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Let’s Just Call It A RIF

Jon Allison

Monday Blog

Doug Johnson worked for Paloma Blanca Health Care Associates, a health and rehabilitation center in Albuquerque, New Mexico, driving a van and transporting nursing home patients to medical appointments.  After approximately 3 years of employment, he suffered a heart attack and was diagnosed with a number of cardiovascular conditions.  He requested and was granted leave under the Family and Medical Leave Act (“FMLA”).  However, after 5 weeks on leave he was terminated.  He was told that the termination was part of a reduction-in-force (“RIF”).  Persons on medical leave don’t have any special protection from being included in a legitimate reduction-in-force.  If, for example, a company lays off 10% of its workforce and the selection criteria for each job category is seniority, it would be legal to terminate the least senior van driver whether or not he was on FMLA leave.  What is problematic is when employers terminate employees for discriminatory reasons and then claim there was a reduction-in-force when there really wasn’t to cover up the illegal termination.  In this case the employer got caught and settled.  As it turns out, there was no evidence to support any RIF.  Johnson was the only employee terminated at the time of the alleged RIF.  For more, read . . .

Reasonable Beliefs And Direct Threats
Last week the Court of Appeals for the Tenth Circuit reversed a jury’s verdict in favor of a disabled employee finding that the Colorado District Court Judge incorrectly instructed the jury that the employer had to prove a threat of harm actually existed rather than that the employer reasonably believed so.  The case involved a warehouse employee with impaired vision who was seeking a promotion, but required an accommodation.  The employer refused the accommodation and promotion and asserted what is known as a “direct threat” defense, arguing that the employee’s impaired vision would create significant risk of harm to the employee and his coworkers and could not be reasonably accommodated.  The District Court Judge instructed the jury that, to establish the direct threat defense, the employer had to prove that the employee’s “employment in a night warehouse position posed a significant risk of substantial harm to the health or safety of [the employee] and/or other employees” and that “[s]uch a risk could not have been eliminated or reduced by reasonable accommodation.”  The Tenth Circuit reversed and held that the employer should not be liable if it “reasonably believed the job would entail a direct threat.”  The case has been remanded for a new trial where the focus of the defense will surely be its belief in the risk while the employee will focus on the reasonableness of that belief.  For more, read this article. . .

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