EMPLOYERS: UPDATE YOUR UNDERSTANDING OF THE INTERACTIVE PROCESS

Posted On August 16, 2022  

by Lana L. Rupprecht, Esq. - Director, Product Compliance

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

August 16, 2022

 

When an employee provides notice to his employer of a disability and expresses a desire for a reasonable accommodation, the employee and the employer must engage in good-faith communications—what we have termed the interactive process.

Once an employee triggers the interactive process, both the employee and the employer have an obligation to proceed in a reasonably interactive manner to determine the employee’s limitations and consider whether the accommodations he requests—or perhaps others that might surface during the interactive process—would enable the employee to return to work.

When a federal appellate court begins its opinion like this, it is probably not good news for the employer.

And in this instance, it was not. Kelly Dansie, a former on-call train conductor undergoing treatment for AIDS and testicular cancer, sued Union Pacific (UP) under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) after UP terminated his employment.

The trial court granted summary judgment for UP on the ADA claim (and also entered a judgment in favor of UP on a jury verdict on the FMLA claim). On appeal, the 10th Circuit found that there was sufficient evidence for a jury to find that UP violated the ADA. Click here to read the opinion!

The Facts

UP scheduled its conductors using an on-call system. Employees were expected to be available to work full time. UP’s policy provided for 2 written notices of attendance violations; thereafter, additional violations led to dismissal from employment.

Dansie temporarily lost his eligibility for FMLA due to time off during an earlier termination/unpaid suspension which was administratively overturned. As a result, he used company-designated personal days to cover work missed due to his illness and/or medical appointments.

After UP charged Dansie with violating its attendance policy, Dansie requested an ADA accommodation for excused absences until he qualified for the FMLA again.

Dansie and his physician, while completing the ADA forms, asked for but did not receive clarification on UP’s definition of “full-time employment”. Dansie requested about 5 days off each month, but his physician stated this was subject to change due to the nature of the illness.

UP denied Dansie’s ADA request because of the amount and unpredictability of the time off needed. When his absences continued, UP ultimately terminated Dansie for violating its attendance policy.

On the ADA claim, the lower court found for UP as a matter of law stating that Dansie’s accommodation was not reasonable, and UP had no duty to engage in the interactive process. Dansie appealed.

The Opinion

Interactive Process

The court first held that a reasonable jury could find UP failed to engage in the interactive process when determining whether a reasonable accommodation existed for Dansie. In doing so, it relied upon the following facts:

  • UP did not clarify its definition of “full time” employment despite Dansie’s requests to do so; in fact, email correspondence showed Dansie asking for guidance from UP and struggling to locate a corresponding written policy.
  • When Dansie told his supervisor he thought his accommodation was approved by UP, the supervisor just shrugged and walked away.
  • When Dansie tried to discuss medical issues with his supervisor via email, his supervisor responded that he only wanted to know what days Dansie was unable to work and not the details of his medical treatments.

The court recognized that neither the employer nor the employee can cut off the interactive process prematurely.

Reasonable Accommodation

On the issue as to whether a reasonable accommodation existed, the court found that a jury could conclude that Dansie’s request to take off 5 days a month until he qualified for FMLA was reasonable, and that permitting Dansie to use his accrued paid leave to cover these absences was also reasonable. Further, the court stated that UP should have considered reassignment to an available vacant position.

Pings for employers!

  • Don’t end the interactive process early. Make sure to explore other accommodations that may work under the circumstances. The interactive process is the best way to explore accommodation possibilities and come to a safe resolution – either a reasonable and effective accommodation or a conclusion that there is no option to help the employee perform the essential functions of the current position. Although this case is from the 10th Circuit (covering Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma), it provides an important lesson for employers in all states.
    And as the court points out, if an employer fails to engage in the interactive process, it will be difficult to resolve the case early and avoid a jury trial – a place you don’t want to be!
  • Communicate with your employees throughout the interactive process! That means answer their questions promptly and thoroughly, even if you think it is something the employee should know or something you believe you already answered!
  • Train your supervisors. It is true that many employers do not want their supervisors to discuss detailed medical information with their employees. But, in this case, the supervisor went too far by walking away from Dansie when he stated his accommodation was approved. A better response would be to inquire further, get more facts from Dansie and contact Human Resources. Reading between the lines of the court opinion, it appears the supervisor was possibly afraid to discuss the ADA or any medical issues with Dansie, especially in an email.
    The court also did not like how the supervisor told Dansie that he did not need to know about Dansie’s medical issues—just the days Dansie would not be working. Again, the supervisor was likely thinking he should not discuss detailed medical issues, especially in writing. A better response would be to involve Human Resources to discuss Dansie’s situation. Supervisors should use common sense and act in a compassionate manner when an employee brings up his or her medical needs and accommodation requests – but get help from the HR experts!
  • Consider Alternative Vacant Positions Before Termination. We cannot stress this enough. This case further supports the importance of considering the “accommodation of last resort” – assignment to an alternative vacant position.
  • Document, document, document! Keep a complete record of all communications, in writing or verbal, with the employee or his/her representatives about the accommodation discussions and efforts.

Matrix Can Help!

At Matrix, we’re always assessing the application of leave and accommodation laws to the services we provide. Whether on this blog, at one of our quarterly compliance update webinars, or in compliance consultations with our client employers and business partners, you can count on Matrix to keep you updated on the latest developments in leave of absence, paid leave benefits, and ADA accommodations. Contact your Matrix or Reliance Standard account manager, or one of our regional practice leaders for more information or send us a message at ping@matrixcos.com.

HAPPY 30TH BIRTHDAY ADA! OH HOW YOU'VE CHANGED OVER THE YEARS!

Posted On July 24, 2020  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

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

July 24, 2020

 

The Americans with Disabilities Act was signed into law by President George H. W. Bush on July 26, 1990.  Here we’ll take a look back on how the ADA has evolved from its passage in 1990 to the present day.

The pace of developments in the ADA and leave of absence world continues at such speed that sometimes our blog posts trip over each other in their haste to get published! To ensure you have seen our most recent information, please scroll down to catch the latest posts – including ones on the new FMLA forms and the Massachusetts PFML regulations! Hot stuff!

 

Radar Guy BirthdayIn the 1990s and early 2000s, court interpretation, particularly at the US Supreme Court, led to a narrowing of an employer’s obligations to provide reasonable accommodation(s).  Specifically, in 1999, the U.S. Supreme Court decided the case of Sutton v. United Airlines, and held that the plaintiffs, who were severely myopic and could not meet the airline’s standard for vision requirements, were not disabled because their condition could be remedied through mitigating measures like prescription eyeglasses or contact lenses.  In 2002, the Court further narrowed the pool of individuals who had qualifying “disabilities” in the matter of Toyota Manufacturing of Kentucky v. Williams.  In Williams, the court determined that the term “disability” should be strictly interpreted and required a showing that the impairment severely restricted the individual from doing activities that are of central importance to most people’s daily lives.  I can tell you firsthand that once the Williams case was decided, employers and their attorneys were focused on whether the employee was “disabled enough” before engaging in any interactive discussion(s) to identify reasonable accommodation(s) to help that individual perform their essential job functions.

The ADA Amendments Act of 2008 (ADAAA) was passed and became effective January 1, 2009 as a direct response to Sutton and Williams.  As stated in the Appendix to the ADA regulations, updated following the ADAAA:

“After the Court's decisions in Sutton that impairments must be considered in their mitigated state and in Toyota that there must be a demanding standard for qualifying as disabled, lower courts more often found that an individual's impairment did not constitute a disability. As a result, in too many cases, courts would never reach the question whether discrimination had occurred.”

 

Consequently, the ADA was amended to, among other things, eliminate the notion that the question of whether someone was disabled is determined by considering mitigating measures.  Instead, the person’s condition is now to be evaluated without the effect of such measures.  Similarly, the ADA was amended to clarify that the definition of disability is to be construed in favor of broad coverage, rejecting the Williams doctrine that a strict standard should be applied to whether an impairment “substantially limits” one or more major life activities.  In general, the expressed intention of the amendment was to require employers to focus more on what they could do to assist disabled employees (now a much larger pool of individuals), rather than whether the employee demonstrated he or she was sufficiently disabled to warrant the employer’s assistance.

