LIGHT SUMMER READING FROM THE DEPARTMENT OF LABOR

Posted On July 21, 2016  

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

July 21, 2016

 

Back in April the U.S. Department of Labor unveiled its new Employer’s Guide to the Family and Medical Leave Act.  (Our report is here.) The Guide was released to coincide with the annual FMLA/ADA Employer Compliance Conference hosted by Disability Management Employer Coalition in Pittsburgh.  Helen Applewhaite, FMLA Branch Chief for the DOL, announced the Guide to attendees in opening remarks. Then Ms. Applewhaite and I co-presented on some tough FMLA issues (2nd/3rd opinions, anyone?), and presented parts of the Guide as a resource for employers.

Now the DOL has released a blog post, “What Employers Need to Know About the Family and Medical Leave Act,” more formally introducing the Employer’s Guide to the rest of the employer community.  The post has a short introductory video and a link to download or order copies of the Guide.  It also has links to the Matrix blog post and my friend Jeff Nowak’s blog announcing the introduction of the Employer’s Guide at the DMEC conference.  Thanks to the DOL for the nod!

If you haven’t yet reviewed the Employer’s Guide, you should.  It doesn’t answer all the difficult FMLA questions we encounter, but it does provide an easy-to-read, non-legal resource for employers.

While you’re at it, also take a look at the Family and Medical Leave Act Employee Guide.  This concise booklet can serve as a great training and reference tool for your employees.  What do I like about it?  The Employee Guide doesn’t just explain employee leave rights under the FMLA; it also advises employees of their obligations if they want to benefit from FMLA leave.  FMLA is a two-way street, with both parties – employer and employee – having rights and obligations.

Happy beach reading!

Matrix Can Help!  Even with the new Employer’s Guide, managing FMLA leave remains a tricky and complicated business.  Add various state leave laws, the Americans with Disabilities Act, worker’s compensation and company policies, and you have a perfect storm of challenging employee rights. At Matrix we are experts in these state and federal laws. We specialize in understanding how they work together and in monitoring developments so you don’t have to. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

STILL MORE ON LEAVE OF ABSENCE AS AN ADA ACCOMMODATION – JEFF NOWAK AND EEOC COMMISSIONER FELDBLUM TO CO-STAR

Posted On May 26, 2016  

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

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

May 26, 2016

 

The absence management world has been abuzz lately due to the release by the EEOC of a new resource document, Employer-Provided Leave and the Americans with Disabilities Act.  I wrote about this document and the latest EEOC consent decree – $8.6 million against Lowe’s due to its maximum leave policies – here and here.

Now, in an industry coup, my friend and fellow blogger Jeff Nowak will present a webinar on the new EEOC resource and leave as an ADA accommodation together with guest star, EEOC Commissioner Chai Feldblum.  For those of you who haven’t had the experience of hearing Commissioner Feldblum speak, you are in for a treat.  She is extremely knowledgeable, frank, and outspoken.  Jeff invites us to send our toughest ADA leave accommodation questions for the Commissioner to him at jsn@franczek.com.

Visit Jeff at FMLA Insights to learn more about the webinar and register, or you can register through the link below.

When: Thursday, June 23, 2016 (12:30 – 1:45 p.m. CDT)Online registration: Click here.

toastYou’re toast!  And if you still aren’t taking this issue seriously, let me tell a little story from the recent Disability Management Employer Coalition compliance conference held in April.  One speaker was Sharon Rennert, Senior Attorney Advisor on ADA policy for the EEOC.  An attendee asked Ms. Rennert a question about his company’s maximum leave policy that was based on exhaustion of 12 weeks of FMLA leave.  An employee needed only a few additional days of leave but the company did not want to make an exception to its policy.  Ms. Rennert stopped his question by saying, “You’re toast!”  The poor guy tried to continue his question and to justify his company’s policy but again got the response from Ms. Rennert, “You’re toast!”  Now, she wasn’t being rude, but was simply trying to make it ever-so-clear that an employer’s application of an automatic cap on leave without engaging in an individualized assessment of the employee’s situation may violate the ADA, because it does not allow for consideration of more leave or some other accommodation(s) to enable the employee to perform his essential functions.  So, attend and learn from Jeff’s webinar, and don’t be toast!

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.

LOWE’S TO PAY $8.6 MILLION IN YET ANOTHER EEOC CASE INVOLVING INFLEXIBLE LEAVE POLICIES

Posted On May 23, 2016  

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

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

May 23, 2016

 

Cartoon Animal Eyes Under Big Stone

Employers, if you haven’t fixed this issue yet, get out from under that rock!

If an employee with a disability exhausts leave time provided by company policy or by a law such as the FMLA, you have two obligations.

