The Essence of Parental Leaves – Treating Fathers Differently Costs Estée Lauder $1.1 Million and Much More

Posted on: July 26, 2018 0

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

Perfume and cosmetics giant Estée Lauder has agreed to pay $1.1 million to a class of male employees who received less bonding leave and less return to work job flexibility than their female counterparts.  Under its prior policy, men received just 2 weeks of parental leave to bond with a new child.  Women received 6 weeks after their medical leave ended and flexible return-to-work benefits upon expiration of child bonding leave, such as temporary modified work schedules, to ease the transition back to work.

The EEOC filed suit against Estée Lauder in August 2017.  On July 17, 2018, the court entered a consent decree resolving the case. In addition to the $1.1 million payment to the class of male employees, the consent decree imposes other requirements on Estée Lauder. The company must:

  • Administer parental leave and related return-to-work benefits in a manner that ensures equal benefits
    for male and female employees
  • Provide training on unlawful sex discrimination
  • Allow monitoring by the EEOC

Estée Lauder met the requirement of equal benefits during the course of the lawsuit when it voluntarily (with the EEOC watching over its shoulder) implemented a revised parental leave policy that provides all eligible employees, regardless of gender or care­giver status, the same 20 weeks of paid leave for child bonding and the same 6-week flexibility period upon returning to work. For birth mothers, these paid parental leave benefits begin after any period of medical leave occasioned by childbirth.

These are common terms imposed by the EEOC when it sues an employer and obtains a consent decree – a judgment agreed to by the employer to resolve the EEOC’s lawsuit.  Other common terms include:

  • Posting the consent decree on employee bulletin boards;
  • Hiring a nondiscrimination consultant; and
  • Reporting to the EEOC on all complaints received by the employer for a number of years. 

As you can see, the payment by the employer pursuant to a consent decree is often just the tip of the iceberg in terms of total amount of internal costs, management time, and distraction caused by an EEOC investigation and lawsuit.

Observation:  Many employers attract the EEOC’s attention by discriminating against pregnant employees and mothers – termination, forced leave, failure to promote, etc.  Ironically, this lawsuit arises from an employer treating pregnant employees more favorably than men.  I’m sure Estée Lauder is feeling the adage, no good deed goes unpunished!

Pings for Employers

  • Check your policies. Leaves related to having a new child fall into 2 categories:  medical leave for
    the birth mother, and bonding leave for all parents.
  • Any leave provided only to the birth mother must relate to her medical condition. Common “disability”
    leave after birth is 6 weeks for a vaginal birth, 8 weeks for a C-section.  If your plan noticeably exceeds
    these numbers you are at risk of a challenge that the leave is not related to the birth mother’s health condition
    and is discriminatory against non-birth parents.
  • Leave for bonding must be equal for all parents – birth mothers and non-birth parents (fathers and second
    mothers). Same for other new-child related benefits, such as the flexible return to work options offered
    by Estée Lauder.
  • To be competitive, parental/bonding leave should also be available to adoptive and foster parents. Some state
    laws require this.
  • To see what other employers are offering as voluntary paid maternity, parental, and caregiver leave benefits,
    check out this resource from the National Partnership for Women and Families:
    Leading on Leave: Companies With New or Expanded Paid Leave Policies (2015-2018).
  • For more detailed guidance – at least from the EEOC’s perspective – you can review their
    Enforcement Guidance on Pregnancy Discrimination and Related Issues.

Matrix Can Help.  Matrix offers comprehensive leave management services, including administration of company leave policies such as maternity and parental leaves (paid and unpaid).  For more information contact your account manager or your sales representative, or send an email to ping@matrixcos.com.

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.

 

Pushing Back on the “Inadvertent Leave Law” – Court Rules that a Multi-Month Leave of Absence is not a Reasonable ADA Accommodation

Posted on: September 26, 2017 0

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

“How long of a leave of absence do I have to grant as an accommodation under the Americans with Disabilities Act?”

I get this question frequently.  I have long advised that employers must consider a new or extended leave of absence as a possible accommodation.  In assessing an employee’s ADA leave request, employers need to look at what the employee will be doing during that leave: Rehabilitative therapy?  Trying new medications?  Learning to work with an assistive device or a support animal?  Maybe recovery from surgery or an injury? 

