COVID CATCH-UP: NEWS FROM THE DOL, CDC, AND EEOC

Posted On April 13, 2020  

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

April 13, 2020

 

The best thing about the just-concluded long weekend is that it gave me a chance to catch up on the latest Coronavirus guidance issued by various entities. Top of the world, Ma! Here are 3 for today’s reading pleasure:

COVID-19 QUESTIONS AND ANSWERS: ROUND 4 FROM THE DOL
The U.S. Department of Labor has issued the fourth set of questions and answers relating to the Families First Coronavirus Response Act’s Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFML). This edition has 20 new questions, starting with #60. There are no surprises but some of the answers do provide helpful interpretive information. As you read, remember this guiding principle:

In order to receive EPSL and/or EFML benefits, (1) the employer must have work available for the employee; and (2) the employee must be unable to perform the work (or telework) due to the COVID-19 reason. So, for example, if an employee must stay home to care for a small child due to a school closure but the employer has closed its place of business and has no work the employee could otherwise perform, the employee is not entitled to pay benefits.

Quarantine orders (Question 60). For purposes of EPSL, a quarantine or isolation order includes a shelter-in-place or stay-at-home order issued by any federal, state, or local government authority as well as a specific order directed at an individual employee or family member.

Self-quarantine (Questions 61-62, 65). An employee may receive benefits during a self-quarantine only when acting pursuant to the advice of a health care provider. The employee’s own opinion that he should stay away from others will not support a claim for FFCRA pay benefits. The same applies for leave to care for an individual in self-quarantine.

Care for others who are quarantined (Questions 63-65). An employee may be able take EPSL to care for another individual who is under a governmental order of quarantine or isolation or who is quarantined pursuant to the advice of a health care provider, but must meet the following criteria: (1) the individual is unable to care for herself (2) the individual depends on the employee for care; and (3) providing the care prevents the employee from working or teleworking.

An “individual” for whom an employee may provide care is limited to a member of the employee’s immediate family (not defined), someone who regularly resides in the employee’s home, or someone with whom the employee has a relationship that creates an expectation of care. There must be a personal relationship between the employee and the individual.

Age of child; care of child (Questions 66, 71-72, 40). Both EPSL and EFML are available to care for a child in quarantine or whose school or place of care has closed if the child is under age 18 or is 18 or older and in capable of self-care because of a disability.

An employee may take EFML only to care for his own son or daughter due to a school or day care closer or other unavailability of daycare. “Son or daughter” is defined for this purpose the same as under the regular FMLA: Biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stands in loco parentis.

On the other hand, an employee may take EPSL to care for an “individual,” which is defined much more broadly than “son or daughter” (see above, Question 64) and therefore might include a child who is not the employee’s own son or daughter.

School or “place of care” closure, unavailability of “child care provider” (Questions 67-70). A “place of care” is a physical location in which care is provided for a child. It does not have to be dedicated solely to this purpose. Traditional day care facilities and preschools are included, as well as before and after school care programs, homes, and summer camps. This leads us to wonder, what will happen when summer hits if school closures are still in effect? Will parents be able to take leave when a different place of care that they would then have relied on is still closed? Remember, 12 weeks of leave staring April 1, for example, will extend to June 23.

A “child care provider” is defined to include both (1) paid individuals such as au pairs, nannies, and babysitters, and (2) individuals who regularly provide care at no cost, such as family members, friends, or neighbors.

An employee can take leave to care for a child due to a school closure, etc., only when the employee is actually needed to care for the child and is unable to work as a result. Leave is not available if another provider such as a co-parent is available.

A school is considered closed even if it is offering online instruction or other at-home schooling resources. Closure of the physical location is what counts.

Workers’ compensation and temporary disability benefits (Question 76). An employee currently receiving workers’ comp and disability benefits through a state- or employer-provided plan is not eligible to receive paid leave under EPSL or EFML. Such benefits are paid because the employee is unable to work due to an injury or illness. The DOL has not addressed how the EPSL and EFML benefits interact with paid family leave, if the employee’s reason for leave is covered by each.

FFCRA benefits and current leaves of absence (Question 77). An employee on a current leave of absence is not entitled to EPSL or EFML benefits because they are not working and in need of leave. However, an employee on a voluntary leave of absence (for example, bonding with a new child or on sabbatical or vacation) can chose to end the leave and take FFCRA benefits for a qualifying reason that then prevents the employee from working. On the other hand, if an employee is on a mandatory leave of absence (e.g., a disciplinary suspension), it is that mandatory leave that is preventing the employee from working, not a FFCRA-qualifying reason, so no benefits are available.

