ADA Alert:  The EEOC is Alive and Kicking

Posted on: October 22, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

October 22, 2019

 

And sadly, so are disability and pregnancy discrimination. 

I receive press releases from the Equal Employment Opportunity Commission several times each week.  Most of them trumpet new lawsuits filed by the agency or settlements reached with employers it previously sued.  Every year there are some whoppers in terms of settlement dollars. There are also lots of smaller-dollar settlements that don’t make the non-EEOC news banners but have a big impact on the employer nonetheless.

So I got to wondering – how do the numbers stack up with regard to EEOC lawsuits relating to disability and pregnancy discrimination?  I took an unscientific count from the EEOC’s Newsroom  (ticking off the numbers on a piece of scratch paper).  Here’s what I found through October 20 of this year: 

  • The EEOC issued over 250 press releases relating to lawsuits it has filed or settled so far in 2019.
  • 113 (approx 45%) of these were lawsuits alleging disability or pregnancy discrimination and failure
    to accommodate (93 disability-related, 16 pregnancy-related, and 4 involving both).
  • Settlements ranged from $16,000 to $2,250,000 in damages awarded to the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit alleging failure to
    accommodate a cart pusher at a Walmart store. More on that below!

In addition to press releases throughout the year, the EEOC publishes its official tally of charge and litigation statistics annually, which you can review here.

Who is getting sued by the EEOC, and for what? 

Pretty much everyone, and for everything disability-related. 

  • The employers who are subjects of these press releases include hospitals and other medical providers,
    staffing agencies, retailers, grocery chains, entertainment and hospitality companies, manufacturers, fast
    food franchisees, service providers at correctional institutions, telecommunications and trucking companies,
    and on and on. (Lesson: Don’t assume your segment is “under the radar.”)  
  • These employers are getting the EEOC’s attention due to hiring practices, improper medical inquiries,
    failure to accommodate in all shapes and sizes, terminations, more terminations, inflexible leave policies, and
    disability harassment. Did I mention terminations?
  • The disabilities at issue include both mental and physical, although the physical disabilities seem to dominate
    this year: Hearing impairment, bad backs, Tourette syndrome, cancer, and so on.

Now I have to acknowledge that these are EEOC press releases – the agency selects the new or settled cases they want to publicize.  There are also EEOC lawsuits that get dismissed by the court or are adjudicated in favor of the employer.  Still, there are lessons to be learned from the cases the EEOC wants to share with the employer world. 

The ones that speak to me. 

Of the 113 news releases related to disability and/or pregnancy discrimination, here are a few that I found to be noteworthy: 

  • Changing policy. One resort and spa employer settled a lawsuit based on its refusal to allow a
    pregnant employee to wear open-toed shoes (not a safety issue) and to sit while working at the
    reception desk.  I ask you, was that worth it?
  • Inflexible leave policies continue to trip up employers – much to my surprise, as this has been
    an EEOC focus for years. See our blog post on the topic here.   In 2019 so far, at least 4 employers
    settled EEOC disability lawsuits based on the employer’s practice of terminating employees when
    the employees exhausted their FMLA or company medical leave rather than considering ADA
    accommodations (extended leave or otherwise).  These 4 settlements range from $175,000
    to $950,000.
  • Several cases involved failure to accommodate hearing impairments.  Employers need to avoid
    making rash decisions based on stereotypes about the hearing-impaired (remember
    the Case of the Deaf Lifeguard?) or any other disability, for that matter. Rather, consider the
    hearing impaired individual’s capabilities and if necessary, discuss special instructional, training,
    or communication methods as a reasonable accommodation.
  • Ending an existing accommodation. Finally, we must look at that $5.2 million jury verdict against
    Walmart.  This case involved a cart pusher, Paul Reina, whose job consisted primarily of clearing
    the parking lot of shopping carts.  Reina is deaf and has developmental, visual, and intellectual
    impairments.  Reina had worked for Walmart in this capacity from 1998 to 2015, always with the
    assistance of a job coach arranged by Reina’s family and paid for through a Medicaid program.
    In 2015 a new manager was assigned to the store where Reina worked.  A few days later Reina
    was put on administrative leave and never allowed to return to work.  To be fair, Walmart gave
    several reasons it felt Reina should no longer work as a cart pusher, including the argument that
    it was actually the job coach, not Reina, who was performing the job duties.  Nonetheless,
    Walmart discarded an accommodation that had been in place for 17 years. The jury found that
    this violated the ADA and awarded Reina $200,000 in actual damages and $5 million in
    punitive damages.

The consequences beyond dollars. 

An EEOC lawsuit imposes a substantial financial burden even if the employer wins the case, such as the costs of attorneys’ fees, document production, depositions, and other defense tasks. But there are also significant consequences beyond just the monetary issues. Consider also the time spent by your employees, management, and Human Resources personnel to prepare for and defend the lawsuit and the ensuing disruption of your business operations.

