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- Is There Any Value Left To Tender Back Doctrine?
ADA vs. Michigan Persons with Disabilities Civil Rights Act – Differences Matter!
To avoid legal quagmires, employers must understand the differences between federal and Michigan law regarding employees claiming disabilities.
We often lump together state and federal civil rights laws but there are some major differences. For example, I recently advised readers that the U.S. Court of Appeals for the Sixth Circuit just held that the tender back rule does not apply to federal civil rights claims.
But that doctrine is still valid under state civil rights laws. As a reminder, the tender back rule requires the return of the consideration given for a release of claims at or before the time the release is challenged and a lawsuit if filed. I am still upset with the appellate court’s ruling, but I digress.
Other differences include whether there can be individual liability (state yes, federal no) or punitive damages which are intended to punish (state no, federal yes), whether an administrative charge must first be filed with a civil rights agency (state no, federal yes), whether you can shorten the limitations period by contract (state yes, federal maybe if it is drafted correctly) and some of the prima facie cases/burdens of proof, to name a few.
Today’s case, Cook v DTE Energy Corp Serv, LLC, an unpublished decision of the Michigan Court of Appeals released this month, demonstrates some differences when it comes to state and federal disability civil rights laws. Let’s look at what happened and then I will tell you what caught my eye in this case.
Plaintiff Cook began working for Mich Con in 1980 and became a DTE employee after the merger. She was a business support specialist and was expected to submit weekly production schedules documenting her work. Specialists are evaluated based on their productivity (90 to120 percent “fully meets expectations”, 80 to 89 percent “meets many”, below 80 percent “does not meet”). The ratings are calculated based on days the specialist actually worked and did not reflect time off.
In addition, Cook constantly failed to turn in her production reports (which also adversely affected her production numbers), and this became a major issue. Cook also had a history of taking time off from work. She had intermittent leave under the Family and Medical Leave Act (FMLA) in 2010 and 2011 to care for her father, and she had various injuries and illnesses that caused her to take additional time off during periods when she did not have an active, approved FMLA leave.
From late 2013 through October or November 2014 Cook missed over 150 hours during the “rolling” 12 month period, which burdened other employees. Cook was instructed she should minimize her sick time. After she had been given a coaching and a documented verbal warning for attendance, she wrote on the warning notice that she would pursue an intermittent FMLA leave for her absences.
Following her evaluation for 2013, Cook was placed on a performance improvement plan because her production reports failed to provide sufficient detail. By April 2014, Cook showed improvement in her production, but still failed to provide sufficient detail in her production reports.
Cook successfully completed the performance improvement plan in July 2014 but was warned that if she failed to maintain her level of performance, she could be terminated. Cook failed to do so. Her mid-year performance review in September 2014 indicated that Cook’s production had already dropped to 36 percent the very next month following the performance improvement plan, and she had stopped submitting her production reports. Cook’s 2014 evaluation indicated that she was “at risk” and “off track.”
In September 2014, Cook suffered three strokes and was hospitalized. Because of confusion and vision impairment, her doctor said she was not fit for work. Cook took a leave of absence from work. The leave was extended through December 2014, and her doctor provided a tentative return to work date of March 2, 2015. While her doctor opined that she was totally disabled, an independent medical examination on Jan. 13, 2015, determined that there were no medical conditions that would prevent her from returning to work. DTE sent Cook a letter asking her to return to work on Jan. 27, 2015 and she returned on Feb. 3, 2015.
Cook failed to report to work on March 3, 2015. Cook said she thought she had informed “someone” that she was not going to be in on that day. However, DTE terminated her employment determining that this absence was a no call/no show.
Cook initiated a lawsuit under the Michigan Persons with Disabilities Civil Rights Act (MPDCRA) in March 2016. We can only assume that she sued under state law because she had failed to timely assert a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days as required under the Americans with Disabilities Act (ADA).
There were various claims asserted under MPDCRA (discrimination because of disability or perceived disability), harassment and hostile work environment because of disability and retaliation for taking medical leave. What puzzles me though is why a claim under FMLA was not pursued.
Cook also alleged that DTE failed to promote her because of her race in violation of the Elliott-Larsen Civil Rights Act, but she later voluntarily dismissed that claim (perhaps because of her documented performance issues). Eventually, all of her claims were dismissed when the trial court granted DTE’s motion for summary disposition finding Cook failed to prove one or more elements of each claim.
Cook appealed and the Michigan Court of Appeals, in a detailed analysis, affirmed the trial court’s dismissal of each claim for various reasons. But those reasons are not what this post is about.
