Amazon’s Broken Leave System Misdelivers for Employees

Lebau & Neuworth lawyers have represented numerous employees of Amazon – which has huge warehouses and delivery centers in Maryland – in various disputes, including claims for overtime wages, wrongful termination, discrimination, harassment and disability benefits.

A recent New York Times article detailed the ongoing mess that is Amazon’s employee leave system. The world’s largest retailer can deliver packages to customer’s in under 24 hours, but when employees need leave from work, they are forced to go through a complex web of apps, software, and phone trees to request the leave. If the leave request is approved, employees then face numerous other difficulties, including the software marking employees on leave as no-shows, losing doctor’s notes, and issues reaching case managers.

Amazon’s leave system is not only a huge inconvenience for its employees, but it could potentially be violating laws such as the Family Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA). Amazon’s broken leave system could expose it to liability for violations of the FMLA or ADA. For example, if leave is denied because an employee’s doctor note is lost, that may be a violation of the employee’s rights under the FMLA and/or ADA; or if an employee who is on approved FMLA or ADA leave is terminated because Amazon’s leave system marked him or her as “no-show,” that could be a violation of the employee’s rights under the FMLA and/or ADA.

The FMLA is a federal law that entitles eligible employees to 12 workweeks of unpaid leave in a 12-month period. FMLA leave can be given for:

the birth of a child and to care for the newborn child within one year of birth;
the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
to care for the employee’s spouse, child, or parent who has a serious health condition;
a serious health condition that makes the employee unable to perform the essential functions of his or her job; and
any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

The FMLA covers employers, such as Amazon, who have 50 or more employees in 20 or more workweeks in a year. Employees may be eligible for FMLA if they work for a covered employer for at least 12 months; have worked at least 1,250 hours during the 12 months before the leave; and work where the employer has at least 50 employees within 75 miles.

Amazon’s point system that we have come across in Maryland, when not properly administered, can violate the FMLA.

The FMLA prohibits Amazon from disciplining any employee who has an FMLA-protected absence. This means that an employee should not receive an unfavorable evaluation or points when out on FMLA leave. Also, Amazon is required to return the employee to a substantially equivalent position (same pay and benefits) when returning from FMLA leave.

The ADA is the federal law that makes it illegal for employers with 15 or more employees, like Amazon, from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA also requires employers to give reasonable accommodations to employees with disabilities, which can include leave work for limited periods of time even when the employee has no more leave left or is not yet eligible for FMLA leave.

Importantly, in Montgomery County, Maryland, Amazon has to comply with the county’s paid sick leave law. This is in addition to complying with the FMLA and ADA.

If you have questions about FMLA leave or ADA accommodations, Lebau & Neuworth may be able to help. For more information, contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Pregnancy Complications as a Disability & Telecommuting as a Reasonable Accommodation

The law now dictates that pregnancy, by itself, does not constitute a disability protected by the Americans with Disabilities Act (ADA). However, as shown in the recent case of Kande v. Dimensions Health Corp., an employee’s pregnancy-related complications can rise to the level of a protected disability under the ADA. The Maryland federal court point-blank stated: “[A]lthough pregnancy itself is not an impairment within the meaning of the ADA, and thus is never on its own a disability, some pregnant workers may have impairments related to their pregnancies that qualify as disabilities under the ADA.” The Court, however, limited its ruling, adding that “only abnormal complications may qualify as impairments under the ADA.”

In this case, the employee experienced a number of conditions that increased the risk of suffering an abruption (in which the placenta detaches from the cervix, potentially leading to termination of the pregnancy). She also provided her doctor’s testimony that reduced activity and resting at home was necessary for the pregnancy, which the Court viewed as strong evidence of protected impairment.

