1. 2018 HR INDIANA ANNUAL CONFERENCE
Date of Presentation
Title of Presentation
Name of Presenter
Presenter Contact Info
August 20, 2018
Immigration Law Today: The Latest on
Options, Enforcement, and Compliance
Patricia Ogden
Barnes & Thornburg LLP
317-231-7712
pogden@btlaw.com

2. Patricia L. Ogden
Partner
317-231-7712
317-231-7433 Fax
patricia.ogden@btlaw.com
11 South Meridian Street
Indianapolis, Indiana 46204-3535
Patricia L. Ogden is a partner in Barnes & Thornburg LLP’s Indianapolis office
and a member of the firm’s Labor & Employment Law Department. Ms. Ogden
exclusively represents management interests for a broad client base, including
both private and public employers of varying size. On the litigation side of her
practice, Ms. Ogden routinely defends allegations of wrongful discharge, wage
and hour claims, discrimination, retaliation, sexual and other forms of
harassment, whistleblower complaints, OSHA violations, worker’s
compensation matters, and a variety of other employment claims. In addition to
defending claims in federal and state court, Ms. Ogden has represented clients
in a variety of administrative forums, including the Department of Labor,
matters before the EEOC, federal and state OSHA matters, unemployment
appeals, and worker’s compensation claims. With regard to OSHA matters,
Ms. Ogden has assisted employers defend claims, including multiple fatality
cases, in multiple jurisdictions and with regard to both federal and state plans.
Recognizing the significance of being proactive in employment matters in order
to reduce legal risks, Ms. Ogden spends a substantial amount of her practice
in daily client counseling, effective policy development, and client training on a
variety of legal compliance issues, including by way of example Title VII of the
Civil Rights Act, harassment issues, the Americans with Disabilities Act (ADA),
the Family and Medical Leave Act (FMLA), various state statutes, wage and
hour compliance issues, effective hiring, as well as other effective supervisory
skills. Her practice regularly involves advising human resource professionals
and management personnel who hold the responsibility of administering the
FMLA and ADA compliance, as well as advising clients on OSHA compliance
and training requirements and best practices. In addition, Ms. Ogden works
with clients on consulting agreements, independent contractor issues,
handbooks, and in analyzing reductions-in-force and preparing severance
packages.
Prior to joining Barnes & Thornburg, Ms. Ogden was a practicing registered
nurse (RN) specializing in research and transplantation and critical care, as
well as the nurse manager of a large medical unit. Due to her background as
an RN, Ms. Ogden participates in healthcare symposiums and advises clients
and other HR personnel on updates to the ADA and FMLA, workplace medical
issues, risk management, effective documentation, legal issues involving
unemployment proceedings, transfer of patients between facilities, and other
healthcare-related topics.
Ms. Ogden earned her B.S. from Ball State University in 1990, and her J.D.,
summa cum laude, in 1996 from the Indiana University School of Law -
Indianapolis. While in law school, she was the executive editor for notes and
topics for the Indiana Law Review. Ms. Ogden has been recognized in The
Bar Admissions
Indiana
Other Court Admissions
Indiana Northern District
Court
Indiana Southern District
Court
Education
B.S., Ball State University,
1990
J.D., Indiana University -
Indianapolis, 1996

3. Best Lawyers in America.
Ms. Ogden is a member of the Indiana State Bar Association and the
American Bar Association, and is admitted to practice in the United States
District Courts for the Northern and Southern Districts of Indiana.

4. Stay connected
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intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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ADA Charges on the Rise
• Disability charges with EEOC have increased from
about 18% of all charges (prior to ADAAA) to
32%
• Second most frequently cited protected basis
behind race (34%)
• Third most overall (retaliation is second)
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2017 EEOC Charge Receipts (for Indiana)
Disability
0
200
400
600
800
1,000
FY 2015 FY 2016 FY 2017
Total Charges
0.0
25.0
50.0
75.0
100.0
FY 2015 FY 2016 FY 2017
% of Total State Charges

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intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Pregnancy Discrimination Charges
3,000
3,100
3,200
3,300
3,400
3,500
3,600
FY 2015 FY 2016 FY 2017
Number of Receipts
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information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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ADA Update

