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

Transcription

1 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.

2 Disability & Leave Update EEOC Focus Leave under the ADA Pregnancy Accommodation FMLA Litigation Paid Sick Leave Developments DLHM Action Plan

3 EEOC Focuses Its Enforcement on the ADA Approximately 37% of all EEOC lawsuits in FY 2015 involved ADA claims (53 causes of action up from 49 in FY 2014). This is the highest percentage of any claim enforced by the EEOC. LAWSUITS, 0 ADA, 37% All other, 63%

4 EEOC In Production Mode This Year *EEOC guidance on Leave EEOC final regulations on Wellness Plans *Resource documents for Pregnant Workers and their Doctors EEOC enforcement guidance on Retaliation

5 EEOC Weighs In On Leave Under the ADA EEOC first suggested they would provide guidance in 2011 May 9, 2016, the EEOC issued a resource document on leave and the ADA Gathers some basic principles governing leave as an accommodation under the ADA o o o employer may need to provide leave to an employee with a disability even if the employer does not offer leave as a benefit an employee may be entitled to leave even where not eligible for leave under the employer s policy; or May have to extend leave where the employee has exhausted the leave available under the employer s policy and the law Did NOT answer the burning question: how much leave does an employer need to provide?

6 EEOC & Maximum Leave Policies The EEOC s May 2016 Resource Document continues to target Employer Maximum Leave Policies Declares that Employer s must modify a maximum leave policy under the ADA Courts have seen it differently Individual assessment still the most reliable rule of thumb

7 EEOC Resource Documents for Pregnant Workers and their Doctors Purports to help educate doctors on what employers legally can and can t do when an employee becomes pregnant Gives doctors advice on how to respond to medical questions from employers regarding their patient s need for accommodation Quick reference information for doctors when completing employer reasonable accommodation medical questionnaires

8 Employer Responses to Pregnant Workers and their Doctors The EEOC has already prepared the doctor to expect follow up Engage in a meaningful interactive process If the FMLA and state law are not in play, you may need to seek a second opinion regarding whether the employee can safely perform the job The treating physician may be relying on the EEOC resource document and an understanding that it provides entitlements - so consult counsel before denying a request for accommodation

9 2016 Circuit Court Decision Highlights Intersection of FMLA & ADA Bank teller s lupus required her to miss long stretches of work Bank terminated her employment Teller position required regular attendance at the bank HELD: employer did not violate the FMLA or ADA

10 FMLA Interference Trend Focus of claims not on outright denial on leave Impact on employment flowing from request for leave Impact on employment flowing from use of leave

11 Strong Words From Courts Hearing FMLA Claims Neither the fact that the company maintained a handbook stating that it required medical certification nor the fact that the company had recently given plaintiff a Notice of Rights and Responsibilities, which explained the medical certification requirement, sufficed to put plaintiff on notice that medical certification was required for this claim as an employer must give notice of a requirement for certification each time a certification was required. A reasonable jury could find, under the totality of the circumstances, that HR exercised sufficient control over plaintiff s employment to be subject to liability under the FMLA.

12 Paid Sick Leave Developments Executive Order Final regulations published September 30, Applies to certain federal contractors and subcontractors 1 hour of PSL for 30 hours worked on covered contracts Up to 56 hours a year Minimum increment: 1 hour Concerns: Cost of paid time off Cost of administrative tracking/recordkeeping Loss of control over attendance

13 Paid Sick Leave Developments

14 Paid Sick Leave Developments Similar Approaches to PSL Structure 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.

15 DLHM Compliance Action Items 1.PROCESS 2.PROCESS 3.PROCESS

16 DLHM Compliance Action Items The Interactive Process Don t skip this step when an employee asks for or puts the Company on notice of a need for Reasonable Accommodation under the ADA, including leave or extension of leave treating Pregnancy related disabilities like all others It s a valuable opportunity to gather information that enables the Company (and employee) to make reasonable decisions As part of this process, Employers may ask employee (or employee s doctor): Reasons for need When the need for leave will end Whether alternative or additional accommodation may be effective in keeping/returning the employee to work If an extension is requested, may ask why the initial estimate of a return date proved to be wrong.

17 DLHM Compliance Action Items FMLA Process Understand required time frames for providing mandatory notices Notice of Eligibility and Rights Required medical certification at the beginning of leave Decision granting or denying leave Required medical certifications to return to work Company policy and process that supports FMLA administration Correspondence at various stages of leave Medical updates required Conditions of receiving paid time off benefit/std/ltd during FMLA leave Scheduled leave ending/return to work plans FMLA entitlement exhausting/exhausted ADA process initiated

18 DLHM Compliance Action Items PSL Process for Multi-State Employers Modify current sick time policies to fully comply only in the jurisdictions where it is required. vs. Create a PSL policy that applies to all locations which captures common denominators in the various PSL laws and use addenda for unique state or city requirements that you do not wish to apply to all employees. Consider extra costs associated with additional covered groups. Once you give this type of benefit there are many employee and legal hurdles to be cleared in order to take it back.