What Employers Need to Know about Caregiver Protections under the ADA, FMLA, Title VII… and in California

Posted on: August 24, 2016 0

By Marti Cardi, VP Product Compliance

iStock_000052530906_35187812_caregiverWith many employees living life as the “Sandwich Generation,” job protections for family caregivers are becoming ever more important.  An August 18 blog post from the US Department of Labor highlights the issue in part by taking a brief look at paid leave programs in 3 states and job protection under the Family and Medical Leave Act.

Many employers don’t realize the extent of job protections for family caregivers.  Here I will take you on a quick tour of these workplace rights.  In October I will have the pleasure of presenting this topic in depth at the annual HRSouthwest conference in Ft. Worth.  To my knowledge this will be the first presentation of its kind, addressing the many sources of protection and what employers need to do to ensure compliance.  Here is a quick summary to whet your appetite!

Family and Medical Leave ActThis is no surprise to those of you familiar with the FMLA.  This federal law provides up to 12 weeks of job protected leave of absence per leave year for an employee to care for a family member with a serious health condition.  Several states have similar laws – including California, Colorado (limited to domestic and civil union partners), Connecticut, District of Columbia (OK, that’s not a state), Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.  In addition, even more states have protected leaves of absence for pregnancy disability (a kind of family care, right?) and bonding.  The FMLA and most state family leave statutes also prohibit retaliation against employees who seek to exercise these leave rights.

Americans with Disabilities ActDid you know that the ADA protects employees who have family members (or other close individuals) with disabilities?  The “association provision” of the ADA prohibits employment discrimination against a person because of his or her known relationship or association with a person with a known disability.  This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association.  For example, an employer cannot terminate an employee because her husband (or best friend or roommate or…) has been diagnosed with cancer and the employer is concerned the employee will miss time from work to care for her husband and take him to medical treatments.

Title VII of the Civil Rights Act of 1964.  This statute is best known for its workplace protections against discrimination, harassment, and retaliation for members of protected classes (e.g., race, sex, religion, national origin).  However, there can be circumstances where, because of an employee’s protected classification, he or she is discriminated against due to caregiver responsibilities.  Here are some examples:

  • Denying a woman with young children an employment opportunity that is available to men with young children.
  • Denying a male caregiver leave to care for an infant under circumstances where such leave would be granted to a female caregiver.
  • Reassigning a woman to less desirable projects based on the assumption that, as a new mother, she will be less committed to her job.

Paid Family Benefits/Leave Laws.  A recent trend in workplace benefits is toward pay for workers who take time off to care for a family member or to bond with a new child.  California, New Jersey, and Rhode Island each mandate a pay benefit during leaves of absence taken for these reasons.  New York will join the field in 2018.  And effective January 1, 2017, San Francisco will require employers to top off the California paid parental leave benefit to equal 100% of the worker’s base salary (subject to some limitations).  Many of these laws provide paid leave benefits but not job protection during the leave; however, most employers treat the time off as job-protected and restore the employee to his/her position following the paid leave.

California Fair Employment and Housing Act.  I’ve saved the best for last.  It may be that, in California, an employer has a duty to provide an accommodation to an employee associated with an individual with a disability – not just refrain from discriminating against the employee because of the family member’s disability.  The CA FEHA provides worker protections similar to the ADA (among many other things).  One little-known FEHA provision was recently put to the test in Luis Castro-Ramirez v. Dependable Highway Express.  In this case the California court of appeals ruled that an employee with a son who required dialysis on a scheduled basis was entitled to an accommodation under FEHA to meet his son’s dialysis needs.  The ruling was based on the language of the statute which defined a physical disability to include an employee who is associated with a person who has, or is perceived to have, a physical disability.  Examples include, as in this case, time off from work to provide required medical care or transportation to appointments.

More to comeStay tuned here for more information as Matrix develops further information on protections for employees who are family member caregivers.  Let me know if you have questions or ideas that you would like to have addressed.  This is an important topic for a sizable portion of the US workforce.  We want to help keep you on the cutting edge.

My topic at the HRSouthwest conference will be “Employers: Beware of Caregiver Protections!” Tuesday, 10/18/2016 1:30pm – 3:00pm.  Please join me!

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.

