Human Resource ProFile Presents: Mark Stepaniak speaking on the ADADD.
Good Afternoon, I'm Mark Stepaniak. I am a Partner at Taft Stettinius & Hollister
in the Cincinnati office. I do labor employment & law.
Thank You for joining us today for HR ProFile's webinar
the topic of which is How Much is Too Much? Medical leave,
attendance policies and the interactive process
under the Americans with Disabilities Act as Amended (ADAAA)
now like all such presentations, this is not specific legal advice if you have
specific questions be sure to consult your
Council or you can find us on the world wide web (TaftLaw.com)
understanding
what is required under the Americans with Disabilities Act as Amended (ADAAA)
and what it allows is more important now than ever before
we all know that more people are now given protected disability status that
at any time
in history this is because ADA was amended a few years back
to dramatically lower the standard for qualifying as a person with a disability
that has to be accommodated
in a workplace. So why is that important?
it's important because all those folks
who are now disabled who previously were not considered disabled under the law
may be entitled to participate in the interactive process and consequently
they may be entitled
to an accommodation and if they are
that accommodation may blow up your time and attendance policy
it's very important to understand how the ADA
FMLA interfaces with your time and attendance rules
i have
noticed that some of our clients are particularly mesmerized
by the Family Medical Leave Act in other words they
spend all their time trying to determine eligibility whether the particular
condition
is a serious health condition that would qualify under the FMLA
and whether leave is appropriate
and they do this to the exclusion of analyzing the situation under the
Americans with Disabilities Act. A number of employers have found out the hard way
that the FMLA is a floor
and not a ceiling to how much leave a person is entitled to.
Some employers have discovered that
the hard way. Once they end medical leave at 12 weeks because the FMLA is
exhausted that they
nevertheless and accommodation obligations under the ADA
and if they didn't engage in the interactive process and didn't
offer those accommodations they can end up on the wrong
side of a lawsuit. How has this
phenomenon manifested itself? Well as this chart
indicates, in the last five years
we've seen a dramatic uptick in the number
up ADA, or disability charges filed with the EEOC
EEOC's published raw data indicates that the number of disability charges
filed
as well as the percentage of disability charges
as a function of all charges filed
continues to rise at a significant rate. As you can see from this graphic
back in 2008 there were seventeen thousand plus
ADA charges filed which represented one-fifth
of all the charges filed. In 2012
that figure was up to one-quarter of
all the charges filed and had increased in number
by 50 percent to 26,000
plus charges, and the reason for this is obvious more people now
are qualified as a person with a disability under the ADA
they can more likely bring a successful charge
we used the bat these charges out pretty easily by
arguing and proving that the person was not disabled
with the ADAAA amendments they lower that bar and many many more people are now
disabled than
were before in the eyes of the EEOC. now the biggest
and most surprising trend that we've experienced lately
is it attack on a very idea that attendance
is somehow import. You know Woody Allen once famously said that
eighty percent of life is just showing up BUT the EEOC believes that showing
up is not even necessary
for most jobs. let's look at whether
or not attendance is an essential job function.
probably the the scariest case in this area
is pending before the 6th Circuit Court appear Appeals which sits here in
Cincinnati involves
the EEOC in a Ford Motor Company case
in that case EEOC argued to the Sixth Circuit
that regular attendance is no longer
in an essential function for most jobs
the EEOC argues that case authority to the contrary, and there's quite a bit of it,
is outdated because it predates recent technological advances
that allow people to telecommunicate and work from home with the
widespread use the internet to perform
most jobs. Now this case is still pending so we don't know whether or not
the EEOC is going to prevail or not but here the basic facts which I think
illustrate this issue
these are the facts in the EEOC versus FORD case. The employee
suffered from irritable bowel syndrome and
as a result she perhaps understandably sought to work from home
whenever she had a flare-up. Well the problem was the flare-ups could
be anywhere up to four days per week
and often without notice so what she asked Ford
for the right to do, was to work at home up to four days a week
without any prior notice to the company Ford argued that telecommuting
to work was not a reasonable accommodation for her position she
served as a steel buyer
which meant that she was buying raw steel
for Ford Motor to use in the construction of automobiles
and Ford argued that she needed to regularly interact with
her team members and fellow buyers. EEOC countered
that face to face interaction among employees on a team
is a mere employer preference and that an employer preference
should be given no weight when analyzing an ADA claim.
