ReedGroup’s compliance attorneys presented leave of absence highlights from 2017 at the final Disability Management Employer Coalition’s (DMEC) Colorado chapter meeting on Thursday, December 7th. The presentation focused on an annual wrap-up of the legislative changes, notable cases, and agency action related to leave of absence and disability.

2017 proved to be fruitful for legislators, who passed several pregnancy accommodation laws as well as paid family leave laws, paid sick leave laws, and more.  Five of the newly-enacted laws go into effect on January 1, 2018:

This year also brought about several important court interpretations relating to FMLA, ADA, and ERISA. Most notable was the Severson case out of the 7th Circuit, where the court has set precedent that an extended leave of absence is not a reasonable accommodation under the ADA. Other cases include:

  • Valtierra vs. Medtronic, Inc., 232 F. Supp. 3d 1117 (D. Ariz. 2017): Morbid obesity is not a disability under the ADA unless it falls outside the normal range and is caused by a ‘physiological disorder.’
  • Blatt v. Cabela’s Retail Inc., No. 5:14-CV-04822, 2017 WL 2178123 (E.D. Pa. May 18, 2017): The ADA’s exclusion of ‘gender identity disorders’ from the definition of disability must be read narrowly and employees who experience gender dysphoria are protected by the ADA.
  • Carle v. Red Thread Spaces, 3:15-CV-01724 (JAM), 2017 WL 3994786 (D. Conn. Sept. 11, 2017): The FMLA covers time away for alcohol and substance abuse treatment, but not time away to simply wait for a clean drug screen.
  • Kott v. Agilent Techs., Inc., No. 16-CV-03678-BLF, 2017 WL 2903174 (N.D. Cal. July 7, 2017): If an employee has the ability to work part-time, she is working ‘any occupation’ and would not be eligible for disability benefits.
  • Jones v. Gulf Coast Health Care of Delaware, LLC, 54 F.3d 1261 (11th Cir. 2017): Without a policy prohibiting travel during leave, a court could conclude that termination for leave was retaliatory.

The regulatory agencies governing the leave of absence and disability space were also busy this year. Most discussion-worthy were DOL’s ERISA claims handling regulation delay, EEOC’s pushing through of back-logged cases, and the new appointments under President Trump’s administration. While 2017 brought about many changes for employers and disability plan administrators, ReedGroup’s compliance team does not anticipate that this trend will stop any time soon.

2018 could bring about more Paid Family Leave laws (we are also keeping an eye on Federal preemption legislation), paid sick leave laws, pregnancy accommodation laws, and of course further interpretation from circuit courts of what constitutes a ‘reasonable accommodation’ under the ADA (including length of leave).

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