The Maryland federal court was seemingly repulsed by the employer’s argument that the fact that the employee had a successful pregnancy was evidence that she had no disability. The Court stated: “Taking into account whether a plaintiff actually worked without incident after the denial of an accommodation would allow defendants to deny coverage to employees and avoid liability so long as the employees continued to work and did not actually suffer the health consequences for which they are at risk. This cannot be the law.”

After determining that the employee’s pregnancy complications amounted to a protected ADA disability, the Court then had to decide whether the employer failed to reasonably accommodate by refusing to let her work from home – i.e., telecommute. The Court held that the employer had failed to accommodate based on three facts:

First, the Court held that the employee’s accommodation request to work from home was a just need to avoid the commute to and from her office. Rather, the Court found that not driving was required through her doctor’s instructions for rest and avoidance of sitting for long periods.
Second, the Court noted that working from home was medically necessary, stating that “it was necessary for Plaintiff to rest at home and limit her activity due to her disability, and not a matter of mere preference.”
Third, the Court found that the employee had presented sufficient evidence that she could perform all the essential functions of the job from home. The Court rejected the employer’s attempts to find tasks that required the employee to be at the office, when they were not essential functions of her job.

If you would like want more information regarding pregnancy, disability discrimination or the duty of an employer to accommodate (including by allowing a worker to telecommute), the attorneys at Lebau & Neuworth are well-experienced with these types of cases. Please contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

Disabled Workers Score Big In ADA Victory during Disability Awareness Month

October is Disability Awareness Month, which appropriately coincides with a recent Maryland federal court decision that cements the rights of disabled workers and the obligations on an employer to provide reasonable accommodation. U.S. District Court Judge Hollander, in a 65-page opinion in EEOC v. M&T Bank, CV ELH-16-3180 (October 2, 2019), made clear that the ADA is to be broadly construed by requiring extended leave and reassignment without competition as reasonable accommodations.

The Facts

The employee, a branch manager who rose from the ranks of being a teller, had long been diagnosed with cervical insufficiency, which resulted in past miscarriages. After learning that she was pregnant, the manager informed M&T that she needed leave for surgery to assist her in maintaining her pregnancy and then bedrest through childbirth – at least for a seven-month period.

Although the manager exhausted her FMLA leave and her former position was filled, she was not terminated. Per M&T policies, she was terminated only 30 days after she was cleared to return work when she had not been able to find another position. Then, she was given an additional 60 days after that to apply and compete for other M&T jobs as a current employee. However, the manager was not hired for any of the, at least, 12 jobs she applied for.

The EEOC filed suit against M&T, asserting that it violated the ADA by making the manager compete with other employees for job openings. The EEOC argued that the manager should have been reassigned, without competition.

The Preliminary Matters

M&T asserted various arguments trying to get the Maryland federal court to dismiss the claim before it had to resolve this issue. The Bank lost on all of them, and the Court’s analysis of them illustrates the ADA’s expansive scope.

*Record of Being Disabled – Specific Notice Not Required

M&T claimed that the fired manager was not protected by the ADA because she was neither disabled nor had a record of being disabled. The Court disposed of that argument, finding that, it did not have to determine whether the manager was disabled or not, because when she was terminated, she clearly had a record of being disabled. Moreover, the Court found that the manager gave M&T sufficient knowledge of her disability because she told her boss that she had miscarriages in the past, and required a procedure to carry her baby to term. The Court cited ADA regulations and case law that provide that an individual may have a “record of” being disabled and thus be protected under the “record of” prong of the statute, even if a covered entity does not specifically know details about the record. A worker is not required to give medical documentation to an employer to trigger ADA protections.

*Failure to Accommodate – Intent Not Required

Next, M&T argued it could not have violated the ADA because it had no intent to discriminate against the manager. Rather, its policies required that she be terminated when she could not find another job within the specified time period. This argument too was not successful. The Court held that, because the manager was asserting a failure to accommodate claim, she did not have to show that the employer acted with a discriminatory motive. The Court stated that the “denial of a reasonable accommodation alone is discrimination.”

