Michael J. Smoron
Federal Appellate Court Rules Long-Term Leave of Absence Cannot Be a ‘Reasonable Accommodation’
In September 2017, the United States Court of Appeals for the Seventh Circuit ruled that an employer was not required to accommodate an employee by granting him a multimonth leave after the employee’s 12 week FMLA leave expired.
In the case of Severson v. Heartland Woodcraft, Inc., 872 F. 3d 476 (7th Cir. 2017), the employee used all 12 weeks of FMLA leave and then scheduled a surgery on the final day of leave. The employer denied the request for extended leave and terminated the employee.
The employee asked the Court to extend the interpretation of “reasonable accommodation” under the Americans with Disabilities Act (ADA) to include long-term unpaid leave. The Court held that that a long-term leave of absence cannot be a reasonable accommodation. The Court rationalized by maintaining that a reasonable accommodation gives a disabled individual the means to work, while an extended leave of absence excuses the employee from working.
The EEOC filed a brief in support of the employee in which it argued that long-term medical leave should qualify as a reasonable accommodation when the leave is for a definite time, limited duration, requested in advance, and likely to enable the employee to perform the essential job functions upon return. The Court disagreed with the interpretation, finding that such application would transform the ADA into a medical leave statute, as an “open-ended extension of the FMLA.”
As such, employers should take note that “reasonable accommodations” under the ADA do not include long-term unpaid leave.
Author: Michael J. Smoron; Dave Noland
New FLSA Regulations Prevented from Taking Effect
Recently, a federal circuit court judge in Texas issued an order staying the nationwide implementation of certain Fair Labor Standards Act (FLSA) regulations. If the preliminary injunctive relief had not been granted, employers would have had to pay overtime wages to salaried employees who earn less than $47,892 annually and work more than 40 hours a week.
As it currently stands, employers only have to pay overtime wages to employees earning an annual salary of less than $23,660 ($455 per week). Without the stay, all salaried employees making less than $47,892 ($921 per week) would have been entitled to overtime pay as of December 1, 2016.
We will continue to provide updates on the status of these FLSA regulations as they move through the judicial process.
Author: Michael J. Smoron
Illinois Legislature Proposes Telecommunications Bill
New telecommunications legislation is pending in the Illinois Senate. The draft bill would, if adopted by the legislature and signed by the Governor, create the Small Wireless Facilities Deployment Act which would provide that a right of way authority such as a city, village, or county cannot prohibit or regulate the collocation of small wireless facilities or small facility networks.
This legislation would preempt local zoning regulations and deem such small wireless facilities and networks as a “permitted use” in all zoning districts. It would also provide that the right of way authority could require a person to obtain permits for the collocation of small wireless facilities and facility networks to the same extent permits are required for other construction, but such authorities cannot require such applicants to provide information not required of other applicants seeking to use the right of way. The Act would also place a limit on the amount of fees that could be charged to such telecommunications providers. As the legislation currently reads, the fee cannot exceed the amount the authority charges to other commercial entities for the same amount of space, the projected cost of the authority resulting from the collocation, or $1,000 annually, whichever is lowest.
The legislation defines “small wireless facilities” as those that meet the following qualifications:
- Each antenna is located inside an enclosure of no more than 6 cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than 6 cubic feet; and
- All other wireless equipment associated with the structure is cumulatively no more than 28 cubic feet in volume.
The new legislation creates still an additional time clock for right of way authorities. An application is deemed approved if the authority fails to approve or disapprove the application within 30 days. This period may be tolled to accommodate timely requests for information required to complete the application or may be extended by mutual agreement.
Further, the current legislation also contains language that would preempt home rule powers.
As always, we will continue to monitor the bill as it proceeds through the legislative process.
Smoron Inks ISBA Article on Recapture Fees and Foreclosures
Michael J. Smoron
Michael J. Smoron of Zukowski, Rogers, Flood & McArdle, the largest law firm in McHenry County, Illinois, has authored a March 2016 article in “Local Government Law,” the newsletter of the Illinois State Bar Association’s Section on Local Government Law.
