MATRIX AND EEOC TO PRESENT AT DMEC ADA WEBINAR: The EEOC Weighs in on What Employers Still Get Wrong About the ADA

Posted on: November 9, 2018 0

by GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

I am pleased to announce that Matrix will be presenting at an upcoming DMEC webinar on December 6, 2018.  Our co-presenter will be Chris Kuczynski, Assistant Legal Counsel and Director of the ADA/GINA Policy Division of the EEOC.  The webinar, “The EEOC Weighs in on What Employers Still Get Wrong About the ADA,” will provide EEOC guidance and practical advice on the following tricky ADA issues often confronting employers:

 

  • Telework as a reasonable accommodation: What should an employer do when an employee asks for
    telework for reasons related to a disability?  Can the job be done from home?  What if the employee
    has performance problems?
  • Qualification Standards v. Essential Functions: What is a qualification standard, how does it differ from
    essential functions, and why does it matter?
  • Managing leaves of absence under the ADA: Inflexible leave policies may violate the ADA and an indefinite
    leave of absence is not a reasonable accommodation, but what can an employer do in the vast majority of
    leaves that fall in between?  How do you assess a leave request for reasonableness?  How do you manage
    multiple requests for extensions? What medical inquiries can you make?
  • Reinstatement and reassignment following leave: When, why, and for how long do you have to hold the
    employee’s specific job open? What are your obligations for reassignment?  When can you call it quits?

DMEC member groups may register for the webinar here: December 6th Webinar. Non-members may register for a $29.95 fee. Contact your Reliance Standard/Matrix account manager for information/assistance!

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

An ADA Tale of Vaccine Exemptions, Employer Notice, and the Interactive Process

Posted on: July 16, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

A recent case involving controversy about mandatory vaccines teaches two ADA lessons:

  • A doctor’s note may be sufficient notice to an employer of a disability and
    accommodation request.
  • If you do something for nondisabled employees, don’t deny the same thing for
    someone with a disability.

Aleka Ruggiero was a registered nurse working for Mount Nittany Medical Center (MNMC).  She suffered from severe anxiety and eosinophilic esophagitis.  These conditions limited her ability to perform certain life activities such as eating, sleeping, and engaging in social interactions. Despite her impairments, Aleka was able to perform her duties as a nurse at MNMC.

The vaccine brouhaha.  MNMC directed all clinical employees to receive a vaccine for tetanus, diphtheria, and pertussis (the TDAP vaccine) by May 15, 2015.  Aleka did not get the vaccine but faxed MNMC a note from her doctor stating Aleka was “medically exempt” from receiving the vaccine due to medical concerns.  MNMC asked the doctor to identify which of the eight contraindications listed by the vaccine manufacturer applied to Aleka to exempt her from receiving it.  The doctor responded that Aleka had severe anxiety about some of the potential side effects, especially in light of her history of allergies and eosinophilic esophagitis.  “Patient being terrified, I feel the risk of this TDAP injection outweighs the benefits.”  This note did not address which, if any, of the contraindications applied to Aleka.

MNMC sent a letter to Aleka stating that the information provided by the doctor was insufficient to excuse her from the vaccine and setting a new deadline for her to receive it.  Aleka suggested she be allowed to wear a mask at work – as she alleged other nurses were allowed to do to accommodate their refusals to receive the flu vaccine.  She also alleged that other MNMC employees were allowed to refuse the TDAP vaccine yet remain employed.  Aleka did not receive the vaccine by the new deadline and was terminated by MNMC.

A doctor’s note can be adequate notice.  Aleka sued, asserting a claim for failure to accommodate, among others. The trial court dismissed Aleka’s claim, holding that (1) she failed to allege that MNMC was on notice of her disability and request for accommodation and that, in any event, (2) MNMC had fulfilled its obligation to engage in the interactive process when it notified Aleka that it would exempt her from the vaccine if she suffered from any of the identified contraindications.

The Third Circuit reversed and reinstated Aleka’s claims.  As to the first issue, the court noted that an employer is not required to engage in the interactive process to identify an accommodation unless it is on notice of a disability and request for accommodation, but the threshold for adequate notice is fairly low.  Aleka’s request for exemption from the vaccine coupled with two doctor’s notes to the same effect (which included information about her medical conditions) were adequate to put MNMC on notice of both Aleka’s disability and her request for an accommodation.

Oh, that interactive process.  On the second issue, the court recognized that both the employer and the employee bear responsibility for identifying a reasonable accommodation.  A party who fails to communicate, either by initiation or response, may be acting in bad faith.  In this case, MNMC showed no signs of having considered Aleka’s request to wear a mask or offering to discuss available alternatives.  This was sufficient to raise the inference that MNMC had failed to engage properly in the interactive process and deprived Aleka of the individualized consideration to which she was entitled under the ADA.  According to the court, MNMC was not obligated to provide the accommodation requested by Aleka, “but it also could not simply reject the request and take no further action.”

Accordingly, the case was sent back to the trial court for further litigation proceedings.

Ruggiero v. Mount Nittany Medical Center  (3rd Cir. 2018).

Pings for Employers

This case is in early stages yet and the employer may still prevail, but more a more thoughtful and involved approach might have saved MNMC a lawsuit.