DOL enforcement (Questions 78-79). The DOL has stated it will not bring an enforcement action against an employer for violations of EPSL or EFML occurring within 30 days of enactment (from March 18 through April 17). This does not mean employers don’t need to comply until April 18. Rather, the DOL will expect employers to use good faith efforts to comply, correct any violations that occur during that period, and commit to ongoing compliance. Otherwise, the DOL will retroactively enforce violations back to April 1, 2020.

Other topics covered in Round 4 include counting employees of a staffing company (Question 74) and calculating pay for seasonal employees (Question 75).

CDC GUIDANCE FOR EXPOSED CRITICAL WORKERS
Recognizing the need to keep employees in certain key industries working, the Centers for Disease Control has issued an Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19. (#mouthful!) The Guidance applies to these employees:

  • Federal, state, & local law enforcement
  • 911 call center employees
  • Fusion Center employees
  • Hazardous material responders from government and the private sector
  • Janitorial staff and other custodial staff
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing,
    informational technology, transportation, energy and government facilities

Workers who have had a potential exposure are permitted to keep working provided they are asymptomatic and take additional workplace precautions:

  • Pre-Screen for temperature and symptoms before entering a facility or starting work
  • Regular Monitoring under the supervision of the employer’s occupational health program.
  • Wear a Mask
  • Practice social distancing
  • Disinfect and clean work spaces routinely, such as offices, bathrooms, common areas, and
    shared electronic equipment

More information is available in the Interim Guidance.

EEOC UPDATED ADA COVID-19 GUIDANCE
Ages ago (well, it was early March – how time flies!) we blogged about the Equal Employment Opportunity Commission’s guidance on COVID-19 and the Americans with Disabilities Act. The information in that post is still accurate and provides the answers to many workplace questions relating to the ADA and COVID-19.

On April 9 the EEOC came out with an updated guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The update covers several topics such as medical inquiries, confidentiality, hiring and onboarding, and furloughs. Of greatest to us in the absence and accommodations business are the new questions and answers about COVID-19 and accommodations.

The update starts with a recommendation to consult with the Job Accommodation Network (JAN) for assistance with accommodations, a suggestion with which we at Matrix heartily agree. JAN’s materials specific to COVID-19 are here In the meantime, here is the new guidance. (I borrowed liberally from the EEOC document itself rather than reinvent the wheel.)

D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)

Yes. Some of these “accommodations” may have already been implemented for all employees but consider:

  • Changes to the work environment such as designating one-way aisles; using
    Plexiglas, tables, or other barriers to ensure minimum distances between customers
    and coworkers
  • Temporary job restructuring of marginal job duties
  • Temporary transfers to a different position
  • Modifying a work schedule or shift assignment.

D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Yes. Employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty than other employees handling the disruption to daily life that has accompanied the COVID-19 pandemic. Employers may ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

As an additional resource, check out the transcript of the webinar held on March 27 regarding the laws EEOC enforces and COVID-19.

Matrix can Help!  

Sure, we are your one-stop shop for COVID-19 leave information, but we are so much more! At some point, hopefully soon, we will all be focusing less on coping and more on growing; and you will see we continue to shine! Subscribe (now! do it!),  and keep us in mind as you ready your Company programs for tomorrow and the many days after. We can, and will, help.

CORONAVIRUS AND THE ADA – THE EEOC HELPS OUT

Posted On March 04, 2020  

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

March 04, 2020

 

 

While there are countless articles online providing advice to employers about how to deal with the Coronavirus (now called COVID-19), here’s something that’s actually helpful: The Equal Employment Opportunity Commission (EEOC) has directed our attention to a technical assistance document to help understand and cope with pandemics in the context of the ADA. As summarized in the new, coronavirus-specific  intro, the document answers questions such as:

  • How much information may an employer request from an employee
    who calls in sick, in order to protect the rest of its workforce during
    a Coronavirus-like event?
  • When may an ADA-covered employer take the body temperature
    of employees during a Coronavirus-like event?
  • Does the ADA allow employers to require employees to stay home if
    they have symptoms of the Coronavirus?
  • When employees return to work, does the ADA allow employers to
    require doctors’ notes certifying their fitness for duty?

Here is some of the information I found most helpful from the EEOC document. In order to be both expedient and accurate, I’m taking the content fairly directly from the document itself. However, employers should read the entire EEOC document, as there are many details that will assist in a variety of situations.