The EEOC argued further that
the essential functions of the job which we all know
disable persons are not able to shed the essential functions
but they said essential functions relates only to the
duties perform and not to the location
of where those duties are performed
and of course Ford perhaps contributed to its own problem by allowing
other non disabled employees to telecommunicate in other jobs
in other words when the EEOC was looking at this charge and
trying to decide whether telecommuting was a reasonable accommodation for this
particular charging party
when they saw that Ford had allowed other non-disabled people
perhaps a different job classifications, but nevertheless
to telecommute work from home, they said that that was evidence
that telecommuting is a reasonable accommodation
well for now EEOC's radical view
in this EEOC v Ford case is a minority view and it's not necessarily the law
when the sixth circuit finally rules on this case it will be the law in
Ohio, Kentucky, Michigan, and Tennessee
and no doubt persuasive authority in other jurisdictions.
So what should you do? Well one of the
issues of course in the Ford case had to do with occasional absences and
telecommuting
so you should check your job descriptions do your job descriptions
say
appropriately that attendance
is an essential job function/ good attendance is an essential job functions
if it doesn't say that specifically and certainly
for years it seemed almost axiomatic why would you say that in a
job description well now there's good reason to say if it's true
because it's absence may suggest to the EEOC that it's not an essential function
and then you should also consider whether you're telecommuting
policies are working against you. Now we're not recommending that you
eliminate, as a matter of policy telecommuting, but you least need to
understand that when you do allow it
you're going to make it easier for persons to claim that telecommuting in
their job
is a reasonable accommodation. So
now course in this case you were talking about sporadic absences
up to four days a week. What is the law
currently and how is it developing with respect to
extended absences.
Well, one thing we've seen is that employers who pay down millions of
dollars because of
inflexible leave policies and some of the most notable cases involve Supervalu
and Jewel-Osco who agreed to pay
$3.2 million dollars under a consent decree
in litigation brought by the EEOC in 2011
what problem did they have? Well they had a policy
that said if you are out medical leave you could not return
unless you were a hundred percent (100%) recovered or
had a "full release".
and the only accommodation they offered to folks who have disabilities
was extended medical leave. They didn't consider other
possible accommodations. The EEOC
contended and apparently the company
ultimately relented because there is a consent decree they contended that
this violated the employer's obligations to engage in
the interactive process
and offer reasonable accommodations were necessary.
Similarly the Sears Roebuck company agreed to pay 6.3 million dollars
under a consent decree in 2009
that was at the time, the largest ADA settlement
in history. I say at the time because you're about to see there's been an even
bigger one lately.
And what did Sears do?
basically Sears said that if you went on a workers comp leave and you reach maximum
medical improvement
they would end your employment without consideration
other possible reasonable accommodations
so in other words they were employing these companies were employing
hard fans limits regardless of length
on the amount leave that they would offer employees
now these are big companies with sophisticated human resource functions
we speculate that they did this because they probably have thousands of
employees on leave at any one time
what the EEOC wants you to do, of course is engage in the interactive process
which is individualized decision making, which of course is very difficult
when you've got lots of
employees on leave. EEOC's position in these cases is that
if you have a set period, maximum period for leave
"No leave shall be longer than, let's say, 12 months"
then, you have by definition precluded the interactive process
and they actually may be on to something... think about it
an employee brings in a doctor's note, this is a hypothetical,
so it doesn't have to necessarily
make sense but employee brings in a doctor's note that says
please excuse Joe from work he's having this a particular
medical procedure, he is disabled and he's going to be out
53 weeks. Well what if your policy said no to leave can exceed 52
weeks? What EEOC would say
is that the accommodation under that fact pattern isn't whether or not it's
reasonable
to give somebody fifty three (53) weeks off, that seems like a long
period time, the accommodation in that case is whether or not you have to give them
an additional one week
from 52 to 53 so in that case the employer would find itself in the nearly impossible
situation arguing
well of course we could give Joe 52 weeks off
but how could we possibly be expected the giving 53 weeks off
alright, so that's the analysis when you have a fixed leave period
The question is, Is additional leave,
beyond that a reasonable accommodation and you only know that
if you engage in the interactive process
now I told you that the Sears case was eclipsed in terms of being the largest
settlement
in EEOC history
In 2011 Verizon
agreed to pay $20 million dollars to settle a nationwide EEOC
disability suit.
