One of the more common and difficult issues facing employers today is how long a leave of absence must be extended for an employee with a disability.  At one time, it was generally considered appropriate to have an administrative separation policy, to set an objective "cut-off" date for any further extensions of leave.  In recent years, such objective administrative separation policies have been increasingly attacked by the EEOC and the courts, leading most employers to recognize exceptions to the normal separation policies in order to extend a leave to accommodate a disability.

A recent federal appeals court ruling gives employers some encouragement that there is some end to this process.  Delgado-Echevarria v. AstraZeneca Pharm., LP, No. 15-2232 (C.A. 1, 5/2/17).  The First Circuit noted that granting a leave to an employee with a disability is often a reasonable accommodation under the Americans With Disabilities Act (ADA).  However, the court said that the ADA does not require an employer to grant indefinite leave and hold a job open if an employee has no estimate of when he or she will be able to work again.

The plaintiff had been out on leave for about five months, but after inquiry the plaintiff’s physician said her symptoms would not clear up for another 12 months and she might be able to return to work then.  The court found that the plaintiff failed to meet her burden of showing a 12-month leave extension would be reasonable.  Specifically, the plaintiff presented no evidence that the additional leave would "likely enable" her to return to work.  Further, an additional 12-month leave, on top of the five months already taken, could not meet the "facially reasonable accommodation" test, according to the court.  The court noted that other courts, confronted with similar issues, have found that even shorter extensions were not reasonable.

Editor’s Note: Although the employer won this particular case, these types of cases are controversial and advice of counsel is recommended.  Employers would be wise to write administrative separation policies with provisions allowing for exceptions for reasonable accommodations if the employee makes a timely request prior to the expiration of the leave.  Further, it is also helpful to write a "reminder" letter to employees indicating their leave is about to expire and they will be separated unless they make a timely request for reasonable accommodation that would not result in an undue hardship on the employer.  

One of the more common and difficult issues facing employers today is how long a leave of absence must be extended for an employee with a disability.  At one time it was generally considered appropriate to have an administrative separation policy, to set an objective "cut-off" date for any further extensions of leave.  In recent years such objective administrative separation policies have been increasingly attacked by the EEOC and the courts, leading most employers to recognize exceptions to the normal separation policies in order to extend a leave to accommodate a disability.

A recent federal appeals court ruling gives employers some encouragement that there is some end to this process.  Delgado-Echevarria v. AstraZeneca Pharm., LP, No. 15-2232 (C.A. 1, 5/2/17).  The First Circuit noted that granting a leave to an employee with a disability is often a reasonable accommodation under the Americans With Disabilities Act (ADA).  However, the court said that the ADA does not require an employer to grant indefinite leave and hold a job open if an employee has no estimate of when he or she will be able to work again.

The plaintiff had been out on leave for about five months, but after inquiry the plaintiff’s physician said her symptoms would not clear up for another 12 months and she might be able to return to work then.  The court found that the plaintiff failed to meet her burden of showing a 12-month leave extension would be reasonable.  Specifically, the plaintiff presented no evidence that the additional leave would "likely enable" her to return to work.  Further, an additional 12-month leave, on top of the five months already taken, could not meet the "facially reasonable accommodation" test, according to the court.  The court noted that other courts, confronted with similar issues, have found that even shorter extensions were not reasonable.

Editor’s Note: Although the employer won this particular case, these types of cases are controversial and advice of counsel is recommended.  Employers would be wise to write administrative separation policies with provisions allowing for exceptions for reasonable accommodations if the employee makes a timely request prior to the expiration of the leave.  Further, it is also helpful to write a "reminder" letter to employees indicating their leave is about to expire and they will be separated unless they make a timely request for reasonable accommodation that would not result in an undue hardship on the employer.  

The U.S. Department of Labor (DOL) announced on May 17, 2017 that it was delaying the effective date of the Obama-era rule requiring that companies electronically report their injury and illness records.  The rule had taken effect January 1 and employers were obligated to send in their summary data by July 1, but now the effective date has been delayed.  Although the electronic reporting requirement is being challenged in two court cases, judges may not rule on the challenges before the July 1 effective date.  Further, much of the court challenge relates to what OSHA intended to do with the electronic records, as the agency plans to post data from each employer on its public website. 

Reports indicate that the Trump Administration will nominate attorneys Marvin Kaplan and William Emanuel in June to fill two vacant positions on the NLRB.  The hope is to have the new members confirmed by the Senate before the August recess.  If confirmed, the NLRB would have a Republican majority for the first time in many years.  Many believe a Republican majority would re-examine certain workplace issues, including the NLRB’s tendency to invalidate employer work rules and policies, to expand joint employer liability, and to recognize "micro-units" in collectively bargaining. 