Why do we care about the ADA now? Is the Coronavirus a disability?

Probably not for most individuals who contract it, but that is always a case-by-case assessment under the usual ADA principles. The EEOC explains how the ADA is relevant to dealing with a pandemic:

  • The ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and
    employees, including those who do not have ADA disabilities.
  • The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for
    health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with
    reasonable accommodation).
  • The ADA still requires reasonable accommodations for individuals with disabilities (absent undue hardship) during
    a pandemic.

What medical inquiries can an employer make?

As a refresher, the ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. An inquiry is “disability-related” if it is likely to elicit information about a disability.  For example, asking an individual if his immune system is compromised is a disability-related inquiry because it could be closely associated with conditions that are disabilities. On the other hand, asking an individual about symptoms of a cold or the seasonal flu is not a disability-related inquiry.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when the employer has a reasonable belief, based on objective evidence, that:

  • An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • An employee will pose a direct threat due to a medical condition.

With that backdrop, let’s look at some of the helpful guidance.

Does someone diagnosed with or exposed to COVID-19 pose a direct threat?

A “direct threat” under the ADA is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Whether COVID-19 rises to the level of a direct threat depends on the severity of the illness. If the Centers for Disease Control (CDC) or state or local health authorities determine that COVID-19 is significantly severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information. You can check out the latest COVID-19 information from the CDC here.

What questions can an employer ask to assist with pandemic planning and preparedness?

There are ADA-compliant ways for an employer to identify which employees are more likely to be unavailable for work in the event of a pandemic. This may include questions about non-medical reasons that an employee may need to be absent during a pandemic such as curtailed public transportation, closure of children’s schools, or the need to care for other dependents if services become unavailable. The EEOC document has an ADA-compliant, pre-pandemic employee survey employers can use to assess the possible impact on its employees’ ability to attend work.

What steps can an employer take during a pandemic?

Here is some really helpful info from the EEOC (but please read the full document for details and exceptions!):

  • An employer may send employees home from work if they display symptoms of the disease. The
    employer can also encourage or require telework if that is feasible for the position.
  • If an employee reports feeling ill or calls in sick, the employer may ask the employee if they are
    experiencing symptoms common to the pandemic disease.
  • An employer may take an employee’s temperature to determine whether they have a fever IF
    the general nature of the illness becomes severe or the outbreak is widespread. (Otherwise, this
    may be an impermissible medical exam under the ADA, so be careful!)
  • When an employee returns from travel during a pandemic the employer does not need to wait until
    the employee develops symptoms to ask questions about the employee’s possible exposure during
    the trip.
  • During a pandemic, an employer may require its employees to adopt infection-control practices such
    as regular handwashing or wearing protective equipment (e.g., face masks, gloves, or gowns) designed
    to reduce transmission of the disease.
  • An employer may encourage, but may not require, its workforce to obtain a vaccine for the pandemic
    disease or any other condition.
  • During a pandemic, an employer must continue to provide reasonable accommodations to individuals
    with disabilities. This may be a continuation or modification of an existing accommodation, or a new
    accommodation necessary due to the pandemic (e.g., allowing an employee with a compromised immune
    system to work from home).
  • An employer may ask an employee who has been absent from work the reasons for the absence if the
    employer suspects it is for a medical reason.
  • And, an employer may require an employee who has been away from the workplace during the pandemic
    to provide a doctor’s note certifying fitness to return to work.

What is Matrix doing to be prepared?

At Matrix we are continually monitoring the COVID-19 outbreak.

We hope and expect the outbreak will not impact our ability to process claims. However, our Business Continuity team has been put on notice across all service locations and we will continue to monitor any potential threats to our workforce with heightened sensitivity and awareness. We have also issued special instructions to our operations teams regarding how to manage claims related to COVID-19 diagnoses, exposure, and quarantines. If you are a Matrix client, please contact your account manager with any questions or concerns. And please be patient, as the issue, along with measures to respond to it, is fluid and changing rapidly.

A YEAR IN REVIEW, A YEAR AHEAD: A LOOK AT THE DOL AND EEOC

Posted On January 19, 2020  

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

January 19, 2020

 

Last month we provided a 2019 review and 2020 look ahead regarding leave law legislation.  You can find that post here.  Now let’s look at what the enforcement agencies accomplished in 2019 and what to expect for 2020.

Part 2:  DOL and EEOC Activities

US DEPARTMENT OF LABOR UPDATE

Opinion Letters

Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the DOL of how a particular law applies in specific circumstances.  An opinion letter provides an official, reliable interpretation of the FMLA and its regulations. 

