FMLA Breaking News – DOL Withdraws 2016 Broad Interpretation on Joint Employment

Posted on: June 7, 2017 0

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

Many employers might be in a joint employment relationship with a business partner and not realize it.  Joint employment can create or increase employer liability under the FMLA.

On January 20, 2016, the U.S. Department of Labor (DOL) released an Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers.  The DOL concurrently issued a new Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.

Today – June 7, 2017 – the DOL announced that it is withdrawing AI 2016-1.  This is consistent with other Trump administration initiatives to pull back on governmental regulation of businesses as employers. The withdrawal does not change the existing law, but does eliminate the AI as the DOL’s broad interpretation of the law.  The AI is no longer available on the DOL website.

So far the DOL has not taken action to withdraw FMLA Fact Sheet #28N.  We’ll be watching!  In the meantime, employers should review that Fact Sheet to gain an understanding of their possible FMLA obligations as a joint employer.

As a side note, the DOL has also withdrawn a 2015 Administrator’s Interpretation on independent contractors.

For more background on AI 2016-1 on joint employers, check our prior blog post http://matrix-radar.com/2016/01/caution-joint-employers-the-dol-is-looking-for-you/.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

NEW YORK HONING IN: Paid Family Leave Revised Regulations are Out, but Still Not Final

Posted on: May 29, 2017 0

By Marti Cardi, VP-Product Compliance

 

The New York Workers’ Compensation Board has issued revised regulations interpreting and supporting the state’s Paid Family Leave law that will start providing employees with pay benefits on January 1, 2018.  This revised version of the regulations, published on May 24, 2017, is still not final.  The Board is accepting comments for 30 days, or until June 23, 2017.

As a reminder, the law phases in from 2018 through 2021.  Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021.  Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member.    A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here.

Along with the revised proposed regulations, the Board published a summary of the 117 comments received during the public comment period from advocacy groups, individual employees, and associations representing businesses, insurance carriers, law firms, unions, and employees.   Here are a few interesting issues raised by the comments and the Board’s responses:

Employee Eligibility. NY PFL requires employees to become eligible for family leave after either 26 weeks or 175 days of work, depending on their schedule. The original regulations applied the 175-day eligibility rule only to part-time employees who worked fewer than 5 days per week.   Section 380-2.5 has been amended to apply the 26 week eligibility criteria to employees who work 20 or more hours per week, and the 175-day eligibility criteria to those who work less than 20 hours per week.  380-2.5(a) and (b).

Employer’s Lack of Cooperation. Some insurance carriers requested clarity around their obligations if an employer refuses to cooperation in the PFL benefits process.  The Board responded that the regulations then require the carrier to communicate directly with the employee, and the employer’s lack of cooperation is not grounds for denial of benefits.   380-5.4(e).

ICD-10 Code. The proposed regulations originally required that certifications from medical providers of a family member’s serious health condition include the ICD-10 code for the diagnosed condition.  Commenters identified various concerns, ranging from possible delays caused by incomplete forms, to health privacy concerns. In light of these comments, this section has been amended to remove the provision requiring that the ICD-10 code be included as part of the family member’s certification.  380-4.2(a)(3).

Employee Language Preference.  The original proposed regulations required an insurance carrier or self-insured employer to make all communications with an employee in the language identified by the employee on the Request for Paid Family Leave.  The Board received several comments expressing concern that complying with this requirement will be overly burdensome and prohibitively expensive. As a result, the Board has indicated that it will translate the request for paid family leave forms and instructions into seven languages (not identified), and has revised the regulation to state that insurance carriers or self-insured employers must make all reasonable efforts consistent with the principles set forth in Executive Order 26.”  §380-5.4(h).

Denial of Claim. Any denial of a claim for PFL benefits must be issued within 18 days of receipt of a completed claim.  The revised proposed regulations have added a section specifying that the notice to the employee must state the reason for the denial, repeat any relevant information filed in the request for PFL, and include any other information considered by the carrier in making the denial decision.  380-5.4§(a)(1).

Employer Size for Coverage. Several small employers and individuals expressed concerns about the adverse effect of paid family leave on small employers. The statute defines a covered employer as an employer with one or more employees, and this cannot be modified by regulation. Therefore, no change has been made.

Employee Contributions during Leave. The Board has revised the regulations to clarify that an employer can continue to deduct PFL contributions while an employee is receiving disability or PFL benefits.  380-7.2(b)(4).

The full text of the revised proposed regulations, a summary of all comments received, and other NY PFL information is available on the Paid Family Leave page of the Workers’ Compensation Board website:  http://www.wcb.ny.gov/PFL/pfl-regs.jsp.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

High Points in Recent FMLA Case Law

Posted on: May 11, 2017 1

By Marti Cardi, VP-Product Compliance

 

Last week I had the distinct pleasure of co-presenting one of the opening general sessions at the Disability Management Employer Coalition Compliance Conference with my buddy and fellow blogger, Jeff Nowak. Those of you who know Jeff and me will understand sharing the stage with him is tough duty: He’s cuter, funnier, and a better singer than me! Nonetheless, I soldiered through and together we provided updates on key FMLA cases decided by the courts in the past 12 months or so. Although there were no headline-making court decisions (think Escriba v. Foster Poultry Farms from a couple of years ago) there is still plenty to learn, and important reminders to gain, from recent FMLA cases. Here are some highlights:

Year of the Third Party Administrator. (Jeff’s title, not mine.) The past few months brought us a spate of cases dealing with an employer’s ability to require employees to provide notice of FMLA leave to both the employer and the employer’s third party administrator. For example, you can require your employees to call one number to report the absence for operational and attendance purposes, and another number (like Matrix!) to comply with and benefit from FMLA processes and protections. The key is to ensure that your employees are aware of the required two-notice process.

What employers should do: Enact a policy and distribute it to your employees spelling out the two-notice requirement, providing both numbers, and – while you’re at it – include time limits within which employees must report to each number. Some of the cases: Scales v. FedEx Ground Package Sys. (N.D. Ill. Jan. 2017); Alexander v. Kellogg USA, Inc. (6th Cir. Jan. 2017); Perry v. American Red Cross (6th Cir. 2016)

Employer’s duty to inquire for more information. The FMLA regulations provide that if an employer is on notice of an employee’s possible need for FMLA leave, the employer has the duty to ask for further information if needed to determine whether the employee’s leave request is for an FMLA-qualifying reason. 29 C.F.R. § 825.3(c); 825.303(b). This rule came up in two different contexts in recent cases.

In Reeder v. County of Wayne (E.D.Mich. Apr. 2016), employee Yasin provided a doctor’s note that identified his health conditions, stated he was under treatment, and directed that he should not work more than 8 hours per day – and thus no overtime (which was frequently required to ensure security at the county jail where he worked). The County did not provide Yasin with an FMLA certification form or a notice of rights and responsibilities. After missing many overtime shifts and receiving discipline, Yasin was terminated. The court ruled that a jury could find the information in the doctor’s note sufficient to put the County on notice that Yasin might need FMLA leave, thus giving rise to the County’s duty to inquire further if it needed more information.

EPILOGUE: The case indeed went to a jury that found the County had interfered with Yasin’s FMLA rights. He won over $187,000 in damages, $125,000 in attorneys’ fees, interest, and costs for a total in excess of $325,000.

Coutard v. Municipal Credit Union (2d Cir. Feb. 2017) reinforces the employer’s duty to inquire but this time in a situation that might surprise employers. Frantz Courtard asked for a leave of absence to care for his grandfather. MCU summarily denied the leave request, stating that the FMLA does not cover leave for grandfathers. Frantz took time off anyway due to his grandfather’s need for home care following hospitalization. Frantz was terminated for unexcused absences. Turns out, Frantz‘s grandfather had cared for him from age 4 when Frantz’s father died to age 14, providing a home, food, clothing, schooling, and other support typical of a parent – in short, a classic in loco parentis relationship. MCU argued that Frantz should have volunteered the information to establish the in loco parentis relationship. The court disagreed, holding instead that MCU had a duty to inquire whether Frantz’s grandfather qualified as ILP. Thus, Frantz’s termination constituted interference with his FMLA rights.