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Is Multi-Month Leave A “Reasonable ” Accommodation?
Severson v. Heartland Woodcraft
7th Cir. 2017 (Cert. Denied Apr. 2018)
• Severson was employed by Heartland Woodcraft in a
physically demanding job.
• In June of 2013, Severson injured his back at home and
requested FMLA leave. He went through a conservative
course of treatment during that time.
• Severson exhausted his 12 weeks of leave and requested an
extension of three months more leave to recover from back
surgery, which was scheduled on the day his FMLA leave
ended.
• Heartland denied the request and terminated him – inviting
him to reapply once physically able to work.
• Severson sued under the ADA – arguing that Heartland
failed to accommodate his disability.
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Is Multi-Month Leave A “Reasonable ” Accommodation?
Severson v. Heartland Woodcraft
7th Cir. 2017 (Cert. Denied Apr. 2018)
• Severson cited three different requested
accommodations:
1. Three-month leave;
2. Transfer to a vacation job;
3. Assignment to a temporary light duty position.
• Heartland won on summary judgment at the
district court level – the court found that the
requested accommodations were not
reasonable.
• Seventh Circuit agreed, delivering a helpful
opinion for employers.

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Is Multi-Month Leave A “Reasonable ” Accommodation?
Severson v. Heartland Woodcraft
7th Cir. 2017 (Cert. Denied Apr. 2018)
• Seventh Circuit:
1. There was no evidence that any vacant jobs
were available;
2. Request for temporary light duty position was
unreasonable because employers are not
required to strip away the essential functions of
the employee’s job in order to accommodate
(also no light duty positions available)
3. But what about Severson’s request for a three-
month leave?
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intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Is Multi-Month Leave A “Reasonable ” Accommodation?
Severson v. Heartland Woodcraft
7th Cir. 2017 (Cert. Denied Apr. 2018)
• Seventh Circuit said that while the concept of reasonable
accommodations is flexible – it does not require an
employer to excuse an employee’s complete inability to
work.
• The court drew a line between FMLA and ADA:
– FMLA is for those who cannot work;
– ADA is for those who can work.
• Severson could not work – he was not entitled to a three
month leave and he had exhausted all FMLA leave.
• The ADA succinctly noted: “The ADA is an anti-
discrimination statute, not a medical-leave entitlement.”
• The term “reasonable accommodation” is limited to those
measures that will enable employees to work.

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Severson and the Circuit Split
• Nunez v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir., 1999)
– Reversed employer’s win on summary judgment and found that “an extended medical leave,
or an extension of an existing leave period, may be a reasonable accommodation if it does not
pose an undue hardship on the employer.” Employee had been on leave for seventh months
when fired.
• Garcia-Ayala v. Ederle Parenteral, Inc., 212 F.3d 638 (1st Cir. 2000)
– Reversed employer’s win on summary judgment where employee was fired after requesting
an additional 5 months of leave after her 1-year “job reservation” leave under Company
policy, had expired.
– Circuit Court refused to adopt a rule that “additional medical leave sought would be per se an
unreasonable accommodation.”
• Cohrs v. Northeast Ohio Alzheimer’s Research Ctr., 155 F.3d 775 (6th Cir. 1998)
– Reversed employer’s win on summary judgment where employee had been given three
month leave but then requested additional leave.
– “[N]o presumption should exist that uninterrupted attendance is an essential job requirement,
and … medical leave of absence can constitute a reasonable accommodation under
appropriate circumstances.”
• Raccoon v. US West Comic's, Inc., 143 F.3d 1324 (10th Cir. 1998) overruled on other
grounds
– Judgment in favor of employee granted where employee requested a 5-month leave of
absence to take part in PTSD treatment program.
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
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Decisions after Severson
• Golden v. Indianapolis Housing Agency, 7th Cir., October 2017
– summary judgment affirmed in case where employee with cancer had
sixteen weeks off and requested another 6 month leave
• EEOC v. S&C Electric Co., N.D. Ill., April 2018
– Motion to Dismiss denied where the plaintiff had been on an
approved leave for 12 months, was subsequently released without
restrictions and the employer refused to reinstate him, citing Severson
as the basis for the assertion that he was no longer qualified– the
district court determined that the argument was “nonsense.”
• Maffeo v. Butler University, S.D. Ind., February 2018
– Summary judgment granted where professor with extensive shoulder
injury and recovery period was unable to return to campus for
extensive period of time
– Regular interactive discussions held
– No definitive return to work date that would allow her a regular on
campus presence