*Failure To Accommodate – Required Even If Not Currently Disabled

Then, M&T argued that the manager failed to make a failure to accommodate claim because she was fully recovered when terminated and had no medical need for an accommodation. M&T lost here too, with the Court referring to the ADA regulation which provides that the duty to accommodate covers an employee if an accommodation is needed and relates to the past disability. The Court noted that the accommodation for reassignment was both needed and the immediate result of her disability-induced leave.

The Big Take-Aways

Judge Hollander, relying on governing regulations and applicable case law set forth a clear marker that an employer must consider extended leave and reassignment to another position when returning from leave as reasonable accommodations.

*Extended Leave As Reasonable Accommodation

Judge Hollander boldly rejected the Seventh Circuit Court of Appeals’ recent ruling that extended leave was a per se unreasonable accommodation, relying on Fourth Circuit precedent that a leave request is not unreasonable so long as it, “(a) is for a limited, finite period of time; (b) consists of accrued paid leave or unpaid leave; and (c) is shown to be likely to achieve a level of success that will enable the individual to perform the essential functions of the job in question.” The manager’s request met that criteria because (a) she told the Bank she could return to work without restrictions after childbirth; (b) she was on paid and/or unpaid leave; and (c) there was no dispute she could perform the essential functions of the manager job once returned to the job.

Further, the Court found that the duty to accommodate did not end when M&T filled the manager’s former position. M&T was required to consider additional leave as a reasonable accommodation because the duty to provide accommodation continues and does not end with just one attempt.

Because M&T did not invoke the “undue hardship” defense, the Court did not have to address that issue. However, the Court noted that M&T’s generous leave policy would undermine any hardship defense.

*Reassignment Without Competition As Reasonable Accommodation

After deciding that extended leave can be a reasonable accommodation, the Court was then called upon to decide whether M&T was required to reassign the manager to another position without having to compete with other internal candidates. M&T argued that requiring reassignment without competition was tantamount to unlawful affirmative action, citing several cases. The Court disagreed, first relying on the “plain reading” of the ADA which, in relevant part, states that reasonable accommodation includes, “reassignment to a vacant position.” 29 U.S.C. § 12111(9). Therefore, the Court concluded that, under the ADA’s plain meaning, when there is a “vacant position” and a disabled employee is “qualified” for that position, reassignment is a “reasonable accommodation”.

Second, the Court held that the ADA imposes no requirement that the disabled employee seeking reassignment has to be the “most qualified”. The Court insightfully remarked that a best-qualified hurdle to reassignment as an accommodation would render reassignment to “second class” status, observing that no other possible accommodation, such as a modified work schedule, allows a better-qualified worker to displace the disabled employee seeking the accommodation.

If you are disabled and feel your rights may have been violated by an employer because of your disability, the attorneys at Lebau & Neuworth are highly experienced with such cases and may be able to assist you. Contact us at (410) 296-3030 or lebauneuworth.com/contact-us.

You Are Not Disabled Just Because Your Employer Thinks You Are

One broad protection afforded by the Americans with Disabilities Act is that a worker can be unlawfully discriminated against even if he or she is not actually disabled. Specifically, the law, as amended, protects persons with a history of disability or those persons “regarded as” disabled. “Regarded as” disability discriminations arise when a worker does not actually have a physical or mental disability but is discriminated against because the employer views the worker as disabled.

A recent case provides a good example of this. In Nunies v. HIE Holdings, Inc., the Court allowed a delivery driver to proceed with his claim of disability discrimination because he had produced sufficient evidence that the employer had regarded him as disabled. The employer had argued that the driver had no disability and offered no evidence that the employer viewed him as disabled due to claimed shoulder pain. But the Court disagreed, finding that the employer rescinded a transfer to a new position and forced the employee to quit just two days after the employee complained of a shoulder injury and provided the employer with a doctor’s note asking for two weeks off.

