After extreme temperatures in the Pacific Northwest caused by the “heat dome” in June, Oregon OSHA adopted an emergency rule designed to protect workers from the dangers of extreme heat. The new requirements, which took effect on July 8, 2021, include access to shade and cool water, regular cool-down breaks, training, communication, emergency planning, and other measures.
Similarly, Washington’s Department of Labor & Industries filed an emergency rule to increase protection for employees exposed to extreme heat at work. This new rule took effect on July 13, 2021, but the state has a pre-existing Outdoor Heat Exposure rule as well.
Temporary Amendment of Oregon’s Equal Pay Act
The Oregon legislature temporarily amended Oregon’s Equal Pay Act to help employers encourage COVID-19 vaccinations and attract new employees. Until the amendment expires on March 1, 2022, when an employer evaluates whether employees who perform work of comparable character are paid equitably, it may exclude vaccine incentives. In addition, retention and hiring bonuses are excluded from the calculation.
Problematic Attendance, FMLA, and the ADA
A recent case from the US Court of Appeals for the Eighth Circuit involved an employer’s policy that provided that regular attendance is an “essential job function for all [Company] employees.” The policy stated that unexcused absences that are not approved or eligible as leave under the Family and Medical Leave Act (FMLA) can lead to discipline.
An employee who had an autoimmune disease that flared up intermittently was approved for FMLA leave of 2 half days and 2 full days per month and was advised that additional absences could subject her to discipline.
After unapproved absences, she was given a warning for her attendance. Later the employee called in sick for an illness that seemed to be unrelated to her autoimmune condition, and she was fired. She sued, arguing that the employer had violated the Americans with Disabilities Act (ADA) and FMLA. The trial court dismissed all of her claims, and she appealed.
The appellate court noted that to sustain an ADA claim, employees must show that (1) they’re disabled within the meaning of the ADA, (2) they’re qualified to perform their essential job functions, with or without reasonable accommodations, and (3) there’s a causal connection between their disabilities and the adverse employment actions.
Here, said the court, the employee could not meet the second requirement since “regular and reliable attendance is a necessary element of most jobs.” To determine whether that is true of any particular job, the court will rely on evidence such as written job descriptions and written attendance policies.
The court also rejected the employee’s FMLA claims, since she had not followed the employer’s two-step notification system for use of FMLA leave, and it is the employee’s responsibility to “specifically reference either the qualifying reason for leave or the need for FMLA leave.” The court noted that simply calling in sick doesn’t trigger an employer’s obligations under FMLA.
The ADA and Mental Illness
The US Court of Appeals for the Eleventh Circuit recently held that a school district’s decision to end a mentally ill teacher’s employment didn’t violate the ADA.
The school district was aware of the teacher’s mental health issues and offered assistance, but in 2017, co-workers reported that the teacher had threatened to kill herself and her son and that she had taken an excessive amount of Xanax while at work.
The teacher was involuntarily committed to a psychiatric facility. Although the teacher’s doctor gave her a work release stating that she didn’t pose a threat to herself or to others and the Department of Family and Child Services returned her child to her custody, the school advised her she would likely be fired unless she resigned.
The teacher requested FMLA leave, which was granted. Then an employee told the school district that the teacher had made threatening remarks toward school administrators while she was on leave.
The district failed to renew the teacher’s employment contract, and she sued for violations of the ADA and FMLA. The trial court granted summary judgment in the school district’s favor as to all claims.
The appellate court held that the school district was entitled to summary judgment even though the teacher’s alleged threats were the result of her mental illness because the school district articulated a legitimate, nondiscriminatory reason for ending her employment.
The court noted that the ADA doesn’t require employers to put up with dangerous misconduct “even if that misconduct is the result of a disability.”
Whether you are an employee or an employer, please feel free to contact us if you have any questions about or need any assistance with employment-law issues.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm. The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, Powell’s Books, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by Mufid Majnun on Unsplash
