Please join us for the DMEC Tools &Tactics Webinar: ADAAA Implications for Absence Management – Avoid that $20 Million Judgment

Thursday, October 27, 2011 (9:00 AM – 10:00 AM)

Qualifies for 1 CPDM CE

(Please note start time: 9:00am PT, 10:00am MT, 11:00am CT or 1200pm ET)

 

Session Description:

Join this timely webinar about the critical impact of the Americans with Disabilities Act Amendments Act and recent EEOC actions (such as the $20 million consent decree against Verizon) on company absence management practices.

Reed Group absence management experts Kevin Curry and Martha Cardi will address steps employers must take to develop an effective ADA accommodation program and to ensure the integration of ADA considerations into various absence plans, including the FMLA, workers’ compensation, company disability plans, and more.

Cindy Gonzales, US Disability Program Manager of Intel Corporation, will share the challenges the company faced on its path to successful integration of continued absence as an ADA accommodation into Intel’s wide array of absence benefits

Click here to register

 

PRESENTERS:

Kevin Curry, Senior Vice President, National Practice Leader

Reed Group

Kevin Curry brings more than 15 years of experience in Integrated Absence management and consulting to Reed Group. As Practice Leader, he is responsible for setting and facilitating Reed Group’s absence and disability business, with focus on technology, content and services. Before joining Reed Group, he was a well-known and highly respected senior absence management consultant in Mercer’s Total Health Management practice, where he helped numerous employers achieve cost reduction and productivity improvements in FMLA, disability and broader employee absence management activities. Mr. Curry is a frequent speaker at industry conferences in the areas of Integrated Absence, Health & Productivity. Prior to his work on behalf of employers at Mercer, Curry held various leadership positions at CORE Inc.

 

Martha J. Cardi, Chief Compliance Officer and Employment Counsel

Reed Group

Martha Cardi is Chief Compliance Officer for Reed Group, a leave of absence software and services company. Ms. Cardi is responsible for ensuring that Reed Group services are provided in compliance with state, federal, and local leave and employment laws. Her team tracks legislative developments, trends, and case law on an on-going basis. Ms. Cardi is the chief author, editor, and content expert for Reed Group’s Leave of Absence Advisor, an in-depth online referential guide to the Family and Medical Leave Act and state leave laws.  Ms. Cardi’s expertise includes more than 25 years as in-house employment counsel for national companies and in private practice with Denver law firms, where she provided management clients with advice and counsel on employment compliance matters and represented clients in state and federal courts and agency proceedings. She is admitted to practice in Colorado. Ms. Cardi holds a B.A. from Colorado State University and a J.D. from the University of Colorado School of Law, and is rated AV Preeminent by Martindale-Hubbell.

 

Cindy Gonzales, US Disability Program Manager

Intel Corporation

Cindy Gonzales is the US Disability Program Manager at Intel, where she has worked for 18 years.  After getting a business degree from New Mexico State University, Cindy owned and operated a hobby store business where her benefit learning’s began with a small group of employees.   She started her career at Intel in the Payroll team and then moved over to Benefits where she managed Intel’s in-house COBRA administration and Health Care Provider data exchange before both were outsourced.  She then took over as the supplier manager and added LOA Operations to her scope after it, too, was outsourced.  Finally, when a vendor change occurred moving both STD/LTD and LOA administration, she developed and created her current role as US Disability Program Manager, where she has been for the past 6 years.

In this position, Cindy owns front to end program management the administration of Intel’s Short and Long-term Disability programs, including monitoring of trust accounts money flow, audit/compliance of the plans, resolving complex customer escalations and issues, and managing stakeholder relationships.  She also works with the Intel Global Benefits Design group on the strategy, design and implementation of related plan changes.

 

Employer Fights FMLA Abuse With an Attendance Policy and an Independent Review

By Martha J. Cardi, Chief Compliance Officer, Reed Group

Misuse or abuse of FMLA leave is a constant headache for employers and absence managers. Many feel helpless and taken advantage of in the face of perceived abuse. However, the FMLA regulations do provide some tools that employers sometimes overlook or are hesitant to use.

Read on to learn how one employer’s use of FMLA and HR tools enabled the employer to defend successfully its termination of an employee for FMLA abuse.  Remember, FMLA abuse does not occur in a vacuum – use all your FMLA tools AND layer on your usual HR management practices.

A case decided in August 2011 illustrates how the proper use of FMLA tools coupled with traditional human resources practices can detect and reduce FMLA abuse.

The Background. Douglas Rydalch was hired by a major U.S. airline in 1998 as a reservations sales agent in Salt Lake City. In 2004, the airline closed the reservations center in Salt Lake City and transferred Rydalch to Houston. Rydalch’s family remained in Salt Lake.

