Think Outside. the Silo ADAAA: The Interactive Process Is an Employee Right, Outside Silos Yet Parallel FEATURE:ADAAA

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1 FEATURE:ADAAA ADAAA: Think Outside The Interactive Process Is an Employee Right, Outside Silos Yet Parallel the Silo Between financial interest and human interest, employers are motivated to go to significant extremes in getting people back to work. In many instances employers go well beyond what is legally required. Frank Alvarez, Esq. Senior Partner, Jackson Lewis May 2012 Vol. 4, No 2 ntegrated disability and absence management can provide tools to facilitate ADA Amendments Act (ADAAA) compliance, but employers may discover a same words, different language Iscenario on some cases. Many employers designed their integrated disability and absence management (IDAM) environment around insurance silos, and grafted their ADAAA compliance into this environment. Many of the same tools and procedures from this silo-based environment can be used in developing ADAAA accommodations. The ADAAA and subsequent case law emphasize that employers must engage in an interactive process with employees to consider how to accommodate a qualifying disabling condition. A well-managed ADAAA accommodation process can generate many positive outcomes: A straightforward interactive process with the employee; Attorney involvement usually not necessary; Medical provider involvement often not necessary, beyond initial required medical documentation; The resulting accommodation may cost nothing 1 ; Often no leave time required; May prevent a future workers compensation or disability claim; May identify new practices, procedures or equipment to enhance productivity of other employees as well;

2 Keeps the valuable knowledge and skills of a worker on the job; Builds cohesiveness in a work team when a valued co-worker stays on the job; The employee enjoys many personal benefits from staying on the job. While a well-managed accommodation can have all these positive traits, a mismanaged case may boomerang and produce just the opposite. Even when an accommodation is going well, its differences with disability insurance silos justify special ADAAA case management procedures. IDAM professionals must understand the fundamental differences to manage an accommodation effectively, avoid the downsides, and get the positives that all parties has asked ADAAA legal experts to identify issues you may want to discuss with your own legal team. This article provides general information on the subject and should not be construed as legal advice; consult your own legal counsel for legal decisions. Transitional Work One of the biggest differences between an ADAAA accommodation and a workers compensation (WC) or disability case is the why and how of using a light duty or transitional work assignment. In the world of insurance silos, transitional work is often the first tool used to prevent a disability leave or reduce the leave duration, and may be required by WC laws in some states. Between financial interest and human interest, employers are motivated to go to significant extremes in getting people back to work. In many instances employers go well beyond what is legally required, notes Frank Alvarez, Esq., a Jackson Lewis senior partner and DMEC Compliance Conference keynote speaker. Although employers may approach an ADAAA accommodation with the A WorK force c A s E spe cifics: t HAt s not At W ork isn t EXActLy A force. When a large financial services company was losing customers due to attendance issues in their call centers, they turned to Liberty Mutual Insurance for help with managing their family medical and other leave programs. Our experts, aided by proprietary technology, then applied a solution to streamline absence reporting and ensure consistent tracking and management of all their leave programs. Expertise and innovative solutions that s how we help support your business. To learn more, visit libertymutualgroup.com/workforce GROUP BENEFITs LIFE std/ltd LEAVE Follow Liberty Mutual Insurance. i ndustry: FINaNcE c ustomer : consumer FINaNcIaL services company c A s E o bjective: streamline PROcEss and LOWER 2012 Liberty Mutual Insurance 9