The article, titled “Second District provides recapture rights not subject to foreclosure,” analyzes F.R.S. Development Company, Inc. v. American Community Bank and Trust, 2016 IL App (2d) 150157 (2016), a recently decided Second District Appellate Court case.
F.R.S. clarified the nature of recapture rights in a decision that resolved the aftermath of a foreclosure proceeding, a deed in lieu of foreclosure, and the former property owner and developer that sought to obtain an agreement for recapture fees for road improvements in Huntley, Illinois.
Specifically, Smoron writes, the court held that rights to recapture fees collected by local governments to reimburse parties who make roadway improvements are considered personal property rights, not real property rights that are subject to foreclosure.
For more information, please read Michael Smoron’s ISBA article.
Illinois Attorney General Determines Post-Mortem Photographs May Be Released Pursuant to FOIA
The Illinois Attorney General recently released a binding Public Access Counselor (PAC) Opinion regarding Freedom of Information Act (FOIA) requests. The request at issue concerned a father’s inquiry for records relating to his daughter’s death. Specifically, the FOIA request sought “[a]ll crime scene photographs, autopsy photographs, images and trajectory diagram[s].”
The Illinois State Police denied the request for crime scene and autopsy photographs based on there being a personal privacy interest. See 5 ILCS 140/7(1)(b)(c). However, the father claimed that he should be entitled to these photographs as he was both a close family member and the executor of his daughter’s estate.
Ultimately, the Attorney General determined that the father could receive the photographs. Specifically, the Attorney General reaffirmed an earlier PAC opinion stating that “a decedent’s surviving family members do possess a separate personal privacy interest in ‘their close relative’s death-scene images’ and similar records.” Ill. Att’y. Gen. Pub. Acc. Op. No. 10-003. In that previous opinion, the Attorney General determined that it would be an invasion of the surviving family members’ personal privacy to release post-mortem photographs to a non-family member when the family had objected to their release. Therefore, the father, who was both a close family member and the deceased’s executor, could receive the photographs pursuant to a valid FOIA request.
Police departments responding to similar FOIA requests should keep this PAC opinion in mind when contemplating whether to release post-mortem photographs. Also note that any assertion that the release of information would constitute an unwarranted invasion of personal privacy should be evaluated on a case-by-case basis.
Authors: Michael J. Smoron, Jacob Caudill
Illinois Legislature Clarifies Severance Agreements under FOIA
Last month, Governor Rauner approved a bill making changes to Illinois’s Freedom of Information Act (FOIA). Specifically, this new law requires that all severance agreements be discoverable pursuant to a FOIA request. As such, the new law defines a “severance agreement” as a “mutual agreement between any public body and its employee for the employee’s resignation in exchange for payment by the public body.”
As one news article indicated, the bill came in response to public outcry concerning the College of DuPage President receiving a $763,000 severance package in exchange for retiring early.
This law essentially clarifies any question that may have existed as to whether severance agreements could be discoverable under FOIA. The effective date of this new law is June 1, 2016.
Authors: Michael J. Smoron, Jacob Caudill
Illinois Appellate Court Finds That Relocation of Road Was Not a Material Impairment
An Illinois Appellate Court recently affirmed a decision finding that the relocation of a new highway, to which the property in question formerly had access, was not a material impairment of the property. In so finding, the Appellate Court followed a scenario previously hypothesized in a previous Illinois Supreme Court decision.
Specifically, the Plaintiffs brought suit after Peterson Road, near its intersection with Route 60, was relocated 400 feet to the southeast. The relocation process left a small portion of former Peterson Road, now known as Behm Lane. As a result of relocation, Behm Lane now ended in two cul-de-sacs, but still retained a point of access to the newly constructed Peterson Road.
In holding that there was no material impairment of the property by the relocation, the Appellate Court found that the effect of relocating Peterson Road neither placed the plaintiffs’ property “on a blind court nor reduced the points of entry.” The court further noted that plaintiffs’ property “never had direct access to Route 60” and therefore the plaintiffs’ access to Route 60 could not have been materially impaired by the relocation of Peterson Road.
