discuss the request at the time, but that he would discuss it with Schmitz on December 6, 2016. No such discussion occurred, and Schmitz left at 2:30 p.m. on December 6, 2016. The principal later inquired why she left early, and Schmitz explained that she “thought it was okay to leave at 2:30 p.m.” and that she would not be at work the following day.
On December 7, 2016, Schmitz contacted the human resources (HR) department “to express concern that [the principal] was ‘bullying her and retaliating against her for caring for her disabled son.’” HR informed her that “she was not permitted to leave at 2:30 p.m.” and needed “to take leave in half-day increments.” Schmitz “complied with HR’s instruction and took leave in half-day increments . . . until December 16,” despite her allegation that other employees not associated with disabled family members were regularly permitted to take sick leave in less-than-half-day increments on temporary bases. Thereafter, Schmitz did not request or “take any other time off to care for her son.”
Schmitz alleged that the principal retaliated against her from mid-December 2016 through March 2017 by “nitpicking” her, holding her “to a higher standard,” and placing her on a performance improvement plan (PIP). Schmitz “successfully completed her PIP” and, in April 2017, received a positive performance review.
On May 12, 2017, Schmitz “was called into a meeting with [the principal] and HR” and was presented with “a pre-drafted letter of resignation.” According to Schmitz, she “was told to sign the letter, or she would be ‘put on a list she did not want to be on.’” Thereafter, Schmitz filed suit, alleging she was “discriminated against because of her association with her disabled son;” “retaliated against in the form of changes to her schedule and responsibilities, being placed on a PIP, [and] being forced to resign;” and “terminated in violation of North Carolina’s public policy.” The court dismissed her retaliation and public policy claims, but it held that her associational discrimination claims could proceed.
Opinion and Order
In support of her associational discrimination claims, Schmitz alleged that “she was treated differently in the way in which she was allowed to take leave” and that “she was terminated based on [the Board of Education’s] unfounded beliefs about her future availability for work.” The Board of Education responded that the associational discrimination claim does not fit the mold for such claims and that Schmitz “did not plausibly allege an adverse employment action.” The court dismissed the first argument, noting that Schmitz was not required to fit her claim into a specific associational discrimination model. The court disagreed with the Board of Education on its second argument, finding that Schmitz “plausibly alleged that she was constructively discharged” by coercion because there was sufficient evidence that the Board of Education “lacked a good faith reason for the termination,” effectively coercing her resignation. In so holding, the court cited Schmitz’s successful completion of the PIP and positive performance review.
Next, the court concluded that Schmitz presented sufficient evidence that her resignation “occurred under circumstances that raise a reasonable inference of unlawful discrimination.” The court confirmed the appropriate standard is a “but-for” standard: “Discriminatory motivation need not be conclusively proved at a motion to dismiss stage, but a plaintiff must allege enough facts to draw an inference that . . . the [Board of Education] took the adverse action . . . because of [Schmitz’s] association with [her disabled son].” Here, the court found evidence that Schmitz was “performing her job satisfactorily and her only issues with her employer revolve[d] around her association with [her son].” Cognizant that Schmitz was a teacher who missed class to care for her son, the court noted that such “absences were approved” and ceased in December 2016, after which time she was “treated differently.” Although several months passed between her leave for her son and her forced resignation, the court noted that the Board of Education “was aware of the chronic nature of [her] son’s disease and that, during the intervening period, Schmitz was submitted to “other acts evincing discriminatory animus,” including “holding [her] to a higher standard . . . and placing her on a PIP.” Finally, the court noted that “[t]hough the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a disabled person, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.”
As to her retaliation claim, Schmitz “alleges it was reasonable for her to think the ADA [] allowed her to request accommodations to care for her son and [] to report any retaliation based on those requests.” The court disagreed, finding that it was “not reasonable for [Schmitz] to think she was engaged in protected activity.” In so holding, the court noted that “[t]he statute, administrative guidance, case law, and even the EEOC’s own website all declare that the ADA does not require an employer to make any accommodations to those associated with disabled persons.” Further, the court held that Schmitz’s “first complaint to HR . . . about her need to leave school early could not have led to a reasonable belief that she was opposing conduct prohibited by the ADA,” because she “never complained about discrimination based on her association with her son.”