Kaplan is currently an attorney for the Occupational Safety and Health Review Commission and previously served as a Republican workforce policy counsel for the House Education and Workforce Committee.  Emanuel is a labor lawyer for a management-side firm.

Similarly, the Occupational Safety and Health Review Commission may have two new members after going more than two years without a full board of members.  President Trump nominated James Sullivan on May 12, 2017, who has 37 years of experience representing employers and has practiced occupational safety and health law.  Another position is likely to be filled by Heather MacDougall, who has been a member of the Commission.  There are three members on the Commission, giving the Administration’s appointees a majority.  

The bottom line results from the NLRB "quickie" or "ambush" election rules indicates the rules have truly sped up election dates, but election results are not changing much.  NLRB data shows that unions are winning elections about 66% of the time, both the before and after the effective date of the quickie election rule in 2015.  It does show that the length of time from the filing of the petition to the election date has been reduced dramatically, from around 39 days during the year before the rules took effect, to about 24 days the following year.  The data also shows that unions having the quickest elections had the higher win rate, and in election dates held within two weeks or less of the filing of the petition, unions won 82% of the time.

Surprisingly, the number of workers actually organized by unions as result of these elections was the lowest in four years, according to the published data.  One of the reasons is that the elections are generally being held in smaller voting units.  That is, while there may be slightly more union elections, the numbers of employees that are voting in these elections are actually less than they had been before the effective date of the rule. 

On May 4, 2017, President Trump issued an executive order instructing federal agencies to follow the Religious Freedom Restoration Act, a federal statute, and reconsider rules that inhibit religious freedom.  The Order does not expressly affect existing federal rules prohibiting discrimination based on sexual orientation and gender identity.  The President upheld these executive orders in January, even though it was speculated that he might rescind them or sign a broader executive order.  The May 4 executive order places no requirements on the agencies regarding the timing or scope of their reviews. 

Many believe the rules promulgated under federal discrimination laws as to LGBT issues and rules under ObamaCare dealing with mandates for cost-free coverage for contraception and related services may be revised by the federal agencies to allow for religious exceptions.  

In a report issued in mid-May, Immigration and Customs Enforcement reported that during the first several months of the Trump Administration, arrests of people suspected of being in the U.S. illegally increased by more than a third, while the portion of arrests involving people without criminal records increased to 26% compared to 14% in the same period a year earlier.  However, it should be noted that the earlier year reflected a significant drop off in enforcement by the Obama Administration, as enforcement was so strict during the early years that the immigration activists dubbed President Obama the "deporter-in-chief," but the enforcement was dramatically reduced during President Obama’s second term. 

Despite the rhetoric from the Trump Administration, new Attorney General Jeff Sessions suggests the Administration will not target aliens who have not committed crimes beyond illegally entering the country.   Further, the Administration appears to be moving to increase the cap of foreign seasonal workers this summer to about 130,000, from a previous level around 66,000.  These are the H-2B visas typically used by amusement parks, the lodging industry, landscapers and others to bring in temporary employees.

What do the court decisions on the Trump Administration’s executive orders banning entry by certain immigrants have to do with discrimination law?  It turns out the answer is "a lot."  The main objections to Trump’s executive order is that his words as a presidential candidate were used to show that the travel ban may be an unconstitutional religious test for entry into the U.S.  Among other things, in a press release it was announced he was "calling for a total and complete shutdown of Muslims entering the United States."  As a result of various court injunctions, the President attempted to issue a second executive order explaining that his first order was not a "Muslim ban," but was intended to apply to territories and to protect the nation from foreign terrorist entry into the U.S.  Although the new executive order did not refer to any religion, the plaintiffs in various litigation are arguing that it nevertheless was religiously motivated. 

The main issue in most employment discrimination cases is whether there was a discriminatory motive for the employer’s conduct in adversely affecting a plaintiff or group of plaintiffs.  Sometimes the employer seems to have a valid reason for the matter, such as a termination, but remarks are made by certain supervisors indicating a discriminatory motive.  For example, if a decision maker in a layoff should be quoted as saying, "That old fart should have retired." such a statement by a decision maker is treated almost like an admission of guilt, as evidence of age bias.  On the other hand, statements by supervisors outside of the decision-making process are often to considered to be "stray remarks," not sufficient to show discriminatory bias on the part of the decision-maker. 

In any event, these immigration cases show how decision makers’ casual remarks are often taken seriously by courts.  

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