Gibbons Law Alert
In a case of first impression, the Third Circuit Court of Appeals held that a supervisor may be individually liable for violating the Family and Medical Leave Act (“FMLA”). While noting that individual liability is not recognized in some Circuit Courts, the Third Circuit in Haybarger v. Lawrence County Adult Probation and Parole reached a contrary conclusion.
The Federal Family and Medical Leave Act (“FMLA”), which, among other things, affords eligible employees up to 12 weeks of unpaid leave for the employee’s own serious medical condition and reinstatement to the employee’s former or equivalent position, includes stringent notice obligations for employers. A New Jersey District Court recently reinforced the importance of complying with the statute’s notice requirements. In Antone v. Nobel Learning Communities, Inc., the court denied the defendant employer’s motion to dismiss, rejecting its argument that the employee was not protected by the FMLA when she was terminated more than 12 weeks after she commenced leave because the employer failed to provide the requisite FMLA information to the employee. The Court similarly denied the employer’s motion to dismiss disability retaliation claims based on improper notification required by the FMLA.
On January 11, 2012, the United States Supreme Court for the first time recognized the so-called “ministerial exception” to workplace discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, the Court unanimously found that the Establishment and Free Exercise Clauses of the First Amendment bar wrongful termination suits brought on behalf of “ministers” against their churches. While this decision is helpful for religious group employers, including religious schools and places of worship, the Court left open the important question of which employees actually qualify as a “ministers.” Accordingly, the decision may create some confusion for religious group employers going forward.
Joining a growing number of jurisdictions, including the Third and Ninth Circuit Courts of Appeal, the Court of Appeals for the Second Circuit, covering the states of New York, Connecticut and Vermont, has held that under certain circumstances, an employer may be required to assist disabled employees with their commute to work as a reasonable accommodation under both the Americans with Disabilities Act(“ADA”) and the Rehabilitation Act. The Court’s decision in Nixon-Tinkelman v. N.Y. Dep’t of Health & Mental Hygiene highlights an employer’s obligation to consider reasonable accommodations requested by employees with disability-related commuting problems.
Amendments to the regulations implementing Title II of the Americans with Disabilities Act (ADA), 28 CFR 35.101 et seq., which applies to public entities, went into effect on March 15, 2011. A public entity is defined in the regulations as: “(1) Any state or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).” See 28 CFR 35.104. On the same date, amendments to the regulations implementing Title III of the ADA, 28 CFR 36.101 et seq., which applies to public accommodations (including private businesses that fall within one of twelve categories established by the statute) and commercial facilities also went into effect.
Flu season is here. While the Centers for Disease Control and Prevention (CDC) currently is not reporting high levels of influenza outbreak or predicting pandemic levels of the virus this year, the flu will nevertheless impact businesses whose employees become ill and/or need to take time off for flu-related reasons. With a handful of restrictions, employers are permitted to adopt policies and practices to encourage flu prevention, to control workplace flu outbreaks and to maintain optimal efficiency during flu season, provided that their practices are applied consistently, non-discriminatorily and in keeping with published employment policies and handbooks.
In holding that an employee with cancer in remission is “disabled” under the expanded definition of “disability” in the Americans with Disabilities Act Amendments Act (“ADAAA”), a federal court has signaled a major change in the way courts have considered cases involving diseases that are in remission. The case is among the first in the nation to interpret the extent to which the Act broadens the scope of the conditions that may qualify as a “disability.” Specifically, the court addressed that portion of the ADAAA that defines “disability” to include “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”