KENTUCKY PASSES LAW REQUIRING REASONABLE ACCOMMODATIONS FOR PREGNANT EMPLOYEES

Posted on: May 14, 2019 0

By Gail Cohen, Director Employment Law & Compliance

May 14, 2019

 

On April 9, 2019, the Governor of Kentucky signed Senate Bill 18, making it the latest state to pass legislation requiring employers, absent undue hardship, to grant reasonable accommodation(s) to employees with “limitations” as a result of pregnancy, childbirth or related medical conditions. The Kentucky Pregnant Worker’s Accommodations Act (“KPWA”), takes effect June 27, 2019, and applies to employers with fifteen or more employees in the state.

Let’s break it down:

What is a “Limitation” as a Result of Pregnancy, Childbirth or Related Condition? The KPWA does not use the term disability or disabled by pregnancy, etc. as do many state laws in effect. For that matter, normal pregnancy is not a disability under the ADA. The term “limitation” is not defined by the Act but appears to indicate broader coverage than the ADA. Therefore, Kentucky employers should engage in the interactive discussion with regard to the KPWA, even if the nature and duration of the employee’s “limitations” and condition would not otherwise require doing so under the ADA.

What Are Reasonable Accommodation(s)? The act provides a nonexclusive list of potential reasonable accommodations, including:

  • frequent or longer break times;
  • time off to recover from childbirth;
  • acquiring or modifying equipment;
  • seating;
  • temporary transfer to a less strenuous or less hazardous job;
  • job restructuring, light duty, and/or modified work schedule;
  • and a private space (that is not a bathroom) in which to express breast milk.

What about Undue Hardship? The KPWA provides for an employer to decline to provide accommodation if doing so poses an “undue hardship” and includes the traditional types of factors we have seen with similar statutes, i.e. significant difficulty or expense given the size and financial resources of the organization. In addition to those traditional factors, the KPWA provides for additional factors when an employee requests accommodation for her pregnancy, childbirth, etc. For example, the duration of the requested accommodation, and whether similar accommodations are required by policy to be made (or have been made) for other employees for any reason. The latter factor, of course, should look familiar to any employer who knows and complies with the federal Pregnancy Discrimination Act.

Unlawful Employment Practices. Absent undue hardship, the KPWA rules failing to make reasonable accommodation(s) as unlawful employment practices. Like many other state pregnancy accommodation laws, Kentucky’s prohibits requiring an employee to take a leave of absence if another reasonable accommodation can be provided and requires the employer and employee to engage in a timely, good faith and interactive process to determine effective, reasonable accommodations.

Employer Posting and Notice Requirements. Employers are required to conspicuously post notice of an employee’s right to, among other things, reasonable accommodations for pregnancy, childbirth or related medical conditions. Employers are also required to provide written notice to new employees when they begin employment and to existing employees within thirty days of the Act’s effective date, June 27, 2019.

Want to learn more?

Join Matrix Radar authors Marti Cardi and Gail Cohen for a practical discussion of the various state laws providing protections for pregnant employees and new parents, and a review of the EEOC’s focus on employers who get it wrong. The webinar, sponsored by the DMEC, will take place June 18, 2019 at 12 noon Eastern (9 AM Pacific). Click here for more information and to register.

 

Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

Spice up your compliance with 50 Shades of FMLA!

Posted on: March 4, 2019 0

Are you struggling to manage FMLA gray areas such as intermittent leave or suspicious leave requests from employees?

The 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR, is the place to find answers and solutions that help you minimize risk in your organization and ensure you’re on the path towards ongoing compliance.

Our very own Marti Cardi, together with Jeff Nowak, will help you “color in” those gray areas of FMLA compliance. Read their recent blog post to get a peek under the covers of their general session, 50 Shades of FMLA: Dealing with Those Gray Areas.

This session is just one of many that will prepare you to confidently tackle your organization’s FMLA/ADA challenges. Check out the list of sessions and speakers online.

Early registration ends on Mar. 7. Don’t miss the chance to save $200! Secure your spot today.

 

 

Matrix Compliance Experts Take the Stage!

Posted on: December 11, 2018 0

Matrix’s Gail Cohen Co-Presents with EEOC Counsel at DMEC Webinar

By Gail Cohen, Director, Employment Law/Compliance

I had the privilege of presenting last week with Chris Kuczynski, Assistant Legal Counsel of the EEOC in Washington D.C. on “EEOC Insights into What Employers Still Get Wrong about the ADA.” The presentation was a webinar through the Disability Management Employer Coalition (“DMEC”).