What employers should do: Always follow up with an employee if he or she provides information that a leave request might qualify under the FMLA, depending on additional facts. The regulations clearly state that merely “calling in sick” is not enough, but beyond that (and maybe even in that situation, depending on other facts) you should ask informally for more information to assess whether you should initiate the FMLA notice certification process. You will still be able to deny FMLA protections if the certification does not support the leave under the FMLA.

Beware the FMLA mandatory overtime rules! They can get you coming and going, as tire maker Bridgestone learned. Under Bridgestone’s overtime process, workers were not required to sign up for overtime, but if an employee did sign up and was selected for an OT shift, the employee had to work the assigned shift or be assessed an attendance violation. Employee Lucas was approved for intermittent leave to care for his son, who had asthma. Over time Lucas missed many OT shifts he had signed up for. Bridgestone applied FMLA to excuse most of the missed shifts, but ultimately Lucas exhausted his FMLA and was terminated for attendance violations.

The questions before the court included whether the OT shifts were mandatory, and whether Bridgestone had properly accounted for those shifts under the FMLA. Lucas argued the shifts were not mandatory because an employee could choose to sign up; as a result, they should not have been counted against his FMLA usage – and hence, he would not have exhausted his FMLA. Bridgestone countered that the shifts were mandatory once the employee signed up and was selected for a shift; as a result, Bridgestone argued, it was correct in deducting FMLA hours for the mandatory OT shifts Lucas missed to care for his son.

The court agreed that the shifts were mandatory due to Bridgestone’s OT sign-up, selection, and discipline process. But, Bridgestone had it only half right: The company was in compliance with the FMLA regulations when it deducted missed OT shifts from Lucas’s FMLA entitlement, but the company should also have included Lucas’s mandatory OT hours in its calculation of his “workweek” for FMLA purposes, using the variable workweek method permitted by the regulations. 29 C.F.R. § 825.205(b)(3). By failing to do so Bridgestone shorted Lucas on entitlement. Hernandez v. Bridgestone (8th Cir. Aug. 2016).

Lesson learned: Mandatory overtime counts toward both FMLA entitlement and FMLA usage.

Certification from a treating specialist? Maybe yes. Good news! A court has approved an employer’s request for an initial certification from a treating specialist. Erica was a difficult employee, to say the least. Her many complaints and ultimate termination landed her employer, City of Milford, in court. Lucky us! Erica’s groundless FMLA claims yielded a court ruling that is good news for employers. Erica was a community outreach employee for the City and requested FMLA leave for severe anxiety. She provided an FMLA certification from her primary care provider, who indicated that she was under treatment with a psychiatrist. The City asked for a new certification from the treating psychiatrist, which Erica provided. She received all the leave she requested but later – lots going on in the background, folks – she was fired. She sued and claimed, among many other things, that the City’s requirement that she provide a certification from her specialist was FMLA interference. Au contraire, said the court. Under these facts (a treating specialist referenced on the provider’s certification) the employer was justified in asking for a cert from that specialist.

But there are limits to how far we can rely upon this court decision. If the initial certification does not reference treatment by a specialist, a court may not be as willing to support an employer’s request for a certification from a specialist. After all, who would that specialist be if the employee is not treating? This is a reminder of the advantages of reviewing an employee’s initial certification carefully. The DOL prototype forms have questions to identify whether the employee/patient is receiving treatment from any other provider (WH-380-E and 380-F):

Was the patient referred to other health care provider(s) for evaluation or treatment (e.g., physical therapist)? ____No ____Yes. If so, state the nature of such treatments and expected duration of treatment: ___________________________________.

If the form is blank in this regard, follow the incomplete process spelled out in the regulations. If the form is filled in and indicates no other treatment, the second/third opinion process may be appropriate because the employee’s provider has given a certification on a specialty condition not within his/her practice. Either way, the employer ends up with more precise information about the employee’s need for leave – always a good thing!

The FMLA continues to be a challenge for employers – there seems to be no end to the fact situations employers face in managing employee leaves. If you have questions about the cases above other leave management issues, please contact us for help.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

 

ADA Views – Direct from the EEOC!

Posted on: May 8, 2017 0

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

 

Q:   What do attendance, a deaf lifeguard, and an “accidental leave law” have in common?

A:    They are all topics addressed by an EEOC representative at Matrix’s recent Client Advisory Board meeting.

Pierce Blue is Attorney-Advisor to EEOC Commissioner Chai Feldblum.  We invited Pierce to a meeting of a cross-section of our clients to talk all things ADA – that’s the Americans with Disabilities Act, of course.  Here are a few snippets of information Pierce shared with attendees:

Attendance – is it an essential function of a job? The EEOC says no, in most cases.  In the EEOC’s view, an essential function is a key outcome or task. Attendance is not usually the “task” an employee needs to accomplish in the job, hence it is not an essential function.  (Exceptions might include a receptionist or a security guard where physical presence is one of the expected outcomes.)  Pierce noted that courts have disagreed with the EEOC on this point and have held that attendance can be an essential function.  See, for example, EEOC v. Ford Motor Co. (6th Cir. 2015)  (regular and predictable on-site job attendance was both an essential function of, and a prerequisite to perform other essential functions of, the employee’s job; due to her repeated absences, she was not qualified for her position).
Reduced Schedules. Ever have an employee who asked for no overtime, intermittent leave or reduced schedule as an accommodation?   Is this a reasonable accommodation that an employer must consider?  The EEOC say yes, in most cases.  But how does this square with the EEOC’s own pronouncement that an employer does not have to lower production quality or quantity standards as an accommodation?  Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.   Pierce explained the EEOC wants to see employers have the interactive discussion with the employee, address job performance expectations, and perhaps give the employee’s request a trial.  As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.

Don’t act on unfounded fear and speculation. This brings us to the lesson learned from the Case of the Deaf Lifeguard.  A typical initial reaction to this scenario is that, of course, a deaf person cannot be a lifeguard.  Pierce discussed the case to remind employers not to act on unfounded assumptions and stereotypes.  Rather, the ADA requires an individualized assessment of a disabled employee’s ability to perform the essential functions of the position.

Keith, the lifeguard, has been deaf since birth.  He took and passed a lifeguard certification program and Oakland County’s water safety test and lifeguard training program.   The County offered Keith a lifeguard position contingent upon the County’s usual requirement of passing a medical examination.  The doctor who conducted the physical expressed concern about Keith’s ability to perform the job due to his hearing impairment, and the County withdrew the job offer.  In court (yes, he sued!) Keith argued that the County failed to conduct an individualized assessment of his ability to perform the essential functions of the lifeguard position.  The 6th Circuit agreed.  The examining doctor had merely looked at Keith’s file and declared, “He’s deaf; he can’t be a lifeguard.”  No one for the County asked Keith to demonstrate performance of the job or otherwise made an individualized assessment of his lifeguard abilities.  Keith, on the other hand, had experts in deaf lifeguards and aquatic safety willing to testify that a deaf person can perform the functions of a lifeguard position.  The experts explained that persons in danger exhibit visual signs of distress, and individuals deaf since birth have better peripheral vision than hearing persons.  According to the court, the doctor’s “cursory medical examination is precisely the type that the ADA was designed to prohibit.”  Keith v. County of Oakland (6th Cir. 2013).

Accidental leave law. Pierce shared thoughts from Acting Chair of the EEOC, Victoria Lipnic, about leave of absence as a reasonable accommodation under the ADA.  Pierce explained that Acting Chair Lipnic – and others – call the ADA an “accidental leave law.”  The basic intent of the law is to keep employees working, not to provide leaves of absence.  In Acting Chair Lipnic’s view, Congress passed a separate law – our beloved FMLA – to address leaves of absence, while the ADA has a separate purpose:  to prevent disability discrimination and help disabled individuals obtain and keep jobs.  Well, we’ve come a long way, haven’t we?  For more guidance on leave as an ADA accommodation, see the EEOC’s 2016 resource document, Employer-Provided Leave and the Americans with Disabilities Act.