In addition, when the EEOC settles a case, it demands other non-monetary relief such as years of oversight by the agency, hiring an ADA consultant, revising ADA policies, posting notice of the settlement in the workplace, and agency-mandated layers of training for employees and management.

Pings for Employers. 

What should you do so that your company doesn’t appear in the EEOC’s 2020 press releases? How about:

  • Train your employees on the ADA and accommodations – why wait for the EEOC or a
    court to tell you to do it? If training heads off even one ADA misstep and EEOC lawsuit,
    it will have paid for itself.
  • Review your leave policies to ensure they don’t violate the ADA by imposing an inflexible
    limit to leave durations or requiring employees to be 100% healed before returning to work.
  • Take the interactive process to heart. Don’t make employment decisions based on your
    belief or a stereotype of what someone with a disability can or can’t do – discuss it with
    the employee and, if appropriate, get relevant medical support.
  • Be ready to change nonessential company rules and procedures as an accommodation.
    Arguments like “we’ve always done it that way” or “then everyone will want the same”
    just don’t win the day.
  • Use available resources to help you understand an employee’s impairment and capabilities.
    The Job Accommodation Network  has a multitude of articles on various impairments and
    possible accommodations, and the staff is available for discussion by telephone.  
  • Consider other resources specific to the employee’s disability. There are multiple websites
    for virtually every type of impairment that will help educate you about the employee’s
    situation.  But remember – again – to avoid those stereotypes and make your determinations
    on the basis of the employee’s specific capabilities and limitations.

 

MATRIX CAN HELP! Matrix’s ADA Advantage® leave management system and our dedicated ADA accommodation specialists help employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our servicesWe 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.  For assistance please contact your Matrix or Reliance Standard account manager or send an email to ping@matrixcos.com.

New York Adds Leave Law for Victims of Domestic Violence

Posted on: September 30, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

September 30, 2019

Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence.  With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking. 

We previously wrote about these laws here.  

Key provisions of the New York law are summarized below:

Covered employees. “Victim of domestic violence” means:

  • any person over the age of sixteen;
  • any married person; or
  • any parent accompanied by his or her minor child or children

. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND

  • such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
    or emotional harm to such person or such person’s child;  and
  • such act or acts are or are alleged to have been committed by a family or household member.

View New York Social Services law § 459-a.

There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.

Leave reasons.  Reasons for leave are limited to:   

  • Seeking medical attention for injuries caused by domestic violence, including for a child who is a victim of
    domestic violence, provided that the employee is not the perpetrator of the domestic violence against
    the child; or
  • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic
    violence; or
  • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for
    a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the
    domestic violence against the child; or
  • Participating in safety planning and taking other actions to increase safety from future incidents of
    domestic violence, including temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation
    to the incident or incidents of domestic violence.

Undue hardship.  An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as: 

  • The overall size of the business, program or enterprise with respect to the number of employees, number
    and type of facilities, and size of budget; and
  • The type of operation in which the business, program, or enterprise is engaged, including the composition
    and structure of the workforce.

Paid time off and benefits.  The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy.  Any absence not covered by such paid time off may be without pay.  The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences. 

Employee notice and documentation.  An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances.  The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off. 

Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible.  In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of
    domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or
    counselor that the employee or his or her child was undergoing counseling or treatment for physical
    or mental injuries or abuse resulting in victimization from an act of domestic violence.

Other provisions.

Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.

If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)

The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave. 

MATRIX CAN HELP!   At Matrix we administer these domestic violence and sexual assault laws.  We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy.  In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico.  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 your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

Accommodation Delayed is Not (Necessarily) Accommodation Denied

Posted on: July 25, 2019 0

By Robb McDonald and Marti Cardi, Vice President Product Compliance

July 25, 2019

 

 “This is a case about a civil servant’s dissatisfaction with the government’s sluggishness in accommodating her disability. While delay is no doubt frustrating, it is not, in this case, unlawful.”

So starts the opinion in Weatherspoon v. Price, a case decided recently by the federal court in the District of Columbia.

What Happened?

Monique Weatherspoon was (and, as far as we know, still is!) employed by the U.S. Department of Health and Human Services.  She suffers from uveitis, a sensitivity to light which makes it difficult for her to travel to her office and to read her computer screen.  Over time the Department granted a multitude of accommodations.  Try these on for size:

  • Starting in 2011 and for the next few years, the Department permitted Weatherspoon to work from home
    1-2 days per week and also to work from home as needed due to her condition.
  • In 2015, Weatherspoon’s condition deteriorated and she requested a laptop with an oversize screen. Instead,
    the Department offered to provide a docking station and large monitor for home set up.
  • Weatherspoon took medical leave in November and December 2015.
  • In early 2016, the Department advised Weatherspoon that the docking station and monitor were available
    for pickup. Weatherspoon cancelled several appointments with IT to test and pick up the equipment.
    Once she picked up the equipment, Weatherspoon indicated that she had trouble using it.
  • The Department’s Computer/Electronic Accommodations Program (CAP) suggested that a software
    program, ZoomText, might be helpful and provided Weatherspoon with a trial version. Weatherspoon
    advised the Department that the software was not helping.
  • In May 2016, Weatherspoon requested 100% telework as an accommodation. The Department denied
    the request, but did permit telework for 2 days per week, and episodic telework as necessitated by her
    condition. The Department never denied a request by Weatherspoon for episodic telecommuting.
  • After further in-person assessment, the CAP provided Weatherspoon different ZoomText software and
    a larger laptop. Weatherspoon picked up the equipment in December 2016 when she went to the office
    for the holiday party.