At Matrix we have been partnering with clients to help them achieve compliance with the ADA since 2014.  Although the requirement that an employee must be “disabled” was not thrown out completely by the ADAAA, the focus is now on how an employer can help an employee with a physical or mental impairment perform his or her job.  In the last six years, we have seen how well-intentioned, diligent employers can ask the right questions to identify accommodations that succeed for both the employee and the employer.  We have helped clients grant reasonable leaves of absence that allow the employee the time he or she needs to recover or seek treatment to enable a return to work and the gamut of accommodations that enable an employee to remain in the workplace.  Over even this six-year time frame, the nature of requests has changed with the times.

Want to learn more about how our ADA solutions can assist you and keep you compliant?  Click here, and let’s all wish the Americans with Disabilities Act a Happy 30th Birthday!

ADA PRACTICES & PITFALLS – A TIMELY WEBINAR!

Posted On June 15, 2020  

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

June 15, 2020

 

You know, some people vacation in the summer. Some work on their tans. Here at Matrix Radar, we like to dive in the deep end…of leave related compliance!

Don’t judge us, you know you’re interested. Which brings us to our point:

JOIN US for the first of a two part overview of the Americans with Disabilities Act: ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next?

In Part 1, we will explore using industry ADA benchmark data to manage resources and expectations. Learn about bringing employees back to work after COVID closures; how to identify a suitable accommodation without setting a precedent; and that Accommodation of Last Resort.  And, get comfortable with what medical info you can (and cannot) ask for to support an accommodation:  When?  How?  How often?  What if it’s not enough?

This is a free informational webinar, starring yours truly along with Senior Director, Employment Law & Compliance, Gail Cohen; and moderated by National Absence Practice Leader, Tim Suchecki.

Click here to register for this event and submit questions in advance. Feel free to forward to others in your organization who might be interested. (Note: Once you see a window with your name, you have been successfully registered and can close the window. An email will be sent before the event as confirmation and reminder.)

Oh, and hey: If you missed our May 28th webinar on Paid Family and Medical Leave – To Massachusetts and Beyond! well, first of all, shame on you! But you can still Click to view a recording. Because we’re nice! 

See you Thursday.

STILL WRANGLING COVID-19 NEWS – ERISA, ADA, FFCRA, AND NY

Posted On May 15, 2020  

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

May 15, 2020

 

Cowboy Radar

 

Every time I think I can write about something other than COVID-19, along comes another new law, regulation, or interpretation that I want to share with you. The roundup seems to be getting smaller, but the rodeo ain’t over yet, pardner. Saddle up, ’cause here are the latest:

ERISA Extensions of Disability Filing Deadlines

There are new deadlines in town. The Employee Benefits Security Administration (Department of Labor) and the Internal Revenue Service (Department of the Treasury) have issued a rule providing beneficiaries of certain ERISA plans with extra time to meet filing deadlines. Extensions are in place with respect to disability plans for claimants to file an initial claim for benefits and to appeal an adverse benefit determination.

ERISA rules do not provide a specific minimum timeframe that must be allowed for an individual to file an initial claim for disability benefits. See 29 C.F.R. § 2560.503-1. Rather, the timeframe is set by the plan. Now, a plan’s deadline for initiating a claim must be extended by the “Outbreak Period” explained below.

For adverse benefit determinations, the regular ERISA rules provide that a disability benefits plan must allow at least 180 days to appeal. 29 C.F.R. § 2560.503-1(h). This period too is now extended by the Outbreak Period.

The President declared a national emergency on March 13, 2020. For purposes of the new ERISA rules, this National Emergency is deemed to have started on March 1, 2020. The “Outbreak Period” is the time from March 1, 2020, until 60 days after the announced end of the National Emergency or such other date announced by EBSA and the IRS in a future notice. Counting to identify the deadline for an initial claim or an appeal of an adverse benefits determination must “disregard” the Outbreak Period. In other words, the time for filing is tolled for the duration of the Outbreak Period.

Here are some examples. For purposes of these examples we need an announced end date of the National Emergency and we will use April 30, 2020. The Outbreak Period ends 60 days later, on June 29.  

Example 1: Marie becomes disabled on March 15 and her employer’s disability plan allows her 30 days to file an initial claim for benefits, or until April 14 under the terms of the plan. However, since her disability occurred during the Outbreak Period, her 30 days to file a claim does not start until June 30. Marie has 30 days from that date, or until July 30, to file her claim.

Example 2: Donnie receives notification of an adverse benefit determination from his employer’s disability plan on January 28, 2020. The notification tells Donnie he has 180 days within which to file an appeal. However, the Outbreak Period is disregarded in calculating this 180 days. Donnie’s last day to file an appeal is 148 days after June 29 (180 minus the 32 days from January 28 to March 1), which is November 24, 2020.

This new rule applies retroactively. Because no time from March 1, 2020, through the end of the Outbreak Period counts toward a filing or appeal deadline, plan administrators will need to review any claim or appeal denials that occurred on or after March 1, and reverse any denial that is solely based on the claimant’s failure to meet the claim filing or appeal deadline.

What is Matrix doing? We are on top of this and ready to comply with the new deadlines. Specifically,

  • Matrix is implementing the new deadlines immediately for clients
    with self-funded ERISA disability plans
  • We are updating our denial letters to reflect the new information about
    the deadline to file an appeal
  • We will conduct an audit of ERISA claim denials and appeals upheld
    since March 1 for adverse determinations based on late filing and take
    steps necessary to correct those determinations.

If you have any questions, please contact your Matrix or Reliance Standard account manager.

NOTE: The new ERISA rules also affect claims for life and health benefits, health plan enrollment, and post-employment continuation of health coverage (COBRA). The Final Rule and supporting materials are available here: Final Rule, FAQs, and EBSA explanation of extensions.

 

ADA Guidance – The EEOC Continues Its COVID-19 Updates

Every few days the EEOC adds some new questions to its Technical Assistance Questions and Answers regarding COVID-19 and the ADA. The latest set provide guidance regarding employees with medical conditions that the Centers for Disease Control have identified as “high risk” – meaning that an individual with one of these conditions is at higher than average risk of developing severe illness from COVID-19. The conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, compromised immune systems, severe obesity (body mass index [BMI] of 40 or higher), diabetes, chronic kidney disease, and liver disease. The EEOC addresses ADA issues and high-risk individuals in its new Questions G.3, G.4, and G.5. [Persons age 65 and older and those living in a nursing home or long-term care facility are also classified as high risk by the CDC but these are not ADA-protected disabilities.]

Individuals with high-risk medical conditions may request an accommodation to reduce the risk of exposure to COVID-19. As with all ADA requests, the employee does not need to mention the ADA or the word accommodation specifically, but merely has to make the employer aware that she needs a change in her work situation due to a medical condition. The employer may then ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship,that can be provided. Question G.3.

An employee with a high-risk disability who has never needed an accommodation may now need one as a result of the pandemic:

  • Due to a changed work environment, location, equipment, schedule, etc., and/or
  • To reduce the chance of exposure, if the employee is classified as high risk

Example: An employee with controlled diabetes normally functions at work without any accommodation, or with an accommodation not tied to COVID-19 (e.g., breaks for insulin monitoring and injections). Then, because the employee has a high risk disease, the employee requests an accommodation to reduce the risk of exposure, such as a separated work station or work from home.