The Equal Employment Opportunity Commission agrees with me – or rather, I have come to agree with the EEOC.  EEOC Commissioner Chai Feldblum is often quoted as calling the ADA an “inadvertent leave law.”  And indeed it is – the ADA was not designed to be job-protected medical leave of absence.  Rather, the basic goal is to enable the disabled employee to work – with a reasonable workplace accommodation if needed.  But for years, the Commission’s guidance has been that leave is a reasonable accommodation as long as it is of a (somewhat) definite duration and will enable the employee to perform his essential functions upon return to work.  

The 7th Circuit Court of Appeals begs to differ.  In a recent case, the court ruled that an employer did not fail to provide a reasonable accommodation when it denied an employee’s request for a 2-3 month continued leave of absence after exhaustion of FMLA.

The Facts.  Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures from 2006 to 2013.  His position was physically demanding, often requiring him to lift 50 pounds or more.  Raymond had a back problem that first manifested itself in 2005.  During flare-ups, the condition made it difficult or impossible for Raymond to walk, bend, lift, sit, stand, move, and work. 

Raymond had generally performed well and received promotions over the years but was having difficulty in his latest position.  He met with management on June 5, 2013, and accepted a demotion to second-shift lead, but never commenced work in that position.  Earlier the same day, Raymond wrenched his back at home exacerbating his back condition and was in obvious pain as a result.  He left work after the meeting with managers and then requested continuous FMLA leave due to his back. 

 During his FMLA leave Raymond stayed in touch with Heartland’s HR representatives.  He received periodic extensions of his leave based on medical reports that showed he had multiple herniated and bulging discs in his spine.  In mid-August, after steroid treatments yielded little improvement, Raymond informed HR that he was going to have back surgery on August 27 – the last day of his FMLA entitlement – and would need 2-3 more months of leave as an ADA accommodation.  Heartland denied this request but told Raymond he was welcome to reapply when he was able to return to work.  

Raymond never reapplied for work.  Instead, he chose to sue Heartland for failure to accommodate.  Oh, Raymond!  You should have taken a different path!

“The ADA is an antidiscrimination statute, not a medical-leave entitlement.”  So says the 7th Circuit.  After analyzing the relevant sections of the ADA, the court stated:

A “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.”  If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.

Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  [Citations omitted.]

And this:  

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The court acknowledged the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, such as occasional flare-ups of arthritis or lupus.  

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in [the ADA].  But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. [Citations omitted.]

Of interest and some degree of persuasion, the court compared the FMLA and the ADA as “leave of absence” statutes: 

If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term “reasonable accommodation.”

So there we have it.  According to the 7th Circuit, a leave of absence as an ADA accommodation is not reasonable if it is expected to last more than “a couple of weeks,” or if it will “span[ ] multiple months.”  

Employers have some similar comfort from the 10th Circuit in the case Hwang v. Kansas State University (2014).  In that case, the court ruled that a 6-month leave was not a reasonable accommodation:

 It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.  Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

As the court said, ADA accommodations are “all about enabling employees to work, not to not work.”  You can read a great summary of the Hwang case on Jeff Nowak’s FMLA Insights blog here

Other than these two decisions, we are not aware of any other federal appellate court that has addressed how long of a leave is a reasonable accommodation under the Amendments Act (ADAAA).  [The 7th Circuit includes the states of Illinois, Indiana, and Wisconsin within in its jurisdiction; the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.]

Employers, continue to tread softly and act wisely.  Don’t throw caution to the wind just because one or two courts have issued a reasonable opinion.  See our Pings below for recommendations on how to assess requests for leave under the ADA Amendments Act (ADAAA). 

Severson v. Heartland Woodcraft, Inc. (7th Cir. Sept. 20, 2017) 

Pings for Employers

Don’t ignore the possibility of leave as a reasonable accommodation.  Nothing in the 7th Circuit’s ruling changes the employer’s obligation to consider more leave of absence as a reasonable accommodation following the exhaustion of other job-protected leaves such as FMLA or a company policy of allowing a set amount of medical leave.  Any inflexible leave policy could still be an ADA violation.  Read more on this topic at our blog post regarding an EEOC/Lowe’s $8.6 million consent decree. 