Also in 2004, Rydalch injured his back in an auto accident and was approved for FMLA intermittent leave for up to eight days per month. Rydalch often had difficulty getting time off during holidays because of his limited tenure compared to other workers.

Would you call this a pattern? In 2007, the airline began to notice a possible pattern in Rydalch’s FMLA usage in conjunction with his time off. An administrator compiled a summary of Rydalch’s FMLA days and his other days off and discovered the following:

• Between 2004 and 2007, Rydalch had used FMLA days 35 times on days just before or after his previously scheduled time off.
• He often used FMLA time on important dates or holidays when he was scheduled to work: July 4, his birthday, one Labor Day (which was also his wedding anniversary), Thanksgiving Day, Christmas Day and New Year’s Eve.

McHenry, Rydalch’s supervisor, gave Rydalch a warning about this pattern of usage and the perception that it might be an abuse of the company’s time off policies.

Undaunted, Rydalch again used FMLA leave on July 4, 2007. McHenry investigated Rydalch’s absences further and discovered that he had a pattern of taking flights to and from Salt Lake City on the days he requested FMLA leave. She met with Rydalch again on July 12 to make sure he understood that the airline’s attendance policies prohibited misuse of FMLA leave.

Christmas 2007 was the final straw. Rydalch was scheduled to work December 24, 26, and 27. However, in June 2007 he had booked a flight to Salt Lake City on December 22 and a return flight to Houston on December 27. He checked in for his departure and printed his boarding pass on December 21, roughly 24 hours before the flight. He requested FMLA time on December 24, 26, and 27.

Independent Hearing. Following the airline’s collective bargaining agreement, it requested a hearing into Rydalch’s FMLA usage. After a presentation by both sides, the hearing officer, an individual who had never met Rydalch, found that Rydalch had violated the employer’s attendance policies. Consequently, the airline terminated Rydalch’s employment. Rydalch appealed the decision internally and, after the decision was upheld, filed a lawsuit against the airline.

The Employer’s Good Faith Belief of Abuse Wins the Day. Rydalch asserted claims for FMLA interference and retaliation, and ADA failure to accommodate and retaliation. The court found that the airline had a good faith belief that Rydalch had abused his FMLA rights. Rydalch had tendered arguments seeking to justify his behavior but they were not consistent with the undisputed facts of his pattern of FMLA usage and his flight schedules.

The court found that even if Rydalch’s excuses were true, the employer’s good faith beliefs that he was abusing FMLA and violating the airline’s attendance policies supported its decision to terminate him. The court granted judgment in the airline’s favor and dismissed all of Rydalch’s claims.

What Did the Employer Do Right? Several things. Considered good employment practices, the following can be particularly useful when dealing with a suspected FMLA abuse situation:

• Attendance and Reporting Policy. First, the airline had a written attendance policy spelling out the requirements for using and reporting absences, and letting employees know that failure to follow the policy and/or abusing time off could lead to termination. The FMLA regulations allow an employer to enforce its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. 29 C.F.R. § 825.302(c) and .303(c). By having such a policy in place, the employer is able to receive appropriate notice of an employee’s need for FMLA time off, and to discipline the employee if he or she fails to follow the procedures without good cause.
• Warnings. The employer provided Rydalch with at least two warnings that his FMLA usage appeared to violate the company’s attendance policy. Although not required by the FMLA, it is always a good employer practice to provide an employee with a warning if the employee is violating a policy. Many policies won’t reasonably justify termination at the first violation, but repeated violations after warnings will almost always support disciplinary action.
• Investigation.The employer investigated Rydalch’s FMLA usage carefully before terminating him. It gathered pertinent documentation, compared his FMLA days with other days off, and noted the coincidence of some days off with holidays or special occasions. As an airline, the employer was uniquely positioned to compare his FMLA days off with his flights between Houston and Salt Lake City as well.Many employers are hesitant to investigate suspected FMLA misuse for fear of being hit with an FMLA interference or retaliation claim. However, employers have latitude to investigate a suspected misuse.
  Two caveats: First, be respectful and discreet in gathering information, not invasive or overbearing. Second, during the investigation don’t request additional medical information. For example, if a call is placed to the employee’s physician’s office to verify that the employee attended an appointment for which she claimed FMLA time, don’t ask the physician’s office for any additional medical information such as the purpose or results of the appointment.
• Independent Review and/or Decision Maker. The full hearing on Rydalch’s situation was required by the employer’s collective bargaining agreement. Nonetheless, nonunion employers can take a lesson from this process. A full-fledged evidentiary hearing may not be necessary, but using someone who had no prior involvement in the circumstances as a reviewer or decision maker is wise. All employers can use this tactic by having someone uninvolved with the players and situation review all the information, including the challenged employee’s story, before a final, fateful decision is made.

