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  As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.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.

An Excellent Week for FMLA/ADA Geeks

Posted on: May 2, 2016 1

By Gail Cohen, Director, Compliance & Employment Law

One of Matrix’s promises to our clients it to be on top of developments in the world of accommodations and leaves of absence.  One way we do this is to develop relationships with the head honchos at the agencies that administer key laws:  the U.S. Department of Labor for FMLA, and the U.S. Equal Employment Opportunity Commission for the ADA.  Last week two members of our compliance team had opportunities to further those relationships.  Gail Cohen attended a meeting in Washington DC with two EEOC Commissioners, and Marti Cardi presented together with the DOL’s FMLA Branch Chief at the Disability Management Employer Coalition (DMEC) national FMLA/ADA Compliance Conference.   Here are summaries of these key events.

DMEC presentation with FMLA Branch Chief  On Monday April 25, Helen Applewhaite (head of the DOL’s FMLA branch) and Marti Cardi (Matrix’s Vice President of Product Compliance) jointly presented a plenary session at the DMEC conference entitled, “The DOL Steps Up For Employers:  Hands-On FMLA Leave Management Guidance.” A copy of the full presentation is available below. The session had 3 main areas of focus.

First, Applewhaite addressed specific challenges the DOL still sees employers struggling with more than 23 years after enactment of the FMLA.  These included the many employer notice obligations required by the regulations, including posting, general policy, eligibility, rights and responsibilities, and designation notices.  These may seem to employers like simple requirements, but the DOL continues to see violations of these notice obligations, which can be the basis for an FMLA interference claim.  Cardi added a reminder of the employer’s obligation to notify an employee each time a certification form will be required for a leave, addressed in the recent case Graziadio v. Culinary Institute of America  (2nd Cir. 2016).  Conference attendees were reminded to ensure not only that they comply with these notice requirements, but also that the contents are up to date.  Anything prepared prior to 2013 (the last major revision to the FMLA regulations) needs a close review and update.

Second, Cardi addressed FMLA challenges she sees from the practitioner’s perspective – areas that are not well addressed in the FMLA regulations and other DOL materials.  One such area is the use of second and third opinions in the certification process.   An employer can require a second opinion when it has reason to doubt the validity of the original certification from the employee’s health care provider (HCP) – but the term “validity” is never defined in the regulations or other DOL resources.  Cardi presented examples of circumstances that might justify a second opinion:  the HCP’s area of practice does not relate to the serious health condition at issue; the HCP is a close relative of the employee; the same HCP has provided identical certification information for multiple employees; or frequency and duration that are extremely excessive for the condition.

Third, throughout the session, Applewhaite and Cardi referred attendees to resources available to employers on the DOL FMLA website (www.dol.gov/whd/fmla).  These include links to the FMLA regulations themselves plus important guidance like fact sheets, FAQs, forms, Administrator Interpretations, and more.  Applewhaite also introduced the extensive new Employer’s Guide to the Family and Medical Leave Act, available on the FMLA website.  See our prior blog post about the new Guide here.  Applewhaite and Cardi reminded attendees that using broad internet searches for answers to FMLA questions is risky.  Some sources are less than trustworthy, and even those that are dependable (such as this one!) may become out of date on a particular topic down the road.

Here’s a copy of the presentation.

Meeting with EEOC Commissioners Feldblum and Lipnic On Tuesday, April 26, 2016, Gail Cohen had the privilege of attending a small meeting with EEOC Commissioners Victoria Lipnic and Chai Feldblum at EEOC headquarters in Washington, D.C.  The meeting was sponsored by the Labor and Employment Section of the Association of Corporate Counsel.  During the meeting the Commissioners addressed certain important ADA-related topics.

ADA Leave as an Accommodation – Interaction with the FMLA According to Commissioner Feldblum, anytime an employee makes a request for FMLA leave for his or her own serious health condition, this is an opportunity for the employer to also consider its obligations to engage in the interactive process under the ADA.  Commissioner Feldblum further expressed the opinion that the requirement to initiate consideration of leave as an accommodation under the ADA arises even if the employee has not returned the required certification of health care provider to support his or her need for FMLA leave despite being afforded the opportunity to do so.  We at Matrix do not agree with the EEOC’s interpretation that an employer has to chase after an employee who has failed to support his or her request for FMLA leave.   However, it is wise to consider, prior to taking any adverse action against that employee for an absence not supported by FMLA paperwork, what other steps, if any, the employer  might want to take to ensure that a decision to take adverse action in close proximity to an FMLA request is appropriate and well-documented.

EEOC Priorities For ADA  Enforcement At the meeting, Cohen had the opportunity to ask Commissioners Lipnic and Feldblum about the EEOC’s priorities for ADA enforcement.  Those priorities are:

  • Leave as an accommodation under the ADA. Many employers have inflexible leave policies with automatic termination at a certain point, such as exhaustion of a certain number of weeks of leave, completion of the worker’s compensation process without being able to return to work full time/full duty, and exhaustion of disability benefits without being “100% healed.”   The Commission continues to stress the need for an individualized analysis of the employee’s specific situation to determine whether or not an extension of leave may be a reasonable accommodation that will enable the employee to return to work;
  • Employer job descriptions that identify as essential job functions items which are actually “qualification standards.” Commissioner Feldblum cautioned that the EEOC is scrutinizing employer job descriptions to ensure that they describe essential functions – which she defined as the tasks required to perform the job as opposed to a pre-existing qualification for the position. An example she gave is whether “the ability to work any shift” is truly an essential job function as opposed to something that is not truly a job requirement and therefore is fair game for employers to be flexible.
  • Commissioners take a sunny view of the hurdle of hardship. Both Commissioners expressed the opinion that showing a requested  accommodation is an undue hardship is not the insurmountable hurdle employers believe it to be.  If an accommodation is reasonable and effective, then the employer’s only reason not to provide the accommodation is that it poses an undue hardship.  Despite the Commissioners’ optimism, employers must closely analyze the hardship posed by a requested accommodation and be able to support a hardship determination with specific facts (financial, operational, or otherwise).
  • Reassignment as an ADA accommodation. Many employers don’t fully understand their obligation to provide reassignment to a vacant position as the accommodation of last resort. If an employee’s limitations prevent him or her from performing the essential functions of the job, the employer has the obligation to search for a vacant position for which the employee is qualified.  See our post on this topic here.

MATRIX CAN HELP! The Americans with Disabilities Act presents many challenges for employers.  Addressing accommodation requests doesn’t have to be one of them.  Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process and reduce the risk of being involved in a lawsuit for failure to accommodate.  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.