First, consider even more leave as a reasonable accommodation. 

Second, consider reasonable workplace accommodations to allow the employee to return to work

It’s that simple.

As announced by the EEOC on May 13, 2016, home improvement giant Lowe’s has agreed to pay $8,600,000 to affected employees as part of a consent decree entered into with the EEOC in a federal district court in California. The EEOC claims that Lowe’s violated the ADA by terminating employees with a disability after failing to provide them reason­able accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.

And it’s not just about the money.  The consent decree agreed to by Lowe’s in this case includes some very typical additional requirements, all enforceable by court order.  The four-year consent decree settling the suit requires that Lowe’s:

  • Retain a consultant with ADA experience to review and revise company policies as appro­priate;
  • Implement effective training for both supervisors and staff on the ADA;
  • Develop a centralized tracking system for employee requests for accommoda­tion;
  • Maintain an accommodation log;
  • Post documentation in its workplaces related to the settlement; and
  • Submit regular reports to the EEOC verifying compliance with the decree.

Thus, Lowe’s ends up not only paying the agreed-upon amount of damages, but also incurs significant expenses (for example, attorneys’ fees) and business disruptions during the EEOC’s investigation and in complying with the terms of the consent decree for four years.

Two types of policies are on the EEOC’s radar.  An employer’s obligation to provide more leave than offered by company policies or required by law has received much recent attention.  Why, just this month the EEOC released a new Resource Document entitled Employer-Provided Leave and the Americans with Disabilities Act.  While the Resource Document did not break any new ground (no, the EEOC still won’t say how long a leave can be before it becomes an unreasonable accommodation), it does pull together in one handy place all existing EEOC guidance on the issue, including assessment of extra leave as an undue hardship.  Our blog post on the Resource Document can be found here.  Meantime, the EEOC is focusing on the following:

Maximum or inflexible leave policies (sometimes referred to as “no fault” leave policies) take many different forms.  A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both continuous and intermittent leave.  Some employers not covered by the FMLA set lower overall caps. Others tie the maximum leave to the duration of short-term disability benefits.  Any inflexible cap may result in an ADA violation because it does not allow for the interactive process and individualized consideration of whether additional leave or some other reasonable accommodation will enable the employee to return to work.

100% recovered or healed policies are those that require an employee with a disability to have no medical restrictions – that is, be “100%” healed or recovered – before returning to work.  These also have huge potential to violate the ADA because the employer does not engage in the interactive process to discover whether the employee can perform essential functions with on-the-job reasonable accommodation(s).

Lots of companies got it wrong in the past.  Many employers have been the subject of EEOC investigations and, ultimately, a pricey consent decree.  Here are some of the bigger-ticket resolutions:

Company Date Amount Policy /Practice in Violation of ADA
Lowe’s 2016 $8.6 million Terminating employees whose
need for medical leaves of
absence exceeded Lowe’s
maximum
leave policy (180 days,
subsequently 240 days)
Pactiv LLC 2015 $1.7 million Assessing attendance points
for medically-related absences; not allowing use of intermittent
leave or extension of a leave
of absence as an ADA reasonable accommodation
Princeton HealthCare System 2014 $1.35 million Limiting medical leave of absence to maximum of 12 weeks:

  • employees FMLA-eligible
    terminated after 12 weeks\
  • employees not FMLA-eligible terminated
    after short absence

Requiring certification of
100% recovery upon return
to work rather than
considering return to
work with a reasonable ADA accommodation

Dillard’s 2012 $2.0 million
  • Maximum-leave policy
    limiting the amount of
    medical leave an
    employee could take
  • Policy requiring all
    employees to disclose
    personal and confidential
    medical information in
    order to be approved
    for sick leave
Interstate Distributor Co. 2012 $4.85 million
  • Limiting medical leave
    of absence to maximum
    of 12 weeks
  • Requiring certification
    of 100% recovery upon
    return to work rather than considering return
    to work with a reasonable
    ADA accommodation
 Verizon Communications   2011  $20 million Failing to make
exceptions to “no fault”
attendance plans for
individuals with disabilities
as an ADA accommodation
 Supervalu, Inc., Jewel Food Stores, Inc. etc.  2011  $3.2 million Terminating employees
with disabilities who were
not 100% recovered at the
end of medical leaves of
absence rather than
considering return to
work with a reasonable
ADA accommodation
 Sears, Roebuck and Co.  2009  $6.2 million Terminating employees
following exhaustion
of workers’ compensation
leave without engaging
in the interactive
accommodation process
to consider workplace
accommodations or
leave extension as an
accommodation

PINGPings for employers:  We provided pointers for employers in our last blog post so we won’t repeat, but given the size of the potential price tag we suggest that you go back and read again.

