2017 Jackson Lewis P.C. 1

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Gerard Watkins
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1 2017 Jackson Lewis P.C. 1

2 Americans with Disabilities Act Update exploring accommodations, direct threat/safety concerns and the role of medical exams Sally St. Onge, Esq. Jackson Lewis P.C. Hartford Jackson Lewis P.C. 2

3 AGENDA Trends in Workplace Disability Leave and Health Management Law & Practice Paid Sick Leave Leave as a Reasonable Accommodation Recent Accommodation Developments Medical Inquiries & Documentation Direct Threat Analysis Q&A 2017 Jackson Lewis P.C. 3

4 TRENDING: Continued Development Of Paid Sick Leave Laws 2017 Jackson Lewis P.C. 4

5 TRENDING: Continued Development Of Paid Sick Leave Laws-KIBOSH States Alabama Arkansas Arizona (also has state PSL) Florida Georgia Indiana Iowa Kansas Michigan Missouri Mississippi North Carolina Ohio Oklahoma Oregon (also has PSL) South Carolina Tennessee Wisconsin 2017 Jackson Lewis P.C. 5

6 TRENDING: Continued Development Of Paid Sick Leave Laws All use a similar approach to CT PSL: Eligible employees: Employer size in city; Work within city for certain number of hours; Regularly work in the city or occasional worker. Accrual formula: 1 hour PSL for every X hours worked. Common examples of Reasons for leave: Eligible employee or family member s illness --defined broadly; Domestic violence or sexual assault. Employer and employee notice requirements. Employer right to medical documentation to justify PSL use. Carry over: Many require carry over of accrued, unused time. Employer s current PTO policies may satisfy if they meet all other elements of law (like accrual, carry over, uses of leave). Collective bargaining issues. Pay at end of employment: Usually not required. Anti-retaliation provision Jackson Lewis P.C. 6

TRENDING: Continued Development Of Paid Sick Leave Laws Follow Your Process EVERY TIME in EVERY STATE Is the employee entitled to be absent with job protection?

7 TRENDING: Continued Development Of Paid Sick Leave Laws Follow Your Process EVERY TIME in EVERY STATE Is the employee entitled to be absent with job protection? FMLA, State and Local Leave Entitlements Has Company committed to providing additional job-protected leave? Consider your Collective Bargaining Agreement Evaluate policies and past practices (always provide what you say you will) Is additional leave required as a reasonable accommodation for employees with disabilities? Must consider impact of the ADA Amendments Act Many more people on STD and WC will receive leave as a reasonable accommodation PDA Issues? 2017 Jackson Lewis P.C. 7

8 Trending: Leave as a Reasonable Accommodation 7 th Circuit Severson v. Heartland Woodcraft (decided 9/20/17) Circuit court held ADA does not require multi-month leave of absence Directly impacts employers in Illinois, Indiana, and Wisconsin Decision chips away at EEOC enforcement efforts and position on leave as an accommodation 2017 Jackson Lewis P.C. 8

9 Trending: Leave as a Reasonable Accommodation 10 th Circuit - Hwang v. Kansas State University (5/29/14) Authored by Justice Gorsuch before appointment to USSC Involved extension of employer s six month LOA policy under Rehabilitation Act (similar to ADA) Must an employer allow employees more than liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no. Like Severson, the decision takes position that is inconsistent with EEOC enforcement efforts and guidance on leave: 2017 Jackson Lewis P.C. 9

10 TRENDING: Leave as an Accommodation Notes on EEOC Guidance The EEOC has taken the position that, absent undue hardship, an employer must modify a leave policy to allow for additional leave to a disabled employee. Case law is mixed but EEOC is watchdog agency. Address on individualized basis focus on undue hardship arguments. Courts and EEOC tend to agree no obligation to provide indefinite leave of absence; and consider whether multiple leave extensions for definite periods amount to indefinite leave. EEOC says employer must ensure third party leave administrator is compliant. EEOC seems to put burden of communication between short term/long term carrier, employer, and employee on the employer Jackson Lewis P.C. 10

TRENDING: Leave as a Reasonable Accommodation Follow Your Process EVERY TIME in EVERY STATE Is the employee entitled to be absent with job protection?