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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No ADA or FMLA Retaliation for Sick Leave Requirement
Freelain v. Oak Park
7th Cir. 2018
• Freelain was a police officer for the Village of
Oak Park.
• Freelain complained of sexual harassment by
a female sergeant (later found to be
unsubstantiated).
• Freelain began having migraines which he
associated with the stress of the harassment
– he took 20 days of paid sick leave pursuant
to Oak Park’s policy.
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
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No ADA or FMLA Retaliation for Sick Leave Requirement
Freelain v. Oak Park
7th Cir. 2018
• Prior to returning, the Department required
Freelain to undergo a psychological
examination – which took six weeks and
required him to use more paid sick leave.
• The Department then reclassified that leave
(at his request) to administrative leave.
• That reclassification took long enough that
Freelain was forced to use unpaid FMLA to
care for his sick wife – as opposed to paid
sick leave.
• Freelain sued under the ADA and FMLA
alleging retaliation.

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
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intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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No ADA or FMLA Retaliation for Sick Leave Requirement
Freelain v. Oak Park
7th Cir. 2018
• Court reaffirmed that FMLA is intended to work with
paid leave – so Department’s requirement that he take
sick leave before FMLA was proper.
• Court found that psychological evaluation was valid:
– Public safety position coupled with Freelain’s symptoms of
stress made it reasonable.
• Freelain’s retaliation claim failed because he was
unable to show that any of the Department’s actions
were materially adverse.
• The delay in reclassifying his leave was not
unreasonable.
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Professional Speculation Not Enough -- $500K+ Verdict
Stragapede v. City of Evanston
7th Cir. 2017
• Water services worker suffered head injury at home, returned to work
after nine months upon clearing fitness for duty exam.
• Employee had several incidents of going to wrong address, going through
intersection without looking while looking down at pad, unable to install a
meter.
• Terminated within weeks of reinstatement – City said he was not able to
perform the essential functions of his job.
– Evidence that he needed help completing simple tasks, could not complete
tasks on time, was inattentive while driving, and left job site several times.
– General forgetfulness (went to wrong water meter location, needed help
changing out a water meter).
• City shared these shortcomings with a neurologist who said they were
related to his brain injury. Neurologist did not reexamine the Plaintiff.
• City did give accommodations: additional time to ask questions, map,
paper, tape recorder to use on his job.

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Professional Speculation Not Enough -- $500K+ Verdict
Stragapede v. City of Evanston
7th Cir. 2017
• Neurologist wrote letter opining that Stragapede could
not perform essential functions based solely on
Employer’s report.
• City argued undue hardship and direct threat, to no
avail.
• Jury disagreed, awarded $ 354,070 in backpay and
$225,000 in damages, totaling $579,070.
• Seventh Circuit affirmed
• Where did they go wrong?
– No follow up exam;
– Direct supervisor testified on employee’s behalf and said
he was performing essential functions adequately.
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Failure to Follow Policies Can Imply Pretext
Vestal v. Heart of CarDon, LLC
S.D. Ind. 2018
• Vestal was a Certified Nursing Assistant (CNA)
who the employer knew was diabetic.
• Vestal only worked for the employer from
January to May 2016.
• During her five month tenure, she had four
severe diabetic episodes requiring her to leave
work early, leading to a final written warning.
• Three weeks after the fourth episode, the CNA
had another episode, but two employees
believed the episode was the result of drug use,
not diabetes.