The topics addressed by Pierce at our client meeting present significant ADA challenges for employers.  Please let Matrix know if you would like to learn more about any of these topics or others relating to leaves of absence and accommodations.  You can leave a message below or contact marti.cardi@matrixcos.com.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Walking the walk on service dogs in the workplace

Posted on: April 12, 2017 2

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

Bradley Arndt v. Ford Motor Company, 2017 WL 1196442 (E.D. Michigan March 29, 2017)

If you’ve been in a shopping center or an airport lately then you know that the prevalence of service dogs is on the increase (I love those vests!).  For employers, however, there are still many challenges in addressing an employee’s request for a service dog (or other animal) as an accommodation in the workplace.  In the case of Bradley Arndt v. Ford Motor Company, Ford applied sound ADA practices to maneuver through unfamiliar territory.

Bradley Arndt was a Supervisor at Ford’s Van Dyke Transmission Plant.  He suffers from PTSD following his extensive military service, which included several combat deployments.  In February 2013, after about six months of tenure, he approached his then-direct supervisor indicating he was having issues with his PTSD at work, and mentioned bringing his service dog, Cadence, to work (I love that name!).  While his supervisor initially expressed enthusiasm for the idea, he became concerned about potential safety and quality issues.  Shortly after Bradley mentioned bringing Cadence to work, he emailed an HR representative for Ford and reported that he had missed work due to his PTSD and asked if could bring his service dog to work.  The HR rep thanked him for his email and told him she would look into his request.

HR provided Bradley with a Disability Reasonable Accommodation Request form to complete, and he did so, also providing a letter of the functions his service dog could provide to him in the workplace, which he described as sensing when he is having an anxiety attack, calming him down, and keeping people away from him.  Bradley indicated that just having the dog nearby “provide[d] a great deal of comfort and security… thus giving me the utmost confidence to perform my job.”

Shortly after submitting his request form, Bradley met with the physician at the plant regarding his request.  The doctor asked Bradley to provide a release to facilitate communication with the VA personnel treating his PTSD and told Bradley that the doctor would be working with HR to determine whether accommodation could be made, but also noted health and safety concerns with a dog in the manufacturing facility.  The very next day, Bradley withdrew his request.  Apparently, the doctor mentioned the possibility of a transfer to the Dearborn location. Bradley informed the HR rep that he did not want to go to Dearborn because he understood that the city had a large population of Arabs and that seeing women ”walking around in burkas”  might trigger his PTSD.  He also told HR that he was withdrawing his request because he “didn’t want to be a bother.” HR told him it wasn’t a bother and that they needed to engage in the interactive process.  After he insisted on withdrawing the request for accommodation to bring Cadence to work, HR told him to put the withdrawal of his request in writing, which he did on March 15, 2013.

Bradley took medical leaves for his PTSD. Upon his return from a second such leave, on February 21, 2014, he submitted a return to work note from his treating physician indicating he could return to work as of February 20, 2014 “with the presence of a service dog, Cadence.”  That same day, he completed another Disability Accommodation Request Form asking for a “service dog at work.”  The form invited him to specify the job functions he was having difficulty performing, as well as limitations his condition posed which interfered with his ability to perform his job.  Bradely’s answers did not, however, provide that information.

Because the plant had not previously dealt with a request to bring a service dog to work, HR placed Bradley on a “no work available” or “unfit to work” status so that he could continue to receive his fully salary and benefits while Ford looked into his request.  On March 4, 2014, HR and Bradley’s supervisor met with him to discuss his request.  They asked Bradley to identify the aspects of his job he could not perform without his service dog.  In this meeting, Bradley insisted that he could perform all of the aspects of his job and that he just needed to have his dog to “alleviate environmental factors.”    After the meeting, HR wrote a letter to Bradley’s doctor asking clarifying questions, provided the doctor with a job description, and posed very specific questions:  which job functions were rendered difficult for Bradley to perform due to his condition, how the requested accommodation helped him perform his job, and whether there were other accommodations that might be offered.  On April 4, 2014, Bradley returned the completed information from his physician. The doctor opined that she was unaware of any job functions he couldn’t perform, though she believed that having his service dog under his desk at work might calm him so he could complete his job duties.

HR arranged a second meeting with Bradley to discuss his request to bring his service dog to work.  That meeting took place on May 13, 2014.  Bradley brought his dog to the meeting. Humes asked him what job functions he felt he could not perform without accommodations.  Bradley insisted he had already answered the question several times, placed his Ford badge on the desk and said that if Humes could not give him an answer by the following Monday morning, he was quitting.  Bradley filed a lawsuit, accusing Ford of failing to reasonably accommodate his PTSD.

Ford won this lawsuit on summary judgment. In its decision, the court emphasized that Bradley failed to show that having his service dog with him at all times in the manufacturing facility would enable him to perform his job.  In addition, the court rejected Bradley’s contention that a three-month interactive process demonstrated that Ford failed to participate in good faith. In doing so, the court acknowledged that Ford had legitimate concerns about Bradley bringing his dog to work and whether doing so would enable him to perform his job and effectively calm him if his PTSD were triggered at work.  Ford was able to show that, during that three-month timeframe, they were actively engaged in investigating the possibility of accommodating Bradley’s request, including asking other facilities whether and how they had successfully allowed a service animal accommodation at their plants  and walking the plant floor with the safety manager to have her identify any safety or health concerns.  Ford also put Bradley on a fully paid leave (which is itself a reasonable accommodation) while they were doing that important research.  Ultimately, the court concluded, by quitting instead of continuing the interactive discussion, it was Bradley who was responsible for the breakdown in the interactive process.  Because of this, Bradley could not show that Ford failed to engage in the interactive process nor that Ford had violated the Americans with Disabilities Act by not providing his requested accommodation to bring Cadence to work with him.

Pings for Employers:

The Arndt case provides a great outline for what employers should do when an employee requests to bring a service animal to work as an ADA accommodation:

  • Get information. When an employee asks for an ADA accommodation, the employer has the right to certain information, including how the employee’s condition limits his ability to perform his essential job functions and how the requested accommodation(s) is going to help him do so.
  • Follow the usual ADA process. A service dog is like any other accommodation in this regard – if your employee says he needs to bring his dog to work, you can and should start the interactive process to understand what job functions are impacted by his condition and how the dog will help him perform his job.
  • Conduct and individualized assessment. It is understandable that an employer’s first reaction to a request for a service dog as an accommodation would be to balk – but it is imperative to conduct an individualized analysis and keep an open mind in the process.
  • Accommodation must be effective. Like any accommodation, granting the employee the right to bring a service dog to work requires not only that it be reasonable, but that it is effective.  This is where Bradley failed in communicating with Ford.
  • A caveat. Ford and the court seemed to focus on whether the service dog Cadence enabled Bradley to perform any specific essential functions of his position.  This was a tall order.  Perhaps Bradley could have made an argument that by keeping him calm, Cadence enabled him to perform his job overall by being present and functional.  Another court, another time, might have found Bradley’s evidence in this regard sufficient to support a claim of failure to accommodate.  Of course, Bradley still had the problem of walking out before the interactive process was complete.
  • Give it a try. One of the best things an employer can do in the accommodation process is to give the employee’s request a trial.   In the case of a service animal, if the presence of the animal causes problems or the accommodation isn’t effective to enable the employee to perform the essential functions of the position, you have tried and you have solid evidence – not just speculation – that the accommodation isn’t effective.Then restart the interactive process to determine whether an alternate accommodation might be reasonable and effective.
  • Other concerns. Sometimes a service animal in the workplace can create additional problems, such as complaints from other employees with animal allergies, fear of dogs, etc.  If the co-worker’s issue is also a disability, you may need to seek a compromise, such as designating restricted areas where the service animal cannot go or providing air purifiers.  Also, the employer can establish ground rules – like keeping the dog on a leash, and having the employee be responsible at all times for its care and behavior.
  • Ask JAN! For more assistance always remember to work with the Job Accommodation Network at http://askjan.org/ .   JAN is a free, not-for-profit organization that focuses on assisting employees and employers with navigating the ADA – and you can talk with a live person if you call the number on the website.

MATRIX CAN HELP!

Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.

Don’t Forget About Accommodation Obligations during the Application Process – The EEOC is On It!

