Co-worker harassment, exclusions from health insurance coverage, Association rules enforcement, FMLA eligibility, and more in our social media posts this week – Mar. 15 – 21, 2020.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

In the post on Sunday 3/15/20, we read that a surgeon sued an hospital because of his co-workers’ anti-gay harassment after he came out. Chad is a 32-year-old doctor at an hospital in Brooklyn. He came out during his residency. He alleges that his supervisor called him a nasty name (which will not be repeated here but is in the post) and that the surgical residency program director and associate director made the types of comments noted in the post. Chad left before his residency ended; what the hospital did to the director and associate director is in the post. Chad sued. The hospital has said that it intends to defend.

TAKEAWAY: What action an employer takes when an employee complains can be critical to a defense in times of suit – so make sure to take appropriate action after consulting legal counsel.

The post on Monday 3/16/20 was about a state employee heading to court to challenge the trans surgery exclusion in her health care plan. Jennifer works as a legislative librarian for the state; She was diagnosed with gender dysphoria in 2014. She wanted to follow her doctors’ recommendations as to a course of action, but her employer-sponsored health plan would not pay for it. She went out of picket in a huge way (see the post). The plan’s benefits and coverage have changed some (see the post), but not as to what affected Jennifer. She filed a charge with the EEOC which found probable cause. Jennifer then sued the state (the claims are in the post). How a similar suit in another state fared is briefly noted in the post. The basis on which Jennifer’s attorney thinks her win will rest is described in the post.

TAKEAWAY: Whether sex discrimination includes gender identity is a question in flux – before making any adverse decision on that basis, consult legal counsel.

The posts on Tuesday 3/17/20, here and here, wished you a Happy St. Patrick’s Day (even though bars and restaurants were closed due to COVID-19) and suggested that you celebrate the Irish in all of us …

TAKEAWAY: As noted in the post, don’t treat employees differently based on national origin (or any other protected characteristic

The post on Wednesday 3/18/20 told us that an Association decision to ban boy from bike riding was upheld. We all know that there are rules to life in a planned community (condo and homeowner association). Here, Robert and Angelica received a warning letter from their Association about their 4-year-old son riding his tricycle and scooter in a common area. Why the association says it was sent is in the post. Robert and Angelica did some investigating and thought there was uneven enforcement. They filed a complaint with HUD which then sent it to the state agency to investigate and rule. It did – and its ruling is described in the post.

            TAKEAWAY: All owners must abide by an association’s rules, but they must be evenly enforced.

In the post on Thursday 3/19/20 we learned that a sick sibling PLUS healthy kids does NOT = an FMLA leave trigger. So, what is the background here? Andrew began working with Apple’s Genius Team in Fall 2008. Slightly less than 10 years later, he requested intermittent FMLA leave – the basis for his request is in the post. After that, Apple denied him a promotion (the basis for which is in the post) and treated him negatively (again, see the post for the basis). After Andrew renewed his FMLA leave request, he was fired (the reason is in the post). Andrew sued, alleging FMLA violation and retaliation. Apple moved for dismissal. The judge granted the motion – the analysis is in the post (and is instructive).

TAKEAWAY: Make sure that requested FMLA leave is appropriate under the statute – consult an employment lawyer to be sure.

The post on Friday 3/20/20 told us that an inability to perform a single job is not a substantial impairment under the ADA. A federal court just rendered a decision in a case where it was faced with whether an inability to perform a particular job was a qualifying disability under the ADA. Here, the plaintiff suffered from migraines he contended were related to stress at work. How they affected him is in the post. His work was negatively affected as were his evaluations. During that time, he made various requests for accommodations, even providing a doctor’s note. The requests were not granted, but what the employer did is not in the post. Eventually his employment was terminated. He sued for failure to accommodate. The basis on which the court ruled is in the post and is fairly widely held among federal courts (although the one governing in PA has not addressed the issue yet).

TAKEAWAY: While the ADAAA broadened the definition of disability, not every employee or every situation qualifies for accommodation – know the law.

Finally, in the post yesterday 3/21/20, we had alcohol in the “hic” workplace – a quiz (where you could test your knowledge of alcohol use and abuse in the workplace). If you didn’t take the quiz yet, go to the post and do so.

TAKEAWAY: Know the law related to alcohol in the workplace before you take adverse action against an employee.

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