Read the full case — and the additional facts not included in this summary

(Good Faith Definition — sincere belief or motive without any malice or the desire to defraud others.)

STAY TUNED FOR OUR NEXT POST: PACK YOUR TOOLKIT WITH THESE FMLA ABUSE-FIGHTING TOOLS

If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws. 

Handling FMLA in the Wake of Hurricane Irene

By Martha J. Cardi, Reed Group Chief Compliance Officer

In the aftermath of natural disasters, employers may see a flood of requests for FMLA leave.

While compassion may call for establishing policy on time off for post-disaster clean-up, curbing FMLA abuse while staying in compliance with leave laws is important for both employers and their workforces.

Here are two potential areas employers should watch for potential FMLA abuse:

Pre-existing Intermittent Leave – Employees with chronic health conditions may take intermittent FMLA leave. If an employee already is approved for intermittent leave for a hard-to-verify condition such as a nervous disorder, migraines or back pain, he or she may try to use FMLA leave for flood damage or other home repairs.

Caring for a Family Member – Employees may take FMLA leave to care for a family member, but only as it relates to the family member’s personal care, such as bathing, transporting them to doctor appointments or fixing meals. FMLA does not provide leave for home cleaning and maintenance. Therefore, if an employee requests FMLA leave to deal with a parent’s flooded basement or to meet a repair crew at the parent’s house, these would not be covered under FMLA.

Court Rejects Flooded Basement For FMLA Leave

When Joe Lane, an employee of Pontiac Osteopathic Hospital on intermittent FMLA leave to care for his aging mother tried to claim flood clean-up of his mother’s basement as FMLA leave, the federal district court in Lane v. Pontiac Osteopathic Hospital rejected his FMLA interference claim on several grounds, one of which was that Mr. Lane did not present sufficient evidence that cleaning his mother’s basement met the definition of “caring for” a family  member with a serious health condition.

What Should Employers Do? 

While in most cases, employers have to take the employee’s word that the absence is justified, Reed Group experts find that practicing “appropriate and active oversight” tends to discourage FMLA abuse because employees who are not taking legitimate leave know they are being watched.

When the employee requests FMLA leave, try to verify the exact reason for the leave. If the employee says it’s for a doctor’s appointment, the employer may call the doctor’s office to verify that the employee appeared for the appointment, but may not request any additional medical information.

Post-Irene Situations that Warrant FMLA Leave

Be aware that there are many situations in which Irene’s aftermath may spur legitimate FMLA leave. The following are all examples in which leave should be granted:

• An employee with an existing nervous or stress disorder might have his or her condition exacerbated by the hurricane experience and need time off to recover.
• An employee with a bad back or other physical ailment might need FMLA time because of aggravating the condition while cleaning up after the hurricane.
• An employee with FMLA leave to care for a parent might need time because the hurricane cut power to the parent’s oxygen tank (requiring him or her to move the parent temporarily) or cut power to the parent’s refrigerator (requiring him or her to bring the parent staples or fresh food) or because Irene caused the parent to lose water service (requiring the employee bring the parent bottled water).
• An employee might have received a new injury during the hurricane or during the clean-up, which qualifies as a serious health condition and justifies time off after the fact.

Curbing FMLA Abuse May Benefit the Employee

In post-disaster situations it may be tempting to ease up on curbing FMLA abuse, but remember, FMLA leave is limited. If the employee abusing FMLA today needs it legitimately in the future, he or she may have exhausted benefits when they legitimately need them most.

Don’t Forget State FML and Other Leaves

FMLA and other leave laws can be a bewildering patchwork. Be sure to consider all FML leaves when evaluating post-Irene requests.

If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws. 

Cat’s Paw Strikes Employer’s Defenses in USERRA and FMLA Cases

by Martha J. Cardi, Reed Group Chief Compliance Officer

The “cat’s paw” theory of employer liability in employment cases has made headlines following the recent U.S. Supreme Court’s decision in Staub v. Proctor Hospital on March 1, 2011. Now, a federal court has also applied the cat’s paw theory to employees’ claims of employer interference with their FMLA rights.

USERRA Supreme Court Case

Vincent Staub was employed by Proctor Hospital and also served in the United States Army Reserve, which required monthly weekend duty and an additional two to three weeks of service per year. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the employment rights of a person who is a member of a uniformed service. An employer violates USERRA if an employee’s military service is a motivating factor in the employer’s adverse employment action against the employee. 38 U.S.C. §4311(a)and(c).

