NO EXTENSION OF FFCRA PAID SICK LEAVE/SCHOOL CLOSURE LEAVE; TAX CREDIT EXTENDED FOR 3 MONTHS

Posted On December 23, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

December 23, 2020

 

FFCRA 300x300As of this writing, Congress has passed a new COVID-19 relief bill, the Consolidated Appropriations Act, 2021, but President Trump responded with a hissy fit and the threat of a veto.  However, the paltry tax credit extension discussed in this post has not been brought up for criticism and so is likely to remain as is despite any other revisions the bill may undergo.  If anything changes, though, you can bet we’ll write about it here.

The bill has surprised many of us as it contains no extension or expansion of the emergency paid sick leave or the expanded paid FMLA for school closures provided in the Families First Coronavirus Response Act.  Those mandated paid leaves expire on December 31, 2020, regardless of whether an employee has used all of his/her entitlement. If you need a refresher on the paid leave provisions of FFCRA you can check out our prior blog post here.

Tax credit extended.  On the other hand, the tax credit provided for wages paid by private employers as required by FFCRA have been extended by 3 months, for FFCRA-like wages paid through March 31, 2021.  What does this mean, you ask?  Great question.  The language of the CAA is poorly constructed.  But here is what appears to be the best interpretation:

  • There is no requirement for employers to provide further emergency paid sick leave or expanded FMLA leave for school closures after December 31, 2020.
  • An employer may choose to do so voluntarily, but further school closure leave will not count against an employee’s basic FMLA 12-week entitlement.
  • If such leave is paid in accordance with the FFCRA requirements applicable up to December 31, 2020, the employer can still claim a tax credit for wages paid through March 31, 2021.
  • However, the employer cannot claim a total tax credit in 2020 and 2021 combined for more wages per individual than the amount of paid leave required by FFCRA in 2020 – that is, 80 hours or part time equivalent of paid sick leave and 10 out of the 12 weeks of expanded FMLA, at the rates of pay specified in FFCRA.

What do employers need to do now?

  • Decide right away whether you are going to allow more FFCRA-like paid leave on a voluntary basis. If you do, apply that decision consistently across the board – either all employees with a qualifying reason can still take FFCRA-like paid leave through March 31 or none can. This includes both continuation of existing leaves and new leaves for a qualifying reason in the first 3 months of 2021.Of course, you can always allow such leave for as long and in such amounts as you choose through a company policy leave program.

    Be aware that if you do not continue FFCRA-like leaves into 2021, some employees may already be on continuous or intermittent leaves that would otherwise extend into 2021 and these will end on December 31, 2020. 

  • If you decide you are going to allow more FFCRA-like leave and care about the tax credit, be sure to get the documentation the IRS will require to support the credits. We previously summarized the IRS guidance for claiming the tax credit here.
  • Regardless of your decision on continued FFCRA-like leaves in 2021, remember that there are still many state and municipal laws, governors’ proclamations, and the like that provide at least temporary COVID-related leaves and job protections. And don’t forget the Americans with Disabilities Act as it may apply in this COVID world.

If Matrix is managing your FFCRA expanded FMLA leave for school closures, get in touch with your account manager right away to let us know your decision regarding continuation of these leaves into 2021.  We cannot charge any such leave against an employee’s FMLA entitlement after December 31, 2020, so all such pending leaves will be closed as of that date.  But we do have options for you, including switching the time requested to a personal leave of absence or instituting a company policy leave for school closures.  Congress has left us with very little time to deal with this situation, but we will do our best to stay up to date with our clients’ directions.

Matrix can help.  At Matrix we have developed a variety of pandemic-related leaves for employers that don’t have existing policies to cover all the COVID-related situations, such as leave due to quarantine or school closures.  If you are interested in learning more about these options, contact your Matrix or Reliance Standard account manager, or send a message to ping@matrixcos.com.

COLORADO PAID FAMILY AND MEDICAL LEAVE

Posted On December 14, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

December 14, 2020

 

For several years the Colorado legislature tried without success to pass paid family and medical leave legislation.  In 2020 the voters took matters into their own hands and voted in favor of a ballot initiative (Proposition 118) to create a PFML program.  PFML geeks may recall that in Massachusetts in 2018 PFML supporters took the same route but in what came to be called The Grand Bargain, the legislature passed a PFML bill to keep voter initiatives off the ballot.  This did not occur in Colorado, perhaps because of its short legislative session that ends in mid-May or perhaps because of an inability to get consensus even in the face of a ballot measure.  In any event, Colorado PFML is now law and will be a reality soon. 

