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.

Matrix’s Gail Cohen on ADA Panel at EEOC Regional Meeting

Posted on: June 25, 2018 0

Many of you know my colleague, Gail Cohen, an attorney who works closely with me at Matrix and assists our clients, consultants, and others with ADA and leave of absence issues.  Gail recently participated in a panel presentation on the ADA – specifically accommodations and the interactive process – at an EEOC-hosted conference.  Kudos to Gail for being selected to join in presenting on this important topic with the law’s enforcement agency!  Here is a post from Gail, sharing her presentation and what she learned at the conference. 

 —Marti Cardi – Vice President, Product Compliance

On Thursday, June 21, I had the privilege to serve on a panel at the EEOC Regional Meeting in Phoenix.  My topic was “Reasonable Accommodation – What Works.”  Here  is a link to my presentation materials.  Take a look for a primer on reasonable accommodation and the interactive process – these are the kinds of issues we at Matrix help our clients with on a daily basis.

At the meeting the EEOC addressed some of its current priorities.  Here are some key takeaways from the EEOC that I think will be of interest to our readers:

  • Pregnancy discrimination and accommodations. In June 2015 the EEOC issued its
    Guidance on Pregnancy and Related IssuesA review of the cases filed by the EEOC since then show
    that this continues to be a priority.  Several states have followed suit by passing mandatory pregnancy
    accommodation and nondiscrimination laws.  Click
    here  for Matrix’s latest blog on a new state pregnancy law.
  • ADA compliance. The EEOC’s ADA compliance priority includes ensuring that employers are engaging
    in the interactive process and otherwise complying with their obligations to employees who request
    or have a known need for a reasonable accommodation in order to perform their essential job functions.
  • Medical inquiries. In addition, the EEOC emphasized pre-employment physicals and medical inquiries,
    as well as maintaining the confidentiality of employee medical information. (Did you know that the
    failure to maintain confidentiality is an independent violation of the ADA?)
  • The Importance of mentoring. The EEOC cited a study indicating that having a formal mentorship
    program at your company is one of the best ways to prevent/reduce the occurrence of discrimination.
  • Staffing companies. Another EEOC Priority is a focus on staffing companies, who the EEOC believes
    do not understand their obligations to comply with the laws they enforce, particularly in connection
    with their use of pre-employment testing.  Employers need to scrutinize contracts with staffing and
    temp agencies closely to ensure that legal and compliance responsibilities properly lie with each party.

 

Matrix can help!  Medical inquiries can be tricky under the ADA.  So can knowing how to deal with a challenging accommodation request.  Matrix’s dedicated ADA Specialists, backed up by our compliance and clinical teams, provide top-notch ADA claims management, whether the accommodation request is a simple piece of assistive equipment, multiple workplace adjustments, or a leave of absence.  To learn more, contact your account manager or send us a message at ping@matrixcos.com.

 

Don’t Miss It: THE 2018 DMEC FMLA/ADA EMPLOYER COMPLIANCE CONFERENCE

Posted on: April 24, 2018 0

Join your peers and prepare to confidently tackle your organization’s FMLA/ADA challenges at the 2018 DMEC FMLA/ADA Employer Compliance Conference, Apr. 30-May 3, in Orlando!

This year, Matrix Absence Management is a National Sponsor and I have the privilege of facilitating four sessions! I would love for you to join me and my colleagues at any or all of the below:

Monday, April 30 12:00 pm -2:00 pm
Liability Alert! HR and Supervisor Ethical Missteps:

This session will highlight real ADA and FMLA cases to help you gain a deeper understanding of ethical pitfalls in managing leaves and disabilities, such as misplaced benevolence, relying on stereotypes, what you ask, and how you communicate. Throughout, you will learn best practices to promote ethical ideals.  Join Marti Cardi, Vice President, Product Compliance, Matrix Absence Management, Inc. and Jaclyn Kugell, Partner, Morgan, Brown and Joy, LLP

Monday, April 30 4:30 pm -5:30 Preconference Wrap-Up: Ask the Experts!

Join me and other presenters  as we wrap up the first day of sessions with a chance to ask questions of our experts on the topics covered during the afternoon preconference workshops.

Wednesday, May 2 9:00 am -10:00 am
DOL Red Flags in FMLA Investigations:

Helen Applewhaite, DOL Branch Chief for FMLA will headline in this sessionto help you to identify red flags that could reveal issues with your practices and policies.  I will bring in the practical advice on how you can proactively address these issues to stay in the clear and – occasionally perhaps – will disagree with Ms. Applewhaite and the DOL.

