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.

 

Leave as ADA Accommodation:  EEOC Releases New Resource Document – But Nothing’s New

Posted on: May 10, 2016 1

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

Yesterday, the EEOC released a Resource Document titled Employer-Provided Leave and the Americans with Disabilities Act. We in the employer community have been awaiting EEOC guidance on this hot topic since June 2011, when the Commission held a public hearing with testimony from representatives of the EEOC, and employer and employee communities, to discuss leave of absence as an ADA accommodation.  An EEOC Guidance on the topic was expected in April 2012 but was withheld from release at the last minute, probably because of a lack of consensus on key points among the EEOC Commissioners.

By the EEOC’s own admission, the Resource does not break any new ground.  Rather, it pulls together in one place existing EEOC interpretations and Enforcement Guidance. Regardless of its title, you can be sure that if you have an inflexible leave policy that provides for a set period of leave which results in termination of employment or other adverse action for employees who exhaust that leave, the EEOC is likely to conclude this to be a violation of the ADA.  In today’s blog post, we will highlight the major points in the Resource Document; the entire document is here.

The question of reasonableness is barely acknowledged. In last week’s blog post, we discussed our informal meeting with EEOC Commissioners Feldblum and Lipnic, in which they expressed their opinion that leaves of nearly any duration must be provided by employers unless they can demonstrate an undue hardship. True to this sentiment, the Resource Document is strangely dismissive of the threshold questions all of us in the employer community deal with, namely: is the accommodation reasonable and effective to enable the employee to return to work and perform the essential functions of his position?  Rather, the question of reasonableness is relegated to a mere footnote (#5) in which the EEOC states that the 20 examples provided in the document each assume that the requested leave is reasonable.

Key Topics Addressed. Contact with employee’s provider.The Resource Document highlights an important tool employers have as they engage in the interactive process and assess employee accommodation requests:  the ability to engage with the employee’s provider (with a proper authorization from the employee).  Specifically, the EEOC reminds employers that they can seek additional information to determine:

  • The specific reasons the employee needs leave;
  • Whether the leave will be continuous or intermittent; and
  • When the need for leave will end.

Maximum Leave and 100% healed policies.  The EEOC has long targeted employers with policies that cap the amount of leave an employee can take or that require an employee to be 100% healed before returning to work. The Resource Document confirms the agency’s position that these policies violate the ADA because they do not allow for individualized assessment of the employee and her position.  Employers beware – this is “low hanging fruit” in the EEOC’s opinion and its lawsuits have resulted in multi-million dollar consent decrees against employers.

Reassignment as an accommodation.  In some cases the result of the interactive process is a conclusion that the employee is not “qualified” for his position (i.e., his disability prevents him from performing one or more essential functions of his job and there is no effective, reasonable accommodation to enable him to do so).  The Resource Document reminds employers that reassignment is the accommodation of last resort.  The EEOC restates its position that if the employee is qualified, he or she must be reassigned in a vacant position.  Two reassignment issues are not well understood by employers:  (1) that the employer has the obligation to search for an appropriate vacant position, and (2) the employee does not have to compete or be the best qualified for the vacant position – if he is qualified and can perform the essential function with or without an accommodation, the employee gets the position.

Undue hardship.  The Resource Document concludes with a discussion of the factors employers can consider in its undue hardship analysis.  However, the only leave of absence that the EEOC concedes would be an undue hardship is “indefinite leave” – meaning that “an employee cannot say whether or when she will be able to return to work at all.”  Since the vast majority of requests for a leave of absence are far from this straightforward instance, our recommendation is that employers consider undue hardship only after a thorough, thoughtful analysis of whether a leave of absence is a reasonable and effective accommodation.

PINGPings for Employers. First, review your leave policies! Ensure you don’t have any inflexible leave policies that make you fodder for an EEOC investigation and lawsuit.  Scrub your policies for leave caps or requirements for the employee to be 100% healed or at maximum medical improvement.

If you have a solid business reason for such a policy, ensure that it includes notice to employees that if an employee needs an ADA accommodation (additional leave or a workplace accommodation to enable return to work) the employee should contact the employer’s human resources department.

  • Get the employee’s health care provider involved. Even the EEOC concedes that employers have the right to obtain sufficient medical information to understand the employee’s need for leave as an accommodation. Without the employee’s consent, the employer can’t directly approach that provider, but we at Matrix recommend preparing a communication (for the employee to bring to the doctor) with concise questions. Depending on the specific circumstances, that communication can include: (1) clarification or elaboration on anything unclear in the documentation the employee obtained from the doctor to support his request for leave; (2) specific questions on the amount of leave needed; (3) the reason that leave will be effective to enable the employee to return to work; and (4) whether there are any accommodations, other than leave, that the doctor believes would be effective.
  • Treat each extension request as a new request. After approval of an initial request for a leave of absence as an accommodation, treat any request for an extension as a new request and a new opportunity to engage with the employee’s provider. At Matrix we ask questions such as what has changed with respect to the employee’s condition, why this extension will enable the employee’s return, and whether there are any accommodations other than leave that might be effective.
  • Near the end of an approved leave, ask the employee if he or she is returning, or needs an accommodation. In any letters you, or your TPA, use to notify an employee of the expiration of an approved leave, there should be language asking the employee to communicate whether or not if she will be able to return to work at the end of leave, or if she needs an (additional) accommodation and the method and timing to make that request.
  • Document that you have done things right! The Resource Document is clear that leave as an accommodation is an important, strategic initiative of the EEOC. Employers must engage in an interactive process, use all the tools the ADA provides, conduct an individualized analysis, and document, document, document.