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Failure to Follow Policies Can Imply Pretext
Vestal v. Heart of CarDon, LLC
S.D. Ind. 2018
• The employer asked the CNA to provide a
urine sample.
– There was a dispute as to whether a sample was
taken, but the employer informed her there was a
positive test for methamphetamine and she was
terminated.
• The CNA filed suit arguing she was terminated
because of her disability and that the
employer did not want to accommodate her
requests for additional leave.
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Failure to Follow Policies Can Imply Pretext
Vestal v. Heart of CarDon, LLC
S.D. Ind. 2018
• The CNA’s ADA claim survived summary
judgment.
– First, the employer did not comply with its own
drug testing policies (no confirmation test) and
could not produce a record of the failed test,
leaving open the possibility of a fabricated test.
– Second, the timing was suspicious, as she was
terminated just weeks after her final warning for
the same attendance issues.

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• Achors worked on an assembly line
from 1994-2001 – when she was
diagnosed with a disorder that caused
seizures.
• Achors was no longer qualified for her
position, but FCA gave her temporary
assignments for the next 12 years.
• No more positions were available, so
FCA put her on 90% pay until it found a
new position.
Indefinite Accommodations-
Achors v. FCA USA
S.D. Ind. 2017
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• Achors was put in a new temporary role in 2014, where
she said a coworker made several negative comments
regarding her disability.
• She reported the comments, but FCA found no merit
after all witnesses involved denied the comments took
place.
• Later, Achors was placed in a new temporary
assignment, argued with her new manager and was
subsequently suspended for two months.
• Achors filed suit under the ADA alleging a failure to
accommodate, retaliation, and hostile work
environment.
Indefinite Accommodations
Achors v. FCA USA
S.D. Ind. 2017

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• The district court, on summary judgment, said
there was a factual issue as to what her job was
and thus whether she was qualified: assembly
line worker or “floater” who received various
temporary assignments?
• FCA was not obligated to indefinitely provide her
with temporary positions (though it had done so).
• Even if a “floater”: her evidence of failures to
accommodate were not valid.
Indefinite Accommodations
Achors v. FCA USA
S.D. Ind. 2017
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• Retaliation claim was also meritless:
– No evidence that decision maker (who was not
the manager she had dispute with) suspended her
because of her disability.
• No hostile work environment:
– Incidents were not severe enough, were not
pervasive enough, and were only single isolated
instances – at worst.
Indefinite Accommodations
Achors v. FCA USA
S.D. Ind. 2017

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information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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FMLA Update
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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What Is A Serious Health Condition?
Guzman v. Brown County (Wisc.)
7th Cir. 2018
• Guzman was a 911 dispatcher who was terminated for repeated
tardiness and attendance issues.
• Diagnosed with Sleep Apnea in 2006, although unclear whether the
employer was on notice.
• Gastric Bypass surgery in 2008 alleviated her Sleep Apnea.
• Lengthy discipline record:
– Five verbal warnings for vacation and casual time use from 2004-2013;
– Three verbal or written warnings for work performance;
– Verbal warning for failing to report to work.
• Several of these disciplines occurred soon after using FMLA leave
during her 11 year tenure for the County.
• 2012-2013: late four times, said she overslept and was given
written warning.
– On notice that one more tardy would result in termination.

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What Is A Serious Health Condition?
Guzman v. Brown County (Wisc.)
7th Cir. 2018
• Late just days later, terminated.
– Brought psychiatrist’s note to termination meeting
that said she “most probably” had Sleep Apnea and
needed to be re-tested and treated.
– Dispute over whether she requested leave and
provided the note before or after being told she was
terminated.
• Sued for FMLA retaliation and interference, as
well as ADA discrimination and retaliation claims.
• County won summary judgment on all claims.
• Seventh Circuit affirmed.
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What Is A Serious Health Condition?
Guzman v. Brown County (Wisc.)
7th Cir. 2018
• Seventh Circuit said evidence was unclear (because of the
ambiguous doctor’s note) as to whether she was suffering
from Sleep Apnea.
• But – it was undisputed that she was not receiving
treatment for it, so no serious health condition.
• Employer did not have constructive notice of her condition
based on her five instances of oversleeping during eight
month period. Did not meet the types of facts necessary to
be considered constructive notice.
• Decision maker was unaware of her “condition” at the time
of the decision.
– This finding also doomed the ADA claims
• Fired for repeated tardiness, a non-discriminatory reason.