Finally, the court dismissed Schmitz’s public policy claims, noting that “no private cause of action exists for . . . constructive discharge in violation of public policy.”
Key Takeaways
There are a few key takeaways for employers from this decision. First, while employers are not legally required to provide a reasonable accommodation to a nondisabled associate of a disabled person, they may want to keep in mind that the denial of such a request could call into question the motivation for a later adverse action. Consistency is key, and it may prove helpful to be cognizant of how policies and procedures have been applied in the past to ensure that similarly-situated individuals are treated the same with respect to application of those policies and procedures. Second, if employers are not truthful when conducting a performance review and they fail to consider the content and substance of that review before subjecting an employee to subsequent adverse action, if the review does not align with the proposed action, they may risk facing heightened scrutiny, even when the underlying motive is free from discriminatory animus.
Employment Law Q&A
With the spread of the coronavirus, employers everywhere are looking for ways to continue business operations while keeping their employees safe. Below are some questions some employers may have regarding workplace safety, workers’ compensation and OSHA if such situations arise.
WORKPLACE SAFETY
Can an employer ask an employee to stay home or leave work if they exhibit symptoms of Covid-19?
Yes. During the H1N1 pandemic in 2009 the EEOC indicated that advising employees to go home is not disability related if the employee exhibits symptoms like the H1N1. The EEOC is currently referring employers back to its policies for the H1N1 pandemic.
Can an employer take the temperature of employee to see if they have Covid-19?
Under the ADA and state disability laws, taking an employee’s temperature is considered to be a medical exam. Therefore, such action may be deemed unlawful if it is not job related and consistent with business necessity or necessary to protect the health and safety of the employee or others from a direct threat. The EEOC advises employers to rely on CDC guidance to determine whether the coronavirus constitutes a direct threat to health and safety under the circumstances existing at the time.
Can an employee refuse to come to work out of fear of contracting Covid-19?
Employees can only refuse to come to work if they reasonably believe they are in imminent danger. However, an employer can have their own policies in place to allow for telecommuting or staying at home especially if the employee is a high risk. We would request you contact us to discuss such policies.
Can an employer prohibit an employee from traveling on personal time?
No. However you can provide information on “restricted” travel and prohibit employees who traveled to high risk areas from returning to work for 14 days.
WORKERS’ COMPENSATION
Is Covid-19 covered under workers’ compensation?
It depends. For a “disease” to be compensable under workers’ compensation, it must be occupational in nature; such job environments as first responders or health care workers, might be covered. These claims tend to be fact specific. Remember that workers’ compensation is a no-fault system. An employee attempting to get Covid-19 covered under workers’ compensation must provide medical documentation to support such a claim application.
OSHA
Is Covid-19 a recordable illness?
Possibly. It depends on whether the virus is contracted due to work requirements then results in missed time or medical treatment beyond the initial visit. OSHA has issued guidance on Covid-19 and has divided workplaces into 4 risk zones.
Very High Risk – healthcare employees and/or laboratory personnel treating or collecting samples from at risk patients; employees performing autopsies on suspected patients.
High Risk – healthcare workers and medical transport employees “exposed” to suspected infected patients.
Medium Risk – employees with high frequency contact with the general population. Examples include, schools and high-volume retail establishments.
Lower Risk – employees with minimal contact with the general public such as office workers.
OSHA maintains a “general duty clause” requiring employers to provide a workplace free from recognized hazards likely to cause death or serious harm.
Do I need to pay employees who self-quarantine?
Under the Fair Labor standards Act and most state wage/hour laws, an employer does not have to pay hourly workers who don’t come to work. Exempt employees who work part of a workweek, generally have to be paid their full salaries. For either group, the employer may generally require them to use accrued PTO. However, before making any decision to pay, or not pay, we urge employers to speak with their counsel as there are other aspects that may come into play in this situation. Many states have paid sick leave laws and Congress is currently considering a federal paid sick leave law.
Is it covered under the Family Medical Leave Act?
Possibility. Sickness due to the coronavirus is likely to be deemed a “serious health condition.” Generally an employee can not take FMLA leave to stay home to not get sick. Again, we would urge our clients to contact us prior to making a determination.