Many employers may treat their obligations under the Americans with Disabilities Act (ADA) as unrelated
to their management of leaves of absence because they are required under other laws or policies, such as the FMLA, company disability leaves, or workers’ compensation.
A recent settlement by the EEOC with supermarket/drugstore giant Supervalu, Inc., Jewel Food Stores, Inc., and related companies (Jewel-Osco) serves as a wakeup call for employers to build the ADA interactive accommodation step into all leave of absence management processes.
A federal judge has signed a consent decree ordering Jewel-Osco to pay a total of $3.2 million in settlement to 110 former employees. The employees were terminated in accordance with the company’s policy and practice of terminating employees with disabilities at the end of medical leaves of absence rather than bringing them back to work with reasonable accommodations. Jewel/Osco’s policy required employees to be 100% healed or recovered in order to return to work, rather than exploring options for employees to return to work with any type of reasonable accommodation.
Nonmonetary Equitable Remedies Also Ordered
The monetary award may only be the tip of the iceberg regarding consequences for Jewel-Osco. The consent decree (meaning that the company agreed to the terms of the court order rather than proceeding through litigation) also imposes significant nonmonetary obligations on Jewel-Osco:
- Employees involved in making accommodation decisions must undergo training on the requirements of the ADA and the types of possible accommodations available to assist employees in returning to work.
- The company will hire consultants to review and recommend changes to current job descriptions, ensure that the descriptions of the physical requirements of each job are accurate, and provide recommendations on possible accommodations for common disability work restrictions for various positions.
- Jewel-Osco must report regularly to the EEOC on its efforts to accommodate employees with disabilities who are attempting to return from medical leaves of absence.
- The company must revise its communications to employees with disabilities to assure them that they need not be completely recovered or healed at the conclusion of their leave of absence to be considered for return to work, and to advise them of possible accommodations that may be available.
- Additional Impacts to Jewel-Osco’s Business and Bottom Line From Defending the EEOC Lawsuit:
- Considerable disruption to Jewel-Osco’s operations as key and lower level personnel alike devoted time and energy to witness interviews, document production, depositions, etc.
- Substantial costs and attorneys’ fees incurred defending the EEOC’s lawsuit and ongoing to ensure compliance with the consent decree.
Beware of an EEOC Pattern
In addition to the Jewel-Osco case, the EEOC has entered into consent decrees in at least two other recent cases involving an employer’s practice of terminating employees following a leave of absence without engaging in the ADA reasonable accommodation process. In December 2010, United Airlines settled an EEOC case relating to its blanket policy against reduced hourly schedules for some positions.
Previously, United had required all reservation sales and services representatives who could not work their full bid schedules due to a disability to either retire or go out on extended leave, and then terminated them when their leave ran out. The EEOC contended that this practice, without considering whether reduced hourly schedules was a reasonable accommodation, violated the ADA.
United agreed to end this policy and practice, and to pay $600,000 to a group of affected reservations agents with disabilities. The decree is a three-year agreement, which means that United likely also has obligations under the decree to report to the EEOC during this period.
In late 2009 the EEOC settled a similar ADA lawsuit brought against Sears, Roebuck and Co. In that case the EEOC alleged that Sears had engaged in a practice of terminating employees following exhaustion of workers’ compensation leave, again without engaging in the interactive accommodation process. The EEOC charged that Sears denied its injured employees the ability to return to work by failing to consider workplace accommodations or even a slight extension of leave as an accommodation.
Like Jewel-Osco and United, Sears entered into a consent decree with the EEOC which included payment of $6.2 million to class claimants and significant remedial relief, including changing its policy, providing written reports to the EEOC to verify its compliance with the ADA, train its employees, and post a notice of the decree at all Sears locations.
Is Your Company at Risk?
Perhaps the next EEOC lawsuit could be against an employer who terminates employees upon exhaustion of FMLA leave rights without engaging in the ADA interactive accommodation process. Reed Group discussed the need to engage in this process in our blog article Following FMLA Leave, Don’t Forget The ADA Interactive Accommodation Process!
Reed Group Can Help
Employers should incorporate the interactive accommodation discussion into all leave of absence management procedures. Reed Group offers ADA accommodation management assistance alone or in conjunction with our other leave of absence management services. We can tailor our services to your company’s existing lawful policies and procedures and your company’s personality and culture. For more info, contact us.
By Martha J. Cardi, Chief Compliance Officer, Reed Group
Effective December 13, 2010, the Department of Labor (DOL) and the ABA will assist potential plaintiffs in obtaining legal counsel and documentation for claims filed under the Family and Medical Leave Act (FMLA) and under the Fair Labor Standards Act (FLSA), which provides minimum wage and overtime rights.