11 TRENDING: Leave as a Reasonable Accommodation Follow Your Process EVERY TIME in EVERY STATE Is the employee entitled to be absent with job protection? FMLA, State and Local Leave Entitlements Has Company committed to providing additional jobprotected leave? Consider your Collective Bargaining Agreement Evaluate policies and past practices (always provide what you say you will) Is additional leave required as a reasonable accommodation for employees with disabilities? Must consider impact of the ADA Amendments Act Many more people on STD and WC will receive leave as a reasonable accommodation PDA Issues? 2017 Jackson Lewis P.C. 11

12 Trending: Emotional Support and Comfort Animals at Work 2017 Jackson Lewis P.C. 12

13 Trending: Emotional Support and Comfort Animals At Work In March 2017, the EEOC filed suit in Florida federal court on behalf of a truck driver whose employer refused to allow him to bring his emotional support dog on his over the road truck route as a reasonable accommodation. The employer refused the request based on its no pets in the truck policy. The driver is a veteran and his dog helps the driver control his anxiety and wake up from nightmares caused by PTSD Jackson Lewis P.C. 13

14 Requesting Medical Documentation Basic Rule: Requests for medical information from employees must be job-related and consistent with business necessity. ability to perform essential functions poses a direct threat Per EEOC Guidance, an employee request for accommodation generally meets this standard. But Only when condition is not obvious Do not request more information than is needed to evaluate the request Don t speak with doctors or their offices all communications should be in writing 2017 Jackson Lewis P.C. 14

15 Requesting Medical Documentation Key Points Regarding Reasonable Accommodation Asking for a Doctor s note Only if the need for reasonable accommodation is not obvious; Attach the job description; Ask for the doctor s opinion whether the employee can perform the essential duties of his position as described in the job description with or without a reasonable accommodation; If with an accommodation, ask the doctor to suggest some accommodations for your consideration; Ask that the doctor to describe the employee s limitations (if any) that affect the employee s ability to perform essential functions; Depending on the circumstances, consider describing some recent performance issues Jackson Lewis P.C. 15

Direct Threat Analysis An employer need not hire or employ individuals with disabilities if they pose a direct threat, but this is a high standard and requires an individual assessment.

16 Direct Threat Analysis An employer need not hire or employ individuals with disabilities if they pose a direct threat, but this is a high standard and requires an individual assessment. A direct threat means a significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation. A finding of direct threat must be based on the best available objective medical evidence that relies upon the most current medical knowledge. Factors to consider include the likelihood, severity and imminence of harm Jackson Lewis P.C. 16

17 Direct Threat Analysis Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. DO NOT RUSH TO JUDGMENT: The REQUEST FOR A MEDICAL EXAM and determination that an individual poses a direct threat must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical/specialized knowledge and/or the best available objective evidence (including asking the employee for evidence of their qualifications). Identify the specific behavior that would pose a direct threat. A history of or being treated for a psychiatric disability does not, alone, pose a direct threat Jackson Lewis P.C. 17

Accommodation Takeaways Have a detailed policy on reasonable accommodation EEOC will look for it Train managers to recognize requests for accommodation and immediate next steps Establish an effective

18 Accommodation Takeaways Have a detailed policy on reasonable accommodation EEOC will look for it Train managers to recognize requests for accommodation and immediate next steps Establish an effective structure for handling the interactive process Identify who will participate and train all participants Know when to ask for medical documentation, what to ask for and how to evaluate it Adapt to each individual case 2017 Jackson Lewis P.C. 18

19 QUESTIONS? 2017 Jackson Lewis P.C. 19

Disability & Leave Update Evolving Strategies for ADA, FMLA, Pregnancy Accommodation and Paid Sick Leave Compliance

9:45 10:35 am Disability & Leave Update Evolving Strategies for ADA, FMLA, Pregnancy Accommodation and Paid Sick Leave Compliance Alison Jacobs Wice Principal, Hartford, Jackson Lewis P.C. Disability &