Some interesting features.  At Matrix we administer private plans for many state paid family and medical leave programs, and we are working on implementation of others so we’ve seen all kinds of PFML programs.  Here are some things we find interesting or encouraging about the Colorado program:

  • There is no waiting period – benefits are payable from the employee’s first day of covered leave.
  • There is only one 12-week bucket of leave entitlement for all leave reasons, rather than different buckets for things like the employee’s own serious health condition vs. family leave for bonding or caring for a family member (check out Massachusetts).
  • The law follows a new trend by providing an additional 4 weeks of leave available to an employee experiencing complications from pregnancy or childbirth.
  • The definition of “family member” also follows a recent trend of including someone who is not related by blood or marriage but is “like a family member” to the employee.
  • The statute is blessedly specific on concurrency of an employee’s use of federal FMLA, disability benefits, and paid time off.This prevents stacking of FMLA leave and leave during use of disability benefits (that is, sequential rather than concurrent use).On the other hand, the law preserves the employee’s right to save employer-provided accrued time off for other purposes or choose to use it to top up PFML benefits to the employee’s average weekly wage.

Here are the details we know now, based on the new statute.

Topic

Description

Colorado Revised Statutes

Administration

  • State plan:Colorado Department of Labor
    • New Division of Family and Medical Leave Insuranceto be created, led by a Director
  • Private plans permitted
    • Must meet or exceed benefits provided under statute and not impose greater employee obligations
    • Insured by an insurer approved by the state
    • Self-funded – requires a bond

§8-13.3-408

§8-13.3-421

Contributions / Premiums

  • Start:January 1, 2023
  • Amount:
    • 2023-2024:0.9% of employee’s wages
    • 2025 and after:rate may be adjusted according to a described formula but not to exceed 1.2% of employee’s wages
    • Wages subject to contribution capped at federal SSA limit
    • Employer can require employees to contribute up to ½ of total premium
    • Employers with fewer than 10 employees do not have to contribute the employer’s share of premiums to the state; must still contribute the employees’ share

§8-13.3-416(1)

§8-13.3-407

Benefits

  • Start:January 1, 2024
  • Amount:
    • 90% of the employee’s average weekly wage (AWW) that is equal to or less than 50% of the state AWW
    • PLUS
    • 50% of the employee’s AWW that is greater than 50% of the state AWW
  • Maximum weekly benefit:90% of state AWW
  • Exception:for benefits beginning before 1/1/2025, the maximum benefit will be $1,100 per week

§8-13.3-416(1)

§8-13.3-406

Employee Eligibility

“Covered Individual” means any person who:

  • Earned at least $2500 in wages subject to premiums during the base period OR
  • Elects coverage for a minimum of 3 years (e.g., self-employed, sole proprietor, independent contractor, employees of local governments that have opted out of coverage, etc.)

NOTE: We use the term “employee” throughout this article

§8-13.3-403(3) §8-13.3-414

“Base Period”

  • Base period: first 4 of the last 5 completed calendar quarters immediately preceding the first day of the individual's benefit year
  • Alternative base period:last 4 completed calendar quarters immediately preceding the benefit year

NOTE: Benefit year is not defined; probably should refer to Application Year – see below

§8-70-103(1.5) and (2)

Covered Employers

  • Private employers:
    • With 1 or more employees during 20 weeks in the current or prior calendar year; or
    • Who paid wages of $1,500 or more during any quarter in the prior calendar year
  • The state and political subdivisions
  • The federal government is excluded

§8-13.3-403(8)

Local Government Opt-out

  • Local governments may opt out of CO PFML coverage
  • “Local government” means any county, city and county, city, or town, school district, special district, authority, or other political subdivision of the state

§8-13.3-422

§29-1-204.5(3)(b)

Total Leave Entitlement

  • 12 weeks in an Application Year
  • Additional 4 weeks for a serious health condition related to pregnancy complications or childbirth complications

§8-13.3-405(1)

Waiting Period

None

 

Leave Reasons

  • Employee’s serious health condition
  • Caring for a family member with a serious health condition
  • Bonding with a new child during the first year after birth, adoption, or placement
  • Qualifying military exigency
  • Safe leave (leaves related to the employee or a family member being a victim of domestic violence, stalking or sexual assault or abuse)

§8-13.3-404

§8-13.3-403(16)

§8-13.3-404(18)