Posted on: March 24, 2017 2

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

It appears the Equal Employment Opportunity Commission has added a new focus to its enforcement efforts.  In its latest Strategic Enforcement Plan, the EEOC announced that one of its national priorities is for “the Commission to address . . .  issues involving hiring barriers and the ADA.”  Many of the recent settlements by the EEOC highlight just how seriously the EEOC is taking this strategic priority, in particular regarding applicants who request a reasonable accommodation in the pre-employment processes.  Here are a couple of examples:


EEOC Settlement on Behalf of Trucking Applicant for Failure to Accommodate

An applicant for a truck driver position with Covenant Transport sought accommodation, on the basis of his medical condition, to have a blood test instead of providing a urine sample in connection with the company’s pre-employment drug screening.  The EEOC filed suit, alleging that the company initially agreed to this request for accommodation, but ultimately reneged and declined to hire him because he could not submit a urine specimen for testing.

The oddest part of the settlement is that it requires Covenant to develop a written drug testing policy (surprised they did not have one already!) and to provide 90-minute trainings annually on the policy (that’s a long time to discuss one policy!) to its recruiters and head of safety. Covenant also agreed to pay $30,000 to the applicant.

EEOC Press Release 02-24-2017

Cell Phone Repair Facility Settles EEOC Lawsuit on Behalf of Two Applicants Denied Reasonable Accommodation.

As part of its hiring process, S&B in Fort Worth, Texas, required applicants to participate in a “group interview” with prospective supervisors. During this interview, the EEOC contended that the two applicants on whose behalf it brought this lawsuit were observed to be engaging in American Sign Language to communicate with each other. They asked that the supervisors provide them with written questions.  The lawsuit alleged that the supervisors initially did so, then declined to continue and told both applicants the company would not hire them.

This lawsuit cost S&B $110,000 but, as you no doubt can guess by now, the EEOC imposed additional requirements on S&B to settle.  The company is also required to maintain a written log of all disability-related complaints and report semi-annually to the EEOC.  In addition, managers, supervisors, and HR personnel are required to attend a training conducted by a Dallas advocacy center for deaf individuals on the use of sign interpreters in interview and employment settings.

EEOC Press Release 02-23-2017


Pings for Employers:

Remember that the ADA applies to applicants as well as current employees. The prospective employer must provide reasonable accommodation(s) to applicants for known disabilities to assist them through the application process.

Train internal recruiters and interviewing personnel on the requirements of the ADA, so that they recognize and respond appropriately to a request for an accommodation during the application process.

Establish a culture of disability acceptance and recognition of each individual’s capabilities, not their disabilities.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

New York Paid Family Leave – Proposed Regulations Announced

Posted on: March 2, 2017 0

By Marti Cardi, VP-Product Compliance

The New York Paid Family Leave act goes into effect on January 1, 2018.  This law provides both job protection similar to the FMLA, and also provides a pay benefit to employees during covered leaves of absence.  Now, New York Governor Cuomo has announced that the proposed regulations in support of the law have been published in the State Register and are open for public comment for 45 days.  Links to the text of the proposed regulations and related materials can be found on the New York State website here.

The law phases in from 2018 through 2021.  Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021.  Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member.    A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here and in the state’s announcement of the proposed regulations.

The state has also created a new helpline (844) 337-6303 and a new website to answer questions and provide more information about the paid leave program.

Part of a Trend

Three other states – California, New Jersey, and Rhode Island –  also have state programs for paid family leave, and Washington, D.C., has passed such a program to go into effect in 2020 (subject to review by the U.S. House and Senate).  These states and also Hawaii, New York, and Puerto Rico offer separate programs for disability insurance for an employee’s own health condition.

But that’s not all!  As of February 28, the following 10 states have also introduced legislation for paid family leave:  Connecticut, Hawaii, Illinois, Missouri, Oklahoma, Oregon, South Dakota, Tennessee, Texas, and Virginia (died in committee within 3 weeks of proposal – that was quick!).  Some of these also include pay benefits for leave due to the employee’s own health condition.  In addition, the state of Washington passed paid family leave legislation in 2007 but it never went into effect due to lack of funding.  Washington has introduced new bills this year to provide that funding and implement its paid leave law.

Matrix and Reliance Standard Can Help!

At Matrix we have been waiting for this development. We will closely review the proposed regulations, inform our clients, business partners, and readers of any significant provisions, and submit comments to the state if appropriate. We’ll do the same when the regulations – as is or revised – become final.

In the meantime, Matrix’s compliance and product leaders are guiding a team with representatives from all affected functional areas in preparing to administer the job-protected leave provisions of the law effective January 1, 2018.  Our sister company, Reliance Standard Life Insurance Company, has likewise assembled a team of representatives from all functional areas to design the product offering.  In order to be ready by the effective date, Reliance Standard has already created system requirements and is preparing to start development.

If you have questions or want more information, contact us at ping@matrixcos.com or salesandmarketingHQ@rsli.com.

Pregnancy Issues Continue to Expand: Company Fired Pregnant Employee For Her Own Good

Posted on: February 17, 2017 1

By Marti Cardi, VP-Product Compliance

Enforcement and legislative attention continue to increase around pregnant employees and pregnancy-related conditions in the workplace.  The message to employers?  Treat a pregnant employee poorly – or differently – at your peril.  Rooms to Go learned this lesson recently, even though the pregnant employee’s manager seemed to be acting in the employee’s best interest.

The Case.  RTG Furniture Corp. (RTG) operates a chain of Rooms to Go furniture stores and distribution centers nationwide.  After being sued by the Equal Employment Opportunity Commission (EEOC), the company has agreed to pay $55,000 and provide other relief.

According to the EEOC’s complaint, the company hired Chantoni McBryde on June 1, 2015, and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde. The EEOC said that McBryde was then told that because she was pregnant, she could no longer work at the facility.  If true, this conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits employers from terminating workers because they are pregnant.

As is common in settlements of EEOC lawsuits, the company agreed to other provisions in addition to providing monetary relief to McBryde.  The three-year consent decree between RTG and the EEOC requires RTG to develop and implement a policy that prohibits pregnancy-based discrimination; to conduct annual pregnancy discrimination training for employees, supervisors, and managers at certain facilities; to post a notice about the lawsuit and employee rights under federal anti-discrimination laws at those same facilities; and to provide periodic reports to the EEOC.  Thus, while the $55,000 judgment may seem like something your company could handle, this type of extensive oversight and training obligation is far more intrusive and onerous.

According to the EEOC, “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume.  If there may be a potential health concern, it is up to the woman and her doctors to evaluate. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.”  EEOC Press Release 02-03-2017

Sources of Pregnancy Protections.  Here are some of the state and federal laws that provide protections for pregnant workers:

  • The federal Pregnancy Discrimination Act, passed in 1978 as an amendment to Title VII, prohibits sex discrimination on the basis of pregnancy. Pregnant women who are able to work must be permitted to work under the same conditions and must be treated the same as non-pregnant employees.  The EEOC will broadly interpret when pregnancy-related conditions are considered disabilities under ADA.
  • The federal Family and Medical Leave Act defines a “serious health condition” to include pregnancy and provides up to 12 weeks of leave for prenatal care and pregnancy-related conditions.
  • Under the Americans with Disabilities Act, a “normal pregnancy” is not a disability – but a “pregnancy-related impairment that substantially limits a major life activity” can be a disability.
  • State laws – as of 2016:

Virtually all states have provisions similar to the Pregnancy Discrimination Act in their civil rights laws.

Approximately 12 states have laws specifically requiring employers to grant a leave of absence for pregnancy disability.

Approximately 17 states have laws requiring accommodation of pregnancy-related conditions in the workplace – even if not a “disability.” “Common conditions of pregnancy” must be accommodated.  Accommodations can include leave of absence as well as breaks, equipment, modified schedules or duties, light duty, etc.

Many more state pregnancy leave and accommodation laws have already been introduced in 2017. Watch this blog for announcements if/when they pass.

Pings for Employers

Treat pregnancy the same as other temporary disabilities – unless a law specifically requires more favorable treatment.

Consider whether your policies and practices provide equal treatment for pregnant employees with regard to:

  • Amount of paid/unpaid leave for a temporary disability.
  • Availability of light duty – it is NOT just for worker’s compensation claimants.
  • Workplace accommodations (equipment, modified duties or schedule, breaks, leave of absence, food or drink at a workstation, etc.).
  • Any other term, condition, or benefit of employment.

Also, be familiar with the federal laws identified above and the laws of your state. What protections do they provide for pregnant employees?  What do you need to do to be compliant?