In putting our materials together, Chris and I identified four ADA issues
that seem to be particularly challenging to employers. For those who
were unable to attend, here are the four topics we covered and key
best practice pointers we discussed:

  • Telework as a Reasonable Accommodation: Courts have often
    sided with employers who deny telework as an accommodation on
    the basis that the job requires teamwork and/or face-to-face
    collaboration with clients and/or colleagues. But beware! The
    EEOC will challenge employers who cannot demonstrate that
    this is truly an essential job function.  As a result, it is critical
    for employers to conduct a job analysis and confirm that the
    job description accurately captures the essential job functions as performed by employees. And, this job description
    should accompany any ADA-compliant medical inquiry the employer makes to the employee’s healthcare provider
    to understand whether telecommuting will assist the employee in performing his or her job functions, why it is
    necessitated by the employee’s condition, and whether the provider can suggest alternative accommodations the
    employer can offer.
  • Qualification Standards v. Essential Job Functions: Chris explained a distinction employers often get wrong –
    confusing qualification standards (requirements intended to predict whether someone can perform the job,
    such as having a college degree or a commercial driver’s license) with essential functions (what the person actually
    does on the job – lifting packages, selling things). The EEOC will challenge employers if a particular
    qualification standard has the effect of screening out prospective employees in a discriminatory fashion.
    Employers must be able to demonstrate that a particular qualification is both job-related and consistent with
    business necessity. This is sometimes unsuccessful, as borne out by a case the EEOC brought on
    behalf of a postal worker whose condition limited her to lifting 10 pounds and who challenged a 70-pound
    lifting standard that the employer was unable to demonstrate was job-related and consistent with business
    necessity. Indeed, the EEOC was able to demonstrate by talking to employees who performed the job that
    they never lifted more than 35 pounds.
  • Leave as Accommodation: The EEOC and courts agree that, in general, leave of absence is a reasonable
    accommodation. But employers: Don’t just grant leave because the employee asks for it. The EEOC agrees that
    it is entirely appropriate for an employer to conduct ADA-compliant medical inquiries when an employee
    requests leave as an ADA accommodation. Such inquiries will assist the employer to ascertain why the
    employee’s condition requires leave (continuous or intermittent), how much leave is necessitated,
    whether such leave will enable the employee to return to work and perform the essential functions of his
    or her job, with or without accommodation(s), and to explore alternatives to leave that may be effective
    for the employee to report to work.
  • Reassignment: Following an ADA leave of absence an employer must try to reinstate the employee. But, if the
    employee cannot be accommodated in his or her current role, the accommodation of last resort must be
    considered – reassignment. To the EEOC, this means the employer and employee working together to
    identify positions open now or in the foreseeable future for which the employee is qualified and which are
    substantially equivalent to his or her current role. The employer cannot simply sit back and let the employee
    search and apply for open positions.
  • BONUS OBSERVATION: During the Q & A following our presentation, an employer asked what can be done
    if an employee refuses to participate in the interactive process. Chris explained that an employer who has
    told the employee about the ADA process upfront, including the need for both parties to engage in good
    faith in an interactive discussion, and who has documented its good faith efforts to do so will likely
    prevail in an EEOC charge or other proceeding alleging failure to accommodate. The burden of proof
    in such matters is on the party who is responsible for a breakdown in the interactive process and,
    if an employee is that party, the employer is excused from any obligation to provide accommodation(s)
    to that employee.

DMEC members can listen to a recording of the presentation and obtain a copy of our presentation materials through these links:

  • Webinar recording: (Name and email are required to be directed into the recording)

 

Meanwhile, Marti is presenting too!

By Marti Cardi, Vice President, Product Compliance

While Gail was putting the finishing touches on her DMEC presentation with the EEOC, I had the opportunity to present a session at the National Workers’ Compensation and Disability Conference on December 5. The topic was “Return to Work without Violating FMLA, ADA and Workers’ Compensation Laws.” I don’t claim to be a workers’ comp expert so I partnered with Rich Montarbo, a great workers’ comp attorney from that challenging state of California. We discussed the many employer options as alternatives to leave of absence, or to shorten a leave and get employees back to work safely and legally. Our sister company Safety National posted a blog about the presentation so rather than rewrite the material, I will link you to that story here.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation requests and making the medical inquiries to which you are entitled to understand what an employee needs and how you can help. You always retain the final decision whether and how to accommodate, but Matrix manages the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

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.