Two of Staub’s supervisors had made statements to others showing hostility toward Staub’s military service and the burdens it placed on others in the department. One supervisor issued Staub an adverse corrective action and the other supervisor reported to the vice president of Human Resources, Linda Buck, that Staub had violated the corrective action. Staub denied the allegations.

Buck had shown no animus toward Staub’s military duty. She reviewed Staub’s file and, based on the corrective action and its alleged violation by Staub, decided to terminate him. During the company’s grievance procedure Staub alleged that his two supervisors’ actions were motivated by their hostility to his military service and that they intended their actions to influence the decision by Buck. Buck failed to investigate this allegation and upheld her termination decision. Staub sued, alleging that his termination was a violation of USERRA.

A jury found that Staub’s military status was a motivating factor in Proctor’s decision to discharge him and awarded over $57,000 in damages. Although initially overturned on appeal by the Seventh Circuit, the Supreme Court upheld the application of the cat’s paw theory to this case.

Staub v. Proctor Hospital, No. 09-400 (S.Ct. March 1, 2011).

FMLA Case

Two employees of Ohio Bell—Blount and Durrah— were terminated for their undisputed failure to meet performance standards. They alleged, however, that their termination was in retaliation for taking FMLA leave, since they were “progressed much more quickly through the disciplinary process than were other workers” who had not taken FMLA leave. The employees’ supervisors had said in meetings that they would target individuals who took FMLA leave with increased punishment.

Ohio Bell defended the claims by asserting that the authority to punish or terminate the employees resided higher in the supervisory chain, not with the two antagonistic supervisors. Citing the recent Staub decision by the Supreme Court, the district court ruled that even if the two supervisors did not have such authority, the cat’s paw theory might apply and their animus could be “inferred upwards where it had the effect of coloring the various adverse employment actions in this suit.”

Blount v. The Ohio Bell Telephone Co., Case No. 1:10- CV-01439 (N.D.Ohio March 10, 2011).

Lessons for Employers

The cat’s paw theory has been in existence in employment cases for many years, but the recent attention brought by the Supreme Court decision in Staub is likely to cause an increase in the use of this argument by plaintiffs’ attorneys. There are steps an employer can take to minimize the risk of improper influence by a non-decisionmaker antagonistic toward the employee who has recently asserted FMLA rights.

• Beware of adverse employment decisions and recommendations by a supervisor whose job is made more difficult by the FMLA absences of workers. Any supervisor recommendation or decision to terminate or otherwise discipline an employee who has recently used FMLA leave should be:

- Reviewed by Human Resources personnel and
- Compared to the treatment of other employees with similar—but not FMLA-related—performance or attendance issues.

• Investigate any employee allegations of supervisor bias or animus based on a protected classification, such as use of FMLA leave rights.

- Although allegations of discrimination or retaliation should always be investigated, this becomes even more important when the employee is about to be terminated. The Staub case likely would have come out differently if Buck, the Human Resources vice president, had investigated Staub’s allegations of animus toward his military service. She might have found that the corrective action and report of Staub’s violation were unfounded and reversed the termination decision. Or, if her investigation showed that the corrective action was warranted Proctor Hospital would have had a defense that the termination would have occurred even without the discriminatory attitude of the supervisors.

Train supervisors on employee rights under the FMLA and other employment laws. Include in that training the importance of respecting these rights and not “punishing” employees by expressing impatience or intolerance with respect to their leave rights. See Reed Group’s prior article (PDF format): “An FMLA Lesson: supervisor attitudes can create employer liability”

What is the Cat’s Paw Theory?

The cat’s paw theory is a means of holding an employer liable for the illegal discriminatory motivation of a supervisor who did not make the adverse employment decision but exerted influence over the actual decision maker. The Supreme Court explained that the cat’s paw theory is derived from one of Aesop’s Fables. In the fable, a monkey induces a cat to extract roasting chestnuts from a fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.

The Supreme Court applied the cat’s paw theory to hold that an employer is liable under the applicable employment law:

• if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and
• if that act is a proximate cause of the ultimate adverse employment action.

If you have questions about FMLA, USERRA and other leaves of absence, email us or phone 1-866-218-4650. Also, check out our new MDGuidelines Leave of Absence Advisor, an easy-to-search online tool that simplifies FMLA, state and other leave laws. 

Reed Group Helps Sara Lee Achieve $10 Million in Absence Management Savings

Congratulations to Sara Lee Procurement Director Patty LaValle-Jones, who is featured in an HRO Today article for achieving 30 HR initiatives that resulted in a whopping $35 million in cost savings.