Review the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues. Issued in 2014 and revised in 2015; this is a comprehensive guidance regarding treatment of pregnant employees under various federal laws.


UPCOMING EVENT!  I will be presenting at the DMEC Denver Chapter Meeting on the topic “Employers: Beware of Caregiver Protections!” Thursday February 23 at 2:30.  I will address the pregnancy issues discussed above and much more.  Please join me!  Click on the link for more details and to sign up.

For more information on the caregiver topic, see our post What Employers Need to Know about Caregiver Protections under the ADA, FMLA, Title VII… and in California.

                                                           

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Paid Parental Leave 2017:  It’s Not Your Mama’s Maternity Leave

Posted on: January 31, 2017 0

By Marti Cardi, VP-Product Compliance

We’ve all seen the headlines over the past two years:  “XYZ Company Adopts Expansive Paid Parental Leave Policy.”  News coverage of paid parental leave (PPL) increased tremendously in 2015-2016 over prior years, fueled by the numerous PPL implementations by big-name companies.

Key questions that arise in assessing the increase in company PPL plans include: Why now…finally? What motivates employers to adopt PPL plans? What lessons can employers learn from the trailblazers’ experiences? What’s next for PPL? We’ll do our best to answer these below.

In mid-January the Integrated Benefit Institute (IBI) hosted an event in San Jose to present the findings of its 2016 study of the tech industry’s burgeoning PPL policies.  The study, “. . . And Baby Makes Three (Months Off)”, attempts to answer the above questions and more.  At the event, representatives from Facebook, Intuit, and Adobe participated in a panel discussion of their companies’ PPL programs and provided their thoughts and experiences on these issues as well.  (And many thanks to Facebook and Intuit for sharing their positive experiences with Matrix as their third party administrator!)

The following information is based on IBI’s report (well worth a read in its entirety) and input from the panel and other employers at the conference.

Why Now?
Social and economic factors explain only so much.  Yes, tech industry players have been competing fiercely for talent in recent years, but data show that the NASDAQ was booming in 2009, signaling the end of the recession.  Along with this came declining unemployment rates overall and specifically in the tech industry.  Yet that was not enough to set off a huge jump in PPL as an employee benefit.

Several events from 2009 forward may have created or contributed to the momentum:

  • In 2009, the New Jersey paid family leave program took effect. (California’s paid family leave program took effect in 2002.)
  • In 2012 Marissa Meyer was hired as Yahoo! CEO – while she was pregnant.
  • In 2013 Sheryl Sandberg, Facebook’s COO, published Lean in: Women, Work, and the Will to Lead.
  • The White House Summit on Working Families was held in June 2014, which brought together advocates for such issues as paid family leave, paid sick time, flexible scheduling, and equal opportunities in the workplace.
  • In July 2014, the EEOC released its Enforcement Guidance on Pregnancy Discrimination and Related Issues, which made clear that parental leave policies that favor one gender over the other violate federal laws that prohibit discrimination on the basis of sex or pregnancy.

Whatever the cause, U.S. employers are embracing paid parental leave – and in some cases paid family leave – in ever greater numbers and with increasingly generous plans.

What Motivates Employers?
With these events as a backdrop, IBI conducted interviews with 15 established tech companies to discover the motivations driving their adoption of paid parental leave.  These fell into four broad categories:

  • Compete for talent – most companies have no drive to be #1 in PPL offerings, but want to be competitive by offering a reasonable amount of PPL.
  • Support existing corporate social values – companies want a policy that comports with other expressed corporate values, such as being “family friendly”.
  • Formalize and coordinate myriad and conflicting local, state, federal, and company leave policies.
  • De-stigmatize females in workplace – make parental leave equally available to men so women won’t be viewed as taking their jobs less seriously by taking leave.

At the conference, employers also indicated they were motivated by recent legislation requiring paid parental or paid family leave, specifically San Francisco (effective 1/1/17) and New York State (effective 1/1/18).

Key Lessons for Employers
The IBI interviews and the conference participants provided three key lessons for employers considering adopting a paid parental or paid family leave program.  Undoubtedly there are many more but here’s a start:

First, design a policy for what YOUR business is trying to accomplish.  Don’t feel pressured just to do what everyone else is doing.  Carefully analyze your company’s philosophies, strategies, operational needs, and other factors.   Then, design a plan that will mesh with and support those factors.  This is not a cookie cutter, one-size-fits-all issue.

Second, leverage your company’s FMLA and disability experiences to design and manage a program that will help maintain business performance.  You probably already have a lot of experience in similar leave issues – FMLA, state leaves, disability plans, company policies, etc.  Use that experience to understand your employees’ leave usage and its impact on business operations.

Finally, focus on improving the employee’s return-to-work experience after an extended leave.  A new parent may have difficulty going from parental bonding leave on Sunday to full and productive engagement upon return to work on Monday.   Consider easing the employee back to work with a part-time return schedule.  Make sure the supervisor doesn’t have an impossible list of tasks waiting for the employee the first day back.  On the other hand, ensure that the supervisor and co-workers don’t exclude the returning employee from ongoing projects; rather, design a means to bring the employee up to speed and start contributing.

What’s Next for PPL?
Many questions remain as the United States tries to join the rest of the industrialized world to provide adequate paid parental and family leave. There is no “standard” PPL program at this point.  Employer discussions at the IBI event revealed numerous plan variations, including:

  • Paid maternity leave for the birth mothers only, funded by disability plans.
  • Equal paid parental leave for all parents, with birth mothers also getting the disability/maternity leave.
  • Equal total leave for all parents, with the birth mother’s leave being partially funded by a disability plan.
  • Paid family leave that includes both bonding leave but also time off to care for other family members.
  • Paid parental time off ranging from 6 weeks to 12 months.
  • Different amounts of paid leave depending on whether the employee self-identifies as the primary or secondary caregiver.
  • Intermittent bonding leave – disallowed completely by some employers, while others allow intermittent leave in as small as one-day increments.
  • Pay provided at a percentage of the employee’s compensation or fully paid at 100%.
  • Coverage extended to assist with adoption proceedings and/or infertility treatments, or to care for foster children.

Other challenges and questions for the future of PPL in the United States include:

  • How can companies keep up with and comply with state and local laws?
  • Can paid family leave programs solve the issue of perceived unfairness, such as birth mothers getting more time than other new parents under most plans?
  • The IBI study is based on tech industry. What are the implications and likely trends for other industries?
  • Will today’s plan designs suit the upcoming parenting years of the Millennials, or will changes be needed?
  • Will the Trump presidency have any impact on the future of PPL in the United States? Trump’s campaign platform included a belated and tepid paid leave proposal – up to 6 weeks for the birth mother only, funded and administered by the existing federal unemployment program, and available only if the employer does not provide other maternity leave benefits.

What is YOUR company doing or considering in the world of paid parental and family leave?  Please share with us in the comments section below.

My thanks to IBI and its Director of Research and Measurement, Brian Gifford, Ph.D, for hosting the event and sharing such valuable information with the employer community.

MATRIX CAN HELP!  We closely track the trends and legislation relating to paid parental and family leave, and will keep you posted on legislative, agency, and court developments through this blog and our monthly On Your Radar update.

Matrix Absence Management provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. At Matrix we monitor the many state and municipal family and sick leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

A Game Changer: DOL Releases New ERISA Disability Claims Rules

Posted on: January 4, 2017 2

By Marti Cardi, VP-Product Compliance

Claimants under ERISA disability plans will soon have a better chance to understand and contest any denial of disability benefits.  After years of litigation flowing from disability benefits denials, the U.S. Department of Labor decided it was necessary to re-examine the ERISA regulations governing the handling of disability benefits claims. Section 503 of the Employee Retirement Income Security Act (ERISA) requires every employee benefit plan to:

  • Provide notice in writing in understandable language explaining the specific reasons for the denial of a claim, and
  • Provide an individual with an opportunity for a full and fair review of the denial.

On December 16, 2016, the DOL issued a Final Rule amending the regulations governing claims handling procedures for ERISA disability claims filed on or after January 1, 2018.  The Final Rule allows plans a year to conform their claims handling procedures – and a good thing that is!  The new rule and its explanatory preamble are heavy slogging indeed – measuring a full 28 pages in the Federal Register’s typical small print – and will require plans to revamp their denial procedures and communications, and likely the terms of the plans themselves.

