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.

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.

Breaking news! Matrix’s new experience data provides the first clear snapshot of employers’ ADA exposure

Posted on: July 13, 2016 4

By Marti Cardi, VP-Product Compliance

I am proud to announce that Matrix has unveiled the first credible benchmarking and data analysis of employer experiences related to the Americans with Disabilities Act (ADA). The data is important for three reasons:

  • As a way to benchmark the experience of specific employers who manage ADA leave and accommodation requests
  • As a means of assessing the potential exposure of those who don’t
  • As an illustration of the reach of ADA, including the expansive Amendment Act (ADAAA) of 2008.

“Matrix is unique in the market with comprehensive, statistically validated data and the expertise to recommend policy and practice,” Ken Cope, president of Matrix, said. “While ADA compliance is among the fastest growing concerns of employers across the board, there is precious little objective information and guidance on how to navigate the legal, operational and productivity implications. Our early leadership has created the industry’s first body of knowledge from which employers can anticipate, model and improve their organizations’ management of ADA issues.”

The statistical analysis is based on a review of more than 4,300 accommodation requests collected over a time period of at least 12 months from employers representing a universe of 120,000 employees. Matrix will continue to expand this data as we manage ADA accommodations for our ever-increasing slate of clients over time.

“A-hah!” findings Previous Matrix research revealed two of three responding employers did not even track ADA accommodation requests. The new data underscores not only the status of ADA compliance, but the scope of the challenge itself.

Some of the insights provided by the new Matrix benchmark analysis include:

  • Accommodation request incidence per 100 employees, by age, gender and work status (e.g. exempt or non-exempt)
  • Accommodation request types, leave vs workplace accommodations
  • Accommodation request outcomes
  • Correlation with other types of employee absences, e.g. FMLA, workers’ compensation, disability

According to Cope, one of the most valuable things we learned is that employee disability incidence is consistently being understated. Statistics show that approximately one in five individuals have a “disability” covered by the ADA – but employer experience showed far fewer employees requesting workplace accommodations.  Without a good system to receive accommodation requests and manage the interactive process, employers are overlooking many employees with disabilities and inviting the scrutiny of the ADA enforcement watchdog, the EEOC. In addition, fully half – 52 percent – of all accommodation requests are unrelated to employee leave, meaning any platform or management approach that addresses only leaves is missing the boat, and potentially doing more harm than good.

During the relatively short time data has been collected and analyzed, a key metric has changed, according to Cope: “In the very beginning we counted accommodation requests as the primary indicator of volume and organizational impact,” he said. “We quickly found out a more meaningful metric is ‘events,’ the precipitating cause of an accommodation, which often results in multiple requests, both leave and workplace-related. This was an early ‘a-hah!” moment,’” he said.

Highlights of the Matrix analysis and copies of the company’s whitepaper, ADA Accommodation Data: An Inaugural Benchmark Analysis, will be available at the Disability Management Employer Coalition (DMEC) annual conference in New Orleans July 18-21.

Still More on Leave of Absence as an ADA Accommodation – Jeff Nowak and EEOC Commissioner Feldblum to Co-Star

Posted on: May 26, 2016 1

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment Law

The absence management world has been abuzz lately due to the release by the EEOC of a new resource document, Employer-Provided Leave and the Americans with Disabilities Act.  I wrote about this document and the latest EEOC consent decree – $8.6 million against Lowe’s due to its maximum leave policies – here and here.

Now, in an industry coup, my friend and fellow blogger Jeff Nowak will present a webinar on the new EEOC resource and leave as an ADA accommodation together with guest star, EEOC Commissioner Chai Feldblum.  For those of you who haven’t had the experience of hearing Commissioner Feldblum speak, you are in for a treat.  She is extremely knowledgeable, frank, and outspoken.  Jeff invites us to send our toughest ADA leave accommodation questions for the Commissioner to him at jsn@franczek.com.

Visit Jeff at FMLA Insights to learn more about the webinar and register, or you can register through the link below.

When: Thursday, June 23, 2016 (12:30 – 1:45 p.m. CDT)
Online registration: Click here.

toastYou’re toast!  And if you still aren’t taking this issue seriously, let me tell a little story from the recent Disability Management Employer Coalition compliance conference held in April.  One speaker was Sharon Rennert, Senior Attorney Advisor on ADA policy for the EEOC.  An attendee asked Ms. Rennert a question about his company’s maximum leave policy that was based on exhaustion of 12 weeks of FMLA leave.  An employee needed only a few additional days of leave but the company did not want to make an exception to its policy.  Ms. Rennert stopped his question by saying, “You’re toast!”  The poor guy tried to continue his question and to justify his company’s policy but again got the response from Ms. Rennert, “You’re toast!”  Now, she wasn’t being rude, but was simply trying to make it ever-so-clear that an employer’s application of an automatic cap on leave without engaging in an individualized assessment of the employee’s situation may violate the ADA, because it does not allow for consideration of more leave or some other accommodation(s) to enable the employee to perform his essential functions.  So, attend and learn from Jeff’s webinar, and don’t be toast!

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 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.

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.