According to EEOC Verizon had denied reasonable accommodation to employees
and disciplined them, or fired them
pursuant to a no fault attendance plan. Well lots of us have no
fault attendance policy's and of course we know that the FMLA
played havoc with those because if the person qualifies for
FMLA leave you can't apply your no fault attendance policy
well the EEOC is following suit saying that well wait a minute
if the person is disabled, and remember many more people are disabled
Alan used to be disabled in the eyes of the you see
that if you're applying that no vote attendance policy to somebody who's
missing work
because of a disability you might be discriminating against
what's the cure the cure is you have to engage in the interactive process you
have to meet with the employee
discover what a combination they may need in decide whether or not
flexing your attendance policy is a reasonable accommodation
now be careful we're not saying that flexing your attendance policy
is always in every case a reasonable accommodation and then you must do so
when I am saying is that you need to engage in the interactive process
if you're about terminator discipline somebody who is disabled
didn't come to work because other disability when you're no fool
attendance problems
here's exactly where you see is to say about this
the EEOC has issued guidance on disability and it says and I quote
it's laid out here on the screen if an employee with a disability
need additional unpaid leave
as a reasonable accommodation the employer must
modified snowfall policy to provide employees with the additional leave
unless the employer can show in other words the employer as it were true
that there is another effective accommodation
that would enable the person to perform the essential job functions
up the position so for example
her the person rather than needing leave you know we
remove a nonessential functional we get him a chair
lower the high to the table for working on allowing it them to telecommute
move to a vacant position that sort of thing or
and less important show that granting additional leave would cause im
undue hardship well as you know is HR professional
that the employer bears the burden of proof on showing an undue hardship
ninety hardship is judged under very very
rigid standards that takes into consideration
resources the tour resources at the company and it's very difficult to show
an undue hardship in many cases print now
bf I'll not grantor
if granting this additionally wouldn't put a
undue burden on other employees act sometimes can be
proved to be an undue hardship tell you is that this is a case specific analysis
from which the only general rule you can drive is that
if you're about the discipline somebody under a leave policy
actually policy go for it as policy
and that person is disabled must engaging interactive process
on and that's what's required here engaging in the interactive process
making some sort of ended
visualized assessment now we're not saying
that limitless leave is required
what we're saying is that inquire is required
what is needed in how the person might be accommodated
a quick word or two about substance abuse
you all know that current illegal drug use
is not protected under the ADA federal government made a policy decision that
said when I can accommodate current illegal drug users
because we're trying to stamp out illegal drugs but alcoholism
is protected can also form grow
use somebody who you know was up heroin abuser
a year or two ago now works for you that person's history
drug abuse would be protected if you're not a current user
well oftentimes when employees show up to work drunk
rather me and fired employer will offer rehab opportunity and some sort of last
chance agreement
up finally some good news there are some recent cases
that have held that a return to work
agreement in other words base where lol contract with the employees that says
reaffirmation of stay clean
when I come back I'll can be enforced against simple way without running afoul
love the ADA that
some courts upheld that violation a return to work agreement is not the same
as terminating for disability cell
persons now always be sure work drunk you could fire them for that
they ask to be rehabbed you offer them rehab
they agree they sang to return to work agreement where they say they're not
gonna show up for work
under the influence again they violate that
terminating man at that point these courts adele is not the same as firing
them for alcoholism
it's firing them for violating the return work agreement
are likewise Court's appellate failing to complete treatment
can justify determinations the person says please boss Camino the chance let
me go to rehab
don't finish the rehab can you then terminate them yes you not terminating
them for being an alcoholic her former drug abuser
your terminating them prepared complete the treatment
now be careful can't go too far you see on the screen abort point that says
driver no return policy on wall this particular case
the employer was a trucking company employees came forward and said why an
alcohol problem
the employer and net seemingly yep generously said what they will do what
you can to rehab
and we'll find another job but you can never drive for us again
and the EEOC the court said that
that was a violation a the law
the never drive again policy was going a step too far
other courts have upheld that dad where
employees detectable amounts of alcohol in her blood during a
require drug test that the employer can take action on that
without being accused of discriminating against employees because it was out all
well what else do you need to know
couple things number one was very important indefinite leave is not be
reasonable
accommodation in other words for employees comes to you and says after
some reasonable period of time
for medical assessment and says I need a medical leave and I don't know how long
I'm gonna be out
most courts have held that that is not request for a reasonable accommodation
definitely leave with no known and a is different
then a request for leave for a specific period of time that's
beyond perhaps with your policies otherwise
would allow sup let's but this through a hypothetical for illustration purposes
fellow as a heart attack people sat on the ground and you say to him
you're waiting for the ambulance when will you be coming back and he says I
don't know
you can't fire him for requesting an indefinite leave
but once a person's been stabilizers doctor looks I'm in the doctor says
you know you can come back in six or eight weeks that would be
lesson 13 risk it take the open layout picture
on the interactive process would be