The revised regulations themselves are a short 3 pages, but the preamble is a must-read for those deeply involved in disability claims administration.  The preamble discusses the comments received by the DOL during the public comment period and the Department’s rationale for the positions it has taken in the Final Rule.  Thus, it provides significant assistance in understanding the new rules and how the DOL will interpret them.

Key Changes at a Glance
Here is a summary of the major changes to the ERISA regulations, which will apply to new disability claims filed on or after January 1, 2018.

  • Independence and impartiality of claims adjudicators. Claims and appeals must be decided in a manner designed to ensure independence and impartiality of the persons involved in making the benefit determination.  For example, employment decisions regarding compensation, promotion, or similar matters cannot be made based upon the likelihood that an individual will support the denial of disability benefits.
  • Improvements to disclosure requirements. Benefit denial notices must contain the following:

— A complete discussion of why the plan denied the claim and the standards applied in reaching the decision.

— The basis for disagreeing with the views of health care or vocational professionals whose opinions were provided by the claimant or obtained at the behest of the plan.

— The basis for disagreeing with a finding of “disability” by the Social Security Administration (SSA), if applicable. A disability plan is not bound by an SSA determination, but in the past a failure to explain the plan’s reason for disagreement has been one ground for court scrutiny of the plan’s denial decision.  Now that explanation will be mandatory.

— The specific internal rules, guidelines, protocols, standards or other similar criteria the plan relied upon in making the adverse determination or, alternatively, a statement that such guidelines etc. do not exist.

— If the denial is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, or a statement that such explanation will be provided free of charge upon request.

  • Claimant’s right to access entire claim file. A claimant must be given timely notice of his or her right to access to the entire claim file and other relevant documents and be provided the right to present evidence in support of his or her claim during the review process.  For this reason, an initial adverse benefits determination must contain a statement that the claimant is entitled to receive, upon request and without charge, the documents relevant to the claim for benefits.  Currently, this is only required in notices of adverse benefits determinations on appeal.
  • Notice of new or additional evidence or rationales before adjudication. According to the DOL, a full and fair review of an adverse determination requires that a claimant has a right to review and respond to new evidence or rationales developed by the plan during the pendency of the appeal.  This allows the claimant the opportunity to fully and fairly present his or her case at the administrative appeal level, as opposed to having a right to review such information on request only after the claim has already been denied on appeal. The evidence or rationale must be provided to the claimant as soon as possible, and sufficiently in advance of the date on which the notice of adverse benefit determination on review is required of the plan, in order to give the claimant a reasonable opportunity to address the evidence or rationale prior to that date.  However, the new regulations do not extend the time deadlines for the plan’s determination; the notice of a new rationale or evidence, the claimant’s opportunity to respond, and the plan’s determination must all be accomplished within the existing time for an appeal determination (45 days from the filing of the appeal, with a possible 45-day extension).
  • Claimant is deemed to have exhausted administrative remedies if a plan fails to comply with claims procedure requirements. Plans cannot prohibit a claimant from seeking court review of a claim denial based on a failure to exhaust administrative remedies under the plan if the plan failed to comply with the claims procedure requirements.  The new regulations provide an exception to this rule when the violation was (i) the result of a minor error; (ii) nonprejudicial to the claimant; (iii) attributable to good cause or matters beyond the plan’s control; (iv) in the context of an ongoing good-faith exchange of information; and (v) not reflective of a pattern or practice of noncompliance by the plan.
  • Expanded definition of “adverse benefit determination” that triggers appeals procedures. The current ERISA regulations provide that the term ‘‘adverse benefit determination’’ includes any denial, reduction, or termination of, or a failure to provide or make full partial  payment for, a benefit. Under the new rule, rescissions of coverage, including retroactive terminations due to alleged misrepresentation of fact (e.g., errors in the application for coverage) must be treated as adverse benefit determinations, thereby triggering the plan’s appeals procedures. This will apply whether or not, in connection with the rescission, there is an adverse effect on any particular benefit at that time.  Rescissions for non-payment of premiums are not covered by this provision.
  • Notices and denials must be written in a “culturally and linguistically appropriate” manner. If a disability claimant’s address is in a county where 10 percent or more of the population is literate only in the same non-English language, benefit denial notices must include a prominent statement in the relevant non-English language about the availability of language services. Such services must include assistance with filing claims and appeals in the non-English language.  The plan must provide written notices in the applicable non-English language upon request.

Pings for Employers

Here’s what employers should be working on during 2017 to be ready on January 1, 2018, with the top of the list being a review of your disability benefits plans to determine if changes are needed. Most disability plan procedures will have to undergo changes to comply with the new regulations.  Even if no changes are necessary for that reason, this is a good time to consider whether your plans need revisions or updates.

  • Review your current claims handling procedures. This is also an opportune time to take a deep dive into your disability claims practices start to finish. Are they compliant with current existing regulations that will remain in effect in 2018?  What changes do you need to make to comply with the new regulations?
  • Review your internal rules, guidelines, protocol, or other similar criterion that are relied upon in making adverse determinations. These will now become public documents in the case of every denial.  Better polish them up and ensure that they accurately reflect your procedures.  The new regulations do allow a plan to state that no such internal rules exist, but question whether that is a wise approach.
  • Prepare new templates for denial letters – for both initial denials and upholding a denial on appeal. A template will guide your claims examiners through the correct considerations and elements required by the new (and existing) regulations in the denial.
  • Provide training to claims examiners. Make sure your examiners are well-schooled on the new processes – old practices may not be compliant.
  • Analyze the language make-up of your work force. If you will be required to provide information in one or more non-English languages, engage a language service for phone calls, translation of denial notices, and other claims assistance.

What is Matrix Doing to Comply with the New Regulations?
Not to worry – Matrix’s disability claims handling procedures will embrace the new rules and will continue to be best in class!

We will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018.  We have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  We will undertake the steps recommended for employers above, and will review and update our claims handling software as needed.

Our practice leaders and account managers will be in touch with clients during 2017 to discuss changes to plan notifications, procedures, and more.  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

 

EEOC Heightens Focus on Mental Health and the Workplace with New Employee Q&A

Posted on: December 14, 2016 1

mental-health-brain-shutterstockAt Matrix Absence Management, we are seeing an increase in workplace accommodation requests due to mental health impairments, including modified work schedules and work-from-home arrangements.   The U.S. Equal Employment Opportunity Commission has long focused on mental health impairments in the workplace and is noticing increases in mental health issues as well.  On December 12, 2016, the EEOC stepped up its game with a new employee-centered resource document, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.  The document is brief – only 2 pages – and doesn’t break any  new ground, but pulls together in Q&A format some basic ADA and mental health information that can be helpful to employees and employers alike.

Continue reading

NEW!  San Francisco Issues Draft Rules for Paid Parental Leave

Posted on: November 23, 2016 1

By Marti Cardi, VP-Product Compliance

untitled-1For those readers who do not have California employees, I have 2 things to say:  First, lucky you!  Second, hang in there with me – I promise some non-California blog posts in the near future. 

Late on Friday, November 18, the San Francisco Office of Labor Standards Enforcement (OLSE) posted draft Rules to support the Paid Parental Leave ordinance (SF PPL) effective January 1, 2017.

OLSE is taking comments on the proposed Rules until 5:00 p.m. PST Friday, December 2, 2016, and will hold a public hearing on December 2.  Details and copies of the ordinance, an amendment, and the draft Rules are available on the OLSE website: http://sfgov.org/olse/paid-parental-leave-ordinance.  We at Matrix will be listening for further developments.