Apparently, this equipment and the telecommuting arrangement were successful in enabling Weatherspoon to perform her job.  Nonetheless, these efforts were not satisfactory to Weatherspoon.  She sued the Department for “failing to reasonably and effectively accommodate” her disability.

Side note.  OK, a little detail here.  Weatherspoon sued the Department under the federal Rehabilitation Act, not the ADA.  The Rehab Act is substantially similar to the ADA but applies to federal employers and employees, while the ADA applies to pretty much all other employers and employees.  The principles, the employer’s obligations, and the employee’s rights are the same.  So in general, a lesson learned in a Rehab Act case also applies to employers covered by the ADA.

The Tortoise, Not the Hare

Weatherspoon alleged that lengthy delays (she claimed 17 months) in providing accommodations were tantamount to a denial of her request.  The court acknowledged that in some cases, a long-delayed accommodation could be considered unreasonable and hence a violation of the ADA/Rehab Act but here, no single accommodation request took more than 3-4 months to resolve – and always ended with the Department providing Weatherspoon with an accommodation.  Moreover, many factors contributing to the delays were beyond the control of the Department.  For example, Weatherspoon took an extended period of medical leave during the request period, cancelled multiple meetings, and delayed in picking up the offered equipment.  The court also noted that it can take weeks or months to analyze and procure proper technology such as specialized software and computer equipment.  And, when dealing with a government entity, movement is “more tortoise-like than hare-like . . . But that’s just business as usual, not evidence of discrimination.”

The Interactive Process – Keep it Going!

As we know, it is important to engage in the interactive process when evaluating an accommodation request, and this requires “flexible give-and-take” between the employer and employee. In this case, Weatherspoon’s supervisor was in regular communication and dialogue with her.  There was also a great deal of communication among Weatherspoon, her supervisor, and 5 additional persons or entities within the Department to assess and meet her needs.  In light of this and the number of attempted and suggested accommodations, the court held that the Department participated in the interactive process in good faith and did not violate the Rehab Act due to the delays in reaching final accommodations.

Pings for Employers

  1. Engage in the interactive process with regular communication and dialogue. Don’t be responsible for
    a breakdown in the process.  According to the Court, “To determine whether the employer held up its end
    of the bargain, courts look to factors such as whether the employer obstructs or delays the interactive process
    or fails to communicate, by way of initiation or response.”  In this case, the Department kept the process
    going to conclusion with some effective accommodations.
  2. So don’t be responsible for unreasonable delays. Weatherspoon did indeed experience delays in obtaining
    effective accommodations.  One wonders whether a private employer would have received the leniency this
    court showed to the Department as a government entity!  You don’t want to be the test case!
  3. Offer alternative accommodations in appropriate circumstances. You do not have to approve an employee’s
    preferred accommodation when there is another effective accommodation that better suits your business needs.
    In this case the Department offered Weatherspoon different specialized equipment than what she requested and
    also pushed back on her request for full-time telecommuting by offering 2 days per week plus other days as
    needed. Just be sure that the alternative offered is effective to enable the employee to perform her essential
    functions.
  4. If you can’t find a reasonable, effective accommodation, a robust interactive process will still serve you well.
    If you engage in dialog with the employee and consider various options, but none enable the employee to
    perform her essential functions without undue hardship, you have fulfilled your ADA obligations.  (But don’t
    forget your duty to consider reassignment, the accommodation of last resort! See our prior blog posts on
    reassignment
    here and here.)
  5. Document the interactions meticulously. Especially in an extended situation like this one, it would be difficult
    after the fact to recreate accurately all the interactions that support your position.

MATRIX CAN HELP!  Through our ADA Advantage, Matrix offers administration and management of employee requests for accommodations.  We manage it all, from intake and medical documentation through the final accommodation decision and follow-up.  We manage and document the interactive  process so you don’t have to worry about those Pings above.  You retain control over the final decision but we help you get there effectively and in compliance with the ADA.  If you want to learn more about our ADA services, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

With this blog post we welcome a new contributor, Robert McDonald, J.D., Ph.D. Robb has been with Matrix Absence Management since 2017 and serves as Vice President of Learning & Development. In this capacity Robb is responsible for course development and instruction to all Matrix employees nationwide.

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.