Lowe’s to pay $8.6 million in yet another EEOC case involving inflexible leave policies

Posted on: May 23, 2016 3

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment LawCartoon Animal Eyes Under Big Stone

Employers, if you haven’t fixed this issue yet, get out from under that rock!

If an employee with a disability exhausts leave time provided by company policy or by a law such as the FMLA, you have two obligations.

First, consider even more leave as a reasonable accommodation. 

Second, consider reasonable workplace accommodations to allow the employee to return to work

It’s that simple.

As announced by the EEOC on May 13, 2016, home improvement giant Lowe’s has agreed to pay $8,600,000 to affected employees as part of a consent decree entered into with the EEOC in a federal district court in California. The EEOC claims that Lowe’s violated the ADA by terminating employees with a disability after failing to provide them reason­able accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.

And it’s not just about the money.  The consent decree agreed to by Lowe’s in this case includes some very typical additional requirements, all enforceable by court order.  The four-year consent decree settling the suit requires that Lowe’s:

  • Retain a consultant with ADA experience to review and revise company policies as appro­priate;
  • Implement effective training for both supervisors and staff on the ADA;
  • Develop a centralized tracking system for employee requests for accommoda­tion;
  • Maintain an accommodation log;
  • Post documentation in its workplaces related to the settlement; and
  • Submit regular reports to the EEOC verifying compliance with the decree.

Thus, Lowe’s ends up not only paying the agreed-upon amount of damages, but also incurs significant expenses (for example, attorneys’ fees) and business disruptions during the EEOC’s investigation and in complying with the terms of the consent decree for four years.

Two types of policies are on the EEOC’s radar.  An employer’s obligation to provide more leave than offered by company policies or required by law has received much recent attention.  Why, just this month the EEOC released a new Resource Document entitled Employer-Provided Leave and the Americans with Disabilities Act.  While the Resource Document did not break any new ground (no, the EEOC still won’t say how long a leave can be before it becomes an unreasonable accommodation), it does pull together in one handy place all existing EEOC guidance on the issue, including assessment of extra leave as an undue hardship.  Our blog post on the Resource Document can be found here.  Meantime, the EEOC is focusing on the following:

Maximum or inflexible leave policies (sometimes referred to as “no fault” leave policies) take many different forms.  A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both continuous and intermittent leave.  Some employers not covered by the FMLA set lower overall caps. Others tie the maximum leave to the duration of short-term disability benefits.  Any inflexible cap may result in an ADA violation because it does not allow for the interactive process and individualized consideration of whether additional leave or some other reasonable accommodation will enable the employee to return to work.

100% recovered or healed policies are those that require an employee with a disability to have no medical restrictions – that is, be “100%” healed or recovered – before returning to work.  These also have huge potential to violate the ADA because the employer does not engage in the interactive process to discover whether the employee can perform essential functions with on-the-job reasonable accommodation(s).

Lots of companies got it wrong in the past.  Many employers have been the subject of EEOC investigations and, ultimately, a pricey consent decree.  Here are some of the bigger-ticket resolutions:

Company Date Amount Policy /Practice in Violation of ADA
Lowe’s 2016 $8.6 million Terminating employees whose need for medical leaves of absence exceeded Lowe’s maximum leave policy (180 days, subsequently 240 days)
Pactiv LLC 2015 $1.7 million Assessing attendance points for medically-related absences; not allowing use of intermittent leave or extension of a leave of absence as an ADA reasonable accommodation
Princeton HealthCare System 2014 $1.35 million Limiting medical leave of absence to maximum of 12 weeks:

  • employees FMLA-eligible terminated after 12 weeks\
  • employees not FMLA-eligible terminated after short absence

Requiring certification of 100% recovery upon return to work rather than considering return to work with a reasonable ADA accommodation

Dillard’s 2012 $2.0 million
  • Maximum-leave policy limiting the amount of medical leave an employee could take
  • Policy requiring all employees to disclose personal and confidential medical information in order to be approved for sick leave
Interstate Distributor Co. 2012 $4.85 million
  • Limiting medical leave of absence to maximum of 12 weeks
  • Requiring certification of 100% recovery upon return to work rather than considering return to work with a reasonable ADA accommodation
 Verizon Communications   2011  $20 million Failing to make exceptions to “no fault” attendance plans for individuals with disabilities as an ADA accommodation
 Supervalu, Inc., Jewel Food Stores, Inc. etc.  2011  $3.2 million Terminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence rather than considering return to work with a reasonable ADA accommodation
 Sears, Roebuck and Co.  2009  $6.2 million Terminating employees following exhaustion of workers’ compensation leave without engaging in the interactive accommodation process to consider workplace accommodations or leave extension as an accommodation

PINGPings for employers:  We provided pointers for employers in our last blog post so we won’t repeat, but given the size of the potential price tag we suggest that you go back and read again.