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and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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What Is A Willful Violation?
Sampra v. United States Dept. Transp.
7th Cir. 2018
• Sampra was an electrical engineer for the FAA, assigned to an office job
overseeing technical support services.
• Went on FMLA leave from January 6, 2014 to March 10, 2014.
• While she was on leave, a new supervisor had assigned himself her job
duties of overseeing work releases, and upon her return assigned her to a
field work position, albeit with her same title and pay.
• Job would have required her to work overnight on the runway, so she
requested a drafting coordinator position that had lower pay.
• She received the position, but kept her electrical engineer pay.
• Serious question as to whether she was reinstated to an equivalent
position with equivalent benefits and terms and conditions of employment
(she was switched from day shift to night shift).
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intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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What Is A Willful Violation?
Sampra v. United States Dept. Transportation
7th Cir. 2018
• But: 7th Circuit did not reach a decision on the merits
because the employee filed her lawsuit on April 18, 2016,
more than two years after the day she was assigned to the
position – March 21, 2014.
• Seventh Circuit agreed that the limitations period had run –
and declined to find that the special three-year limitations
period applied.
• Employees get three years to file lawsuits arising from
“willful violations” of the FMLA.
• Seventh Circuit adopted the definition of willful that is used
in FLSA claims– that the employer either knew the FMLA
prohibited its conduct or showed reckless disregard for
whether it did- knowledge that FMLA was “in play” was not
sufficient.
• The supervisor was wrong, and possibly negligent – but this
did not make it willful.

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disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The
information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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GINA Update
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Overbroad Request
Jackson v. Regal Beloit America, Inc.
E.D. KY 2018
• Several months after returning to work after
surgery to address colon cancer, Jackson was
required to undergo a medical screening
pursuant to company policy (routine medical
screening every three years).
• She passed the tests, but the doctor asked for
her medical records and inquired into her colon
cancer and surgery.
• She refused, so her medical clearance was put
on hold.

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Overbroad Request
Jackson v. Regal Beloit America, Inc.
E.D. KY 2018
• The court found the Company violated both
the ADA and GINA
– GINA: Occupational doctor’s overbroad request
for medical records improperly included family
history – not just information about her cancer.
• Further, request contained no “safe harbor” language
encouraged by the regulations.
• Employer was liable as it had contracted with the
Doctor who made the request. Thus the doctor was
the employer’s agent and was not entitled to any
more information than the employer.
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Overbroad Request
Jackson v. Regal Beloit America, Inc.
E.D. KY 2018
• ADA violation for improper request for medical
information
– Request for medical records was overbroad
– Employer could not establish that it was job-related
and consistent with business necessity
– No exclusion for medical exams due to fork lift
operations
– No particularized reason for medical exam or medical
records request (no accommodation request or fitness
for duty issue)
– Summary judgment for the plaintiff on this claim

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disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The
information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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PDA Update
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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PDA and The Duty To Accommodate
Hicks v. City of Tuscaloosa
11th Cir. 2017
• Hicks was a female police officer
who returned from maternity leave
and requested an accommodation
to the requirement that she wear a
bulletproof vest, or a temporary
alternate assignment.
• Her doctor said wearing the vest
could cause an infection that could
prevent her from breastfeeding.
• The police department refused and
Hicks resigned, suing the City under
the PDA.

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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PDA and The Duty To Accommodate
Hicks v. City of Tuscaloosa
11th Cir. 2017
• The Eleventh Circuit held that the PDA not only barred
discrimination on the basis of pregnancy, but also on
the basis of pregnancy-related physiological conditions
such as breastfeeding.
– This was vital to Hicks’ claim, as she was no longer
pregnant.
• The Court cited Young v. UPS – the 2015 US Supreme
Court decision finding that the PDA bars employers
from refusing to accommodate pregnant employees
when they provide similar accommodations to other
similarly situated (non-pregnant) employees.
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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PDA and The Duty To Accommodate
Hicks v. City of Tuscaloosa
11th Cir. 2017
• Like in Young v. UPS, Hicks was able to show
that the Department did provide alternative
duties to non-pregnant employees who had
temporary injuries.
• The Eleventh Circuit upheld the jury’s verdict
that they violated the PDA when they failed to
provide Hicks with an alternative duty
assignment.

