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Weekly Employment Law Roundup

First up this week, we have a look at how an obligation to
provide FMLA leave may extend to a company’s successor in interest
.  In the case in question, an employee validly
took FMLA leave.  While he was on leave,
his company was acquired by a nearly identical competitor.  Rather than allowing the employee to return
to work upon the completion of his leave, the employer terminated him, even
though it had retained 87 percent of the prior employer’s workforce.  The Department of Labor investigated and
found that the new employer had an obligation to allow the employee to return
to work in his prior position.  The
employer and the DOL agreed to a consent judgment that required that the
employee be returned to his position and compensated for his lost wages and
medical expenses.  In general, this case
proves once again that employers need to have a really good reason for
terminating an employee who is on FMLA leave. 
The DOL has also made FMLA enforcement a priority in its FY2014 budget,
making it even more critical that employers seek effective counsel in regards
to FMLA matters and perform self-audits of their policies.  In addition, the successor-in-interest rules
of the FMLA are important for companies that are planning acquisitions in the
near future, as the rules may impact how it can treat a new workforce.

Next, the Seventh Circuit provided additional guidance about
what constitutes an “interactive process” for the purposes of satisfying the
ADA
.  In Cloe v. City of Indianapolis, the court looked at the situation of
Nancie Cloe, a project manager for the city who was diagnosed with MS.  Part of her job required her to walk through neighborhoods
to interview citizens regarding their concerns. 
After her diagnosis, she was restricted to part-time desk duty, and
requested a nearby parking spot.  After
restructuring of her department, Cloe was placed on a mandatory performance
improvement plan, and was later terminated for producing poor work product.  Cloe sued the city for failing to provide
reasonable accommodations.  The City was
granted summary judgment at trial, and the Seventh Circuit affirmed.  The court reaffirmed that the interactive
process does not require an employer to immediately find the only solution to
an employee’s accommodation request, and that the employee needs to give notice
to the employer to begin the accommodation process.  Cloe claimed that the city took too long to
assign her to a parking spot in her building, and that it should have immediately
bought her a personal printer to help her produce better work.  However, the court said that the city’s
process in finding what worked (the city moved her to incrementally closer
parking spaces and eventually purchased a printer) was exactly what the “interactive
process” called for.  In regards to her
poor written work, Cloe claimed that the city should have provided more
proofreading assistance; however, the court found that Cloe failed to prove she
had asked for this accommodation.  The
city did not need to anticipate her problems and provide preemptive
assistance. 

In general, employees need to make sure to ask for accommodation.  The ADA’s requirements for reasonable accommodation
do not take effect until the employer is on notice.   Also, employers should engage in exactly
this type of interactive process- where an initial attempt doesn’t work, the
employer should, within reason, attempt to find a more beneficial
solution.  Courts will likely look more
favorably on employers who seem to have gone about an actual good faith effort
at accommodation.  Employers should
back-up this process with documentation and rationale for the actions taken.