A major part of those HR initiatives was absence management. An outsourcing partnership with Reed Group produced $10 million in savings. Here’s what she had to say in the article:

Sweet Success: Sara Lee’s procurement director knows the ingredients for cost savings. By Debbie Bolla

“It was a challenge to outsource and a long project to get an idea of how we were doing, figuring out what our future state would be, understanding where the gap was, and then finding a supplier to support us,” she explains. “There were a lot of lean processes to go through, driving to the end result we wanted.” And that end result? An outsourcing partnership with Reed Group, producing a little more than $10 million in savings.

Click here to read the entire article.

Want to explore how Reed Group can help you reduce absence management costs?
Contact us to speak to a Reed Group expert today.

Reed Group Launches Leave of Absence Advisor

Newest Addition to MDGuidelines™ Return-to-Work Toolkit Helps Users Navigate FMLA, State FML and Other Leave Laws

With a myriad of overlapping leave laws and potential million-dollar claim disputes, it’s no wonder eight out of 10 employers cite leave law administration as their most difficult HR activity.

To help organizations cope with this growing complexity, Reed Group® today announced the launch of Leave of Absence Advisor™, a searchable online reference tool that provides accurate and complete information on FMLA, state FML and other leave laws.

Leave of Absence Advisor simplifies the tangled web of state and federal leave laws. Users can search by keyword, browse by category or specify state and leave reason, and also can obtain information on corresponding best practices by Reed Group’s return-to work and leave law experts.

The result is easier leaves administration, reduced risk of costly compliance errors, and increased confidence that employees are receiving the appropriate leaves when personal difficulties arise.

“No human being can possibly understand, interpret, and apply overlapping regulations in multiple jurisdictions while in the daily process of approving and administering leaves,” says Jon Seymour, MD, Reed Group president, guidelines. “Leave of Absence Advisor is a critically needed tool for navigating that complexity. The subscription cost is negligible in light of its potential to reduce risk and improve productivity.”

Reed Group Chief Compliance Officer Martha J. Cardi says that Leave of Absence Advisor users can rest assured that its content is the most up-to-date information available.

“Our content is in full compliance with the multitude of state and federal leave laws, says Cardi, a recognized expert in employment and leave law. “We track leave of absence legislation throughout the country and implement changes into all of Reed Group’s products and services on an on-going basis. Users will benefit immediately from this competency when they sign up for Leave of Absence Advisor.”

Everyone involved in return-to-work matters can benefit from using Leave of Absence Advisor, including employers, insurers, third party administrators, attorneys, government entities, and employees.

Leave of Absence Advisor is the most recent addition to Reed Group’s MDGuidelines™ web-based toolkit of return-to-work information, and is just one of several recent Reed Group innovations for helping organizations better manage absence. Reed Group’s new LeavePro™ software for absence management also contains the content of Leave of Absence Advisor in its rules engine, ensuring that organizations are administering leaves with the most current laws available.

MDGuidelines also includes Reed Group’s Medical Disability Advisor real-world and physiological return-to-work duration guidelines with predictive modeling, medical monographs, ACOEM treatment guidelines and state medical treatment guidelines for workers’ compensation.

For more information and a free demonstration of MDGuidelines Leave of Absence Advisor, phone Reed Group at 866-889-4449 or email us

Join Us at DMEC!

Will you be attending DMEC 20Eleven in Dallas next week?

The Reed Group team will be there. We’re looking forward to seeing old and new friends, and to introducing you to our exciting new products and services.

Register to win an iPad at our booth #104 and receive personalized demos of:

* Leave of Absence Advisor — Our newest addition to MDGuidelines™, this industry-changing suite of reference tools eases the burden of administering FMLA, state, and other leaves of absence.

* LeavePro™ — Our best-in-class absence management software that allows you to administer employee leaves with confidence, knowing you’re compliant with constantly evolving leave laws.

And of course, we’re always ready to share our expertise on reducing the cost of absence, effectively returning employees to work, and mitigating regulatory risk. If you have questions or a challenge you’d like to discuss, our experts are ready to help you. Send us a quick email if you’ll be at DMEC and want to make sure we connect with you.

Don’t miss Kevin Curry’s DMEC presentation — Insourcing vs. Outsourcing: Two Employer Journeys
Wednesday, August 3 at 9:15 am.

Kevin Curry, Reed Group SVP, National Practice Leader and DMEC board member

Reed Group SVP, National Practice Leader and DMEC Board Member Kevin Curry will be co-presenting with Valerie J. Pax, Worldwide Director of Absence & Disability Management for Johnson & Johnson.

