Matrix Compliance Experts Take the Stage!

Posted on: December 11, 2018 0

Matrix’s Gail Cohen Co-Presents with EEOC Counsel at DMEC Webinar

By Gail Cohen, Director, Employment Law/Compliance

I had the privilege of presenting last week with Chris Kuczynski, Assistant Legal Counsel of the EEOC in Washington D.C. on “EEOC Insights into What Employers Still Get Wrong about the ADA.” The presentation was a webinar through the Disability Management Employer Coalition (“DMEC”).

In putting our materials together, Chris and I identified four ADA issues
that seem to be particularly challenging to employers. For those who
were unable to attend, here are the four topics we covered and key
best practice pointers we discussed:

  • Telework as a Reasonable Accommodation: Courts have often
    sided with employers who deny telework as an accommodation on
    the basis that the job requires teamwork and/or face-to-face
    collaboration with clients and/or colleagues. But beware! The
    EEOC will challenge employers who cannot demonstrate that
    this is truly an essential job function.  As a result, it is critical
    for employers to conduct a job analysis and confirm that the
    job description accurately captures the essential job functions as performed by employees. And, this job description
    should accompany any ADA-compliant medical inquiry the employer makes to the employee’s healthcare provider
    to understand whether telecommuting will assist the employee in performing his or her job functions, why it is
    necessitated by the employee’s condition, and whether the provider can suggest alternative accommodations the
    employer can offer.
  • Qualification Standards v. Essential Job Functions: Chris explained a distinction employers often get wrong –
    confusing qualification standards (requirements intended to predict whether someone can perform the job,
    such as having a college degree or a commercial driver’s license) with essential functions (what the person actually
    does on the job – lifting packages, selling things). The EEOC will challenge employers if a particular
    qualification standard has the effect of screening out prospective employees in a discriminatory fashion.
    Employers must be able to demonstrate that a particular qualification is both job-related and consistent with
    business necessity. This is sometimes unsuccessful, as borne out by a case the EEOC brought on
    behalf of a postal worker whose condition limited her to lifting 10 pounds and who challenged a 70-pound
    lifting standard that the employer was unable to demonstrate was job-related and consistent with business
    necessity. Indeed, the EEOC was able to demonstrate by talking to employees who performed the job that
    they never lifted more than 35 pounds.
  • Leave as Accommodation: The EEOC and courts agree that, in general, leave of absence is a reasonable
    accommodation. But employers: Don’t just grant leave because the employee asks for it. The EEOC agrees that
    it is entirely appropriate for an employer to conduct ADA-compliant medical inquiries when an employee
    requests leave as an ADA accommodation. Such inquiries will assist the employer to ascertain why the
    employee’s condition requires leave (continuous or intermittent), how much leave is necessitated,
    whether such leave will enable the employee to return to work and perform the essential functions of his
    or her job, with or without accommodation(s), and to explore alternatives to leave that may be effective
    for the employee to report to work.
  • Reassignment: Following an ADA leave of absence an employer must try to reinstate the employee. But, if the
    employee cannot be accommodated in his or her current role, the accommodation of last resort must be
    considered – reassignment. To the EEOC, this means the employer and employee working together to
    identify positions open now or in the foreseeable future for which the employee is qualified and which are
    substantially equivalent to his or her current role. The employer cannot simply sit back and let the employee
    search and apply for open positions.
  • BONUS OBSERVATION: During the Q & A following our presentation, an employer asked what can be done
    if an employee refuses to participate in the interactive process. Chris explained that an employer who has
    told the employee about the ADA process upfront, including the need for both parties to engage in good
    faith in an interactive discussion, and who has documented its good faith efforts to do so will likely
    prevail in an EEOC charge or other proceeding alleging failure to accommodate. The burden of proof
    in such matters is on the party who is responsible for a breakdown in the interactive process and,
    if an employee is that party, the employer is excused from any obligation to provide accommodation(s)
    to that employee.

DMEC members can listen to a recording of the presentation and obtain a copy of our presentation materials through these links:

  • Webinar recording: (Name and email are required to be directed into the recording)

 

Meanwhile, Marti is presenting too!

By Marti Cardi, Vice President, Product Compliance

While Gail was putting the finishing touches on her DMEC presentation with the EEOC, I had the opportunity to present a session at the National Workers’ Compensation and Disability Conference on December 5. The topic was “Return to Work without Violating FMLA, ADA and Workers’ Compensation Laws.” I don’t claim to be a workers’ comp expert so I partnered with Rich Montarbo, a great workers’ comp attorney from that challenging state of California. We discussed the many employer options as alternatives to leave of absence, or to shorten a leave and get employees back to work safely and legally. Our sister company Safety National posted a blog about the presentation so rather than rewrite the material, I will link you to that story here.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation requests and making the medical inquiries to which you are entitled to understand what an employee needs and how you can help. You always retain the final decision whether and how to accommodate, but Matrix manages the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

Leave as ADA Accommodation:  EEOC Releases New Resource Document – But Nothing’s New

Posted on: May 10, 2016 1

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

Yesterday, the EEOC released a Resource Document titled Employer-Provided Leave and the Americans with Disabilities Act. We in the employer community have been awaiting EEOC guidance on this hot topic since June 2011, when the Commission held a public hearing with testimony from representatives of the EEOC, and employer and employee communities, to discuss leave of absence as an ADA accommodation.  An EEOC Guidance on the topic was expected in April 2012 but was withheld from release at the last minute, probably because of a lack of consensus on key points among the EEOC Commissioners.