3 same over-the-top motivation, the legal requirements are quite different. ADA reasonable accommodation may not require the employer to provide light duty, notes Susan W. Brecher, Esq., Director of Legal Programs for Human Capital Development, Cornell Univ. School of Industrial & Labor Relations, and Compliance Conference presenter. By definition, a case doesn t qualify as an ADAAA case unless the person can perform the essential job functions with or without accommodation. The Equal Employment Opportunity Commission (EEOC) which enforces the ADAAA, allows transitional work assignments as a form of accommodation. But technically, excusing a person from the requirement to perform essential job functions as an accommodation may be seen as an abrogation of the employer s rights. When employers do that for all the reasons they want to do that, it would be very helpful to have policies clarifying that the provision of transitional work actually goes beyond legal requirements and therefore the employer is privileged to end it or modify it whenever in its sole discretion it believes that it is appropriate to do so, said Alvarez. Where employers run into trouble is when it s not so clear they are exceeding legal requirements. At a minimum, Defining and revisiting the period for which that light duty assignment is given is of extreme importance, says Judy Young, Assistant Director of Training & Development, Employment and Disability Inst. of Cornell Univ. School of Industrial & Labor Relations, and Compliance Conference presenter. In the USAirways v Barnett case that went to the Supreme Court, a person assumed there would be light duty forever, and when that was taken away, due to seniority rules, the whole case blew up. Communicating time limits clearly is a key defense. Alvarez prefers the phrase temporary transitional work Real Challenges. Real Solutions. Real Results. As a provider of group disability products and services for over 55 years, Prudential has the stability that our clients have come to trust. Our Long Term Disability Insurance protects more than 2.5 million employees; our Short Term Disability Insurance protects over 1.6 million employees. 1 Visit us online at com/gi to find out more. 1 LIMRA, 2009 Annual U.S. Group Disability Sales and Inforce Survey. Group Disability Insurance coverages are issued by The Prudential Insurance Company of America, 751 Broad Street, Newark, NJ Prudential, the Prudential logo, and the Rock symbol are service marks of Prudential Financial, Inc., and its related entities, registered in many jurisdictions worldwide to make time limits clear from the outset. Another key defense is maintaining updated job descriptions with accurate essential job functions, ensuring that all the functions in the list really are essential and appropriate. If there s a dispute as to whether a function like lifting heavy objects relates to an essential versus a non-essential job function, those are the seeds of ADA litigation, notes Alvarez. If an ADAAA case is contested, Young said, The EEOC during its investigation may interview individuals who are in the same or similar positions as the employee filing a claim, to verify that the disputed essential functions are in fact performed and required. Job descriptions, while not a legal requirement, are the best means of defending or arguing undue hardship if a case shows up in court. Much more than a defense strategy, job descriptions are also key tools in crafting an effective reasonable accommodation. Having accurate job descriptions in place helps get the interactive process off to a quick start, and early intervention is key to success in accommodations, Young said. Brecher encourages employers to consider transitional work assignment as a possible accommodation. Even if I were to tell you legally that light duty should not be required, I think an employer would not be acting in good faith if they didn t go into the interactive process with that employee to see what could be done. Burden of Proof Under what circumstances can an employer defend against a particular accommodation request, or against accommodation altogether? If an employee cannot perform essential job functions even with an accommodation, an employer has no obligation to provide one. However, Alvarez cautioned that courts may hold employers responsible for failing to identify reasonable accommodations if they do not engage in an interactive process. Furthermore, it is critical that the employer document the dialogue and the types of accommodations that were explored and clearly explain why these were found not reasonable, said Brecher. In addition to employee productivity and goodwill, engaging in the May 2012 Vol. 4, No 2