Together, they will trace the journeys of two major employers — one who successfully outsourced, and one who successfully insourced, absence management. Along with results of a recent Reed Group survey, the presentation will give you insight into their multifaceted decision-making process, challenges faced, and how ROI and outcomes were measured.

Request a copy of the presentation with our Insourcing/Outsourcing survey results.

Can’t make the conference this year?
We’re always happy to give you individual demos of our products and discuss your absence management challenges. Contact us

Reed Group is proud to be a platinum sponsor of DMEC.

ADA Lawsuits on the Rise

Employers Must Utilize Accommodation Process Following Leave of Absence

By Martha J. Cardi, Chief Compliance Officer, Reed Group

There has been a surge in the filing of charges and lawsuits under the Americans with Disabilities Act (ADA) reported in 2010. Total charges filed with the EEOC in 2010 increased by 7.1% over charges filed in 2009. Of these, charges alleging violations under the ADA showed the biggest increase, up 17% from the number of disability-related claims filed in 2009. This trend is expected to continue, following the issuance of the ADAAA Final Rule effective May 24, 2011.

The Equal Employment Opportunity Commission (EEOC) is currently challenging company policies or practices of terminating employees following a leave of absence without going through the accommodation process; that is, without consideration of whether the employee might be entitled to extended leave or some other workplace accommodation under the ADA. This EEOC activity has resulted in consent decrees against several companies in settling the EEOC complaints against them, including the entry of millions of dollars in judgments against the companies.Some examples follow:

1.  Supervalu, Inc., Jewel Food Stores, Inc., and related companies (Jewel-Osco): The EEOC sued Jewel-Osco over its practice of 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 accommodation. The January 2011 consent decree requires Jewel-Osco to:

• Pay $3.2 million to 110 former employees
• Train employees involved in making accommodation decisions on the ADA and possible workplace accommodations
• Hire consultants to review and recommend changes to current job descriptions and possible accommodations for common disability work restrictions for various positions
• Report regularly to the EEOC on its efforts to accommodate employees with disabilities who are attempting to return from medical leaves of absence
• Revise its communications to employees with disabilities to reflect new policies and the availability of possible accommodations

2. United Airlines: United required all reservation sales representatives on disability leave to either retire or go out on extended leave; United then terminated them when their leave ran out. The EEOC contended that United’s failure to consider whether reduced hourly schedules was a reasonable accommodation violated the ADA. In a December 2010 consent decree United agreed to:

• Pay $600,000 to a group of affected reservations agents
• End the termination practice
• Report to the EEOC for the three-year duration of the decree

3. Sears, Roebuck and Co.: The EEOC attacked Sears’ alleged practice of terminating employees following exhaustion of Workers’ Compensation leave without engaging in the interactive accommodation process, specifically by failing to consider workplace accommodations or even a slight extension of leave as an accommodation. The late 2009 consent decree with the EEOC requires Sears to:

• Pay $6.2 million to class claimants
• Change its policy
• Provide written reports to the EEOC to verify its compliance with the ADA
• Train its employees
• Post a notice of the consent decree at all Sears locations

Individual Cases Pose Risks Also

While the EEOC is actively seeking out employers guilty of “systemic” ADA failures to accommodate (those occurring company-wide due to inappropriate policies and practices), employers must also beware of individual cases based on end-of-leave claims. In a recent case from California brought under the Fair Employment and Housing Act (which has employer obligations similar to the ADA), the appeals court upheld a $1.5 million verdict against the employer for failing to engage in the interactive process and provide alternate duty to an injured police officer.

In this case, a Los Angeles Police Department field officer was injured on the job. The officer was assigned by the LAPD to a desk job, consistent with the department’s practice of assigning disabled police officers to “permanent light duty.” After the officer started this assignment, the department learned of his 100% disability rating under Workers’ Compensation rules. Without any evaluation of his capabilities, the officer was told that he could not continue to work with a 100% rating, even though he performed his new permanent light duty job’s essential functions without problem. On appeal, the court found that the LAPD failed to:

• Engage in the interactive process to determine whether there was any reasonable accommodation to get the employee back to his original job
• Consider alternate open positions for which the employee is qualified

The court stated: “In addition to considering… Workers’ Compensation issues, the City should have independently evaluated Plaintiff’s situation with reference to FEHA. … [I]f the City had concerns about [the officer’s] restrictions, it had an affirmative duty to engage in an interactive process and to make an effort to accommodate Plaintiff, rather than simply take him off the job.”

The department’s leave of absence process lacked the crucial step of engaging in the FEHA or ADA interactive accommodation process before termination of an employee at the conclusion of a leave. The department’s failure to employ this individualized process in favor of an unbending rule that relied on a disability rating proved to be a costly mistake.