So do what you always do: engage in the interactive process with the employee to see if you can meet her needs. The EEOC suggests the following accommodations to help minimize the risk of exposure (Question G.5.):

  • Additional or enhanced protective gowns, masks, gloves, or other gear
    beyond what the employer may generally provide to employees returning
    to its workplace
  • Additional or enhanced protective measures, such as erecting barriers or
    creating greater spacing between work areas
  • Elimination or substitution of the employee’s “marginal” job functions
  • Temporary modification of work schedules (if that decreases contact with
    coworkers and/or the public when on duty or commuting) or
  • Moving the location of where one performs work (for example, moving a
    person to the end of a production line rather than in the middle of it if
    that pro
    vides more social distancing).

The Job Accommodation Network (www.askjan.org) also may be able to assist in identifying possible accommodations. The EEOC encourages employers and employees to be creative and flexible. And employers, don’t worry about creating a “permanent” accommodation – the EEOC supports trial or temporary accommodations.

Finally, what about the employee who you know has a high-risk medical condition but doesn’t ask for an accommodation to reduce risk of exposure? Do you force the employee to stay home or accept other accommodations for his own good? Be careful there, cowboy. First, without a request for such an accommodation, you have no obligation to provide it. Second, that path requires an in-depth analysis to show that by working without appropriate accommodations, the employee poses a direct threat – a “significant risk of substantial harm” – to his own health. If you really want to follow this trail, read the EEOC’s Question G.4. for more guidance.

What is Matrix doing? Thanks to our already robust processes for managing ADA accommodations, Matrix has not had to make changes to provide our ADA clients with compliant accommodation services. However, our ADA Specialists have all been trained in the changing accommodation needs and analysis due to COVID-19. We’re here for you!

 

FFCRA – The DOL Adds More Questions & Answers

The latest set of Questions and Answers from the Department of Labor (#89-#93) includes a potpourri of topics. Here are the ones we find of greatest interest:

Employees from temporary agencies. Question #90 addresses how FFCRA paid leave rights apply to temporary workers when an employer (the “second employer”) has under 500 employees but the temporary agency has more than 500. In many temporary worker situations the second employer is a joint employer of the temp worker. In that case, in general, the second employer (under 500 employees) must provide the temporary worker with FFCRA rights and the temporary agency (more than 500 employees) must not interfere with the employee’s use of those rights to take leave of absence. But the determination of whether the second employer is a joint employer of the temp employee requires legal analysis of all the facts of the relationship. [Can you say, “Call my lawyer?”] And here’s an unanswered question: what do you pay the employee? The amount you pay through a temp agency probably includes the agency’s fee, so can you pay only what the employee actually pockets? And how do you handle tax and other withholding?

Wait, while you’ve got that lawyer on the line . . .

School closures – now and in the summer. Employers appear to be struggling with when an employee is entitled to the FFCRA emergency paid sick leave (EPSL) and/or expanded FMLA (EFML) due to a school or day care closure. Question #91 asks, What if my employee has been working at home for weeks with children present and now wants to take EPSL or EFML? Can I deny that? The DOL says, “not necessarily.” You need to ask questions about why the employee needs that leave now. Perhaps conditions at home have changed, or the employee is finding that he isn’t effective working with the kids at home 24/7. Or, the employee’s spouse has already used EPSL and EFML from her employer and now it is your employee’s turn. You can require that the employee to provide the information and documentation that is permitted under FFCRA and the IRS tax rules. You may also ask the employee to note any changed circumstances in his statement as part of explaining why the employee is unable to work, but the DOL warns, “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” (I’m not really sure what that means but thought I would share the warning with you!)

And finally, the DOL answered my pending question about EFML and summertime! After a school closure due to COVID-19 and distance learning, your employee’s child’s school closes for summer vacation. Can your employee now take EPSL or EFMLA? Sorry, no. If the school closes for summer vacation or any other reasons not related to COVID-19, the benefits of FFCRA are not available. But, if the anticipated summer day care provider, summer camp,, etc., is closed or won’t open due to COVID-19, the employee may be able to use EPSL and/or EFML. Just have the employee follow the usual notice and documentation rules. (Question #93)

Also covered: FFCRA and casual domestic workers (Question #89) and permissible documentation for an employee taking leave to obtain testing (Question #92).

 

NY PFL – A new WCB Position on PFL for Child Quarantine

The new New York law providing paid quarantine/sick leave and related benefits has been a real challenge – a poorly written law rushed through with lots of unclear provisions and little high-level understanding of how it would work in reality. Recently the NY Workers Compensation Board, which administers the law, came out with a new interpretation of one of the benefits: a total flip-flop from its prior position. We previously summarized the law here and have kept that post up to date, including this change. But because the new interpretation affects employees of companies with 100 or more employees, we want to draw attention to it.

Under the law (as we thought it was written) employees of small companies (those with fewer than 100 employees) seeking paid sick leave (if any) provided by the law, could take NY Paid Family Leave for a new leave reason, to care for a child under an order of quarantine or isolation; but employees of large companies (those with 100 or more employees) did not have this entitlement. The WCB now says that was wrong, and employees of those larger companies can also take PFL for a child’s covered quarantine. If you thought riding that bucking bronco for the full 8 seconds was challenging, try your hand at trying to stay on top of the NY paid sick leave law! Yee haw! 

Next out of the chute!
At some point, COVID related questions and issues will subside – though probably not soon enough. Meanwhile the world turns and the sun rises and sets, and there are other laws, regulations and accommodations to be considered – in most cases, ones that will outlast the killing power of the coronavirus bug. Fortunately, we can multitask (which is good, because you have to, too!) and will be picking up our Legislative Update series with some good, ol’ fashioned, wholesome state Paid Family and Medical Leave updates on Thursday, May 28. So watch your email, and this space, for your invitation and registration link.
If you’d like a copy of our presentation or recorded webinar from last week’s update, you can click the links provided.

ADA ALERT:  THE EEOC IS ALIVE AND KICKING

Posted On October 22, 2019  

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

October 22, 2019

 

And sadly, so are disability and pregnancy discrimination. 

I receive press releases from the Equal Employment Opportunity Commission several times each week.  Most of them trumpet new lawsuits filed by the agency or settlements reached with employers it previously sued.  Every year there are some whoppers in terms of settlement dollars. There are also lots of smaller-dollar settlements that don’t make the non-EEOC news banners but have a big impact on the employer nonetheless.

So I got to wondering – how do the numbers stack up with regard to EEOC lawsuits relating to disability and pregnancy discrimination?  I took an unscientific count from the EEOC’s Newsroom  (ticking off the numbers on a piece of scratch paper).  Here’s what I found through October 20 of this year: 

  • The EEOC issued over 250 press releases relating to lawsuits it has filed or settled so far in 2019.
  • 113 (approx 45%) of these were lawsuits alleging disability or pregnancy discrimination and failureto accommodate (93 disability-related, 16 pregnancy-related, and 4 involving both).
  • Settlements ranged from $16,000 to $2,250,000 in damages awarded to the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit alleging failure toaccommodate a cart pusher at a Walmart store. More on that below!

In addition to press releases throughout the year, the EEOC publishes its official tally of charge and litigation statistics annually, which you can review here.

Who is getting sued by the EEOC, and for what? 

Pretty much everyone, and for everything disability-related. 

  • The employers who are subjects of these press releases include hospitals and other medical providers,staffing agencies, retailers, grocery chains, entertainment and hospitality companies, manufacturers, fastfood franchisees, service providers at correctional institutions, telecommunications and trucking companies,and on and on. (Lesson: Don’t assume your segment is “under the radar.”)  
  • These employers are getting the EEOC’s attention due to hiring practices, improper medical inquiries,failure to accommodate in all shapes and sizes, terminations, more terminations, inflexible leave policies, anddisability harassment. Did I mention terminations?
  • The disabilities at issue include both mental and physical, although the physical disabilities seem to dominatethis year: Hearing impairment, bad backs, Tourette syndrome, cancer, and so on.

Now I have to acknowledge that these are EEOC press releases – the agency selects the new or settled cases they want to publicize.  There are also EEOC lawsuits that get dismissed by the court or are adjudicated in favor of the employer.  Still, there are lessons to be learned from the cases the EEOC wants to share with the employer world. 

The ones that speak to me. 