Covered Relationships

  • Child of any age*
  • Parent*
  • Spouse
  • Domestic partner
  • Grandparent*
  • Grandchild*
  • Sibling*
  • Like a family member:Any individual with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship

*NOTE: These relationships include biological, foster, adoptive, step, and in loco parentis relationships and the same relationships to the employee’s spouse or domestic partner, if applicable

§8-13.3-403(11)

 

Leave Year Calculation Methods

Application Year: 12-month period beginning on the first day of the calendar week in which an employee files an application for PFML benefits

§8-13.3-403(1)

Leave Increments

  • 1hour OR
  • Smaller increments if consistent with employer’s increments for other employee leave
  • Benefits not payable until employee accumulates at least 8 hours of PFML usage

§8-13.3-405(3)

Employee Documentation

CO PFML Division will develop claims procedures and forms, including

  • Certification from a health care provider for proof of a serious health condition and
  • Documentation of need for safe leave

§8-13.3-416(2)

Employee Notice to Employer

  • 30 days if leave is foreseeable
  • Such notice as is practicable if leave is not foreseeable or if 30 days is not possible

§8-13.3-405(5)

Employee Notices to Employees

  • CO PFML Division will develop notice materials with details of the CO PFML program for employer use
  • Employers will be required to provide written notice to employees:
    • By posting in the workplace
    • Upon hire
    • Upon learning an employee is experiencing an event that would be covered by CO PFML

§8-13.3-411

Coordination with Other Leaves and Benefits

  • FMLA:CO PFML runs concurrently with federal FMLA, if applicable
  • STD:Employer may require employee to use STD or similar benefits concurrently with CO PFML
  • Accrued paid time off (PTO) (vacation, sick leave, etc.):
    • Employer cannot require employee to use PTO prior to or while receiving CO PFML benefits
    • Employer and employee may agree that an employee can use PTO while receiving CO PFML benefits, up to employee’s AWW

§8-13.3-410

Job & Benefits Protection

  • If employee has been employed with current employer for at least 180 days prior to commencement of PFML leave, restoration after leave to same or equivalent position and terms and conditions of employment
  • Continuation of health care benefits during leave

§8-13.3-409

Employer Reimbursement

Employer can receive reimbursement from state program or private plan insurance carrier for advance payments made by employer equal to or greater than CO PFML benefits

§8-13.3-415

 

Matrix can help!  State by state, the number of paid family and medical leave laws keeps growing.  You don’t have to go it alone!  At Matrix we administer private paid family and/or medical leave and benefits plans in many states, including California, New Jersey, New York, Washington, and the upcoming Massachusetts, Connecticut, and Oregon.  If you would like to learn more about paid family and medical leaves and the benefits of having a private or voluntary plan, contact your Reliance Standard or Matrix account manager with questions or send a message to ping@matrixcos.com, and keep watching this space for more information.

TIME TO GET A GRIP ON CONNECTICUT PAID FAMILY AND MEDICAL LEAVE!

Posted On November 30, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

November 30, 2020

 

Massachusetts PFML isn’t the only law bringing new consequences with the new year. Some parts of Connecticut PFML are also going into effect on January 1, 2021, and if you have even one Connecticut employee, you have things to do. We’ll provide you with a starter list here, but please register to join our CT PFML webinar on Thursday, December 3 at 2:00 Eastern.

If you don’t have Connecticut employees, it still pays to tune in to learn what various states are doing – it may be on your company’s horizon soon!

Connecticut Family and Medical Leave is coming faster than you think. Join us Thursday December 3rd @ 2pm EST for an overview of what we know and what comes next. Register here!

For Connecticut employers, here’s what you need to do now:

  1. Register your business with the Connecticut Paid Family and Medical Leave Insurance Authority (the Authority) The Authority is charged with developing and administering the CT PFML program. All employers with one or more Connecticut employee must register by December 31, 2020, to ensure receipt of important information from the Authority as issued.