Two things caught my attention in this case and reminded me of some basic differences between the MPDCRA and the ADA. First, the appellate court found that, while Cook had shown she had various medical conditions, she failed to prove she had a “disability.” This required a showing that she was substantially limited in her ability to perform some major life activities. The appellate court noted that while Cook had discussed the fact that she had suffered strokes causing her to be unable to return to work for a period of time, she failed to make this argument in “that portion of her response in which she argued that … she had a qualifying disability” under the act.
Second, the appellate court emphasized that a disability must not prevent the employee from performing the duties of her position, with or without an accommodation. MCL 37.1103. The appellate court found that DTE had plenty of documentary evidence (from Cook’s physician, the Social Security Administration and the Unemployment Agency) showing that she was disabled and unable to work during the “relevant time period.”
So, think about this. While the appellate court recognized that Cook had medical conditions, it found that she failed to prove she had a disability, but also ruled she was “disabled” and unable to work during the “relevant time period.”
Would a court’s focus and findings on these two issues be the same under the ADA? Probably not today. Back in the “good ole days” before the ADA was amended, the act required plaintiffs to walk a fine line between being sufficiently incapacitated to rise to the level of a disability, but not so disabled that the person could not perform the essential functions of their position with or without a reasonable accommodation. This was a very difficult balance to achieve for plaintiffs.
But the amendment to the ADA in 2008 changed this. Now, the EEOC and some courts find temporary injuries (such as a torn tendon) rise to the level of “disability” under the ADA. In addition, when an employee is unable to perform the essential functions of their position even with an accommodation, the employer must now consider whether a leave of absence to permit the employee time to recover is a reasonable accommodation.
This combination is very difficult for employers. The ADA was passed with the intent of removing barriers for individuals with disabilities (such as being blind, deaf or paraplegic) so that they could perform the essential functions of their job. Now, a person who is injured and unable to walk temporarily may be entitled to a leave of absence under the ADA.
But there is hope for employers. Recently, the U.S. Court of Appeals for the Seventh Circuit reaffirmed that the ADA is not a law intended to provide an employee with a leave of absence but assistance to disabled workers so they can work. Severson v Heartland Woodcraft, Inc, 872 F3d 476 (CA 7, 2018).
Granting an extended leave does not enable an employee to perform all of the essential functions of his job, but rather enables the person to avoid performing all of the functions. An occasional or short term leave may be permitted under the ADA when, for example, an employee needs time off for a flare up of lupus so painful that the employee must stay home. But, “[l]ong-term medical leave is the domain of the FMLA… recognizing that employees will sometimes be unable to perform their job duties….In contrast, ‘the ADA applies only to those who can do the job.’” Id at 481. Please keep in mind that this is not the rule in our federal circuit. This split in the federal circuits may eventually set the issue up for a ruling by the U.S. Supreme Court.
Contrast that to the MPDCRA. Because Cook was unable to perform the essential functions of her position during “the relevant time” (even with reasonable accommodation), she did not have a disability under the MPDCRA. Since 1999, providing a leave of absence, or a “reasonable time to heal”, has not been required under our state law. Lamoria v Health Care & Retirement Corp, 233 Mich App 560 (1999).
In addition, under the ADA, “accommodations” are only limited by imagination and the employer’s ability to prove an “undue hardship” (which becomes more difficult to prove as the employer’s financial and human resources increase). However, Michigan state law lists the specific accommodations that are required and, based on the size of the workforce, indicates the amount that must be spent by the employer before it is an undue hardship.
So, what should an employer do?
First, make sure that the employment application gives notice to applicants (and future employees) that requests for accommodations under the MPDCRA must be made in writing within 182 days of the day the need was known (or should have been known).
Second, make sure the employment application contains a 180-day limitations period that is properly worded to avoid being struck as to federal claims which must start with a charge at the EEOC.
Third, seek advice from an experienced employment attorney as disability issues arise. Whether state or federal law is involved, these are the most complex legal issues faced by employers.
An attorney can advise concerning such things as how to lawfully seek further information about the disability and engage in the interactive process, and how to structure severance payments so that a release of claims will be honored despite the new tender back rule issue. There are differences between the state and federal disability civil rights laws and knowing how to properly navigate the legal mine field with both is key to avoiding liability.Tags: Americans With Disabilities Act (ADA), Employment Discrimination, Employment Liability, Equal Employment Opportunity Commission (EEOC)