Of the 113 news releases related to disability and/or pregnancy discrimination, here are a few that I found to be noteworthy: 

  • Changing policy. One resort and spa employer settled a lawsuit based on its refusal to allow apregnant employee to wear open-toed shoes (not a safety issue) and to sit while working at thereception desk.  I ask you, was that worth it?
  • Inflexible leave policies continue to trip up employers – much to my surprise, as this has beenan EEOC focus for years. See our blog post on the topic here.   In 2019 so far, at least 4 employerssettled EEOC disability lawsuits based on the employer’s practice of terminating employees whenthe employees exhausted their FMLA or company medical leave rather than considering ADAaccommodations (extended leave or otherwise).  These 4 settlements range from $175,000to $950,000.
  • Several cases involved failure to accommodate hearing impairments.  Employers need to avoidmaking rash decisions based on stereotypes about the hearing-impaired (rememberthe Case of the Deaf Lifeguard?) or any other disability, for that matter. Rather, consider thehearing impaired individual’s capabilities and if necessary, discuss special instructional, training,or communication methods as a reasonable accommodation.
  • Ending an existing accommodation. Finally, we must look at that $5.2 million jury verdict againstWalmart.  This case involved a cart pusher, Paul Reina, whose job consisted primarily of clearingthe parking lot of shopping carts.  Reina is deaf and has developmental, visual, and intellectualimpairments.  Reina had worked for Walmart in this capacity from 1998 to 2015, always with theassistance of a job coach arranged by Reina’s family and paid for through a Medicaid program.In 2015 a new manager was assigned to the store where Reina worked.  A few days later Reinawas put on administrative leave and never allowed to return to work.  To be fair, Walmart gaveseveral reasons it felt Reina should no longer work as a cart pusher, including the argument thatit was actually the job coach, not Reina, who was performing the job duties.  Nonetheless,Walmart discarded an accommodation that had been in place for 17 years. The jury found thatthis violated the ADA and awarded Reina $200,000 in actual damages and $5 million inpunitive damages.

The consequences beyond dollars. 

An EEOC lawsuit imposes a substantial financial burden even if the employer wins the case, such as the costs of attorneys’ fees, document production, depositions, and other defense tasks. But there are also significant consequences beyond just the monetary issues. Consider also the time spent by your employees, management, and Human Resources personnel to prepare for and defend the lawsuit and the ensuing disruption of your business operations.

In addition, when the EEOC settles a case, it demands other non-monetary relief such as years of oversight by the agency, hiring an ADA consultant, revising ADA policies, posting notice of the settlement in the workplace, and agency-mandated layers of training for employees and management.

Pings for Employers. 

What should you do so that your company doesn’t appear in the EEOC’s 2020 press releases? How about:

  • Train your employees on the ADA and accommodations – why wait for the EEOC or acourt to tell you to do it? If training heads off even one ADA misstep and EEOC lawsuit,it will have paid for itself.
  • Review your leave policies to ensure they don’t violate the ADA by imposing an inflexiblelimit to leave durations or requiring employees to be 100% healed before returning to work.
  • Take the interactive process to heart. Don’t make employment decisions based on yourbelief or a stereotype of what someone with a disability can or can’t do – discuss it withthe employee and, if appropriate, get relevant medical support.
  • Be ready to change nonessential company rules and procedures as an accommodation.Arguments like “we’ve always done it that way” or “then everyone will want the same”just don’t win the day.
  • Use available resources to help you understand an employee’s impairment and capabilities.The Job Accommodation Network  has a multitude of articles on various impairments andpossible accommodations, and the staff is available for discussion by telephone.  
  • Consider other resources specific to the employee’s disability. There are multiple websitesfor virtually every type of impairment that will help educate you about the employee’ssituation.  But remember – again – to avoid those stereotypes and make your determinationson the basis of the employee’s specific capabilities and limitations.

 

MATRIX CAN HELP! Matrix’s ADA Advantage® leave management system and our dedicated ADA accommodation specialists help employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our servicesWe 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.  For assistance please contact your Matrix or Reliance Standard account manager or send an email to ping@matrixcos.com.

NEW YORK ADDS LEAVE LAW FOR VICTIMS OF DOMESTIC VIOLENCE

Posted On September 30, 2019  

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

September 30, 2019

 

Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence.  With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking. 

We previously wrote about these laws here.  

Key provisions of the New York law are summarized below:

Covered employees. “Victim of domestic violence” means:

  • any person over the age of sixteen;
  • any married person; or
  • any parent accompanied by his or her minor child or children

. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND

  • such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
    or emotional harm to such person or such person’s child;  and
  • such act or acts are or are alleged to have been committed by a family or household member.

View the New York Human Rights Law amendments HERE.

There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.

Leave reasons.  Victims may take a reasonable amount of time off for the following reasons:   

  • Seeking medical attention for injuries caused by domestic violence, including for a child who is a victim of
    domestic violence, provided that the employee is not the perpetrator of the domestic violence against
    the child; or
  • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic
    violence; or
  • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for
    a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the
    domestic violence against the child; or
  • Participating in safety planning and taking other actions to increase safety from future incidents of
    domestic violence, including temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation
    to the incident or incidents of domestic violence.

Undue hardship.  An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as: 

  • The overall size of the business, program or enterprise with respect to the number of employees, number
    and type of facilities, and size of budget; and
  • The type of operation in which the business, program, or enterprise is engaged, including the composition
    and structure of the workforce.

Paid time off and benefits.  The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy.  Any absence not covered by such paid time off may be without pay.  The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences. 

Employee notice and documentation.  An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances.  The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off. 

Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible.  In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of
    domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or
    counselor that the employee or his or her child was undergoing counseling or treatment for physical
    or mental injuries or abuse resulting in victimization from an act of domestic violence.

Other provisions.

Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.

If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)

The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave. 

MATRIX CAN HELP!   At Matrix we administer these domestic violence and sexual assault laws.  We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy.  In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico.  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 your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

ACCOMMODATION DELAYED IS NOT (NECESSARILY) ACCOMMODATION DENIED

Posted On July 25, 2019  

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

& Robb McDonald - Vice President, Learning and Development

July 25, 2019

 

 “This is a case about a civil servant’s dissatisfaction with the government’s sluggishness in accommodating her disability. While delay is no doubt frustrating, it is not, in this case, unlawful.”

So starts the opinion in Weatherspoon v. Price, a case decided recently by the federal court in the District of Columbia.

What Happened?

Monique Weatherspoon was (and, as far as we know, still is!) employed by the U.S. Department of Health and Human Services.  She suffers from uveitis, a sensitivity to light which makes it difficult for her to travel to her office and to read her computer screen.  Over time the Department granted a multitude of accommodations.  Try these on for size:

  • Starting in 2011 and for the next few years, the Department permitted Weatherspoon to work from home
    1-2 days per week and also to work from home as needed due to her condition.
  • In 2015, Weatherspoon’s condition deteriorated and she requested a laptop with an oversize screen. Instead,
    the Department offered to provide a docking station and large monitor for home set up.
  • Weatherspoon took medical leave in November and December 2015.
  • In early 2016, the Department advised Weatherspoon that the docking station and monitor were available
    for pickup. Weatherspoon cancelled several appointments with IT to test and pick up the equipment.
    Once she picked up the equipment, Weatherspoon indicated that she had trouble using it.
  • The Department’s Computer/Electronic Accommodations Program (CAP) suggested that a software
    program, ZoomText, might be helpful and provided Weatherspoon with a trial version. Weatherspoon
    advised the Department that the software was not helping.
  • In May 2016, Weatherspoon requested 100% telework as an accommodation. The Department denied
    the request, but did permit telework for 2 days per week, and episodic telework as necessitated by her
    condition. The Department never denied a request by Weatherspoon for episodic telecommuting.
  • After further in-person assessment, the CAP provided Weatherspoon different ZoomText software and
    a larger laptop. Weatherspoon picked up the equipment in December 2016 when she went to the office
    for the holiday party.