Historically, the DOL receives approximately 35,000 employment-related claims annually – much more than it has the capacity to manage to conclusion. In the past, if the DOL was unable to handle the claim it simply informed employees of their right to bring a private lawsuit.
Now, pursuant to the Bridge to Justice initiative, the DOL will go further. When an employee files an FMLA or FLSA charge that the DOL does not have the capacity to prosecute, it will connect the claimant to a local ABA referral service that will provide access to private attorneys able to help the employee with his or her claim. This program may result in an upsurge of litigation claims against employers, with or without merit, as they are passed by the DOL to plaintiffs’ attorneys for representation. Employees who previously might not have pursued a claim may now have an attorney urging them to file suit.
Taking things a step further, if the DOL has commenced an investigation, it will provide to the claimant information about the DOL’s determination regarding violations at issue. According to the DOL, “This information…will be very useful for attorneys who may take the case.”
Moreover, the DOL has also developed a special process for complainants and representing attorneys to quickly obtain “certain relevant case information and documents” when available. What this relevant case information may include and whether the employer or its attorney will likewise have direct access to such information are not specified.
This initiative may have the effect of discouraging employers from being cooperative and open during the DOL’s handling of claims. Employers must now assume that any information they provide to the DOL regarding a specific individual’s FMLA claim may become available to the employee and his/her attorney.
If you’re an employer, absence management and return to work can be a real challenge. Fortunately, you don’t have to go it alone.
The mission of the Disability Management Employer Coalition (DMEC) is to help employers develop cost-saving programs and return employees to productive employment. DMEC takes a strong leadership role in helping to improve workforce productivity.
At Reed Group, we share that mission, and we’re very pleased to announce that we have chosen to become a platinum sponsor of DMEC this year.
I will also be serving on DMEC’s Executive Advisory Board, helping with strategic direction and development. On behalf of our entire company, I’m excited to have this opportunity and look forward to contributing my own and Reed Group’s unique industry expertise in optimizing return-to-work outcomes.
If you’re an employer or other stakeholder in the disability/absence management industry, I invite you to take full advantage of all the many resources that DMEC offers, especially these events:
Both of these conferences have a great line-up of speakers (including Reed Group experts) and provide excellent learning and networking opportunities. We hope to see you there.
Also, don’t forget that DMEC offers a wealth of educational resources, such as it’s excellent magazine @Work, forums, chapter meetings, webinars just to name a few. If you’re currently a member of DMEC, don’t wait to take advantage of all this organization has to offer. If you’re not a member, what are you waiting for?
See you at the DMEC Behavioral Risk Conference in March!
Important Note: Please join us for Reed Group’s upcoming webinar on the new GINA regulations Thursday, March 10, 1 pm EST/10 am PST. We will provide further details here on the blog or you may email firstname.lastname@example.org for more info.
Employers must learn and comply with the requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA), not only for general privacy concerns but when administering leave of absence management.
Among other things, GINA requires employers to:
- Refrain from requesting, requiring, or purchasing “Genetic Information” (as uniquely defined by GINA) of an employee or the employee’s family members, except in narrow circumstances
- Include special “safe harbor” language on permitted requests for medical information
- Direct healthcare providers not to solicit or provide Genetic Information for the purpose of fitness-for- duty certifications and other job-related medical examinations
- Delete Genetic Information from medical records produced in litigation, including responding to subpoenas and requests for production, unless specifically ordered by the court
- Segregate Genetic Information from other personnel records and files
GINA was passed during President George W. Bush’s last days in office and became effective on November 21, 2009. Initially, the majority of the focus fell on GINA’s employment-related provisions of Title I, which prohibit discrimination in employment based on Genetic Information. (Note: Title II, which relates to discrimination in health care coverage, is not addressed in detail in this article.)
The focus has now shifted to the provisions relating to the acquisition and confidentiality of “Genetic Information,” as that term is defined in GINA. The Equal Employment Opportunity Commission recently issued final regulations effective January 10, 2011, interpreting GINA.
The Act and the regulations (the “Final Rule”) will have a significant impact on employers’ management of leaves of absence due to the restrictions on obtaining and managing employees’ “Genetic Information.”
Unfortunately, there are several aspects of the application and interpretation of GINA’s requirements that are quite unclear or not addressed at all under the Act or the regulations. Reed Group will develop its opinion and best practices in these gray areas until further guidance is available in the form of EEOC interpretive statements, court opinions in lawsuits, or other sources.