4 Contact Us Today Everything You Need to Reduce the Cost, Risk and Complexity of Absence Management MDGuidelines Comprehensive toolkit with return-to-work & treatment guidelines, FMLA & more LeavePro Best in class software lets you administer employee leaves with ease Expert Case Management Absence administration from the industry's most trusted RTW experts interactive process has legal advantages. The ADA includes an affirmative defense to compensatory and punitive damages in reasonable accommodation cases if employers can show they explored accommodations in good faith with employees, said Alvarez. Those damages are frequently the driving force behind ADA lawsuits and employers can mitigate their exposure significantly by engaging in the interactive process in good faith, even if they ultimately deny an employee s accommodation request. Finally, Alvarez noted that in some jurisdictions such as California, the obligation to engage in an interactive process with the employee is an independent element of compliance under the state disability discrimination law. When faced with an accommodation that places a difficult obligation on an employer or co-workers, the first line of defense is whether this is a reasonable accommodation. By definition from legal precedents, some things are not reasonable, said Alvarez, who cited these examples: Lowering productivity standards whether qualitative or quantitative as long as those productivity standards are uniformly enforced. Call center standards, for example, don t have to be lowered as a reasonable accommodation. Excusing misconduct where the rule is job-related and consistent with business necessity; for example, an employer doesn t have to tolerate violence or people in the workplace under the influence of alcohol or drugs. But if an accommodation is found to be ordinarily reasonable or reasonable in the run of cases, Alvarez notes, the employer bears the burden of proving the request presents an undue hardship. He adds, There are generally two types of undue hardship: operational and financial. Financial cases are very hard to win. To prove financial hardship, the employer arguably must prove the requested accommodation places a significant burden on the entire organization, not just the individual work unit. Consequently, Alvarez encourages employers to Forget about the money, focus on the operational impact. How is the accommodation going to affect the productivity in the workplace and your obligations to other employees? Empowering one employee s work situation through an accommodation, he said, often can adversely affect another employee s situation. An employer s best strategy for showing an accommodation is unreasonable or an undue hardship often is to show, with as many examples as possible, how the proposed or implemented accommodation negatively impacts co-workers and customers, he notes. Tell their story, courts are more reluctant to require accommodations if they significantly impair another nondisabled individual s employment opportunities. Employers also carry the burden of proof when claiming that keeping a person in the workplace poses a direct threat to their own safety or to co-workers. Direct threat cases are among the most difficult ADA cases to defend, said Alvarez. If possible, it s better to manage a situation intelligently to avoid a direct threat case, than to take it to court. Still Unresolved To date, the EEOC has successfully attacked the practice of automatically terminating employees who have used all their FMLA leave entitlement but still can t perform essential job functions. Many questions still are unresolved in this area of the ADAAA, however. The EEOC has said it hopes to issue a guidance on whether it is legally reasonable to require employers to accommodate by providing additional leave beyond the FMLA 12-week benefit, or any additional benefit the employer s leave policies usually provide. If it is ordinarily reasonable to grant additional job-protected leave, the burden falls on the employer to prove granting the leave is an undue hardship. If it is not ordinarily reasonable, the 11

5 burden falls on the person requesting the accommodation to prove special circumstances that make it reasonable in that particular case. So much is riding on whether the EEOC and courts find that granting (additional) job-protected leave is reasonable in the run of cases, Alvarez said. The EEOC promised last summer to issue guidance, but hasn t published it as of this writing. Employers and legal experts are eagerly waiting, but only litigation perhaps to the Supreme Court will fully resolve this area, which may take years. Physician Involvement Alvarez said he prefers, when possible, to avoid medical issues by de-medicalizing employment or accommodation issues. For example, try to avoid getting bogged down on the question of whether somebody s claimed depression rises to the level of a disability, he says. Focus instead on the conduct at work and say whatever you re suffering from, even assuming it s a disability, doesn t justify the unacceptable outbursts you ve had with co-workers and clients. This lets the employer move to the conclusion, without any medical evidence at all, that someone isn t qualified. When bypassing medical issues, however, Alvarez reminds employers not to accept the impairment as a qualifying disability merely to state their desire to address other issues first. Conclusion This discussion of ADAAA issues is not legal advice, but provides a list of key areas to discuss with your organization s legal team. Despite overlap between insurance silo disability programs and ADAAA accommodation, the two worlds have significant differences that demand attention. References 1. Job Accommodation Network (Original 2005, Updated 2007, 2009, 2010, 2011). Workplace Accommodations: Low Cost, High Impact. AskJAN.org/media/LowCostHigh Impact.doc May 2012 Vol. 4, No 2

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