Apparently, this equipment and the telecommuting arrangement were successful in enabling Weatherspoon to perform her job.  Nonetheless, these efforts were not satisfactory to Weatherspoon.  She sued the Department for “failing to reasonably and effectively accommodate” her disability.

Side note.  OK, a little detail here.  Weatherspoon sued the Department under the federal Rehabilitation Act, not the ADA.  The Rehab Act is substantially similar to the ADA but applies to federal employers and employees, while the ADA applies to pretty much all other employers and employees.  The principles, the employer’s obligations, and the employee’s rights are the same.  So in general, a lesson learned in a Rehab Act case also applies to employers covered by the ADA.

The Tortoise, Not the Hare

Weatherspoon alleged that lengthy delays (she claimed 17 months) in providing accommodations were tantamount to a denial of her request.  The court acknowledged that in some cases, a long-delayed accommodation could be considered unreasonable and hence a violation of the ADA/Rehab Act but here, no single accommodation request took more than 3-4 months to resolve – and always ended with the Department providing Weatherspoon with an accommodation.  Moreover, many factors contributing to the delays were beyond the control of the Department.  For example, Weatherspoon took an extended period of medical leave during the request period, cancelled multiple meetings, and delayed in picking up the offered equipment.  The court also noted that it can take weeks or months to analyze and procure proper technology such as specialized software and computer equipment.  And, when dealing with a government entity, movement is “more tortoise-like than hare-like . . . But that’s just business as usual, not evidence of discrimination.”

The Interactive Process – Keep it Going!

As we know, it is important to engage in the interactive process when evaluating an accommodation request, and this requires “flexible give-and-take” between the employer and employee. In this case, Weatherspoon’s supervisor was in regular communication and dialogue with her.  There was also a great deal of communication among Weatherspoon, her supervisor, and 5 additional persons or entities within the Department to assess and meet her needs.  In light of this and the number of attempted and suggested accommodations, the court held that the Department participated in the interactive process in good faith and did not violate the Rehab Act due to the delays in reaching final accommodations.

Pings for Employers

  1. Engage in the interactive process with regular communication and dialogue. Don’t be responsible for
    a breakdown in the process.  According to the Court, “To determine whether the employer held up its end
    of the bargain, courts look to factors such as whether the employer obstructs or delays the interactive process
    or fails to communicate, by way of initiation or response.”  In this case, the Department kept the process
    going to conclusion with some effective accommodations.
  2. So don’t be responsible for unreasonable delays. Weatherspoon did indeed experience delays in obtaining
    effective accommodations.  One wonders whether a private employer would have received the leniency this
    court showed to the Department as a government entity!  You don’t want to be the test case!
  3. Offer alternative accommodations in appropriate circumstances. You do not have to approve an employee’s
    preferred accommodation when there is another effective accommodation that better suits your business needs.
    In this case the Department offered Weatherspoon different specialized equipment than what she requested and
    also pushed back on her request for full-time telecommuting by offering 2 days per week plus other days as
    needed. Just be sure that the alternative offered is effective to enable the employee to perform her essential
    functions.
  4. If you can’t find a reasonable, effective accommodation, a robust interactive process will still serve you well.
    If you engage in dialog with the employee and consider various options, but none enable the employee to
    perform her essential functions without undue hardship, you have fulfilled your ADA obligations.  (But don’t
    forget your duty to consider reassignment, the accommodation of last resort! See our prior blog posts on
    reassignment
    here and here.)
  5. Document the interactions meticulously. Especially in an extended situation like this one, it would be difficult
    after the fact to recreate accurately all the interactions that support your position.

MATRIX CAN HELP!  Through our ADA Advantage, Matrix offers administration and management of employee requests for accommodations.  We manage it all, from intake and medical documentation through the final accommodation decision and follow-up.  We manage and document the interactive  process so you don’t have to worry about those Pings above.  You retain control over the final decision but we help you get there effectively and in compliance with the ADA.  If you want to learn more about our ADA services, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

With this blog post we welcome a new contributor, Robert McDonald, J.D., Ph.D. Robb has been with Matrix Absence Management since 2017 and serves as Vice President of Learning & Development. In this capacity Robb is responsible for course development and instruction to all Matrix employees nationwide.

KENTUCKY PASSES LAW REQUIRING REASONABLE ACCOMMODATIONS FOR PREGNANT EMPLOYEES

Posted On May 14, 2019  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

May 14, 2019

 

On April 9, 2019, the Governor of Kentucky signed Senate Bill 18, making it the latest state to pass legislation requiring employers, absent undue hardship, to grant reasonable accommodation(s) to employees with “limitations” as a result of pregnancy, childbirth or related medical conditions. The Kentucky Pregnant Worker’s Accommodations Act (“KPWA”), takes effect June 27, 2019, and applies to employers with fifteen or more employees in the state.

Let’s break it down:

What is a “Limitation” as a Result of Pregnancy, Childbirth or Related Condition? The KPWA does not use the term disability or disabled by pregnancy, etc. as do many state laws in effect. For that matter, normal pregnancy is not a disability under the ADA. The term “limitation” is not defined by the Act but appears to indicate broader coverage than the ADA. Therefore, Kentucky employers should engage in the interactive discussion with regard to the KPWA, even if the nature and duration of the employee’s “limitations” and condition would not otherwise require doing so under the ADA.

What Are Reasonable Accommodation(s)? The act provides a nonexclusive list of potential reasonable accommodations, including:

  • frequent or longer break times;
  • time off to recover from childbirth;
  • acquiring or modifying equipment;
  • seating;
  • temporary transfer to a less strenuous or less hazardous job;
  • job restructuring, light duty, and/or modified work schedule;
  • and a private space (that is not a bathroom) in which to express breast milk.

What about Undue Hardship? The KPWA provides for an employer to decline to provide accommodation if doing so poses an “undue hardship” and includes the traditional types of factors we have seen with similar statutes, i.e. significant difficulty or expense given the size and financial resources of the organization. In addition to those traditional factors, the KPWA provides for additional factors when an employee requests accommodation for her pregnancy, childbirth, etc. For example, the duration of the requested accommodation, and whether similar accommodations are required by policy to be made (or have been made) for other employees for any reason. The latter factor, of course, should look familiar to any employer who knows and complies with the federal Pregnancy Discrimination Act.

Unlawful Employment Practices. Absent undue hardship, the KPWA rules failing to make reasonable accommodation(s) as unlawful employment practices. Like many other state pregnancy accommodation laws, Kentucky’s prohibits requiring an employee to take a leave of absence if another reasonable accommodation can be provided and requires the employer and employee to engage in a timely, good faith and interactive process to determine effective, reasonable accommodations.

Employer Posting and Notice Requirements. Employers are required to conspicuously post notice of an employee’s right to, among other things, reasonable accommodations for pregnancy, childbirth or related medical conditions. Employers are also required to provide written notice to new employees when they begin employment and to existing employees within thirty days of the Act’s effective date, June 27, 2019.

Want to learn more?

Join Matrix Radar authors Marti Cardi and Gail Cohen for a practical discussion of the various state laws providing protections for pregnant employees and new parents, and a review of the EEOC’s focus on employers who get it wrong. The webinar, sponsored by the DMEC, will take place June 18, 2019 at 12 noon Eastern (9 AM Pacific). Click here for more information and to register.

 

Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

SPICE UP YOUR COMPLIANCE WITH 50 SHADES OF FMLA!

Posted On March 04, 2019  

March 04, 2019

 

Are you struggling to manage FMLA gray areas such as intermittent leave or suspicious leave requests from employees?

The 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR, is the place to find answers and solutions that help you minimize risk in your organization and ensure you’re on the path towards ongoing compliance.

Our very own Marti Cardi, together with Jeff Nowak, will help you “color in” those gray areas of FMLA compliance. Read their recent blog post to get a peek under the covers of their general session, 50 Shades of FMLA: Dealing with Those Gray Areas.