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.

 

Employers, Learn this Lesson:  Identify Essential Functions in Your Job Descriptions

Posted on: April 5, 2016 0

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

An employer’s dream (nightmare, that is):  Pfizer, Inc., gets the chance to convince a jury that driving is an essential function of its pharmaceutical sales representative position.  Don’t bet on Pfizer.  The facts of this case are sympathetic to the employee, Whitney Stephenson.  And even though her argument is pushing the limits of what is a reasonable accommodation under the ADA, Pfizer did itself no favor by failing to include driving at all in its job description, let alone as an essential function of the position.

The Facts. Stephenson was a pharmaceutical sales representative for Pfizer (and its predecessor) for nearly thirty years.  Her assigned territory was Winston-Salem, North Carolina.   Stephenson’s position required her to visit doctors’ offices to give presentations encouraging those doctors to prescribe Pfizer medications for their patients.  She was by all accounts an outstanding employee.

In late 2008, Stephenson developed a degenerative eye disorder that ultimately resulted in substantial vision loss such that, by November 2011, she could no longer safely operate a car.  On October 27, 2011, Stephenson asked Pfizer for a driver to take her to sales meetings and for magnifying software for her computer and magnifying tools to enable her to read documents.  She and her husband provided Pfizer with estimates they received from potential drivers and shuttle services.  A month later, Pfizer granted her requests for magnifying software and tools, but rejected her request for a driver as “inherently unreasonable,” because driving was an essential function of her position.  Stephenson continued to make this request.

In 2012, her supervisor told her that Pfizer was “concerned about setting a precedent in case a future non-performing employee were to ask for something similar” because “not everyone is a Whitney Stephenson.”  Pfizer did not engage in an interactive process to determine whether there were any other possible reasonable accommodations to enable her to perform the essential functions of her position. Instead, the company directed her to pursue other positions within Pfizer that did not require travel.  Stephenson declined to do so because she wanted to keep her (very lucrative) job. She filed a charge of discrimination with the EEOC.

Pfizer argued that driving was an essential function of Stephenson’s position because her key responsibility was to meet with doctors at their offices to sell Pfizer’s products.  The job description, however, did not mention driving and instead focused, in great detail, on medical and product knowledge, skills in communications and developing relationships, and the like.  The lower court ruled that driving was nonetheless an essential function of the position and entered summary judgment for Pfizer.  But, the lower court also said that the “[t]here appears to be a genuine dispute as to whether Pfizer’s posted job descriptions for sales representative positions explicitly required a candidate to be able to drive.”

Now, the job of this blog is not to educate our readers in trial court procedure, but summary judgment is only appropriate if, upon the undisputed facts, one party is entitled to win.  Based on its own statement, the trial court should not have granted summary judgment to Pfizer and reversal was appropriate.

Driving Miss. Crazy? Another issue that will await trial is whether providing a driver for Stephenson as she requested was an unreasonable accommodation.  The appellate court recognized that “the ADA does not require an employer to reassign any of the essential function of a disabled employee, nor does it require an employer to hire additional employees to perform an essential function.”  Rather, the employer’s obligation is limited to providing an accommodation that enables the disabled employee herself to perform all of the essential functions of her position.  However, even the statute itself states that a reasonable accommodation may include “the provision of qualified readers or interpreters” – in essence, the hiring of another individual to assist the employee.  It seems a fair argument could be made that Stephenson’s essential function is to get to the doctors’ offices – not how she gets there.  And that paying for a driver or shuttle service is a reasonable accommodation to assist Stephenson with her travel to doctors’ offices.

PINGPings for employers. Employers can learn some valuable lessons from the Pfizer case — the first and foremost being to make sure you have a good job description that accurately describes the essential functions of the position.

In the Pfizer case, the plaintiff agreed that she had historically traveled her territory by driving a vehicle, but because the job description said traveling, not driving, Pfizer may be headed to a costly trial if it can’t settle her claim.

  • Engage in the interactive process with your employee and accurately document that process. It is understandable that Pfizer’s reaction to employing a driver for its employee was to call it inherently unreasonable. But the ADA still required them to have a discussion with Ms. Stephenson to identify other, reasonable alternate accommodations.  The ADA doesn’t require the employer to grant the employee’s specific, preferred accommodation, but it does require an effort to locate alternatives in an interactive discussion and that clearly did not occur.
  • Remember that reassignment is the “accommodation of last resort.” If Pfizer had actually engaged in the interactive process and determined that there was no reasonable accommodation to enable Stephenson to perform her position, then PFIZER, not Stephenson, was responsible for reassigning her to a vacant position for which she was qualified.