Wednesday, May 2 4:15 pm-5:15 pm
Roundtable Mental Health in the Workplace – The Do’s, Don’ts, and Shoulds:

Join your peers for a small-group discussion and  bring your questions about how to manage mental-health claims in the workplace under the ADA and FMLA:  performance and conduct issues, obtaining medical information, requiring counseling as a condition of continued employment . . .


These sessions with be equally engaging and enlightening, and offer true real-world examples you can put into practice (with the help of Matrix Absence Management, of course).  I hope you decide to join us but if not, stay tuned for my recap of the conference.

To learn more about the 2018 DMEC FMLA/ADA Employer Compliance Conference and to download the full program click here:  http://dmec.org/conferences-and-events/compliance-conference/.   

Reassignment as an ADA Accommodation: To Compete or Not to Compete?

Posted on: February 1, 2018 0

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


Good news for employers: Depending where your employees are located, you might not have to grant reassignment without competition as a reasonable ADA accommodation.

As we administer our ADA management services, we frequently get questions about the employer’s obligation to reassign an employee to a vacant position as an ADA accommodation. Some time ago we addressed reassignment as an accommodation under the ADA. We wrote:

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.

In that blog post we explained the EEOC maintains that if a position is open and the disabled employee has the minimal qualifications, he/she gets the job – he/she does not have to compete or be the best qualified candidate for the position. 

Things have advanced a bit since that post was written and it is time for an update. The issue is still not nailed down in most jurisdictions – and the EEOC has not wavered in its position – but the 11th Circuit Court of Appeals (covering Alabama, Florida, and Georgia) has held that in certain circumstances, an employee with a disability can be required to compete with other candidates for an open position. Although this decision came out several months ago, continued questions from our clients show that they still grapple with the issue.

The Facts. The employee, Leokadia Bryk, was a nurse in the psychiatric ward at St. Joseph’s Hospital in Florida. Due to a developing back problem, Bryk walked with a cane during her shifts. The hospital determined that use of the cane posed a risk as patients in the psychiatric ward might be able to use the cane as a weapon. Bryk was given 30 days to apply for other positions for which she was qualified. St. Joseph’s usual transfer rules required that an internal candidate could not apply for another position if the employee had not been in her current position for at least 6 months and had no final written warnings in her file. Bryk did not satisfy either of these requirements, but St. Joseph waived these rules to allow Bryk to apply for vacant positions. She applied for 3 positions but was not hired because she was not the best qualified candidate for any of the positions.

The Lesson. St. Joseph’s had a “best-qualified applicant” policy – meaning that they had a business policy and practice of hiring the best-qualified candidate for an open position. Relying on an earlier U.S. Supreme Court opinion, the 11th Circuit recognized that an employee’s proposed accommodation must be “reasonable in the run of cases.” The court then affirmatively stated that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases’” and held that the ADA does not require mandatory reassignment:

As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. . . . [T]he ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position . . . [T]he intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities . . . [It] was never intended to turn nondiscrimination into discrimination against the non-disabled.

EEOC v. St. Joseph’s Hospital, Inc. (11th Cir. 12/07/2016).

Lay of the Land. Other courts have addressed the issue of reassignment as an ADA accommodation. In Huber v. Wal-Mart Stores, Inc. (2007) the 8th Circuit came to the same conclusion as the 11th Circuit. The EEOC cites cases from the 7th, 10th, and D.C. Circuits in support of its position. Various district courts (the federal trial courts under the Circuit courts of appeals) in several states have tackled the issue with varying results.

 

Pings for Employers.

  • Employers should not view the St. Joseph’s case as a complete victory. The federal courts of
    appeals are still split on employers’ ADA reassignment obligations, and some haven’t addressed
    the issue at all. It is important to receive legal guidance on the status of the issue where you
    do business; it is likely to vary if you have employees in multiple states. And, if you require a
    disabled employee to compete for an open position in any jurisdiction, you still might find
    yourself wrangling with the EEOC.
  • The St. Joseph’s decision rests heavily on the employer’s “best-qualified applicant” policy. Most
    employers probably believe they have such a policy but now employers should memorialize
    the policy in writing and train hiring managers to ensure it is followed in practice. It might be
    possible to make occasional exceptions but be ready to explain those with business reasons
    that justify the variation.
  • Don’t be inflexible when dealing with the ADA. Even with a best-qualified policy and in the
    11th Circuit, there still may be fact-specific situations that would make reassignment without
    competition a reasonable accommodation.
  • Take a lesson from the way St. Joseph’s handled this employee. Even though it enforced its
    best-qualified policy, it bent other rules in its transfer and hiring policies as accommodations
    to Bryk, enabling her to apply for jobs even though she did not satisfy the company’s rules.

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.