This session is just one of many that will prepare you to confidently tackle your organization’s FMLA/ADA challenges. Check out the list of sessions and speakers online.

Early registration ends on Mar. 7. Don’t miss the chance to save $200! Secure your spot today.

 

 

MATRIX COMPLIANCE EXPERTS TAKE THE STAGE!

Posted On December 11, 2018  

December 11, 2018

 

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.

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 09, 2018  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

November 09, 2018

 

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 05, 2018  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

July 05, 2018

 

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  

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

June 25, 2018

 

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  

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

April 24, 2018

 

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 pmLiability 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 amDOL 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 pmRoundtable 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 01, 2018  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

February 01, 2018

 

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.

 

 

MENTAL STABILITY & ADA EVALUATIONS - PART 2: "REGARDED AS" LIABILITY

Posted On December 26, 2017  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

December 26, 2017

 

This is our second entry in this series of 3 blog posts on mental examinations and the Americans with Disabilities Act.  For the first article, discussing ADA mental examinations and the employer’s obligation to provide a safe workplace, click here.

Our second case study poses the question, can an employer require a worker to undergo a psychological exam without creating an ADA “regarded as disabled” claim for the employee?

The facts.  Evangelene Monroe had been a job scheduler for her employer Consumers Energy (CE) for 13 years when she started exhibiting aberrant behavior.  Her supervisor noted that Monroe was losing focus and concentration at work, that she had become increasingly secretive, and was not interacting with her co-workers during staff meetings as in the past.  Monroe’s work performance was suffering significantly.

Monroe filed a complaint with CE’s Compliance Department, in which she reported that she was being tracked and surveilled by coworkers by various means:  interception of personal text messages, listening devices on her phone and in her work cubicle, camera surveillance at work and at home, a GPS tracking device on her car, and eavesdropping via the key fob for her vehicle.  Her complaint was investigated by Kathleen Delaney, CE’s director of Human Resources, who did not find any merit to Monroe’s allegations.  Due to the nature of Monroe’s charges, Delaney arranged to have Monroe scheduled for an IME to determine if she was able to perform the essential functions of her job.

Dr. Dutes performed a neuropsychology evaluation and reported that Monroe showed a high degree of interpersonal sensitivity and a tendency toward paranoid thinking.  He recommended 12 sessions of psychological counseling and then a reevaluation of her ability to return to work.  Monroe refused the counseling and in January 2014 she went out on paid sick leave for several months.  She then worked part time elsewhere and collected some unemployment.

In late 2014 Delaney contacted Monroe about returning to work but told Monroe she would still have to undergo the counseling.  Monroe insisted that she was better, which was confirmed by another neuropsychological exam in April 2015.  Nonetheless, Dr. Dutes still recommended 8-12 counseling sessions.  Monroe still objected and filed a charge with the EEOC.  She was not satisfied with the EEOC investigator because, according to Monroe, the investigator told Monroe she needed to undergo the counseling.  Monroe finally agreed to the counseling and returned to work at CE full time in December 2015.  No surprise, Monroe filed suit against CE in January 2016.

Regarded as disabled?  The ADA extends its nondiscrimination protections to include an individual who does not have an impairment but is regarded as having one.  In her lawsuit Monroe did not claim that she had a qualifying mental impairment under the ADA.  Rather, Monroe alleged that by requiring her to undergo the neuropsychological exams, CE showed that it “regarded” her as disabled.  She further alleged that the exams constituted an adverse employment action by CE.

To establish this claim, Monroe had to show that she had been discriminated against because CE perceived that she had a mental impairment.  The court explained that a person is “regarded as” being disabled under the ADA if: (1) an employer mistakenly believes that a person has a physical impairment . . . or (2) an employer mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.  In both cases, the employer’s actions are based on a misperception about the individual.

The employer’s Catch-22.  So Monroe’s charge was that CE regarded her as disabled by virtue of its requirement for her to participate in mental health evaluations.  Wow, that would really be a Catch-22 for employers, wouldn’t it?  The employer has the no-win choice of (1) allowing the employee to continue to work with possible consequences of poor performance or safety risks to the employee or his co-workers or the employer’s property; or (2) requiring the employee to undergo a mental exam at the cost of establishing a claim of regarded-as discrimination against itself.  A third possibility is equally untenable:  terminating the employee on the basis of the employer’s unsubstantiated concerns about the employee’s mental condition and risking a true regarded-as claim.

The court saves the day.  Fortunately for employers, the court ruled that an “employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.”  Relying on an earlier case from the 6th Circuit the court explained that an employer has the right to determine the cause of an employee’s aberrant behavior and doing so is not enough to suggest that the employee is regarded as mentally disabled.  An employer-requested psychological evaluation is in full compliance with the ADA if “restricted to discovering whether the employee can continue to fulfill the essential functions of the job”; in other words, if it is job related and consistent with business necessity.

You can review the court’s opinion here:  Monroe v. Consumers Energy (E.D.Mich., S.D. 2017)

PINGS FOR EMPLOYERS

  • Track behavioral changes. As with our employer in last month’s case study, CE had numerous examples of
    Monroe’s strange behavior, not just a couple of isolated incidents. Moreover, Monroe’s supervisor noted that her
    behavior and job performance had changed over time. That observation of change can be an important factor
    in supporting the need for a mental health exam.
  • Keep consistent. In requiring the neuropsychological exams, CE focused on whether Monroe could perform her
    job functions. This supported that the exam was job-related and consistent with business necessity.  This is
    permissible even though the exam might reveal an ADA-qualifying mental impairment.
  • Maintain communication. This employer was very diligent in staying in touch with the employee and trying to bring
    her back to work. In fact, Monroe did return to work full time due to CE’s efforts.  Although Monroe sued anyway,
    CE had done the right thing.  This did not play a part in the court’s written decision, but CE certainly gets Brownie
    points for good employment practices.

UP NEXT:  One intriguing issue the court did not address directly is whether an employer can require an employee to undergo psychological counseling as a condition of returning to work.  Stay tuned for our 3rd post in this series, which will take on this and other issues related to the ADA and mental health exams.

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination.  You always retain the final decision, but we aid in the assessment and manage the intake, 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, ping us at ping@matrixcos.com.

 

MENTAL STABILITY & ADA EVALUATIONS—PART 1: SAFETY

Posted On December 14, 2017  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

December 14, 2017

 

Consider this situation:  Your employee Melvin is exhibiting alarming behavior – aggressive interactionswith coworkers, loud banging of drawers and doors, unfounded suspicions of surveillance, incomprehensible mumbling or rants.  Melvin has not asked for time off or any sort of workplace accommodation, but you are concerned about whether Melvin is capable of performing his job, or worse, whether he presents a threat to the safety of himself or his coworkers. 

Can you make Melvin undergo an independent medical exam (IME) to assess his mental fitness to work?  In two recent lawsuits, coming at the issue from two different angles, the courts each ruled “yes,” as long as certain conditions are met.  This blog post starts a series of 3 articles addressing these new cases and mental health exams under that ADA.  Read on to learn how coworker safety and “regarded as” ADA discrimination meet in the IME examination room (figuratively speaking).

Setting the stage.  Under the ADA, any type of medical examination must be job-related and consistent with business necessity.  According to the EEOC, this is established when the employer has a reasonable belief, based on objective evidence, that:

(1) An employee’s ability to perform essential job functions will be impaired by a medical condition; or

(2) An employee will pose a direct threat due to a medical condition. 

The employer’s reasonable belief must be based on objective evidence obtained prior to requiring a medical examination.  This requires an assessment of the employee and his/her position and cannot be based on general assumptions.  EEOC Enforcement Guidance on Medical Inquiries and the ADA.  

