Week in Review

June 05, 2015

FMLA didn’t protect employee discharged from hospital on same calendar day admitted
Interpreting the Department of Labor’s FMLA regulation, the Third Circuit U.S. Court of Appeals ruled that an employee who was discharged from the hospital more than 14 hours after he was admitted, but on the same calendar day, was not entitled to FMLA protection under the regulation covering “inpatient care.” The employee was admitted shortly after midnight and was not released until the following evening and was fired by his employer thereafter. Concluding that the employee’s hospital stay did not constitute the “overnight stay” necessary to qualify as “inpatient care,” the appeals court affirmed summary judgment for the employer. The employee suffered from a heart condition and diabetes, among other health problems. During a meeting with supervisors to discuss his suspension for sleeping on the job, he began experiencing chest pain, shortness of breath, and dizziness. His supervisors gave him permission to leave and he returned home. After trying for several hours to get his breathing and heart rate under control, the employee’s spouse took him to the hospital. They departed at 11 p.m. and arrived at the hospital just before midnight. He was admitted shortly after midnight and remained in the hospital, undergoing many tests, and was almost slated for heart surgery. However, after no complications were found, he was released later that evening and told to follow up with his physicians for more tests. His doctor’s note stated that he had been hospitalized and was excused from work. Nonetheless, he was fired the next day for walking off the job. He filed suit, alleging FMLA interference and retaliation. The FMLA regulation defines “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as any subsequent treatment in connection with such inpatient care.” To constitute an “overnight stay,” the employee had to stay at the hospital from “sunset on one day to sunrise the next day,” the district court concluded, finding he did not satisfy that requirement.

OSHA guide on restroom access for transgender employees discusses best practices
OSHA has published a guide intended to help employers deal with the sometimes tricky issue of providing appropriate restroom access to transgender workers. Among the practical information it includes is a link to a model employer policy. Although the guide includes best practices and discusses federal, state, and local laws pertaining to restroom access by transgender employees, OSHA made clear in a disclaimer that the guide “is not a standard nor regulation, and it creates no new legal obligations.” The guide was developed at the request of the National Center for Transgender Equality, an OSHA Alliance partner that works collaboratively with the agency to develop products and materials to protect the safety and health of transgender workers. As the new guide notes, OSHA's sanitation standard requires that all employers under its jurisdiction provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. The health and safety agency pointed out that many companies have implemented written policies to ensure that all employees, including transgender employees, have prompt access to appropriate sanitary facilities. The core belief underlying these policies is that all employees should be permitted to use facilities that correspond with their gender identity. That means that a person who identifies as a man should be permitted to use men's restrooms, and a person who identifies as a woman should be permitted to use women's restrooms. “Regardless of the physical layout of a work site, all employers need to find solutions that are safe and convenient and respect transgender employees,” according to the guide.

“No pregnancy in the workplace” policy costs non-profit organization back pay and punitive damages
United Bible Fellowship Ministries, Inc., must pay $75,000 in back pay and damages to a former employee in an EEOC pregnancy discrimination suit, a federal judge in Texas ruled after a bench trial. The award, which includes $50,000 in punitive damages, follows the court’s earlier assessment of liability against the Houston-based non-profit organization which provides housing and residential care to clients with disabilities. The court found no justification for the non-profit’s “no pregnancy in the workplace” policy. United Bible violated Title VII by enforcing an unlawful “no pregnancy in the workplace” policy which prohibited the continued employment of any employee who became pregnant, the EEOC asserted in its complaint. The policy also allegedly refused employment to any pregnant applicant who sought a resource technician position. United Bible implemented that policy by firing the employee, a resource technician who provided care to residents, according to a May 27 agency statement. United Bible admitted that the discharged employee had performed her job well and had no medical restrictions or any other impediment in her ability to carry out her job functions, and that it had discharged her solely because she had become pregnant. The non-profit argued that the termination was legally justifiable to ensure the employee’s safety, as well as the safety of her unborn child and that of United Bible's residents. The court concluded that United Bible had recklessly failed to comply with Title VII despite holding a funding contract with the Texas Department on Aging and Disability Services, which specifically required the non-profit to comply with antidiscrimination laws, including Title VII.

Proposed guidance & regulations issued to implement “Fair Pay & Safe Workplaces” for federal contractors

The Department of Labor (DOL) has issued proposed guidance to assist contracting agencies and the contracting community in applying the requirements of President Obama’s “Fair Pay & Safe Workplaces” Executive Order (EO), and the Federal Acquisition Regulatory Council (FAR Council) has issued proposed regulations integrating the EO’s requirements as well as the provisions of the DOL’s guidance into the existing procurement rules. Both proposals were published in the Federal Register on May 28, 2015, and the public has 60 days from that date to submit comments. According to the White House, EO 13673 is aimed at protecting both workers and taxpayers alike by ensuring government contracts are not going to companies that violate federal labor laws. It requires prospective federal contractors to disclose labor law violations and provides federal agencies guidance on how to consider labor violations when awarding federal contracts. In addition, it places restrictions on certain arbitration agreements. The DOL’s proposed guidance is designed to assist contracting agencies and the contracting community in applying the order's requirements, including evaluating the severity of labor violations. The regulations proposed by the FAR Council would integrate the EO’s requirements and the provisions of the DOL’s guidance into the existing procurement rules. The proposed guidance and regulations build on the existing procurement system, and most federal contractors will only have to attest that they comply with laws providing basic workplace protections, according to the DOL statement. “The DOL guidance suggests that there will be deeper implications for employers who violate labor laws, particularly the Occupational Safety and Health Act,” Keith Wrightson, worker safety advocate for Public Citizen’s Congress Watch division, said in a statement. “Contractors who are working on federally funded projects will not simply be able to pay a fine and continue to violate the law. Those violations will now be a factor in whether or not the federal government continues to do business with them, and rightly so.”