can I accommodate this guy beginning leave for thirteen week
if after some reasonable period on the other hand doctor says this guy's
condition seems to be permanent I love is never coming back
then loss says in most jurisdictions that
that's something you would not have to accommodate likewise if you offer
employees
as a reasonable accommodation light-duty light duty is different than removing
nonessential functions light duty
means in most def in them common vernacular means
actually removing a sensual functions from a job which
not required to do under the ADA I'll that you don't have to offer that
forever
so if you got a disabled employees say well do you get back on your feet were
gonna
you have to do this that and the other thing these 3par's have your job
having offer that you don't have to continue their forever
likewise extension a request for some short term disability
need not be indefinite so many employees as I need six months of
and you determine if that's a reasonable accommodation
on and then he comes back and says I'm more time off
if it's a specific period time you go to the interactive process to determine if
that's reasonable
it's indefinite and you don't have to agree to that
well course many plaintiffs lawyers in Las other doctors have figured out well
here's the trick is
is you know aspirin definitely because that's not a reasonable accommodations
are you ask for specific leave
and you just keep rolling in dough he needs three months of
the other three months he needs another three at the end of that he needs
another three
so what's the law on that %uh won't even the EEOC
said the employer can in a con in that
contact a request up the treating physician information about why his
first estimate was an addict
are inaccurate and could be relied upon
arm the M most courts will uphold
you've got to wonder to the generations the idea that a
this rolling leave is really nothing but indefinitely even disguised
and does not need to be a comedy
we talk a lot about the interactive process
let's go over some key points that up first
some ports and this isn't true every jurisdiction that some courts have said
that you have to distinguish
between conduct in a manifestation other disabilities so for example
a guy is sleeping on the job you be sleeping on the job because he's
narcoleptic
other words he falls asleep and you can control that do
a problem with his brain %uh that sleeping on the job in many instances a
manifestation of his disability in
firing him for sleeping is the same thing as firing him for being
narcoleptic
which in a lab to do now course if
not being asleep at work is an essential function and probably is for most jobs
but certainly for
let air traffic controllers security guard is good idea
an essential function then not the person simply isn't qualified for the
job
now that doesn't mean that you might consider other combinations which could
be
a medical leave of absence if medically is going to do any good
another job give somebody a medical leave of absence if at the end of it
they're going to have the exact same problem
or considering them perhaps for some other position
whereas narcolepsy problem would be as critical
I'll the second ballpoint talks about adjustment medication
there was a rather unusual case were person
was getting psychoactive drugs for psychiatric problem
came to work Monday out with leaner I'm raw meat
and severe any employer thought that inappropriate and fire
and the court believe youre not found that he that the company the other
reasonably accommodate that fellow and the reason was that his bizarre behavior
with the meeting the beer
was a manifestation his I'll
the the drugs manifestation the disability compounded
by bizarre interaction with the drugs
and that he should have been given medical leave time to get his meds
under control so how could that problem cure it could have been cured
to the interactive process rather than just blow him up when he showed up
acting up unusual at work gracious at him down
trying to figure out what the deal was then considered whether we
was possible a third bullet point talk about their goodbyes vacancies
this particular case a woman was cancer sufferer
she came to work said I don't think I can do my job anymore it's just too
physical
chemo and cancers wiped me out employer said well okay fine im or accept a
resignation
she later sued and the court said that
what the company should have done was engaging interactive process and
reviewed with her
other vacant positions that perhaps she could have done
so that was a failure to engage in Iraq process
some oil similarly on that last bullet point
%uh it's the same case up
in an instance the im the one's position sent in a letter saying that she needed
all these different combinations in the importer read is that what we can't do
that
and so they just terminator when the court ultimately said what they should
have done
was sat down there and gone through the last suggested accommodations and said
well we can do 13 but not too in five
maybe we can do for and that would have been the interactive process having
failed to do that
they set themselves up war
potential legal liability sup the sum up
as you can see under the new vastly more liberal
adaa you're gonna have a lot more people qualify
as disabled as a result have a lot more chances
and to get hung up on the ADA so
here are the takeaway tips number one never
ever apply limit only other sizes leaves 11 to six months 12 months whatever
without engaging in the interactive process
if you discover from the interactive hurt process that the person needing
much longer leave
perhaps you can't comment if they need an indefinite leave you don't have to
accommodate
that they need an additional shortly you at least Hampton
him engage in your active process so you can show that you could not accommodate
a number two if somebody does aspirin nationally that you cannot accommodate
you must consider other accommodations in other words well
we can't give you another 10 months of you've already been out for a year
but we do have this position over here that's avail
doesn't mean you have to offer position would means you have to go through the
list the
available positions to determine whether or not that is a reasonable
accommodation
they are you gauging the iraqi processes where you're going to get her
and number three as you engage in the interactive process
do that with a witness in document your efforts in the conversation
if the employee is telling you when there's nothing I could do I can't do
that job I can do this job I don't know when I'm coming back
document all at and you should be okay
hopefully this was helpful you have any questions let us know thank you very
much