    Determine who in your organization will be responsible for completing the registration process and setting up your employer account on the Authority’s website. That individual will need to supply the following information during registration:
    • Federal Employer Identification Number (FEIN)
    • Number of Connecticut employees
    • Total annual payroll for Connecticut employees
    • Payroll frequency
    • Intention to apply for an exemption (private plan)
    • How your business will remit payments on behalf of employees
    Note: Prior to registering with the Authority, be sure your business has established a state identity at https://stg.login.ct.gov/ctidentity/registration.
  2. Consider whether you want a private plan. Although you can file for approval of a CT PFML private plan at any time, there is a financial incentive to act soon. Employers with plans provisionally approved by March 31, 2021, will not have to pay the employee PFML contribution of 0.5% to the Authority for Q1 2021 but can either waive that cost for employees or use the employee contributions to fund the private plan. The process for approval of a private plan requires an affirmative vote by the majority of your Connecticut employees and other steps that will take time, so it’s best to get started right away. NOTE: The provisional private plan approval date to avoid paying employee contributions to the Authority for Q1 2021 was originally March 1, 2021, but has been changed in Authority communications to March 31, 2021.
  3. Get ready to withhold employee payroll deductions. Some employers elect to cover the costs of a state PFML program themselves. However, in Connecticut, if the employer is using the state plan the employer cannot cover the employees' contributions and must withhold the 0.5% contribution from employee paychecks. Employers with private plans may elect to cover the employee costs but you may not know if you have a provisionally approved private plan until after January 1, 2021. So, consider planning to withhold from employee paychecks starting January 1 and either refund the employee contributions if your plan is approved, or use those contributions to date toward plan costs and cease withholdings going forward. If you know your company is going to have the employees pay their statutory share, get ready to start withholding employee payroll contributions as of January 1, 2021.

MATRIX CAN HELP!

We are experts on all state PFML programs. If you need help in any state contact your Matrix or Reliance Standard account manager. And if you can’t make it to the CT PFML webinar on December 3, watch this space for timely updates and contact your Matrix or Reliance Standard account manager or ping us at ping@matrixcos.com to receive the webinar recording when ready.

CONNECTICUT JOINS THE PAID FAMILY AND MEDICAL LEAVE CLUB!

Posted On November 23, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 28, 2019

 

 

On June 25 Governor Lamont made Connecticut the 9th U.S. jurisdiction to adopt a paid family and/or medical leave program.  As a reminder, here are the jurisdictions with paid leave programs and their status:

  • California –in force
  • Connecticut–JUST PASSED! Employee contributions start January 1, 2021;
    leave and benefits start January 1, 2022
  • District of Columbia – employer contributions start July 1, 2019; leave and benefits
    start July 1, 2020
  • Hawaii – disability benefits (medical leave) only; in force (and studying the addition of a
    paid family leave component)
  • Massachusetts – employer/employee contributions start October 1, 2019; leave and benefits
    start January 1, 2021
  • New Jersey – in force; substantially amended in February 2019 to enrich benefits and broaden
    coverage.
  • New York – in force
  • Rhode Island – in force
  • Washington – employer/employee contributions started January 1, 2019; benefits start January 1, 2020

 

Connecticut Paid Family and Medical Leave – the Details

The following summary is based on our early review of the Connecticut PFML statute.  There are many more details in the law; we will continue to analyze the nitty gritty and watch for developments in the program.

ISSUE PROVISION CT S 1
Administration The statue creates an “authority” comprised of 15
appointed board members to oversee creation of
the PFML program
§2
Covered Employee Has earned $2325 during the employee’s highest
earning quarter within the base period (first 4 of 5
most recent quarters) AND:

 

  • Is presently employed OR
  • Was employed within previous 12 weeks OR
  • Is self-employed or a sole proprietor and has
    enrolled in the program

 

§1(4)
Covered Employers All private employers, regardless of size

 

Does not cover:

  • The federal government
  • The state, municipalities, or local or regional
    boards of education, except to the extent
    their employees are “covered public
    employees”
  • Nonpublic elementary or secondary schools

 

§1(8)
Total Leave Entitlement
  • 12 weeks per 12-month period
  • Additional 2 weeks for pregnancy-related
    serious health condition

 

§18(a)(1)

 

§18(i)

Leave Reasons
  • Employee’s own serious health condition
  • Family member serious health condition
  • Care for an ill/injured servicemember
  • Bonding (birth, adoption, foster care)
  • Organ or bone marrow donation
  • Military exigencies
  • Matters related to employee being a victim of family violence (limited to 12 days of leave out of the 12 weeks)

 

 

 

 

 

§3(c)(1)

Covered Family Relationships
  • Spouse
  • Sibling (related by blood, marriage,
    adoption, or foster care placement)
  • Son or daughter (no age limit) (biological,
    adopted, foster child, stepchild, legal ward, or
    a child of a person standing in loco parentis)
  • Grandparent (related by blood, marriage,
    adoption, or foster care placement)
  • Grandchild (related by blood, marriage,
    adoption, or foster care placement)
  • Parent (biological, foster, adoptive, step, in-
    law, legal guardian of the employee or the
    employee’s spouse; in loco parentis)
  • An individual related to the employee by
    blood or affinity whose close association the employee
    shows to be the equivalent of
    those family relationships