GINA Provisions Relating to Acquisition of Medical Information
In leave of absence and disability management, medical information is crucial. However, under GINA the simple act of acquiring Genetic Information about employees or their family members may constitute a violation of the Act. 29 C.F.R. § 1635.8(a). With a few exceptions, GINA prohibits employers from requesting, requiring, or purchasing an applicant’s or employee’s Genetic Information, even if it is never used improperly or at all.
Familiarity with the definitions of certain terms unique to GINA is key to understanding and complying with the Act.
- The definition of “Genetic Information” is much broader than one would imagine. As defined in GINA, Genetic Information includes not only the results of genetic tests for an individual and/or his relatives, but also “family medical history,” which means “the manifestation of disease or disorder in family members of such individual.” 29 C.F.R. §1635.3(b). The disease or disorder that constitutes Genetic Information does not have to be hereditary.
- “Family members” is also defined very broadly to include obvious relatives such as parents, children, and siblings, but also adoptive relatives and dependents, and “any other individual who is a first-degree, second-degree, third-degree, or fourth-degree relative of such individual or of an individual” – such as uncles, great-great grandmothers, and first cousins once removed. 29 C.F.R. § 1635.3(a).
According to one commentator, taking these two definitions together, GINA prohibits acquisition of information about an adopted child’s chicken pox, a father’s deafness, a grandmother’s breast cancer, or a great-great-grandfather’s death from gangrene after being shot in the Spanish-American War. P. Gordon, Workplace Privacy Counsel, “10 Tips For Avoiding GINA Violations,” (November 29, 2010).
• Be aware of what constitutes a “request” for Genetic Information. Under the regulations, requests may include:
- An internet search on an individual with a query that is likely to reveal Genetic Information
- Actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining Genetic Information; and
- Making requests for information about an individual’s current health status in a way that is likely to result in obtaining Genetic Information
29 C.F.R. § 1635.8(a).
Exceptions to the Acquisition of Genetic Information as a GINA Violation: Employee Medical Information Requested for Leaves of Absence.
One critical exception to the rule prohibiting acquisition of an employee’s Genetic Information applies “where [an employer] inadvertently requests or requires Genetic Information of the individual or family member of the individual.” 29 C.F.R. §1635.8(b). This exception may apply to:
- A request for medical information pursuant to federal, state, or local law, such as leave requests under the FMLA to attend to the employee’s own serious health condition or to comply with a fitness-for-duty certification requirement. 29 C.F.R. § 1635.8(b)(1)(i)(D)(2).
- A request for documentation to support a request for a leave not governed by law, such as company leaves of absence, as long as the documentation required complies with the requirements of the ADA and other laws limiting an employer’s access to medical information. 29 C.F.R. § 1635.8(b)(1)(i) (D)(3).
- A request for documentation to support a request for a reasonable accommodation under federal, state, or local law, as long as the need for accommodation is not obvious, the documentation is limited to content sufficient for the purpose, and the documentation relates only to the impairment at issue. 29 C.F.R. § 1635.8(b)(1)(i)(D)(1).
GINA Warning Required
However, for the acquisition of Genetic Information under these circumstances to be considered “inadvertent,” the request for medical information must be accompanied by a warning to the employee and to any health care provider(s) from whom the employer is requesting medical information not to provide Genetic Information. 29 C.F.R. §§ 1635.8(b) (1)(A) and (B). The following “safe harbor” language is provided by the regulations, which may be included in requests for medical information:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring Genetic Information of employees or their family members. In order to comply with this law, we are asking that you not provide any Genetic Information when responding to this request for medical information. ‘Genetic Information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and Genetic Information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
29 C.F.R. § 1635.8(b)(1)(B).
The warning may be in writing or oral if the employer typically does not make such requests in writing. This specific language is not mandatory as long as another similar statement accomplishes GINA’s purpose. 29 C.F.R. §§ 1635.8(b)(1)(A) and (B).
Information for Employee Leave to Care for a Family Member
Another key exception to the prohibition on acquisition of Genetic Information applies to information requested to support a leave of absence to care for an ill family member. This includes an FMLA or similar leave to care for a family member with a serious health condition, or company time-off policies that allow use to care for a sick family member. 29 C.F.R. § 1635.8(b)(3).