Cuiellette v. City of Los Angeles (Cal. Ct. App. Apr. 22, 2011)

Three Steps Employers Should Take

In this atmosphere, it is important for employers to be proactive in order to minimize the risk of ADA-related claims going forward. Here are some suggestions:
1.    Analyze each company policy relating to a leave of absence due to the employee’s own health condition:

• Review end-of-leave practices to ensure that the company does not have a set or inflexible rule that calls for termination when an employee cannot return at the completion of a leave taken.
• Build the interactive accommodation step into all leave of absence management processes.
• Require an individual assessment of the employee’s situation at the end of a leave of absence, including consideration of whether the employee is entitled to a reasonable accommodation despite the exhaustion of leave (e.g., an extended leave, return to work with a reduced or modified schedule or duties, a workplace accommodation such as special equipment or accessibility modifications).
• Include in the review all medical-based leave policies: Workers’ Compensation, FMLA and similar state leave laws, company leaves, short- and long-term disability leaves, etc.

2.  Review and update all job descriptions to ensure they include all of the essential functions of each position.

3.  Provide training to managers and supervisors (and HR personnel if needed) regarding the requirements of the ADA and the ADAAA. They should be the company’s front-line issue-spotters and must understand the importance of their attitude and assistance toward disabled employees in avoiding ADA charges.

What is Reed Group Doing About the ADAAA Final Rule?

Reed Group is educating all of its absence management personnel on the issues raised above, as well as other information relating to the ADAAA and the Final Rule. Reed Group offers ADA accommodation as
an addition to our absence management services. However, those clients who do not presently use our ADA services still benefit from the knowledge provided to our Leave Specialists on the impact of the ADA, the recent amendments and new regulations when providing comprehensive, sound advice and services.

If you have any questions about Reed Group’s ADA accommodation management services, please contact your Account Executive or services@reedgroup.com.

The New ADAAA Regulations: How They Impact Leave of Absence Management

By Martha J. Cardi, Chief Compliance Officer, Reed Group

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) made important changes to the definition of the term “disability” to make it easier for an individual seeking protection to establish that he or she has a disability within the meaning of the ADA.

The employment law world has been waiting for over two years for the issuance of regulations interpreting the ADAAA. That wait is now over: The final regulations, known as the “Final Rule,” were published in the Federal Register on March 25, 2011.

No doubt, by now you have already seen many newsletter and blog articles summarizing the new regulations. In tandem with the issuance of the Final Rule, the EEOC itself has published interpretive materials that explain the ADAAA and the Final Rule. At the end of this article are links to the EEOC materials. These materials and other websites, newsletters, or blogs effectively explain in general the changes to the ADA wrought by the ADAAA and its new regulations.

Reed Group has analyzed how these changes impact leave of absence management. For simplicity, we will refer to the “ADA” and the “regulations” to encompass both the originals and the recent amendments, unless a distinction is important.

 
1. Build the ADA Interactive Accommodation Step into All Health-Related Leave of Absence Management Processes
Many employers mistakenly treat their obligations under the ADA separate from and unrelated to their management of health-related leaves of absence under the Family Medical Leave Act (“FMLA”), similar state leaves, company medical or disability leaves and Workers’ Compensation. With the passage of the ADAAA and the Final Rule, it is more important than ever to integrate the ADA accommodation process into all leave procedures. The “disability” threshold is now lower, which makes it easier for an employee to come under the protection of the Act. According to Congress and the EEOC, what constitutes a disability should not require extensive analysis. The focus is now on whether the employer attempted to accommodate the employee’s impairment, and whether the employer discriminated against the employee because of his or her disability.

Accordingly, when administering an employee’s leave of absence, employers must consider the applicability of the ADA when the employee’s leave is exhausted or denied. This may include an extension of a leave previously granted under law or a company policy, or it may mean granting a leave of absence when the employee is not otherwise entitled to one (such as when the employee is not eligible for FMLA leave). An employer’s duty to engage in the interactive process and make a reasonable accommodation is not necessarily fully satisfied upon the employee’s return to work from leave, even if that leave was provided all or in part as an accommodation under the ADA. If the returning employee is disabled or now has a record of a disability, the employee may need – and be entitled to under the ADA – additional accommodations upon return to work, such as time off for doctor’s appointments or therapy sessions, or physical workplace modifications such as accessibility changes or special equipment.

The employer may also have a duty to accommodate an employee no longer impaired but with a record of impairment, for example if follow-up doctors’ appointments, tests, or therapy is needed and related to the past disability. 29 C.F.R. § 1630.2(k)(3).