 

§§17(6), (7), (8), (10), (14), (15), (16)
Leave Year Calculation Methods
  • Calendar year
  • Any fixed 12-month period
  • Measured forward
  • Rolling back

 

§18(i)
Leave Increments Continuous, reduced schedule, intermittent §3(e)

 

§18(c)

Employee Documentation Certification from Health Care Provider for
employee’s or family member’s serious health
condition or for care of servicemember
§19 (a)-(b)
Claims Procedures
  • 2nd& 3rd opinion process allowed if employer
    has reason to doubt the validity of the
    employee’s medical certification
  • Recertification allowed on a reasonable basis
    but generally not more often than 30 days
§19(c)-(e)
Employer Notice to Employees General notice of employee’s CT PFML rights upon
hire, and then annually
§13
Employee Notice to Employer 30 days if need for leave is foreseeable

 

As soon as practicable if not foreseeable

§18(f)
Employee contributions Start 01-01-2021

 

Maximum ½ % of employee’s wages up to
maximum compensation subject to SS contribution

No employer contribution

Weekly Benefits Start 01-01-2022

 

95% of employee’s base weekly earnings up to:

  • 40 x current state minimum wage plus
  • 60% of employee’s base weekly earnings
    above 40 times current state minimum wage
  • Maximum of 60 x current state minimum
    wage

Subject to reduction if needed to ensure solvency
of the PFML program

Predicted to be ~$840/week when benefits start;
up to ~$900 in 2023 due t scheduled increases in
state minimum wage

§3(e)(2)

 

Private Plan Option

Section 11 of the Connecticut PFML law allows employers to adopt an insured or self-funded private plan.  The requirements are very similar to those in Massachusetts.  To be approved, a private plan must:

(A) Confer all of the same rights, protections and benefits provided to employees under the PFML statute, including:

(i) At least the same number of weeks of benefits;

(ii) At least the same level of wage replacement for each of those weeks; and

(iii) Leave and benefits for the same reasons as specified in the statute;

(B) Impose no additional conditions or restriction on the use of family or medical leave beyond those explicitly authorized by the statute or by regulations to be issued

(C) Cost employees no more than the premium charged to employees under the state program;

(D) Provide coverage for all employees throughout their period of employment;

(E) Provide for the inclusion of future employees;

(F) Not result in a substantial selection of risks adverse to the Family and Medical Leave Insurance Trust or otherwise significantly endanger the solvency of the fund;

(G) Have been approved by a majority vote of the employer’s employees; and

(H) Meet any additional requirements established by the authority.

 

What’s Interesting?

Health Care Provider Obligations

In a new but welcome twist, the statute imposes some obligations on health care providers:

  • The health care provider has a duty to provide a complete and timely medical certification
    upon patient’s request
  • The health care provider cannot charge a fee for completing the certification
  • If CT PFML compensation is paid as a result of willful misrepresentation by a health care provider,
    the provider may be liable for a penalty of 300% of the benefits paid as a result. Perhaps this will
    deter providers who simply approve whatever leave frequency and duration the patient says is
    needed without exercising medical judgment.

Like a family member . . .” 

You will have noted (with your hand to your forehead) that leave is available to care for “an individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships.” The law tasks the Connecticut Labor Commissioner to adopt regulations that, among other things, provide guidelines regarding factors to be considered when determining whether an individual’s close association with an employee is the equivalent of a family member relationship otherwise covered by the statute.

Existing Connecticut family and medical leave law

Current Connecticut law provides job-protected but unpaid leave of absence (up to 16 weeks in a 24-month period) for all of the reasons listed above, with leave as a victim of family violence carved out separately.  The vast majority of the existing law is repealed and reenacted or amended by the new PFML law effective January 1, 2022 – the date the paid benefits will start.  The expanded definitions of family members for whom an employee can take paid family leave will provide broader coverage for that leave reason.  Existing law allows leave to care for a parent, child (under 18 or disabled), and spouse.  As you can see above, several relationships have been added, including sibling, grandchild, grandparent, and “like a family member.”

The text of the final bill as passed can be found HERE

 

MATRIX CAN HELP! It’s early days yet for Connecticut PFML.  As usual, we will be watching for developments and reporting on this blog as new information is available.  IN the meantime, you can find our prior blog posts about other state PFML laws by typing the state name in the search box – a wealth of articles about the pending Massachusetts and Washington laws and the 2019 New Jersey amendments.