“Preventing employees from endangering their coworkers is a business necessity.”  Our first case study is Painter v. Illinois Department of Transportation.  Deanna Painter was as an Office Administrator for the Illinois Department of Transportation.  Previous coworkers complained about Painter’s behavior, stating that she frequently snapped and screamed at them, gave intimidating stares, ranted, mumbled to herself, and banged drawers in her office.  Her coworkers were concerned she would “go postal.”  Current coworkers reported that she glared and growled at them, kept a log of all their actions, and was angry, abrasive, and threatening.  She also wrote an email to her union representative about a clock that was 30 minutes fast, stating that the clock “was a tell-tale sign for me.  It told me everything I needed to know.”  She then made a comment in the email about something being dead.  The union rep took this as a death threat and refused to communicate with her further.  (That, of course, speaks volumes when even the union rep is afraid to talk with an employee!)

IDOT put her on paid administrative leave and required her to undergo an IME with a psychiatrist.  The psychiatrist concluded that Painter might suffer from a personality disorder but nonetheless cleared her to return to work.  After her return, complaints from coworkers started anew.  Painter was reprimanded but the conduct continued, including argumentative, confrontational, insubordinate, and disruptive behavior. 

IDOT again placed Painter on a paid administrative leave and sent her for another IME with the same psychiatrist.  The psychiatrist reviewed extensive additional notes, emails, and documents regarding Painter’s behavior.  This time he concluded that Painter was unfit for duty because of her “paranoid thinking and highly disruptive behavior which results from her paranoia,” which is a risk factor for violence. 

Painter sued IDOT, alleging that it had violated the ADA by forcing her to attend “unnecessary” medical examinations.  The 7th Circuit Court of Appeals disagreed and found both psychiatric IMEs to be job-related and consistent with business necessity.  The court concluded, “Preventing employees from endangering their coworkers is a business necessity:  a safe workplace is a paradigmatic necessity of operating a business.”  Both exams followed extensive unstable conduct by Painter and numerous complaints by coworkers about concern for their safety due to her conduct.  Importantly, the court noted the choices an employer faces in this situation and came down on the side of the employer:

Employers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.

Painter v. Illinois Department of Transportation, (7th Cir. Dec. 6, 2017).

Pings for employers

  • Multiple observers. Numerous coworkers observed and reported Painter’s
    actions over many months leading up to the first IME and then the second exam.
    While some situations may require faster action, in this case the amount of
    information about Painter’s conduct was helpful to the employer’s case.
  • Document, document, document! Painter’s supervisor kept detailed notes of
    her actions and his discussions with her, as well as her odd emails.  He also
    gathered written statements from her coworkers.  These proved very important
    in the court’s analysis of whether IDOT had sufficient grounds to require the IMEs
    as job-related and consistent with business necessity.
  • Level of odd conduct. Don’t order medical evaluations based on minor incidents
    of strange behavior.  As the Painter court observed:  “That an employee’s behavior
    could be described as annoying or inefficient [does not] justify an examination; rather,
    there must be genuine reason to doubt whether that employee can perform
    job-related functions.”
  • Direct threat? Maybe not.  The court did not specifically analyze whether Painter’s
    conduct established that she presented a “direct threat” to coworkers.  The burden
    to prove this element is quite high –the analysis includes consideration of how imminent
    and likely the threat is, as well as the anticipated duration and severity of the threat.
    In the Painter case the court chose to focus on the employer’s obligation to provide
    a safe workplace (and perhaps also believed that the facts and psychiatric diagnosis
    of paranoia spoke for themselves).

UP NEXT:  Watch this space for a discussion of a case where the employee claimed that the employer “regarded” the employee as disabled in violation of the ADA because it required the employee to go through a mental health IME.

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination.  You always retain the final decision, but we aid in the assessment and manage the intake, 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, ping us 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  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

September 26, 2017

 

“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

ADA VIEWS – DIRECT FROM THE EEOC!

Posted On May 08, 2017  

by Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

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

May 08, 2017

 

Q:   What do attendance, a deaf lifeguard, and an “accidental leave law” have in common?

A:    They are all topics addressed by an EEOC representative at Matrix’s recent Client Advisory Board meeting.

Pierce Blue is Attorney-Advisor to EEOC Commissioner Chai Feldblum.  We invited Pierce to a meeting of a cross-section of our clients to talk all things ADA – that’s the Americans with Disabilities Act, of course.  Here are a few snippets of information Pierce shared with attendees:

Attendance – is it an essential function of a job? The EEOC says no, in most cases.  In the EEOC’s view, an essential function is a key outcome or task. Attendance is not usually the “task” an employee needs to accomplish in the job, hence it is not an essential function.  (Exceptions might include a receptionist or a security guard where physical presence is one of the expected outcomes.)  Pierce noted that courts have disagreed with the EEOC on this point and have held that attendance can be an essential function.  See, for example, EEOC v. Ford Motor Co. (6th Cir. 2015)  (regular and predictable on-site job attendance was both an essential function of, and a prerequisite to perform other essential functions of, the employee’s job; due to her repeated absences, she was not qualified for her position).Reduced Schedules. Ever have an employee who asked for no overtime, intermittent leave or reduced schedule as an accommodation?   Is this a reasonable accommodation that an employer must consider?  The EEOC say yes, in most cases.  But how does this square with the EEOC’s own pronouncement that an employer does not have to lower production quality or quantity standards as an accommodation?  Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.   Pierce explained the EEOC wants to see employers have the interactive discussion with the employee, address job performance expectations, and perhaps give the employee’s request a trial.  As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.

Don’t act on unfounded fear and speculation. This brings us to the lesson learned from the Case of the Deaf Lifeguard.  A typical initial reaction to this scenario is that, of course, a deaf person cannot be a lifeguard.  Pierce discussed the case to remind employers not to act on unfounded assumptions and stereotypes.  Rather, the ADA requires an individualized assessment of a disabled employee’s ability to perform the essential functions of the position.

Keith, the lifeguard, has been deaf since birth.  He took and passed a lifeguard certification program and Oakland County’s water safety test and lifeguard training program.   The County offered Keith a lifeguard position contingent upon the County’s usual requirement of passing a medical examination.  The doctor who conducted the physical expressed concern about Keith’s ability to perform the job due to his hearing impairment, and the County withdrew the job offer.  In court (yes, he sued!) Keith argued that the County failed to conduct an individualized assessment of his ability to perform the essential functions of the lifeguard position.  The 6th Circuit agreed.  The examining doctor had merely looked at Keith’s file and declared, “He’s deaf; he can’t be a lifeguard.”  No one for the County asked Keith to demonstrate performance of the job or otherwise made an individualized assessment of his lifeguard abilities.  Keith, on the other hand, had experts in deaf lifeguards and aquatic safety willing to testify that a deaf person can perform the functions of a lifeguard position.  The experts explained that persons in danger exhibit visual signs of distress, and individuals deaf since birth have better peripheral vision than hearing persons.  According to the court, the doctor’s “cursory medical examination is precisely the type that the ADA was designed to prohibit.”  Keith v. County of Oakland (6th Cir. 2013).

Accidental leave law. Pierce shared thoughts from Acting Chair of the EEOC, Victoria Lipnic, about leave of absence as a reasonable accommodation under the ADA.  Pierce explained that Acting Chair Lipnic – and others – call the ADA an “accidental leave law.”  The basic intent of the law is to keep employees working, not to provide leaves of absence.  In Acting Chair Lipnic’s view, Congress passed a separate law – our beloved FMLA – to address leaves of absence, while the ADA has a separate purpose:  to prevent disability discrimination and help disabled individuals obtain and keep jobs.  Well, we’ve come a long way, haven’t we?  For more guidance on leave as an ADA accommodation, see the EEOC’s 2016 resource document, Employer-Provided Leave and the Americans with Disabilities Act.

The topics addressed by Pierce at our client meeting present significant ADA challenges for employers.  Please let Matrix know if you would like to learn more about any of these topics or others relating to leaves of absence and accommodations.  You can leave a message below or contact marti.cardi@matrixcos.com.

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.