Reed Group has long encouraged employers to make the interactive accommodation process a part of their leave of absence procedures. See, e.g., articles in Reed Group’s recent newsletters: $3.2 Million Decree Reminds Employers: Leaves Of Absence And ADA Accommodation Go Hand In Hand, 2011 First Quarter, http://www.reedgroup.com/resources/ReedGroup-Newsletter-0211.pdf; and Following FMLA Leave, Don’t Forget The Ada Interactive Accommodation Process!, September 2010, http://www.reedgroup.com/resources/ReedGroup-Newsletter-0910.pdf.

2. “We Don’t Allow That for Other Employees” Doesn’t Avoid ADA Accommodation Obligations
Employers frequently struggle with providing a disabled employee with a workplace or position modification that other employees have requested and been denied. The accommodation obligation under the ADA has always required employers to amend workplace rules or policies or to provide special aid, equipment, or other assistance if necessary to enable an otherwise-qualified disabled employee to perform the essential functions of his position.

The Final Rule has made this clear by specifying that non-disabled employees do not have a reverse discrimination claim for being denied the same treatment afforded to the disabled employee:

Claims of no disability. Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.
29 C.F.R. §1630.4(b).

3. Definitions of “Disability” Vary Greatly
The definition of a “disability” for purposes of ADA protection can differ greatly from the definition for other purposes. The ADA employs a “three-pronged” definition:

• A physical or mental impairment that substantially limits one or more major life activities as compared to most people in the general population (an “actual disability”), or
• A record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
• When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).

29 C.F.R. § 1630.2(g)

The regulations provide extensive and detailed definitions of “physical or mental impairment,” “major life activity,” “substantially limits,’ and other key terms. Specifically, the Final Rule notes that whether an impairment “substantially limits” a major life activity is at a lower threshold than it had been prior to the ADAAA.

Compare the various components of the ADA definition of a “disability” in the Final Rule with a “serious health condition” under the FMLA and similar state leaves or with the definitions of disability under company short- or long-term disability plans, company medical leaves, etc. No two are alike. Thus, for example, a determination that an employee does not qualify for STD benefits does not obviate the need to analyze whether the same employee with the same condition might be entitled to a workplace accommodation or an additional leave of absence under the ADA.

The Final Rule explicitly recognizes the possibility of differing definitions of disability:

Nothing in this part alters the standards for determining eligibility for benefits under State Workers’ Compensation laws or under State and Federal disability benefit programs.

29 C.F.R. § 1630.1(c)(3).

4. The Reduced Threshold for “Disability” May Impact Other Employee Leave Rights
Some legal obligations surrounding leaves of absences are tied to the ADA definition of a “disability.” The change in the definition will make it much easier for individuals to demonstrate that they meet this definition
for other purposes.

For example, the FMLA provides a parent with leave of absence to care for an adult child (age 18 or older) only if the adult child is “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. For this purpose “physical or mental disability” is defined with reference to the ADA regulations, as amended by the Final Rule.

Thus, in determining whether a parent may take leave to care for an adult child with a serious health condition, the more-easily-satisfied definition of a “disability” will apply.

5. Beware of “Regarding” an Employee as Disabled

In what may seem like a Catch-22, the “regarded as” disability protection may present difficulties to employers assessing an employee’s mental or physical condition for other purposes. “Regarded as” discrimination occurs when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory (expected to last less than six months) and minor. 29 C.F.R. § 1630.2(g)(1)(iii). An employee who is not
“disabled” under the ADA may nonetheless have a physical or mental condition for which he is entitled to consideration for a leave of absence under other laws or benefits, such as the FMLA or a company leave policy. Without using care in how the employee’s condition is assessed, and regardless of whether the employee receives a leave of absence based on other laws or policies, the employer may create ADA liability for itself by taking prohibited actions due to its perception with regard to the employee’s condition, even though the employee is not disabled for the purposes of the ADA.

There is one glimmer of good news for employers in the Final Rule. An employer is not required to provide a reasonable accommodation to an individual whose only ADA claim is that he was “regarded as” disabled. 29 C.F.R. § 1630.2(o)(4).

Conclusion
With the passage of the ADAAA and the Final Rule, employers must be more alert than ever of their duties under the ADA. Conditions not previously considered a disability under the Act are now protected conditions almost automatically. Training of supervisors and incorporation of the interactive accommodation process into all health-related leave of absence policies and procedures are an employer’s best lines of defense and should be undertaken immediately.

 

Resources available from the EEOC website:

EEOC Disability page

EEOC ADAAA page

Text of the ADAAA

EEOC’s Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of 2008

Final Regulations Implementing the ADAAA (PDF)

Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008

Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008

Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA

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