The Court held that the employee could proceed with his claim because he had sufficient evidence to show that the employer terminated him “because of” his knowledge of the shoulder pain, regardless of whether the employer actually perceived the shoulder pain as a disability and regardless of whether or not the shoulder pain amounted to an actual disability.

Therefore, you may have a solid disability discrimination case if your employer acted as if you were disabled and subsequently treated you as such.

If you are seeking advice, assistance and representation in a disability discrimination case against your current or former employer, the attorneys at Lebau & Neuworth are experienced in handling all types of employment discrimination claims so we may be able to help you. Contact Lebau & Neuworth at (410) 296-3030 or lebauneuworth.com/contact-us.

Telecommuting May Be A Reasonable Accommodation

A court recently held that telecommuting, in certain circumstances, may be a reasonable accommodation that an employer must provide.

In Mosby-Meacham v. Memphis Light & Gas, the plaintiff worked as an in-house lawyer for about seven years, became pregnant and unfortunately suffered from a medical condition that, although treatable, put herself and her unborn child at risk. Following doctor orders, she asked to work from home for 10 weeks until the baby was born, but the employer denied her request, claiming that telecommuting from home would not allow her to perform the essential functions of the job.

The employer claimed that attendance at the job-site was an essential function and presented testimony of coworkers that physical attendance was needed to do the job and relied on a job description.

The plaintiff also presented coworker testimony in support of her position and evidence that she did not perform the tasks that the employer relied on in the job description, as she had never tried a case or taken a deposition, although both were in the job description. She also argued that the employer had allowed her to work from the hospital when she had been in-patient and did so without difficulty.

The Court held that under the specific facts of this case, attendance was not an essential function. The Court emphasized that the plaintiff had performed her duties remotely in the past, her job was not tied to her office desk and the requested accommodation was for a limited duration, and the court awarded the employee $92,000 in compensatory damages.

In summary, while pregnancy itself may not be a disability under the Americans with Disabilities Act, complications that arise from a pregnancy may be a covered disability. What's more, under the ADA, employers are required to provide reasonable accommodations; also, employees may have some protections under the Pregnancy Discrimination Act.

Lebau & Neuworth attorneys are experts at identifying and defending employee rights, including whenever their "reasonable accommodation" rights have been violated. If you feel your employer may have neglected to provide you with reasonable accommodations pertaining to your job for any reason, contact Lebau & Neuworth for the advice and protection to which you are legally entitled at (410) 296-3030 or lebauneuworth.com/contact-us.

An Employer May Have To Accommodate A Disabled Employee Who Requires A Flexible Start Time

In Rodney McMillan v. City of New York, McMillan, a 10 year employee of the City of New York, alleged that the City had violated the Americans with Disabilities Act ("ADA"), when it penalized him for his tardiness and where it failed to provide him with the later flex start time he requested. Under the ADA, covered employers may not discriminate against an employee because of his or her disability and they must provide the employee with reasonable accommodations unless the employer can show that it would be an undue hardship to make the requested accommodation. To establish that one has been improperly discriminated against under the ADA, an individual must show that 1) her employer is subject to the ADA 2) she was disabled within the meaning of the ADA 3) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation and 4) she suffered adverse employment action. McMillan was a schizophrenic man who had worked for the City for 10 years without a problem, arriving late but leaving late, always working the 35 hours required of him. McMillan was late to work because of the medication that he took to treat his schizophrenia. Abruptly, his supervisor stopped approving his late arrivals, and ultimately it was recommended that his job be terminated due to his “history” of tardiness. The Court determined that arriving to work at a certain and consistent time may not have been an essential function of McMillan’s job because McMillan had been performing his job without problem for many years despite his late arrivals, and that the City had a general policy that employees could arrive at any point between 9 am – 10:00 am. This decision puts real teeth into the ADA and hopefully will lead to its continued enforcement so that disabled employees can continue to prosper in the workplace.