We may not always agree with the DOL’s opinion, but at least we know where the agency stands!

The DOL issued 3 new opinion letters in 2019:

  • Opinion Letter FMLA2019-1-A clarified the question of whether an employee, or employer, can delay
    the designation of a leave of absence taken for an FMLA-qualifying reason, to allow the employee to
    use or exhaust any paid leave benefits prior to doing so. The DOL concluded that the answer is no –
    once the employer is on notice that the employee is seeking leave for a potentially FMLA-qualifying
    reason, it is obligated to provide the required FMLA notices and, if supported, designate the leave as
    FMLA leave.  The opinion letter also reminds us that, while the FMLA allows employers to be more
    generous and grant an employee more leave than FMLA requires, any time the employer gives beyond
    FMLA is not FMLA but, rather, a company policy leave.  To read more about this opinion letter, check
    out our prior blog post.
  • The above opinion was amplified in Opinion Letter FMLA2019-3-A. An employer asked the DOL whether
    it could delay FMLA designation when the terms of a collective bargaining agreement required employees
    to take company paid leave before taking FMLA.  The DOL concluded that the employer cannot delay
    designation as FMLA any leave taken for an FMLA-qualifying reason, even if the terms of a collective
    bargaining agreement appear to require otherwise.
  • Finally, Opinion letter FMLA2019-2-A, addressed the question whether an employee could take FMLA
    to attend meetings to discuss a child’s Individualized Education Plan. The DOL concluded the answer was
    yes.  Attending such meetings constituted “care” for a child with a “serious health condition,” even if the
    meetings did not include a medical provider.  For more details, read our prior blog post on this topic

Coming in 2020:  New DOL FMLA certification forms?

In 2019 the DOL issued proposed new FMLA certification forms for public comment, which we discussed in a prior blog post.  We understand that these proposed certification forms resulted in a deluge of comments to the DOL and Matrix was among that chorus of commentators.  No one knows if or when the DOL will issue new forms but we will certainly be watching will tell you all about them when they do!

Coming in 2020:  DOL request for input on FMLA regulations?

Also in 2019 the DOL announced that it “will solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”  The notice did not provide a specific timeline for the Request for Information and nothing has happened since the announcement.  There is certainly much to improve in the FMLA regulations – see a discussion in Jeff Nowak’s FMLA Insights blog.  We hope the DOL in fact proceeds with this RFI.  If it does, we will weigh in on changes we feel are needed based our Matrix’s administration of thousands of FMLA claims every year.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION UPDATE

The Commission.

2019 brought the appointment of Janet Dhillon as Chair of the EEOC.  Chair Dhillon comes from a strong business background, which may be good news for employers.  Time will tell.  That leaves 2 openings on the Commission and about a year (or 5) for President Trump to appoint new commissioners.  The other 2 current Commissioners, in addition to Chair Dhillon, include Charlotte Burrows, appointed by President Obama (2nd term ends in 2023) and Victoria Lipnic, also appointed by President Obama (2nd term ends in 2020).

Also in 2019, Sharon Fast Gustafson was appointed as General Counsel for the Commission.

Focus on disability and pregnancy.

A couple of months ago we took a look at the prevalence of disability and pregnancy-related press releases issued by the EEOC in 2019 through October 20.  That post is available here.  We’ve updated the numbers through the end of 2019:

  • The EEOC issued over 300 press releases relating to lawsuits it filed or
    settled in 2019.
  • 134 (approximately 45%) of these were lawsuits alleging disability or
    pregnancy discrimination
    and failure to accommodate (109 disability-related, 20 pregnancy-related,
    and 5 involving both).
  • Settlements ranged from $16,000 to $2,650,000 in damages awarded to
    the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit
    alleging failure to
    accommodate a cart pusher at a Walmart store.
    More on that in the blog post linked above!

Statistics.

In late November 2019, the EEOC published its Agency Financial Report. In the report, the EEOC boasts of reducing its inventory of charges to the lowest number of pending charges – 43,580 – in 13 years.  The EEOC also touts its collection of $159.6 million in connection with its mediation process, and $39.1 million in connection with 177 litigation matters.  In its Fiscal Year 2018 (which ended September 2019), the EEOC filed 144 lawsuits, 17 of which alleged a systemic pattern and practice and 27 which were “non-systemic” but had multiple alleged victims of discriminatory practices.

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.

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.