Man Hit By Car Ineligible for FMLA Leave

On November 3, 2009, the Sixth Circuit Court of Appeals issued its decision in Stimpson v. United Parcel Service, Sixth Cir. Case No. 08-2263, affirming an award of summary judgment to the employer.

Plaintiff Paul Stimpson, a part-time UPS employee, was hit by a car while riding a bicycle off-duty. Mr. Stimpson was treated at an emergency room, where he was noted to have contusions on his back, legs, and right ankle. He returned to the hospital a day later complaining of back pain.

Mr. Stimpson left a message with his employer that he was hit by a car while biking, but did not provide any other information. He claimed to have called his supervisor to report that he would not return to work until he recovered, which the supervisor denied.

When Mr. Stimpson did not respond to UPS’ letter threatening termination for failure to provide medical documentation substantiating his absence, he was fired. Mr. Stimpson filed suit alleging violation of the Family and Medical Leave Act (FMLA). The trial court granted summary judgment to the employer, concluding that Mr. Stimpson was not eligible for FMLA leave, failed to give proper notice under the FMLA, and failed to demonstrate that he had a serious health condition under the FMLA.

While the Sixth Circuit Court of Appeals, in a 2-1 decision, found the trial court’s summary judgment ruling improper on the issues of Mr. Stimpson’s eligibility and notice, it affirmed the ruling with respect to the issue of whether Mr. Stimpson had a serious health condition under FMLA. In making its decision, the Court noted medical records indicating only “mild to moderate” back pain. The Court concluded that none of the medical documentation suggested that Mr. Stimpson’s back pain significantly limited his movement or lifting ability.

While UPS was successful in this instance, employers should continue to thoughtfully and carefully address employees’ possible FMLA qualifying leave. The Stimpson majority did find that the plaintiff should have survived summary judgment with respect to his notice of FMLA qualifying leave. Additionally, the majority opinion emphasized that the Court was not ruling that a back injury can never constitute a serious health condition.

Author: Ryan Bonina


EEOC Issues Draft of Regulations for 2008 Amendments to ADA

The Equal Employment Opportunity Commission (EEOC) released its proposed regulations and interpretive guidelines for implementation of the ADA Amendments Act of 2008 in September. The rules and regulations are open for public debate and the EEOC is planning to hold town hall sessions in November to allow input from the business community. The introduction to the proposed rules states that the effect of these changes is to “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.”

Defining Disability
The 2008 amendment to the ADA does not change the basic definition of a disability as: “a impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.” However, it does change the way these statutory terms should be interpreted.

The proposed regulations expand the definition of major life activities through two non-exhaustive lists. The first includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping and walking. The second includes major bodily functions, such as function of the immune system, normal cell growth, digestive, respiratory and reproductive functions. With these two expanded lists, the concept of daily life activities takes on a much broader meaning.

Mitigating Measures
Under the 2008 amendment, the therapeutic effects of mitigating measures shall not be considered in determining whether an impairment substantially limits a major life activity. Under the proposed rules, mitigating measures include but are not limited to:
  • medication;  
  • medical supplies;
  • equipment or appliances;
  • low vision devices;
  • prosthetics, including limbs and devices;
  • hearing aids and cochlear implants or other implantable hearing devices; and
  • mobility devices or oxygen therapy equipment and supplies.
Many chronic illnesses or conditions that can be easily treated with medication now take on the potential mantle of being a disabling condition since mitigating measures like medications cannot be considered. Only the beneficial effects of ordinary eyeglasses or contact lenses shall be considered when determining whether an impairment substantially limits a major life activity.

These are just a few of the examples of the major changes found within the proposed regulations. It is encouraged that all employers review carefully the proposed regulations. More information will be provided as the proposed regulations proceed through the review process.

Author: Charles Smith


Senate Passes Legislation to Extend Unemployment Benefits

On November 4, 2009, the United States Senate voted 98-0 to extend the current unemployment insurance benefits program. The bill now goes to the House of Representatives.

The Senate bill would extend unemployment benefits for up to 14 additional weeks in all states and up to 20 weeks in states with a three-month average unemployment rate of at least 8.5%. Ohio falls into the latter category. This bill is more expansive than the one previously passed by the House of Representatives, which only would have extended benefits by 13 weeks in states with a three-month average unemployment rate of at least 8.5%. As with the House version, the cost of the extension in the Senate bill is offset by extending the Federal Unemployment Tax through June 30, 2011.