Undue hardship?  You’d better really mean it.

Posted on: July 5, 2018 0

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

An employer was recently caught “crying wolf” with regard to a claim of undue hardship.  The result?  The employer will have to prove in a jury trial that its assertion was not a pretext for disability discrimination in violation of the ADA. 

Accommodation basics.  An employer must provide an ADA accommodation to a disabled employee if the requested (or an alternative) accommodation is reasonable and effective.  Reasonable means that, on its face, the accommodation is plausible and feasible.  Effective means the accommodation will enable the individual to perform the essential functions of his/her position. 

If these two criteria are met, then the employer’s only defense to providing the accommodation is that it will impose an undue hardship on the employer’s business. Undue hardship is defined as “significant difficulty or expense” in relation to the size of the employer, the resources available, and the nature of the operation.   42 U.S.C. § 12111 (10); 29 C.F.R. § 1630.2(p)(1) and (2).

The case.  Jana Churchwell worked for the City of Concord, North Carolina, as a project engineer from 2001 until her termination in July 2015.  (It takes lawsuits quite a while to wind their way through the court system!)  Throughout her employment Jana suffered from chronic autoimmune urticaria and in 2013 was also diagnosed with IBS and chronic migraine headaches.  She took intermittent and then continuous FMLA leave due to her IBS and migraines. 

In June 2015 the City gave Jana notice that she was about to exhaust her FMLA entitlement and provided her with information about requesting an ADA accommodation.  On June 16 Jana requested accommodations consisting of leaving the office or working from home when symptoms occurred, leaving for medical appointments, and avoiding extreme temperatures.  However, her doctor stated that no accommodation would enable Jana to work when she was suffering from a migraine and that she might need leave of 1 day per every 2 weeks or less.   The next day she also requested medical leave for 30 days as an accommodation, which would have provided time off until July 17. 

The City granted the various work-related accommodations but denied Jana’s leave request and stated she must return to work by June 26.  Jana’s supervisor denied the request because the Engineering Department had 3.5 full time engineers (Jana was one), 48 active projects, and “[l]osing one full-time engineer staff person would put [the Department’s] projects even further behind schedule.”   Jana responded she needed more time and did not return to work.  The City terminated her on July 6 for violation of the City’s absence without leave policy. 

What’s wrong with this picture?  So far, it sounds like the City made a valid undue hardship argument – granting Jana more leave would result in significant difficulty in operating the Engineering Department and jeopardize its productivity. But certain key facts doomed this argument:  The City did not advertise Jana’s position until August 2015, well after Jana’s requested leave period; and Jana’s replacement was not hired until early 2017 – so the Department functioned with only 2.5 engineers for about 1-1/2 years.  Finally, with changes in treatment Jana would have been able to return to work at the end of the requested 30-day leave (which was, after all, only about 10 days from the date of her termination) with the other accommodations which the City had granted.

On these facts, the court ruled that a jury could conclude the City’s undue hardship argument was a pretext for disability discrimination.  It denied the City’s request for summary judgment.  Now the fate of both Jana and the City is in the hands of a jury. 

Churchwell v. City of Concord  (M.D.N.C. June 11, 2018).

 

Pings for employers.

  • If you have a valid undue hardship reason for denying an accommodation, be sure your subsequent actions
    support that argument. In the Churchwell case, the City articulated a very good argument – but then lived
    with the alleged undue hardship for months and months after Jana could have returned to work.  This clearly
    undercut the City’s position and gave Jana ammunition to argue pretext.
  • An undue hardship defense is difficult to establish. Monetary consideration alone will rarely win the day.
    Rather, it takes a showing of significant operational difficulty or expense. 
  • Keep records of your analysis and the factors considered. According to the EEOC, generalized conclusions will
    not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized
    assessment of current circumstances that show that a specific reasonable accommodation would cause
    significant difficulty or expense.
  • If a specific accommodation will cause an undue hardship, don’t stop there! Be sure to engage further in the
    interactive process to see if there is an alternative that will be reasonable and effective before closing the door
    on the employee. 
  • For more information, including the types of factors you should consider to develop an undue hardship argument,
    check out the EEOC’s
    Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA

 

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.