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our services.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.

 

AN EXCELLENT WEEK FOR FMLA/ADA GEEKS

Posted On May 02, 2016  

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

May 02, 2016

 

One of Matrix’s promises to our clients it to be on top of developments in the world of accommodations and leaves of absence.  One way we do this is to develop relationships with the head honchos at the agencies that administer key laws:  the U.S. Department of Labor for FMLA, and the U.S. Equal Employment Opportunity Commission for the ADA.  Last week two members of our compliance team had opportunities to further those relationships.  Gail Cohen attended a meeting in Washington DC with two EEOC Commissioners, and Marti Cardi presented together with the DOL’s FMLA Branch Chief at the Disability Management Employer Coalition (DMEC) national FMLA/ADA Compliance Conference.   Here are summaries of these key events.

DMEC presentation with FMLA Branch Chief  On Monday April 25, Helen Applewhaite (head of the DOL’s FMLA branch) and Marti Cardi (Matrix’s Vice President of Product Compliance) jointly presented a plenary session at the DMEC conference entitled, “The DOL Steps Up For Employers:  Hands-On FMLA Leave Management Guidance.” A copy of the full presentation is available below. The session had 3 main areas of focus.

First, Applewhaite addressed specific challenges the DOL still sees employers struggling with more than 23 years after enactment of the FMLA.  These included the many employer notice obligations required by the regulations, including posting, general policy, eligibility, rights and responsibilities, and designation notices.  These may seem to employers like simple requirements, but the DOL continues to see violations of these notice obligations, which can be the basis for an FMLA interference claim.  Cardi added a reminder of the employer’s obligation to notify an employee each time a certification form will be required for a leave, addressed in the recent case Graziadio v. Culinary Institute of America  (2nd Cir. 2016).  Conference attendees were reminded to ensure not only that they comply with these notice requirements, but also that the contents are up to date.  Anything prepared prior to 2013 (the last major revision to the FMLA regulations) needs a close review and update.

Second, Cardi addressed FMLA challenges she sees from the practitioner’s perspective – areas that are not well addressed in the FMLA regulations and other DOL materials.  One such area is the use of second and third opinions in the certification process.   An employer can require a second opinion when it has reason to doubt the validity of the original certification from the employee’s health care provider (HCP) – but the term “validity” is never defined in the regulations or other DOL resources.  Cardi presented examples of circumstances that might justify a second opinion:  the HCP’s area of practice does not relate to the serious health condition at issue; the HCP is a close relative of the employee; the same HCP has provided identical certification information for multiple employees; or frequency and duration that are extremely excessive for the condition.

Third, throughout the session, Applewhaite and Cardi referred attendees to resources available to employers on the DOL FMLA website (www.dol.gov/whd/fmla).  These include links to the FMLA regulations themselves plus important guidance like fact sheets, FAQs, forms, Administrator Interpretations, and more.  Applewhaite also introduced the extensive new Employer’s Guide to the Family and Medical Leave Act, available on the FMLA website.  See our prior blog post about the new Guide here.  Applewhaite and Cardi reminded attendees that using broad internet searches for answers to FMLA questions is risky.  Some sources are less than trustworthy, and even those that are dependable (such as this one!) may become out of date on a particular topic down the road.

Here’s a copy of the presentation.

Meeting with EEOC Commissioners Feldblum and Lipnic On Tuesday, April 26, 2016, Gail Cohen had the privilege of attending a small meeting with EEOC Commissioners Victoria Lipnic and Chai Feldblum at EEOC headquarters in Washington, D.C.  The meeting was sponsored by the Labor and Employment Section of the Association of Corporate Counsel.  During the meeting the Commissioners addressed certain important ADA-related topics.

ADA Leave as an Accommodation – Interaction with the FMLA According to Commissioner Feldblum, anytime an employee makes a request for FMLA leave for his or her own serious health condition, this is an opportunity for the employer to also consider its obligations to engage in the interactive process under the ADA.  Commissioner Feldblum further expressed the opinion that the requirement to initiate consideration of leave as an accommodation under the ADA arises even if the employee has not returned the required certification of health care provider to support his or her need for FMLA leave despite being afforded the opportunity to do so.  We at Matrix do not agree with the EEOC’s interpretation that an employer has to chase after an employee who has failed to support his or her request for FMLA leave.   However, it is wise to consider, prior to taking any adverse action against that employee for an absence not supported by FMLA paperwork, what other steps, if any, the employer  might want to take to ensure that a decision to take adverse action in close proximity to an FMLA request is appropriate and well-documented.