Here are a few of the highlights from the draft Rules:

  • An explanation of how prior employment with a covered employer counts toward the 180-day eligibility requirement (Rule 1)
  • How to count employees to determine whether the employer is a “covered employer” (it can be complicated!) (Rule 2)
  • How to calculate an employee’s SF PPL entitlement when the employee becomes eligible during a parental leave (Rule 3)
  • The relationship between CA PFL and SF PPL, and what documents or information the employer can require to ascertain the employee’s CA PFL coverage (Rules 4 and 5)
  • SF PPL calculation for tipped employees (Rule 6)
  • Ability to use SF PPL intermittently, and how to calculate the employee’s intermittent pay benefit (Rule 7)
  • Employer appeal and hearing procedures (Rule 8)

Still unanswered: 

  • Forms and the notice required by the ordinance are mentioned in the proposed Rules but are not yet available.
  • There is no explanation of the interaction or overlap in the employer’s ability to require employees to use 2 weeks of vacation pay for CA PFL and/or SF PPL purposes.
  • Can the employer apply accrued but unused PTO toward PPL obligation – or only time off designated as “vacation” as stated in the ordinance?
  • What is the statute of limitations for employee to bring a civil action against employer for PPL violations?
  • If an employee is continuing health and other benefits during parental leave, can the employer withhold the employee’s share of premium payments from the PPL Supplemental Compensation?  How about other voluntary deductions authorized by the employee (e.g., 401(k), loan repayment, voluntary life insurance buy-up . . . )?

As a refresher, the SF PPL is available for leave taken to bond with a new child.  It applies to employers with total employees in any location as follows (Covered Employers):

  • 50 or more employees: January 1, 2017
  • 35 or more employees: July 1, 2017
  • 20 or more employees: January 1, 2018

Eligible employees must meet 5 eligibility requirements:

  1. Work for a Covered Employer
  2. Has worked for the employer for at least 180 days prior to start of leave
  3. Works at least 8 hours  per week within San Francisco
  4. Works at least 40% of employee’s total hours within San Francisco
  5. Is eligible for and receiving paid family leave from California for bonding

The employer’s obligation is to top off paid family leave benefits the employee is receiving from the state of California to 100% of the employee’s regular compensation, subject to a cap.   The benefit is paid fully by the employer with no contribution or payroll deduction from employees.

More details about the SF PPL ordinance are available in our prior blog post here.

UPDATE (January 23, 2017) 

The City of San Francisco has finalized the Paid Parental Leave ordinance, rules, and related documents.  Here is the PPL website, where you can access the documents described below.

  • Paid Parental Leave Ordinance, as passed on April 12, 2016.
  • Technical amendment to the Paid Parental Leave Ordinance passed on September 6, 2016.
  • Paid Parental Leave Ordinance Poster – Covered Employers must post the required Paid Parental Leave Ordinance Poster at every work place and job site. The poster should be printed on 8.5″ x 14″ paper.
  • SF Paid Parental Leave Ordinance RulesRules Implementing the Paid Parental Leave Ordinance on December 23, 2016 (with a technical amendment December 29, 2016).
  • SF Paid Parental Leave Form – posted December 23, 2016. Covered Employers must provide the SF Paid Parental Leave Form to employees in San Francisco, and employees must complete the form to receive Supplemental Compensation.
  • Calculation Instructions– Step-by-step instructions on calculating the amount of Supplemental Compensation a Covered Employer must pay to a Covered Employee.   Several different pay scenarios are included.

_________________________________________

MATRIX CAN HELP!  Matrix Absence Management provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. At Matrix we monitor the many state and municipal family and sick leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Employee Reports FMLA for One Workday in the Middle of Vacation

Posted on: November 16, 2016 0

By Marti Cardi, VP Product Compliance

Plaintiff Masoud Sharif and his wife were employed by United Airlines at the Dulles Airport in Washington, D.C.  He and his wife took vacation to South Africa from March 16 to April 4, 2014.  Mr. Sharif, however, was scheduled to work on March 30 and 31. He was able to get a co-worker to cover his shift on the 31st, but was not able to get coverage for his shift on the 30th.

Sharif suffered from anxiety and panic attacks and had previously been approved by United to take intermittent FMLA for his condition.  On March 30 he called in to report FMLA for that day.  HR noticed that he had reported FMLA for his only scheduled workday during an extended vacation period and launched an investigation.  Sharif was interviewed and gave conflicting explanations – at one point claiming he did not think he had to work that day, then claiming he could not locate a flight home in time for his shift, though he and his wife flew to visit a niece in Milan from March 31 until April 4.

As a result of these conflicting explanations, United notified Sharif of its intent to discharge him from employment for fraudulent use of FMLA and violating a United policy requiring truthfulness in communications. As a union employee, he was entitled to a hearing, but when the union advised him he would be unlikely to prevail, he elected to retire.

Sharif then sued United, claiming the airline fired him in retaliation for taking FMLA leave.  According to the 4th Circuit, the facts developed as follows:

  • At 7:00 a.m. Cape Town Time (1:00 a.m. Eastern Standard Time) on March 30—the day of his scheduled shift—Sharif called United Airlines to take medical leave under the FMLA.
  • He had not made any advance reservations for a return flight.
  • The next day, Sharif and his wife flew from Cape Town to Milan, Italy, where Sharif’s niece lived.
  • On April 3, Sharif and his wife finally departed for Washington and arrived just in time for his wife’s next shift.
  • On April 23, 2014, United representatives interviewed Sharif with a union representative present. When asked about his vacation and March 30 absence, Sharif sat in silence for a period of minutes before he gave a series of inconsistent answers.
  • Sharif first replied that he was not scheduled to work on March 30, and when asked why he had taken FMLA leave if he did not have a shift, Sharif responded that he “d[id] not recall being out sick this day or calling out sick.”
  • After another pause, Sharif clarified that he began trying to return home flying standby (as airline employees often do) beginning March 29 but was unable to find any available flights.
  • Sharif’s story later evolved to claim he actually arrived at the airport on March 28 to begin looking for a flight, and that he and his wife obtained the additional days off in April to gather with family in Pittsburg for the Persian New Year.
  • As a result of his repeated unsuccessful attempts to find any means to return to Washington in time for his shift, Sharif explained that he grew anxious and was eventually seized by a panic attack which then led to his use of FMLA leave.

The district court had granted summary judgment in favor of the airline – meaning United won and the case would not go to a jury trial.  The 4th Circuit agreed with the district court and affirmed summary judgment for United.   In particular, the court emphasized that Sharif had to prove that United’s explanation for its determination that he had violated its policies and that his conducted warranted termination was a pretext for retaliating against him for taking leave.  Sharif failed to present sufficient evidence, and quite to the contrary, the evidence supported that United had “ample reason to believe it had been lied to,” citing to the FMLA regs. “An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s . . . provisions.”  29 C.F.R. § 825.216(d).

Sharif v. United Airlines, __ F.3d ___, 2016 WL6407391 (4th Cir. Oct.31, 2016).

PINGPings for Employers: The FMLA offers a few tools for employers to curb suspected abuses, including prompt action to investigate to support the suspicion of improper FMLA usage. United did a number of things well, beginning with noticing there was an issue. When someone reports leave in the middle of pre-planned vacation, that is understandably cause, at a minimum, for inquiry. Also:

  • United kept to the facts. They did not draw conclusions, but rather, asked Sharif to provide an explanation in interviews and invited him to submit a written statement;
  • The airline did not take adverse employment action until they had the objective facts to support that not only did Sharif report FMLA on a day that did not appear to be for a covered reason; and
  • United also pursued Sharif’s violation of the Company’s policies governing dishonesty – a reason for termination independent of FMLA usage (although the dishonesty related to FMLA usage). This kind of policy should be part of every employer’s code of conduct.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations.  We are experts on ways to minimize FMLA misuse and can help your company implement practices that will achieve this goal.

We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Election 2016 – What Happens With Paid Family and Medical Leave?

Posted on: November 9, 2016 1

By Marti Cardi, VP Product Compliance

The party’s over
It’s time to call it a day…

Whew!  Whether you’re nursing an electoral hangover or still on an adrenaline high, it is a relief to have the election over with and return to normal life – but what is “normal” now?  What are we likely to see in the next few months or years of a Donald Trump presidency, with respect to family and medical leave and related issues? What or who will SNL parody next?  (OK, that’s beyond the scope of this blog, but I’ll be watching.)

Bottom line, no one knows yet. But we can make some guesses based on platforms and promises.

Trump’s Plan for Paid Maternity Leave.  During his candidacy Trump proposed a plan that would provide up to six weeks of paid maternity leave.  Note that term – “maternity” leave.  Trump’s proposal does not include paid bonding time for fathers, paid time off due to an employee’s own health condition, or paid time to care for an employee’s ill or injured family member.  Trump proposes to fund this benefit by amending the existing unemployment insurance companies are required to carry. The benefit would apply only when employers don’t offer paid maternity leave, and would be paid for by reducing fraud in the program so taxes are not raised.  It is questionable whether there is enough fraud that can be identified and eliminated year after year to sustain funding of this plan.