WALKING THE WALK ON SERVICE DOGS IN THE WORKPLACE

Posted On April 12, 2017  

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

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

April 12, 2017

 

Bradley Arndt v. Ford Motor Company, 2017 WL 1196442 (E.D. Michigan March 29, 2017)

If you’ve been in a shopping center or an airport lately then you know that the prevalence of service dogs is on the increase (I love those vests!).  For employers, however, there are still many challenges in addressing an employee’s request for a service dog (or other animal) as an accommodation in the workplace.  In the case of Bradley Arndt v. Ford Motor Company, Ford applied sound ADA practices to maneuver through unfamiliar territory.

Bradley Arndt was a Supervisor at Ford’s Van Dyke Transmission Plant.  He suffers from PTSD following his extensive military service, which included several combat deployments.  In February 2013, after about six months of tenure, he approached his then-direct supervisor indicating he was having issues with his PTSD at work, and mentioned bringing his service dog, Cadence, to work (I love that name!).  While his supervisor initially expressed enthusiasm for the idea, he became concerned about potential safety and quality issues.  Shortly after Bradley mentioned bringing Cadence to work, he emailed an HR representative for Ford and reported that he had missed work due to his PTSD and asked if could bring his service dog to work.  The HR rep thanked him for his email and told him she would look into his request.

HR provided Bradley with a Disability Reasonable Accommodation Request form to complete, and he did so, also providing a letter of the functions his service dog could provide to him in the workplace, which he described as sensing when he is having an anxiety attack, calming him down, and keeping people away from him.  Bradley indicated that just having the dog nearby “provide[d] a great deal of comfort and security… thus giving me the utmost confidence to perform my job.”

Shortly after submitting his request form, Bradley met with the physician at the plant regarding his request.  The doctor asked Bradley to provide a release to facilitate communication with the VA personnel treating his PTSD and told Bradley that the doctor would be working with HR to determine whether accommodation could be made, but also noted health and safety concerns with a dog in the manufacturing facility.  The very next day, Bradley withdrew his request.  Apparently, the doctor mentioned the possibility of a transfer to the Dearborn location. Bradley informed the HR rep that he did not want to go to Dearborn because he understood that the city had a large population of Arabs and that seeing women ”walking around in burkas”  might trigger his PTSD.  He also told HR that he was withdrawing his request because he “didn’t want to be a bother.” HR told him it wasn’t a bother and that they needed to engage in the interactive process.  After he insisted on withdrawing the request for accommodation to bring Cadence to work, HR told him to put the withdrawal of his request in writing, which he did on March 15, 2013.

Bradley took medical leaves for his PTSD. Upon his return from a second such leave, on February 21, 2014, he submitted a return to work note from his treating physician indicating he could return to work as of February 20, 2014 “with the presence of a service dog, Cadence.”  That same day, he completed another Disability Accommodation Request Form asking for a “service dog at work.”  The form invited him to specify the job functions he was having difficulty performing, as well as limitations his condition posed which interfered with his ability to perform his job.  Bradely’s answers did not, however, provide that information.

Because the plant had not previously dealt with a request to bring a service dog to work, HR placed Bradley on a “no work available” or “unfit to work” status so that he could continue to receive his fully salary and benefits while Ford looked into his request.  On March 4, 2014, HR and Bradley’s supervisor met with him to discuss his request.  They asked Bradley to identify the aspects of his job he could not perform without his service dog.  In this meeting, Bradley insisted that he could perform all of the aspects of his job and that he just needed to have his dog to “alleviate environmental factors.”    After the meeting, HR wrote a letter to Bradley’s doctor asking clarifying questions, provided the doctor with a job description, and posed very specific questions:  which job functions were rendered difficult for Bradley to perform due to his condition, how the requested accommodation helped him perform his job, and whether there were other accommodations that might be offered.  On April 4, 2014, Bradley returned the completed information from his physician. The doctor opined that she was unaware of any job functions he couldn’t perform, though she believed that having his service dog under his desk at work might calm him so he could complete his job duties.

HR arranged a second meeting with Bradley to discuss his request to bring his service dog to work.  That meeting took place on May 13, 2014.  Bradley brought his dog to the meeting. Humes asked him what job functions he felt he could not perform without accommodations.  Bradley insisted he had already answered the question several times, placed his Ford badge on the desk and said that if Humes could not give him an answer by the following Monday morning, he was quitting.  Bradley filed a lawsuit, accusing Ford of failing to reasonably accommodate his PTSD.

Ford won this lawsuit on summary judgment. In its decision, the court emphasized that Bradley failed to show that having his service dog with him at all times in the manufacturing facility would enable him to perform his job.  In addition, the court rejected Bradley’s contention that a three-month interactive process demonstrated that Ford failed to participate in good faith. In doing so, the court acknowledged that Ford had legitimate concerns about Bradley bringing his dog to work and whether doing so would enable him to perform his job and effectively calm him if his PTSD were triggered at work.  Ford was able to show that, during that three-month timeframe, they were actively engaged in investigating the possibility of accommodating Bradley’s request, including asking other facilities whether and how they had successfully allowed a service animal accommodation at their plants  and walking the plant floor with the safety manager to have her identify any safety or health concerns.  Ford also put Bradley on a fully paid leave (which is itself a reasonable accommodation) while they were doing that important research.  Ultimately, the court concluded, by quitting instead of continuing the interactive discussion, it was Bradley who was responsible for the breakdown in the interactive process.  Because of this, Bradley could not show that Ford failed to engage in the interactive process nor that Ford had violated the Americans with Disabilities Act by not providing his requested accommodation to bring Cadence to work with him.

Pings for Employers:

The Arndt case provides a great outline for what employers should do when an employee requests to bring a service animal to work as an ADA accommodation:

 

 

  • Get information. When an employee asks for an ADA accommodation, the employer has the right to
    certain information, including how the employee’s condition limits his ability to perform his essential
    job functions and how the requested accommodation(s) is going to help him do so.
  • Follow the usual ADA process. A service dog is like any other accommodation in this regard – if your employee
    says he needs to bring his dog to work, you can and should start the interactive process
    to understand what job functions are impacted by his condition and how the dog will help him perform his job.
  • Conduct and individualized assessment. It is understandable that an employer’s first reaction
    to a request for a service dog as an accommodation would be to balk – but it is imperative to conduct an
    individualized analysis and keep an open mind in the process.
  • Accommodation must be effective. Like any accommodation, granting the employee the right to bring
    a service dog to work requires not only that it be reasonable, but that it is effective.
     This is where Bradley failed in communicating with Ford.
  • A caveat. Ford and the court seemed to focus on whether the service dog Cadence enabled Bradley to perform
    any specific essential functions of his position.  This was a tall order.  Perhaps Bradley could have
    made an argument that by keeping him calm, Cadence enabled him to perform his job
    overall by being present and functional.  Another court, another time, might have found Bradley’s
    evidence in this regard sufficient to support a claim of failure to accommodate.  Of course, Bradley still had the
    problem of walking out before the interactive process was complete.
  • Give it a try. One of the best things an employer can do in the accommodation process is to give the
    employee’s request a trial.   In the case of a service animal, if the presence of the animal causes problems
    or the accommodation isn’t effective to enable the employee to perform the essential functions of the position,
    you have tried and you have solid evidence – not just speculation – that the accommodation isn’t effective.
    Then restart the interactive process to determine whether an alternate accommodation might be
    reasonable and effective.
  • Other concerns. Sometimes a service animal in the workplace can create additional problems,
    such as complaints from other employees with animal allergies, fear of dogs, etc. 
    If the co-worker’s issue is also a disability, you may need to seek a compromise, such as designating r
    estricted areas where the service animal cannot go or providing air purifiers.  Also, the employer
    can establish ground rules – like keeping the dog on a leash, and having the employee be
    responsible at all times for its care and behavior.
  • Ask JAN! For more assistance always remember to work with the Job Accommodation
    Network at http://askjan.org/ .   JAN is a free, not-for-profit organization that focuses on
    assisting employees and employers with navigating the ADA – and you can talk with a live person if you call
    the number on the website.

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 if needed, assist in identifying
reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.