Other exceptions include: 29 C.F.R. § 1635.8(b)(1)(ii)
A. Where a manager or supervisor inadvertently overhears a conversation between the employee and others (contrasted with actively listening to others’ conversations). 29 C.F.R. § 1635.8(b)(1)(ii) (A)
B. Where the information is acquired in response to an ordinary expression of concern for the employee’s well-being (e.g., an extensive response to a simple question such as “how are you?” or
“how is your mother doing?”) as compared to active probing for information. 29 C.F.R. § 1635.8(b)(1)(ii) (B)
C. As part of health or genetic services and wellness programs provided on a voluntary basis. (Note that extensive conditions apply to this exception.) 29 C.F.R. § 1635.8(b)(2)
D. Information obtained from commercially and publicly available sources such as newspapers, magazines, and electronic sources (as long as the acquisition is not a violation of privacy or ownership rules, and the acquisition is not the result of a purposeful search for Genetic Information). 29 C.F.R. § 1635.8(b)(4)
E. As part of genetic monitoring that is required by law or provided on a voluntary basis. 29 C.F.R. §1635.8(b)(5)
F. Employers who conduct DNA testing for law enforcement purposes as a forensic lab or for human remains identification. 29 C.F.R. § 1635.8(b)(6)
Special Requirements for Job-Related Medical Examinations
The prohibition on acquisition of Genetic Information, including family medical history, applies to medical examinations related to employment, such as fitness-for-duty certifications, post-offer examinations,
or requests for medical information to support an ADA accommodation request. The employer must specifically tell health care providers not to collect Genetic Information as part of a job-related examination. If an employer learns that Genetic Information is being requested by the health care provider the employer must take measures to discourage this practice, including perhaps declining to use the services of the health care provider further. 29 C.F.R. § 1635.8(d).
Limitations on Disclosure of Genetic Information
Once Genetic Information is acquired by an employer, there are several provisions of GINA relating to maintaining or disclosing such information.
- Genetic Information must be regarded and handled as a confidential medical record and filed separately from regular personnel files. For example, it may be filed in the same files where an employer keeps information obtained pursuant to the ADA. 29 C.F.R. § 1635.9(a)(1), (2).
- Genetic Information acquired by the employer may not be disclosed except as provided in the regulations, including the following:
– To the employee (or to a family member receiving genetic services) if requested in writing by the employee or family member; 29 C.F.R. §
– In response to a court order, but only to the extent expressly identified by the order. (If the order was obtained without the employee’s knowledge, the employer must notify the employee of the court order and identify the Genetic Information that was disclosed). 29 C.F.R. § 1635.9(b)(3);
– To government officials investigating compliance with GINA. 29 C.F.R. § 1635.9(b)(4);
– To support an employee’s compliance with the requirements for a medical leave of absence, as discussed above. 29 C.F.R. § 1635.9(5); and
– To a public health agency regarding the manifestation of a contagious disease that presents an imminent hazard of death or life- threatening illness. 29 C.F.R. § 1635.9(b)(6).
For additional information and guidance, see the EEOC GINA Website.
MDGuidelines’ New & Enhanced Predictive Modeling Helps You Tailor RTW Durations for Individual Cases
Great news! Reed Group’s MDGuidelines now has a newly upgraded predictive modeling tool for tailoring return-to-work (RTW) durations for disability, workers’ compensation, absence management and health care.
Predictive modeling tools employ statistical techniques that allow general RTW guidelines to be more closely tailored based on factors such as age, job class and the presence of additional (co-morbid) health conditions.
The new version of the predictive model is fully integrated and presented “in-line” with the textual RTW guidelines, and offers a unique Days Saved Calculator to help stakeholders understand the impact of proper case management.
MDGuidelines’ new enhanced predictive modeling tool allows users to:
* Quickly choose from a list of common co-morbid conditions (such as diabetes or obesity) with one click.
* Input up to three co-morbid conditions.
* Further tailor the prediction with fields for workers’ compensation and geography.
* Compare the tailored guideline (based on thousands of real-world cases) to the expected physiological healing time for the primary injury. This comparison helps case managers identify psychosocial factors that may extend the absence and apply additional resources as needed to help the employee back to work sooner.
* Input the employee’s salary to calculate the direct cost of the employee’s projected absence.
* Calculate the estimated savings if the case is managed to the physiological recovery duration instead of the real-world recovery duration.
“There is absolutely nothing else in the marketplace today that compares with the power and ease of use of this new predictive modeling tool,” says Jon Seymour, MD, president, guidelines, for Reed Group. “Combined with MDGuidelines’ superior data quality, this tool gives return-to-work stakeholders the functionality they need to achieve better outcomes, reduce costs and help employees return to their normal productive endeavors.”
For a demonstration of Reed Group’s new MDGuidelines predictive modeling tool, or to receive a free 30-day trial of MDGuidelines, please contact John Nelson at 866.889.4449 or email@example.com.