  • Be sure to engage in the interactive process. Even though an employee has an obligation to identify a
    reasonable and effective accommodation, this court and the EEOC will tell you that rejecting the employee’s
    suggestion, without more, is not “interactive.”
  • Consider what you do for employees in other situations. MNMC apparently felt that Aleka’s failure to identify
    a specific contraindication justified denying her request to avoid the vaccine and wear a mask.  And maybe, in
    litigation, they will be able to show facts that justified differing treatment of Aleka.  But how much better to allow
    her to wear a mask and avoid a lawsuit, or discuss with her their objections and avoid a lawsuit?

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

Reassignment – Don’t Forget the ADA “Accommodation of Last Resort”

Posted on: December 16, 2015 1

lighbulbUpdated 2/1/2018: Reassignment as an ADA Accommodation: To Compete or Not to Compete?

When good faith efforts during the interactive process fail to yield an effective accommodation for the employee’s current position, the ADA requires an employer to consider a possible accommodation that employers frequently overlook or don’t understand well:  reassignment of a disabled employee to a vacant position.  This obligation arises when (1) no other reasonable accommodation will enable the employee to perform the essential functions of his current position without imposing an undue hardship on the employer (thus, the moniker “accommodation of last resort”); and (2) the disabled employee is qualified for the vacant position.

When is a position “vacant”?   According to the EEOC’s reasonable accommodation guidance, “vacant” means that the position is available when the employee asks for reasonable accommodation (even if it has already been advertised to others), or when the employer knows that it will become available within a reasonable amount of time.  A “reasonable amount of time” is determined on a case-by-case basis..

What does “qualified” mean?  To be qualified, the disabled employee (1) must have the necessary skills, education, experience, or other job-related requirements for the position and (2) be capable of performing the essential functions of the new position with or without a reasonable accommodation.  However, if the employer typically provides specialized or job-specific training to other employees who assume the position, the employer must provide that training to the disabled employee as well.

What are the employer’s reassignment obligations?  The employer has an affirmative duty to search for an open position for the disabled employee.  It is not sufficient to tell the employee, “If you know of a position, let’s talk.”  If the employee knows of an open position he can and should suggest it, but the primary burden remains on the employer.

The amount of time an employer should spend on the search will depend on such factors as the size of the employer’s workforce.  For a small employer, this may take as little as one day.  For a large employer, it can take several weeks to search for vacant positions in various offices, branches, departments, facilities, or geographic areas (yes, the employer has that obligation).  However, the extent to which an employer has to search for a vacant position may be limited by undue hardship to the employer.

The employer must assign the disabled employee to a vacant position for which the employee is qualified that is equivalent to the disabled employee’s current position in terms of pay, status, benefits, and other relevant factors.  If no vacant equivalent position exists, the employer must reassign the employee to a vacant lower level position that comes closest to the employee’s current position in pay, etc.

Does the disabled employee have to compete for the position?  The EEOC maintains that if a position is open and the disabled employee has the minimal qualifications, he gets the job – he does not have to be the best qualified candidate for the position.  Although a few courts have held to the contrary, a recent case that resulted in a consent decree between the EEOC and United Airlines arguably resolves this debate.  After protracted litigation, a win for the EEOC in the Seventh Circuit Court of Appeals, and a refusal by the U.S. Supreme Court to hear an appeal, United agreed to pay over $1 million because it required workers with disabilities to compete for vacant positions for which they were qualified.  Employers would be wise to follow the EEOC’s guidance on this issue and give the vacant position to the qualified disabled employee unless there is a valid undue hardship defense.

How do you know when you’re done?  According to the EEOC guidance, the employer will have fulfilled its ADA reassignment obligations when it has (1) completed its search, (2) identified whether there are any vacancies (including those that may become open in a reasonable amount of time), (3) informed the employee of the search results, and (4) either offered a vacant position to the employee or informed him that no appropriate position is vacant.

A few last points.  The employer does not have to bump another employee from her existing position or otherwise create a position for the disabled employee.  Generally, an employer does not have to provide reassignment to a specific position if doing so would violate a seniority system, but there can be exceptions.  And finally, the employer’s reassignment obligation does not include providing a promotion; the disabled employee would have to compete for any such higher vacant position.

Pings for Employers:

  • Remember that reassignment is the accommodation of last resort. During the interactive
    process, consult with the employee about what type of accommodation(s) he believes
    would enable him to perform the essential functions of his current position.
  • If no reasonable and effective accommodation is immediately apparent, check out the
    resources available at the Job Accommodation Network (askjan.org).
  • If you have to consider reassignment, discuss with the employee his preferences in
    terms of job type, location, and other factors. This will assist in the search for a vacant
    position.  For example if the employee flatly says he will not relocate, you can eliminate
    other geographic worksites from the search.
  • If you are unsure whether the employee is qualified for a specific vacant position,
    ask the employee and get more information as needed.
  • If there are multiple open positions for which the employee is qualified, consult
    with the employee as to his preference.
  • Keep good records of all communications with the employee to regarding potential
    accommodation for the employee’s current position and all communications relating
    to reassignment.

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, documenting the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.