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)
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
Kevin Curry, Senior Vice President, National Practice Leader
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
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
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.
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.
(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.