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Employment Law Alert: Three interesting cases

In the first case, Wells v. XPEDX, a Florida federal district court held on October 31 that the plaintiff, who had signed a release waiving his right to sue, could nevertheless pursue his age discrimination claim under the Age Discrimination In Employment Act. While the employer, XPEDX, claimed that Wells’ employment was terminated for poor performance, the Court said that the timing of the termination decision -- Wells was terminated while XPEDX was in the process of an overall reduction in force -- raised a question of fact as to whether XPEDX’s release needed to satisfy all the requirements of the Older Workers Benefit Protection Act (“OWBPA”) in order to be enforceable. Because the release did not satisfy all of the OWBPA’s requirements, it did not preclude Wells from maintaining his lawsuit.

Another interesting case is Payne v. Fairfax County, in which a federal district court in Virginia held that FMLA leave “may be held against” an employee for purposes of determining whether the employee is a “qualified individual with a disability” under the ADA. Payne was employed as an automobile mechanic for Fairfax County. He suffered from various maladies, including panic disorder, irritable bowel syndrome, and Epstein-Barr disease, which caused him to miss work often. After exhausting his sick leave, Payne applied for FMLA leave, then later requested an accommodation under the ADA that he be allowed to “come in late, leave early, or miss a day.” When he was later denied sick leave in 2002, he resigned his employment, and then sued the County alleging violations of the FMLA and ADA. With respect to Payne’s ADA claim, the County argued that Payne was not qualified for his position because of his unreliable attendance, citing the numerous occasions that Payne had missed work due to his various conditions -- including some occasions that were FMLA-qualifying. Even though the FMLA “clearly manifests a general intent of Congress that such FMLA leave should not be ‘held against’ the employee,” the Court nevertheless held that Payne’s having missed work -- even for an FMLA-qualifying reason -- could be used by the County to demonstrate that he could not satisfy an essential function of his job -- “[a] regular and reliable level of attendance.” In support of its position, the Court noted that an FMLA regulation -- 29 C.F.R. § 825.702 -- expressly provides that the FMLA does not modify the ADA in any respect. The Court also noted that no federal appeals court has addressed this issue.

Finally, in Pittari v. American Eagle Airlines, Inc., the Eighth Circuit again held that an employer does not “regard” an employee as disabled under the ADA merely by following restrictions imposed by the employee’s own physician. We have made this argument successfully in Kentucky courts.

Bottom Line

The Wells case is a cautionary reminder that the OWBPA requirements should be considered with respect to every termination decision affecting an older worker, i.e., 40 and older. As you know, the OWBPA has special considerations when an employee is being terminated as part of a reduction-in-force. The failure to follow these requirements -- even if you’re not 100% certain that they apply -- can prove a costly mistake. The American Eagle case -- while not really saying anything new -- is nevertheless a useful case for employers faced with defending against “regarded as” claims under the ADA. The most controversial case is clearly the Fairfax County case, because it seems to fly in the face of the general proposition that FMLA leave should not be “held against” an employee. However, given the cited regulation that the FMLA does not modify the ADA in any respect, as well as the long line of cases under the ADA that recognize regular and predictable attendance as an essential function of most jobs, we believe the case was correctly decided.



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