EEOC Priorities For ADA  Enforcement At the meeting, Cohen had the opportunity to ask Commissioners Lipnic and Feldblum about the EEOC’s priorities for ADA enforcement.  Those priorities are:

  • Leave as an accommodation under the ADA. Many employers have inflexible leave policies with automatic termination at a certain point, such as exhaustion of a certain number of weeks of leave, completion of the worker’s compensation process without being able to return to work full time/full duty, and exhaustion of disability benefits without being “100% healed.”   The Commission continues to stress the need for an individualized analysis of the employee’s specific situation to determine whether or not an extension of leave may be a reasonable accommodation that will enable the employee to return to work;
  • Employer job descriptions that identify as essential job functions items which are actually “qualification standards.” Commissioner Feldblum cautioned that the EEOC is scrutinizing employer job descriptions to ensure that they describe essential functions – which she defined as the tasks required to perform the job as opposed to a pre-existing qualification for the position. An example she gave is whether “the ability to work any shift” is truly an essential job function as opposed to something that is not truly a job requirement and therefore is fair game for employers to be flexible.
  • Commissioners take a sunny view of the hurdle of hardship. Both Commissioners expressed the opinion that showing a requested  accommodation is an undue hardship is not the insurmountable hurdle employers believe it to be.  If an accommodation is reasonable and effective, then the employer’s only reason not to provide the accommodation is that it poses an undue hardship.  Despite the Commissioners’ optimism, employers must closely analyze the hardship posed by a requested accommodation and be able to support a hardship determination with specific facts (financial, operational, or otherwise).
  • Reassignment as an ADA accommodation. Many employers don’t fully understand their obligation to provide reassignment to a vacant position as the accommodation of last resort. If an employee’s limitations prevent him or her from performing the essential functions of the job, the employer has the obligation to search for a vacant position for which the employee is qualified.  See our post on this topic here.

MATRIX CAN HELP! The Americans with Disabilities Act presents many challenges for employers.  Addressing accommodation requests doesn’t have to be one of them.  Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process and reduce the risk of being involved in a lawsuit for failure to accommodate.  We will initiate an ADA claim for your employee, conduct the medical intake if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.

DOL ANNOUNCES NEW FMLA EMPLOYER’S GUIDE

Posted On April 25, 2016  

April 25, 2016

 

spyglass into trumpet modTa da!   Today the U.S. Department of Labor unveiled its long-awaited, brand-spankin’-new Employer’s Guide to the Family and Medical Leave Act.  The DOL has been promising this Guide for close to two years.FMLA Employer Guide

FMLA Branch Chief Helen Applewhaite, speaking today in Pittsburgh at the annual FMLA/ADA Employer Compliance Conference hosted by Disability Management Employer Coalition, shared some features of the new employer resource.

The Guide closely follows the FMLA regulations but the information is presented in a much more user-friendly format.  Key topics covered include:

  • Covered employers
  • Employee eligibility
  • Employer notice obligations
  • Qualifying leave reasons (including specific sections on military exigencies and caring for a servicemember)
  • The certification process
  • Managing the FMLA leave (calculating usage, continued benefits, etc.)
  • Job restoration
  • Recordkeeping requirements
  • Interaction with other laws

In addition to using simpler language than one finds in the regulations (legalese, be gone!) the Guide uses several tools to make the material more understandable to employers.  These include, for example:

  • “Did You Know?” bullets that call out specific points the DOL wants to bring to employers’ attention
  • Citations to supporting regulations for those who want more information or the exact language
  • Story boards illustrating particular processes (no, they are not “comic strips”!). Here’s an example of how to handle an incomplete certification: DOL_graphic
  • Links to DOL forms and notices on the DOL website
  • Charts providing information in easily digested format, like this one addressing some of the information an employer can require for intermittent leave: DOL chart
  • Flowcharts demonstrating processes, like this one showing the steps in dealing with an employee’s certification:DOL_certification

The Employer’s Guide does not break any new ground or answer the tough questions not covered by the FMLA regulations (and there are many of those, right?).  That is not the DOL’s style.  New or detailed guidance on FMLA typically comes through new regulations or the too-rare Administrator Interpretations.So let’s all check out the new Guide, use it, and discover whether it is a helpful tool for you.  The DOL expects this to be a dynamic document and welcomes employer comments and suggestions for future enhancements.

Matrix Can Help!  Even with the new Employer’s Guide, managing FMLA leaves remains tricky and complicated business.  Add in various state leave laws, the Americans with Disabilities Act, worker’s compensation, and company policies and you have a perfect storm of challenging employee rights.   At Matrix we are experts in these state and federal laws.  We specialize in understanding how they work together and in keeping up to date so you don’t have to.  For leave management and accommodation assistance, call Matrix at 800-866-2301.