By the EEOC’s own admission, the Resource does not break any new ground.  Rather, it pulls together in one place existing EEOC interpretations and Enforcement Guidance. Regardless of its title, you can be sure that if you have an inflexible leave policy that provides for a set period of leave which results in termination of employment or other adverse action for employees who exhaust that leave, the EEOC is likely to conclude this to be a violation of the ADA.  In today’s blog post, we will highlight the major points in the Resource Document; the entire document is here.

The question of reasonableness is barely acknowledged. In last week’s blog post, we discussed our informal meeting with EEOC Commissioners Feldblum and Lipnic, in which they expressed their opinion that leaves of nearly any duration must be provided by employers unless they can demonstrate an undue hardship. True to this sentiment, the Resource Document is strangely dismissive of the threshold questions all of us in the employer community deal with, namely: is the accommodation reasonable and effective to enable the employee to return to work and perform the essential functions of his position?  Rather, the question of reasonableness is relegated to a mere footnote (#5) in which the EEOC states that the 20 examples provided in the document each assume that the requested leave is reasonable.

Key Topics Addressed. Contact with employee’s provider.The Resource Document highlights an important tool employers have as they engage in the interactive process and assess employee accommodation requests:  the ability to engage with the employee’s provider (with a proper authorization from the employee).  Specifically, the EEOC reminds employers that they can seek additional information to determine:

  • The specific reasons the employee needs leave;
  • Whether the leave will be continuous or intermittent; and
  • When the need for leave will end.

Maximum Leave and 100% healed policies.  The EEOC has long targeted employers with policies that cap the amount of leave an employee can take or that require an employee to be 100% healed before returning to work. The Resource Document confirms the agency’s position that these policies violate the ADA because they do not allow for individualized assessment of the employee and her position.  Employers beware – this is “low hanging fruit” in the EEOC’s opinion and its lawsuits have resulted in multi-million dollar consent decrees against employers.

Reassignment as an accommodation.  In some cases the result of the interactive process is a conclusion that the employee is not “qualified” for his position (i.e., his disability prevents him from performing one or more essential functions of his job and there is no effective, reasonable accommodation to enable him to do so).  The Resource Document reminds employers that reassignment is the accommodation of last resort.  The EEOC restates its position that if the employee is qualified, he or she must be reassigned in a vacant position.  Two reassignment issues are not well understood by employers:  (1) that the employer has the obligation to search for an appropriate vacant position, and (2) the employee does not have to compete or be the best qualified for the vacant position – if he is qualified and can perform the essential function with or without an accommodation, the employee gets the position.

Undue hardship.  The Resource Document concludes with a discussion of the factors employers can consider in its undue hardship analysis.  However, the only leave of absence that the EEOC concedes would be an undue hardship is “indefinite leave” – meaning that “an employee cannot say whether or when she will be able to return to work at all.”  Since the vast majority of requests for a leave of absence are far from this straightforward instance, our recommendation is that employers consider undue hardship only after a thorough, thoughtful analysis of whether a leave of absence is a reasonable and effective accommodation.

PINGPings for Employers. First, review your leave policies! Ensure you don’t have any inflexible leave policies that make you fodder for an EEOC investigation and lawsuit.  Scrub your policies for leave caps or requirements for the employee to be 100% healed or at maximum medical improvement.

If you have a solid business reason for such a policy, ensure that it includes notice to employees that if an employee needs an ADA accommodation (additional leave or a workplace accommodation to enable return to work) the employee should contact the employer’s human resources department.

  • Get the employee’s health care provider involved. Even the EEOC concedes that employers have the right to obtain sufficient medical information to understand the employee’s need for leave as an accommodation. Without the employee’s consent, the employer can’t directly approach that provider, but we at Matrix recommend preparing a communication (for the employee to bring to the doctor) with concise questions. Depending on the specific circumstances, that communication can include: (1) clarification or elaboration on anything unclear in the documentation the employee obtained from the doctor to support his request for leave; (2) specific questions on the amount of leave needed; (3) the reason that leave will be effective to enable the employee to return to work; and (4) whether there are any accommodations, other than leave, that the doctor believes would be effective.
  • Treat each extension request as a new request. After approval of an initial request for a leave of absence as an accommodation, treat any request for an extension as a new request and a new opportunity to engage with the employee’s provider. At Matrix we ask questions such as what has changed with respect to the employee’s condition, why this extension will enable the employee’s return, and whether there are any accommodations other than leave that might be effective.
  • Near the end of an approved leave, ask the employee if he or she is returning, or needs an accommodation. In any letters you, or your TPA, use to notify an employee of the expiration of an approved leave, there should be language asking the employee to communicate whether or not if she will be able to return to work at the end of leave, or if she needs an (additional) accommodation and the method and timing to make that request.
  • Document that you have done things right! The Resource Document is clear that leave as an accommodation is an important, strategic initiative of the EEOC. Employers must engage in an interactive process, use all the tools the ADA provides, conduct an individualized analysis, and document, document, document.

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 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 Accommodations – Reassignment Redux 

Posted on: January 25, 2016 1

By Marti Cardi, Matrix VP-Product Compliance

Not long ago we addressed job reassignment as the ADA “accommodation of last resort.”  In a nutshell, the ADA requires an employer to consider reassignment of a disabled employee to a vacant position 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; and (2) the disabled employee is qualified for the vacant position.   You can read full article here.

Recently, the ADA accommodation experts at the Job Accommodation Network (JAN) provided their take on this issue.  JAN Principal Consultant Linda Carter Batiste shares issues she commonly hears from employers in trying to deal with reassignment, and provides answer to questions about promotions, seniority, and accommodating by inviting employees to compete for an open position. (Spoiler: don’t.)

Check out the blog post  As the Old Saying Goes…, and if you aren’t familiar with JAN, you can learn all about this organization at http://askjan.org/.  There you will find advice for employers and employees on the accommodation process, accommodation options, ADA forms, and more.