Read the Stephenson v. Pfizer decision here.

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, 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.

Staying Awake is a Business Necessity for Any Employee

Posted on: February 10, 2016 1

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

Unfortunately, nearly every employer has caught an employee sleeping on the job. But what if that employee attributes his sleepiness to his disability?  What is the employer’s obligation to accommodate the employee under the Americans with Disabilities Act (ADA)?  In observing that “[r]emaining awake is a business necessity for any employee,” a festock-photo-3399436-hiding-undercovers-modderal court tossed out an employee’s ADA failure to accommodate claim related to his disability, diabetes, based on the employer’s refusal to move him from a night shift to the coveted day shift.

The Sleepy Security Guard. Jeffrey Schulman (“Schulman”) was hired as a security guard working the night shift at the Wynn Las Vegas Hotel and Casino (“Wynn”).  He disclosed his condition, Type I diabetes, prior to being hired for the position.  The day shift was a highly coveted position and Wynn maintained a waiting list for those jobs.  After about 9 months on the job, in August 2009, Schulman presented a note from his treating physician recommending that he be transferred to the day shift. Wynn did not transfer Schulman to the day shift.  In November 2009, Schulman was caught sleeping on the job and was given a written warning for doing so.  At the meeting to administer this discipline, Schulman asserted that he fell asleep because of his diabetes and again asked to be transferred to the day shift.  Wynn gave him a form for his physician to complete to verify that a transfer to the day shift was required. He did not return this form to Wynn.

Just three months later, in February 2010, Schulman was again caught sleeping on the job.  Because it was the second occasion of him doing so and because he had not presented any medical documentation to justify these infractions, Wynn suspended him, pending an investigation.  Shortly thereafter, Schulman presented the medical form, this time completed by his doctor, who opined that he could perform the essential functions of his job, provided he was moved to the day shift and given opportunities to manage his blood sugar by having snacks and insulin on his person at all times.  Wynn consulted with its own doctor, who agreed that he should be able to work if he had the tools to manage his blood sugar, but disagreed that this necessitated him being on the day shift.  Concerned about the understandable risk of having a security guard fall asleep, Wynn offered Schulman assistance in seeking another position.  In May 2010, he was offered and accepted an Assistant Shift Manager position.

Several Positions and Naps Later… In August 2010, Schulman was caught, yet again, sleeping on the job and was placed on suspension pending investigation.  He again attributed this incident to his diabetes.  Wynn wrote to Schulman’s physician to ask him how to prevent future incidents.  His doctor emphasized the need for Schulman to monitor his condition and again opined that the day shift was important because blood sugar levels in the evening tend to be more erratic; however, his doctor also observed that sleepiness would also be a problem during daytime hours.  After receiving the doctor’s input, Wynn met with Schulman and offered him a daytime position in Wynn’s Tiny Baubles retail store, which he accepted.  Schulman was ultimately fired for poor sales performance and brought suit, alleging, among other things, that Wynn violated the Americans with Disabilities Act (“ADA”) by failing to accommodate him when it refused his request to move to the day shift.

Wynn won the case when the court dismissed all of Schulman’s claims on summary judgment prior to trial.  Wynn produced evidence that Schulman understood that remaining awake and alert while on shift was an essential function of his position as a security officer. The court recognized that employers don’t have to grant the exact accommodation request made by an employee and that failing to do so does not necessarily provide the basis for a failure to accommodate claim under the ADA.  In this case, the court properly concluded that Wynn did offer Schulman an effective reasonable accommodation – he was allowed to manage his condition with snacks, insulin, and testing while on the job.  Moreover, Schulman’s transfer to alternate jobs was not disability discrimination but, rather, it was because he fell asleep on the job on numerous occasions despite having remedial measures with him.  Observing that “remaining awake is a business necessity for any employee, especially a security guard,” the court ruled in favor of Wynn.

PINGPings for employers. What did Wynn do well? First, Wynn was not deterred by an employee who attributed serious performance infractions to his condition. It is not uncommon, and somewhat understandable, that an employer, particularly one not well-versed in the ADA and its regulations, will shrink from disciplining an employee for performance failures he claims are the result of his condition.

What else?

  • Wynn worked with the employee through the interactive process and, over the course of 3 years, allowed Schulman to try several alternative positions. Wynn ultimately terminated Schulman for performance issues unrelated to his disability.
  • Wynn engaged the employee’s physician in the interactive process to understand what could be done to assist the employee in meeting the expectations of the job. The ADA allows employers to conduct inquiries of the employee’s physician, as long as it is job-related and consistent with business necessity.
  • Although Wynn strongly considered the opinion of Schulman’s provider and accepted many of the accommodations suggested (keeping his diabetes materials with him and allowing them for monitoring his condition), Wynn also consulted its own independent provider on those recommendations to draw a conclusion of what reasonable accommodation(s) Wynn should offer.

Schulman v. Wynn Las Vegas (D.Nev. Jan. 15, 2016) http://cases.justia.com/federal/appellate-courts/ca9/12-17561/12-17561-2015-02-13.pdf?ts=1423861296