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our services.  We 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.  Contact Matrix at 1-800-866-2301 to learn more about these services.

 

ADA Pings from National Experts

Posted on: April 22, 2016 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment Law

pointerToday I want to share some short but pithy guidance on the ADA.  I had the privilege of attending the annual ADA and FMLA Compliance Conference presented by the National Employment Law Institute (NELI), and yesterday was ADA day.  Here are some key points made by the presenters:

Voluntariness of or cause of the employee’s impairment does not matter!  The speakers reminded us of the long-standing rule that voluntary aspects of how an employee’s impairment arose, whether the employee is getting appropriate treatment, whether the employee engages in activities that exacerbate his condition, etc., are irrelevant to an employer’s ADA duties.  (EEOC Compliance Manual §902.2(e)) Examples:

  • An employee whose job requires lifting, but injured her back working out at the gym;
  • Employee with asthma that is exacerbated and affects her work after she goes for morning bike rides.

There are still standards to be met, even under the ADAAA.   The ADAAA did not eliminate requirements that the employee have an impairment that substantially limits a major life activity.  The standards may be lower now, but they still must be met.

“Regarded-as” liability.  Did you know that you violate the ADA if you take action against an employee because you think the employee is disabled and you act on that belief?  Regarded-as ADA liability has two parts:  (1) the employer takes a negative employment action against an employee (2) because the employer believes the employee has an impairment that is NOT both minor and transitory.  In other words, the condition the employer believes the employee has must be one that would actually constitute a disability if it in fact existed.

Essential functions – put it in the job description!  Although the employer’s opinion of a job’s essential functions carries some weight, it is most helpful if the essential functions are defined in the job description.  Conversely, the absence of a function as essential in the job description can be used against the employer.  Examples:

Agee v. Mercedes-Benz (11th 2016)

  • Auto assembly team worker unable to work mandatory overtime
  • Job description specified OT was an essential function
  • Summary judgment for employer granted – no jury trial

Stephenson v. Pfizer (4th 2016)

  • Pharmaceutical sales rep was unable to drive to doctors’ offices
  • Was driving the essential function? Or was it performing sales at doctors’ offices, regardless of how employee gets there?
  • Driving was not identified as essential function in job description
  • Summary judgment for employer denied – on to jury trial!

Conflicting medical opinions.  Suppose an employee presents a doctor’s note with restrictions and the employer cannot accommodate.  Then, the employee presents a note from a different doctor that she has no restrictions, or the employee states that really, she can perform the job without restrictions.  The employer has right to make decisions based on the opinion from the employee’s usual treating physician.  “It is not reasonable to expect an employer to disregard an employee’s treating physician’s opinion expressly imposing physical restrictions.”  (Scruggs v. Pulaski County, AR (8th Cir. 2015))The EEOC might expect the employer to get more information or do a deeper analysis, but generally an employee cannot disavow his/her own statements or provider’s opinion.

Undue hardship – a place you don’t want to be.  If there is a reasonable and effective accommodation for a disabled employee, then the employer’s only reason not to provide the accommodation is that it constitutes an undue hardship.  Most employers think in terms of the cost to provide the accommodation but this is a poor argument in most cases.  Example:  A court suggested that a $129,000 workplace modification to allow a blind employee to work in a call center might not be an undue hardship.  Reyazuddin v. Montgomery County (4th Cir. 2015).  Moreover, arguing financial hardship will often require the employer to open its financial records to scrutiny by opposing counsel.   Better hardship arguments are based on negative effects on the workload of other employees, operational disruptions, missed deadlines, and the like.

Many thanks to the excellent presenters David Fram (NELI), Paul Buchanan (Buchanan Angeli Altschul & Sullivan LLP), and Diane Smason (EEOC Trial Attorney, Chicago District Office).

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.