Per the Equal Employment Opportunity Commission’s annual report, the EEOC secured more than $505 million for victims of discrimination for the fiscal year 2018. Amongst them, the EEOC won a verdict in the Ninth Circuit against a railway, holding that it was a violation of the ADA to force an employee to obtain an MRI at his own expense before beginning employment. EEOC v. BNSF Railway Company, 902 F.3d 916 (9th Cir. 2018).

Long-Term/Indefinite Leaves of Absence Under the ADA: Courts have ruled differently with respect to whether long-term or undefined leaves of absence are reasonable accommodations under the ADA. It depends on the jurisdiction that you are in and/or the particular facts of the case. The Seventh Circuit held that a long-term or undefined leave of absence is not a reasonable accommodation under the ADA. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 482 (7th Cir. 2017). Several courts have followed Severson and held that indefinite or long-term leaves of absence are unreasonable. See Rancourt v. OneAZ Credit Union, No. cv-17-00194-phx-jjt, 2018 U.S. Dist. LEXIS 138805 (D. Ariz. Aug. 16, 2018); Markowitz v. UPS, 711 Fed. Appx. 430 (9th Cir. 2018); Wilson v. Greenco Indus., No. 17-cv934-wmc (W.D. Wis. Mar. 7, 2019). However, at least one court has declined to follow Severson, holding that an extended unpaid leave could be a reasonable accommodation so long as it was not an undue hardship for the employer, regardless of the length of the leave. Estep v. Forever 21 Retail, Inc., (D. Or. Nov. 13, 2018) (citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999)).

ADA and Obesity: Employers should reevaluate accommodation requests and hiring processes for employees and applicants that are obese. Any denials of accommodation or refusal to hire should be based on the limitations posed by obesity itself, not based on any “perceived” characteristic associated with obesity. Courts may determine that employers “regarded” an employee as disabled based on perceived health complications associated with obesity, amounting to a violation of the ADA. See Shell v. Burlington Northern Santa Fe Railway Company, No. 15-cv-11040 (N.D. Ill. Mar. 5, 2018).

FMLA Notice Requirements: Courts have reinforced that employers may require notice of the use of FMLA leave and an initial showing of a “serious health condition.” However, employers should not deny requests simply because an employee has not expressly stated that the employee needs or is using FMLA leave. Additionally, employees are not required to return to work when they are cleared for light-duty by a medical provider, and may still utilize unexhausted FMLA leave before returning to the workplace. Still, employers may require employees to notify the employer if and when the employee decides to return. See Stein v. Atlas. Indus., 730 Fed. Appx. 313 (6th Cir. 2018).

FMLA Interference: As demonstrated in Walker v. Pocatello, No. 4:15-cv-00498-BLW (D. Id. Jan. 31, 2018), employees maintain the right to require a second opinion from an employee’s medical provider if it has objective reason to doubt the validity of FMLA medical certification. However, if an employer takes additional actions to find evidence of an employee’s medical issues – including internet or video surveillance – these measures could amount to FMLA interference.

Takeaways for the ADA: Continue to assess accommodation requests on a case-by-case basis, and review policies regarding pre-employment medical examination requests.

Takeaways for the FMLA: Employers may still require notification and certification to evaluate whether an employee is eligible for FMLA, but employees may still be entitled to take FMLA leave even where they have not expressly stated that they are using FMLA or have a need to take FMLA leave.

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The Final Rule (RIN 1235-AA09) changes the definition of “spouse” in federal regulations, 29 C.F.R. §§ 825.102 and 825.122 (b). Under the new place of celebration test, if an employee was legally married in a state or country that recognizes same-sex marriages but moves to a state that does not, the employee’s marriage is still recognized and the employee can take FMLA leave to care for his/her spouse. This is a change from the prior “state of residence” test, which conditioned FMLA rights for same-sex couples on the law of the state in which the individual resides. This final rule takes effect on March 27, 2015.

The change has its roots in United States v. Windsor, 132 S. Ct. 2675 (2013), in which the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which defined marriage as the union of a man and woman. After Windsor, employers needed to determine how to treat employees in same-sex marriages for purposes of federal taxes and various other federal employee benefits such as leave rights under the FMLA because many employee benefits are provided through the spousal relationship and state law on marriage equality differed.

In a revenue ruling shortly after Windsor, the IRS declared the state of celebration test would be used to define a marriage for federal taxes: meaning if a same-sex couple got married in a state that legally recognized their marriage, the couple will be considered married for purposes of federal tax laws regardless of whether they moved to a state where same-sex marriage is not recognized. This affected employee benefits as follows: (1) employers with group health plans had to cease imputing income to employees whose same-sex spouse participates in the plans (as employers had previously been required to do); (2) employers were required to allow employees to pay the premiums for their same-sex spouse’s coverage with pre-tax dollars (if other employees with opposite-sex spouses are permitted to do so); and (3) employers with qualified retirement plans needed to treat same-sex spouses as “spouses” for all purposes under their plan (e.g., the spousal consent requirements for beneficiary designations).

In contrast to the IRS and other federal agencies, for purposes of the FMLA, the DOL determined that an individual would only qualify as a same-sex spouse of an employee if the employee resides in a state that recognizes his or her marriage (i.e., the “state of residence” test). Because this test precluded couples who were legally married but moved to states that did not recognize their marriage from applicable rights, in June 2014, the DOL proposed regulations to modify its regulations to adopt the state of celebration test like the IRS. The proposed rule was published in the Federal Register June 27, 2014. The DOL noted that the proposed rule elicited 77 comments representing more than 18,000 individuals. The comments that came from the Human Rights Campaign, labor organizations, employer associations, and a group of 23 U.S. Senators overwhelmingly supported the change.

Today, 37 states and the District of Columbia have full marriage equality and six states have lower court decisions in favor of marriage equality, which are staying pending appellate court review. Additionally, the Supreme Court has accepted certiorari to review the 6th Circuit Court of Appeals decision which upheld same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee. As of June 2015, we will likely have more clarity nationwide on marriage equality.

The Bottom Line for Employers

For now, under the new rule, provided the employee was married in a state or country where same-sex marriage is recognized, and regardless of the state law in which the employee currently resides or works, an eligible employee will be allowed to take FMLA leave to care for his/her same-sex spouse with a serious health condition, take qualifying exigency leave due to his/her same-sex spouse’s covered military service, or take military caregiver leave for his/her same-sex spouse. If your FMLA policy simply provides for leave for a “spouse” and does not define spouse or improperly limit the definition of spouse, there is no need to change it. However, employers should make sure human resources personnel and managers understand this change and are providing all required leave for legally married same-sex spouses regardless of the law of the state in which the employee currently resides or works.