Moreover, Trump’s support for paid leave of any kind has been tepid at best.  He did not announce his plan until mid-September 2016, past the primary contests and well into the election campaign.  With both houses of Congress controlled by Republicans, it is unlikely he will receive any pressure from the legislature to move forward on this issue.  We’ll be watching closely.

Trend: Increasing Paid Leave.  No doubt, there is a trend on many fronts in favor of paid family and medical leave.

The FAMILY Act.  The Family and Medical Insurance Leave Act is pending in the U.S. House and Senate (H.R. 1439/S. 786).  This Act would provide up to 12 weeks of partial wage payment during a leave of absence for reasons that dovetail with job-protected but unpaid leaves available under the federal Family and Medical Leave Act (FMLA): an employee’s or family member’s serious health condition, bonding with a new child, and certain family military-related absences.

The FAMILY Act was introduced in March 2015, has not made it out of its first committee (House Ways and Means), and will die at the end of this Congressional session (officially, January 3, 2017) – barring unlikely extraordinary action in both houses.  Bills are often reintroduced in the next congressional session, so there is a good chance of more action on this issue in the 115th Congress.  Support among the American public and advocates is strong.  A letter of support for the FAMILY Act was submitted to members of Congress on June 29, 2016, endorsed by over 350 family-friendly organizations.  Is it possible that U.S. legislators will finally see the light and take us off the list of the few countries in the world (among them, Liberia, Suriname and Papua New Guinea) that do not provide some sort of paid family or medical leave?  Stay tuned.

State/municipal paid leave programs.  An increasing number of state governments are requiring employers to provide paid family leave, all funded by employee payroll deductions.  Here is a snapshot:

  • California: Effective in 2004; provides 55% income replacement for up to six weeks (in 2018 increasing to 60% or 70% depending on income level)
  • New Jersey: Effective in 2009; provides 67% of wages (up to $524/week) for up to 6 weeks
  • Rhode Island: Effective in 2014; provides a maximum of $752 per week, based on earnings, for up to 4 weeks
  • New York: To be effective in 2018; implementation is phased from 2018 to 2021; will ultimately provide 67% income replacement for up to 12 weeks

In addition, San Francisco has passed a paid family leave ordinance effective January 1, 2017, that requires employers with San Francisco employees to top off employees’ California paid family leave benefits to 100% of their income (subject to a cap) for 6 weeks.  In contrast to the state paid family leave plans, San Francisco requires employers to pay for this supplemental compensation without any employee contribution.

Private Company Paid Leave Plans.  The trend toward paid family leave is most notable in the policies adopted by many companies throughout the country.  A recent analysis by the National Partnership (an organization that promotes paid leaves of absence for American workers) indicates at least 46 major U.S. companies have adopted or increased paid family leave benefits in the past two years.  Most of these provide only paid parental leave, but a few – notably Adobe, Deloitte, and Discovery Communications –  include paid time off for the employee’s own health condition or to care for a family member.  The results of this analysis, which includes summaries of the 46 paid leave plans, can be found here.

MATRIX CAN HELP!  Matrix tracks state and federal legislation daily to stay on top of leave, disability, and accommodation developments.  Contact us if you have questions about what’s happening in capitol buildings and courthouses around the country, or what’s on the ballot in the next cycle.

We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Lowe’s to pay $8.6 million in yet another EEOC case involving inflexible leave policies

Posted on: May 23, 2016 3

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment LawCartoon Animal Eyes Under Big Stone

Employers, if you haven’t fixed this issue yet, get out from under that rock!

If an employee with a disability exhausts leave time provided by company policy or by a law such as the FMLA, you have two obligations.

First, consider even more leave as a reasonable accommodation. 

Second, consider reasonable workplace accommodations to allow the employee to return to work

It’s that simple.

As announced by the EEOC on May 13, 2016, home improvement giant Lowe’s has agreed to pay $8,600,000 to affected employees as part of a consent decree entered into with the EEOC in a federal district court in California. The EEOC claims that Lowe’s violated the ADA by terminating employees with a disability after failing to provide them reason­able accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.

And it’s not just about the money.  The consent decree agreed to by Lowe’s in this case includes some very typical additional requirements, all enforceable by court order.  The four-year consent decree settling the suit requires that Lowe’s:

  • Retain a consultant with ADA experience to review and revise company policies as appro­priate;
  • Implement effective training for both supervisors and staff on the ADA;
  • Develop a centralized tracking system for employee requests for accommoda­tion;
  • Maintain an accommodation log;
  • Post documentation in its workplaces related to the settlement; and
  • Submit regular reports to the EEOC verifying compliance with the decree.

Thus, Lowe’s ends up not only paying the agreed-upon amount of damages, but also incurs significant expenses (for example, attorneys’ fees) and business disruptions during the EEOC’s investigation and in complying with the terms of the consent decree for four years.

Two types of policies are on the EEOC’s radar.  An employer’s obligation to provide more leave than offered by company policies or required by law has received much recent attention.  Why, just this month the EEOC released a new Resource Document entitled Employer-Provided Leave and the Americans with Disabilities Act.  While the Resource Document did not break any new ground (no, the EEOC still won’t say how long a leave can be before it becomes an unreasonable accommodation), it does pull together in one handy place all existing EEOC guidance on the issue, including assessment of extra leave as an undue hardship.  Our blog post on the Resource Document can be found here.  Meantime, the EEOC is focusing on the following:

Maximum or inflexible leave policies (sometimes referred to as “no fault” leave policies) take many different forms.  A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both continuous and intermittent leave.  Some employers not covered by the FMLA set lower overall caps. Others tie the maximum leave to the duration of short-term disability benefits.  Any inflexible cap may result in an ADA violation because it does not allow for the interactive process and individualized consideration of whether additional leave or some other reasonable accommodation will enable the employee to return to work.

100% recovered or healed policies are those that require an employee with a disability to have no medical restrictions – that is, be “100%” healed or recovered – before returning to work.  These also have huge potential to violate the ADA because the employer does not engage in the interactive process to discover whether the employee can perform essential functions with on-the-job reasonable accommodation(s).

Lots of companies got it wrong in the past.  Many employers have been the subject of EEOC investigations and, ultimately, a pricey consent decree.  Here are some of the bigger-ticket resolutions:

Company Date Amount Policy /Practice in Violation of ADA
Lowe’s 2016 $8.6 million Terminating employees whose need for medical leaves of absence exceeded Lowe’s maximum leave policy (180 days, subsequently 240 days)
Pactiv LLC 2015 $1.7 million Assessing attendance points for medically-related absences; not allowing use of intermittent leave or extension of a leave of absence as an ADA reasonable accommodation
Princeton HealthCare System 2014 $1.35 million Limiting medical leave of absence to maximum of 12 weeks:

  • employees FMLA-eligible terminated after 12 weeks\
  • employees not FMLA-eligible terminated after short absence

Requiring certification of 100% recovery upon return to work rather than considering return to work with a reasonable ADA accommodation

Dillard’s 2012 $2.0 million
  • Maximum-leave policy limiting the amount of medical leave an employee could take
  • Policy requiring all employees to disclose personal and confidential medical information in order to be approved for sick leave
Interstate Distributor Co. 2012 $4.85 million
  • Limiting medical leave of absence to maximum of 12 weeks
  • Requiring certification of 100% recovery upon return to work rather than considering return to work with a reasonable ADA accommodation
 Verizon Communications   2011  $20 million Failing to make exceptions to “no fault” attendance plans for individuals with disabilities as an ADA accommodation
 Supervalu, Inc., Jewel Food Stores, Inc. etc.  2011  $3.2 million Terminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence rather than considering return to work with a reasonable ADA accommodation
 Sears, Roebuck and Co.  2009  $6.2 million Terminating employees following exhaustion of workers’ compensation leave without engaging in the interactive accommodation process to consider workplace accommodations or leave extension as an accommodation

PINGPings for employers:  We provided pointers for employers in our last blog post so we won’t repeat, but given the size of the potential price tag we suggest that you go back and read again.

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our services.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.