Interestingly, the court also found that this scenario was analogous to a hypothetical in a past Illinois Supreme Court case, which stated that there would not be a material impairment where “a new limited-access highway is constructed that leaves the property fronting an old-highway that has been turned into a secondary road for a new highway.”
Local governments should take note of this interesting takings challenge when encountering similar issues.
Authors: Michael J. Smoron, Jacob Caudill
Property Tax Freeze Bill Passes Illinois Senate
Recently, the Illinois Senate approved a bill (SB 0318) which would place a freeze on property taxes. This freeze would apply to all taxing districts outside of Cook County for 2016 and 2017. This freeze would apply to both home rule and non-home rule municipalities. Further, home rule and non-home rule municipalities within Cook County would experience this freeze during the 2017 and 2018 levy years.
However, it should also be noted that this freeze could be amended by voter referendum. This would allow the extension limitation to rise above 0%. Additionally, the bill also provides for various exemptions including a new provision concerning extensions made for public safety purposes.
The bill would also make various changes to both the Illinois School Code and Illinois Pension Code.
As this bill continues through the House, we will continue to provide timely and informative updates.
Authors: Michael J. Smoron, Jacob Caudill
Recent Case Expands Municipalities’ Power to Accept Dedicated Lands
Recently, an Illinois appellate court held in favor of a village when the lender of a failed development attempted to foreclose on land dedicated to the village. Specifically, the various roads and outlots were dedicated in 2007 and 2009, but were not formally accepted by the village until 2013, a year after the lender filed its foreclosure proceeding. As a result, the lender brought suit claiming that there was no intent to dedicate the land to the village, and if there was an attempt it was revoked when the lender filed the foreclosure proceeding.
For a statutory dedication to be made under the Plat Act, two requirements must be satisfied:
- the property owner must file or record a plat which marks or notes portions of the premises as donated or granted to the public
- the public entity must accept the dedication.
Acceptance can be implied or express, with acceptance being possible even after a suit has been filed to establish ownership of the property. Further, a municipality does not have to act to “improve” streets or common areas so as to effectuate acceptance. If these dedicated areas remain unimproved, the presumption will remain as an implied acceptance.
Here, the court found that the use of language such as “hereby dedicated,” “heretofore dedicated,” “public,” and “the use and enjoyment of the [v]illage,” in the plats was enough to establish an intent to dedicate the property to the municipality.
Further, the court found that the filing of the foreclosure did not act as a revocation. Instead, only the completion of a foreclosure proceeding would act as a revocation. Therefore, the village could accept the dedication any time prior to the foreclosure being completed.
The case is a reminder that, when a foreclosure proceeding against a development is bought, the municipality needs to assert its right during the proceedings.
Authors: Michael J. Smoron, Jacob Caudill
Proposed Change to Special Service Areas
Currently, the Illinois Legislature is faced with a bill that could affect the law concerning Special Service Area taxes. Specifically, this proposed law would allow municipalities to establish “Green Special Service Areas.” The purpose of such areas would be to arrange for and finance energy efficiency improvements, renewable energy improvements, or water use improvements. The financing of either of these shall constitute a public purpose. Such a law could provide beneficial infrastructure for both municipalities and green-minded citizens.
Interestingly, these green special service areas would only include property where the owner has consented to the property being included in the area, either by contract or agreement with the municipality. If the owner has consented to being within the Green Special Service Area, the municipality can then levy a special service area tax on the property owners. Additionally, if a green special service area is created, municipalities would then have the power to:
- issue special service area bonds
- sell or assign those bonds to the Illinois Finance Authority
- assign or pledge those special service area bonds, agreements relating to special service area projects, or both to the Illinois Finance Authority.
While there may be some hurdles in establishing a Green Special Service Area, this law could provide beneficial improvements to municipalities, while also appealing to people and businesses with a green focus.
Authors: Michael J. Smoron, Jacob Caudill