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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What Not To Do: PDA and The Duty To Accommodate
Grewcock v. Yale New Haven Health Services Corporation
D. Conn. 2017
• Grewcock was a nursing mother who
pumped breastmilk in her shared
office for nearly a year before her
employer instructed her to begin
pumping in a designated lactation
room.
• Grewcock continued to pump in her
office because taking breaks in the
lactation room disrupted her
workflow and made it difficult for her
to do her job.
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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What Not To Do: PDA and The Duty To Accommodate
Grewcock v. Yale New Haven Health Services Corporation
D. Conn. 2017
• Grewcock’s supervisors repeatedly berated and
embarrassed her for pumping outside the lactation room.
• Grewcock was then disciplined for an “unrelated” reason,
e.g., a potential HIPAA violation.
• Grewcock filed suit under Title VII and Connecticut’s State
Fair Employment Act for discrimination and retaliation.
• Those claims survived summary judgment, as the court held
“lactation is a pregnancy-related medical condition that
qualifies for protection from discrimination.”
• Further evidence precluding the employer’s summary
judgment attempt was the conduct from her supervisors in
trying to catch her pumping and showing hostility toward
her after she complained.
• Supervisors even caught her pumping in a bathroom stall
and yelled for her to come out of the stall.

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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State Pregnancy Protection Laws: A Rising Trend
• Twenty-three (23) States now have laws
granting pregnant employees the right to
accommodations at work
– Eighteen (18) have enacted this legislation
since 2013, including:
• South Carolina (2018)
• Massachusetts (2017)
• Connecticut (2017)
• Nevada (2017)
• Vermont (2017)
• Washington (2017)
• Beware of another layer of liability for this
protected class.
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disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The
information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Leave
Management
Process

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Ist Step: FMLA Applicability
• Inquiry Notice- Begin Certification process
– Eligibility Notice and Notice of Rights and
Responsibilities within five days
– Include job description, if applicable
• Designation Notice- within five days of receipt
of an appropriately completed certification
form
– Clarification within seven days if needed- use the
Designation form
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
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intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Step 2: Other applicable leave policies
• Review and understand any other leave
entitlements under the Company’s
policies/procedures
• Review and understand any other applicable
policies, such as light duty programs etc.
• Understand how those policies have been
applied

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Step 3: ADA considerations
• If the leave is for the employee’s medical
condition, as the leave entitlement under the
FMLA/other leave policies draws close to an end,
begin the interactive process concerning the
need for continuing leave.
• Develop appropriate letter to employee to have
medical provider indicate the expected duration
of the need for continued leave, and whether it is
for a definite or indefinite period of time.
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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ADAAA: Reasonable Accommodation Process
• Process
– Case by Case Determination
• No automatic terminations
• No need to return to “full duty” without
restrictions
– Individualized Inquiry
– Employee’s job, then other vacant positions
• Documentation
– Facts and information shared
re: accommodation process
– Interactive process with employee

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Step 4: PDA/GINA Issues or any other
state law issues?
Evaluate any accommodation or leave requests
for pregnant or nursing mothers in light of the
recent legal guidance
Ensure that GINA has been complied with in
both communications and requests for
information with the employee, whether by the
Company or by any occupational provider the
company has hired.
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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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Barnes & Thornburg LLP
Questions?

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property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or entity other than the intended recipient(s),
and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is
intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
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ACKNOWLEDGMENT & DISCLAIMER
These materials were prepared by the attorneys at the law firm of Barnes
& Thornburg LLP. These materials present general information about
Indiana law and federal law, and they only serve as a beginning point for
further investigation and study of the law relating to these topics.
Although these materials present and discuss labor and employment law
issues, they are not intended to provide legal advice. Legal advice may
be given and relied upon only on the basis of specific facts presented by
a client to an attorney. Barnes & Thornburg LLP and the authors of these
materials hereby disclaim any liability which may result from reliance on
the information contained in these materials.

29. Union organizing campaigns. Tough labor
negotiations. Tricky terminations. Collective
bargaining actions. That’s all right in our
sweet spot. Barnes & Thornburg steps up
with a national Tier One ranking for its labor
law and employment law practices. So bring
the heat.
Sweet spot.
Uncommon Value
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