Don’t forget the interactive process.  Although the ADA does not require an employer to engage in the interactive process (check out footnote 1 in the Severson opinion), that is still the best way to ensure that you are fulfilling your ADA obligations to consider a reasonable accommodation upon request by a disabled employee.

Review the EEOC’s resource document on leave as an ADA accommodation.  It is always a good idea to understand the EEOC’s thinking on a tough issue, and they have shared with us in their resource document, Employer-Provided Leave and the Americans with Disabilities Act, issued May 9, 2016

 If you are thinking of denying an ADA request for leave as an accommodation, consult with your employment counsel.  Even in the 7th and 10th Circuits, this is still a tricky issue.  And, the EEOC will likely reject this case in its own proceedings.

 MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, contact us at ping@matrixcos.com

Don’t Forget About Accommodation Obligations during the Application Process – The EEOC is On It!

Posted on: March 24, 2017 2

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

It appears the Equal Employment Opportunity Commission has added a new focus to its enforcement efforts.  In its latest Strategic Enforcement Plan, the EEOC announced that one of its national priorities is for “the Commission to address . . .  issues involving hiring barriers and the ADA.”  Many of the recent settlements by the EEOC highlight just how seriously the EEOC is taking this strategic priority, in particular regarding applicants who request a reasonable accommodation in the pre-employment processes.  Here are a couple of examples:


EEOC Settlement on Behalf of Trucking Applicant for Failure to Accommodate

An applicant for a truck driver position with Covenant Transport sought accommodation, on the basis of his medical condition, to have a blood test instead of providing a urine sample in connection with the company’s pre-employment drug screening.  The EEOC filed suit, alleging that the company initially agreed to this request for accommodation, but ultimately reneged and declined to hire him because he could not submit a urine specimen for testing.

The oddest part of the settlement is that it requires Covenant to develop a written drug testing policy (surprised they did not have one already!) and to provide 90-minute trainings annually on the policy (that’s a long time to discuss one policy!) to its recruiters and head of safety. Covenant also agreed to pay $30,000 to the applicant.

EEOC Press Release 02-24-2017

Cell Phone Repair Facility Settles EEOC Lawsuit on Behalf of Two Applicants Denied Reasonable Accommodation.

As part of its hiring process, S&B in Fort Worth, Texas, required applicants to participate in a “group interview” with prospective supervisors. During this interview, the EEOC contended that the two applicants on whose behalf it brought this lawsuit were observed to be engaging in American Sign Language to communicate with each other. They asked that the supervisors provide them with written questions.  The lawsuit alleged that the supervisors initially did so, then declined to continue and told both applicants the company would not hire them.

This lawsuit cost S&B $110,000 but, as you no doubt can guess by now, the EEOC imposed additional requirements on S&B to settle.  The company is also required to maintain a written log of all disability-related complaints and report semi-annually to the EEOC.  In addition, managers, supervisors, and HR personnel are required to attend a training conducted by a Dallas advocacy center for deaf individuals on the use of sign interpreters in interview and employment settings.

EEOC Press Release 02-23-2017


Pings for Employers:

Remember that the ADA applies to applicants as well as current employees. The prospective employer must provide reasonable accommodation(s) to applicants for known disabilities to assist them through the application process.

Train internal recruiters and interviewing personnel on the requirements of the ADA, so that they recognize and respond appropriately to a request for an accommodation during the application process.

Establish a culture of disability acceptance and recognition of each individual’s capabilities, not their disabilities.

 

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.

EEOC Heightens Focus on Mental Health and the Workplace with New Employee Q&A

Posted on: December 14, 2016 1

mental-health-brain-shutterstockAt Matrix Absence Management, we are seeing an increase in workplace accommodation requests due to mental health impairments, including modified work schedules and work-from-home arrangements.   The U.S. Equal Employment Opportunity Commission has long focused on mental health impairments in the workplace and is noticing increases in mental health issues as well.  On December 12, 2016, the EEOC stepped up its game with a new employee-centered resource document, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.  The document is brief – only 2 pages – and doesn’t break any  new ground, but pulls together in Q&A format some basic ADA and mental health information that can be helpful to employees and employers alike.

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