 

AND . . . If your company is interested in the private plan option for Washington or Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

 

 

“TIE-BREAKER” MEDICAL EXAM FOR EMPLOYEE IN A SAFETY SENSITIVE POSITION DOES NOT VIOLATE THE ADA

Posted On November 09, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

November 09, 2020

 

A new case provides some great information for employers with employees in “safety sensitive” positions and their ability to require a medical exam. That case is Beal v. Muncie Sanitary District, available here.

The Facts


Ronald Beal worked in a Maintenance role for the Muncie Sanitary District.  His job required him to drive a District-provided vehicle over public roads to monitor equipment and operate heavy machinery.  One day, while on duty, Beal backed a District vehicle into a flower planter at a local shop. The accident did not cause any injuries or property damage, but consistent with District policy, Beal was required by his supervisor to submit to a drug test.  The test revealed the presence of a number of concerning substances, including opiates and oxycodone.  The testing lab, in providing the results to the District, warned of “possible safety issues and a quite serious liability issue in the event of an accident.” Upon receipt of the results, the District removed all “safety-sensitive” job duties from Beal’s role and reprimanded him for not complying with its policy requiring him to supply the District with a written form identifying any potentially dangerous prescriptions he was taking.

Beal’s doctor confirmed the medications he prescribed and was of the opinion that those prescriptions did not interfere with his ability to perform safety sensitive work.  The District asked its Medical Review Officer (“MRO”) for her opinion, which was, not surprisingly that unless Beal’s doctor changed his dosage and ensured these medications were not taken within eight hours of his scheduled shift, she could not clear him to return to work.   Beal’s doctor rejected the MRO’s suggestions about changing Mr. Beal’s dosage.  The District did not give up.  They then asked Beal’s doctor to clarify which duties he could perform under his current dosage, and astonishingly the doctor said he could safely perform all of them.  As a result, the District had an impasse and proposed to Beal that he agree to see a third party health care provider and sign a release so that individual could review his medical records.  When he refused to do so, he was suspended without pay and given an ultimatum: participate in the exam and sign the medical release, or lose your job.  Beal declined to agree and was fired for insubordination.  He sued the District, claiming that its requirement that he participate in a medical exam with a third party provider violated the ADA.

How the District Won

The ADA has specific limits on when an employer can require an employee to submit to a medical exam; namely, the exam must be job-related and consistent with business necessity.  One way for employers to meet these criteria is by showing that the employer has a reasonable belief, based on objective evidence, that the employee’s medical condition would impair his ability to perform the essential functions of his job.  The court agreed that without the safety sensitive duties the District temporarily removed from Beal’s job, his position was “diluted beyond recognition.” There was ample support that the drugs Beal’s physician prescribed could impair his ability to perform his job functions, so, when he was asked to submit to the medical exam, the District was found to have complied with the ADA’s requirements for medical exams. 

Though the District didn’t submit this argument, the court further pointed out that an employer can ask an employee to submit to a medical exam when there is objective evidence that his or her condition poses a threat to health and safety.  In this instance, the evidence showed that Beal’s use of prescription opiates and other medications posed a threat to himself, co-workers, and the general public.  The court found that, under the circumstances, the District was not only warranted in requiring the third party exam, but was actually obligated to require Beal to submit to it.

Pings for Employers:

The District did a lot of things right, including:

  • Having a detailed job description from which the court could easily conclude that Beal’s position involved safety sensitive duties;
  • Having a policy that required the employee to come forward if he takes any medications that could impair or otherwise impact job performance.This is something a private employer, however, should think very carefully about before requiring, as it will be the rare position indeed that would warrant such scrutiny.
  • Having a policy that required drug testing in the event of a work-related accident and methods to objectively administer that testing with a third party provider.
  • Using an internal resource – in this instance a Medical Review Officer – who was familiar with the job duties and the medications at issue.The MRO helped a lot. She helped devise ways to work with Beal’s doctor to see if there were ways to accommodate his use of the prescribed medications and still perform his job.
  • The third party medical exam really was a last resort. This employer worked hard to be thoughtful and find ways to work with Beal and his provider. The court gave the District lots of credit for that and ultimately concluded that Beal’s recalcitrance demonstrated a failure to engage in the interactive process.
MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like obtaining appropriate medical information to assess an employee’s ADA situation.  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 Specialists is at the ready with practical advice and expert guidance.  To learn more, contact your Matrix or Reliance Standard account manager, or send an email to ping@matrixcos.com.