SEPA SHRM Chapter Meeting December 20, 2016 American Heritage Federal Credit Union, Philadelphia, PA

Transcription

1 SEPA SHRM Chapter Meeting December 20, 2016 American Heritage Federal Credit Union, Philadelphia, PA ERIC B. MEYER, ESQUIRE December 20, 2016

2 IN A WORLD 2

3 where 7 little letters

4 FMLA and ADA

5 and the headaches they ve created

6 (no pun intended)

7 have created a strong urge for some in HR put a finger up

8 (Not this one.)

9 (Another one.)

10 there s one attorney

11 just, not your attorney

12 (An attorney whose clients pay for legal advice)

13 (An attorney whose clients pay for legal advice)

14 (An attorney whose clients pay for legal advice)

15 and who is now thinking that he should have left the money bags on the floor of the PowerPoint editing room

16 who wants to remind those of you with hypothetical questions

17 the ones about which you are asking for a friend

18 (while your peers silently roll their eyes at you)

19 that nothing the attorney says should be construed as legal advice

20 but, one attorney

21 this dapper, well-dressed attorney with a killer employment law blog

22 is here to help you MASTER the reasonableaccommodation process

23 and put the pieces of our world back together again.

24

25 No, not that!!!

26 THIS!!!

27 And since I m personally responsible for

28 This

29 and stayed at a Holiday Inn Express last night

30 you re in good hands

31 and, since we have a lot to cover

32 and, I m jonesing to get out there and catch em all

33 it s time to start talking again

34 Agenda ADA: The Basics SEPA SHRM CHAPTER MEETING Hiring Accommodations FMLA/ADA/PDA Interplay I m too stressed to, you know, work. Best Practices Q&A and a partridge in a pear tree

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36 Agenda SEPA SHRM CHAPTER MEETING ADA: The Basics (The other basics) Hiring Accommodations FMLA/ADA/PDA Interplay I m too stressed to, you know, work. Best Practices Q&A and a partridge in a pear tree

37

38 Agenda SEPA SHRM CHAPTER MEETING ADA: The Basics (The other basics) Hiring Accommodations FMLA/ADA/PDA Interplay ( PDA stands for Pregnancy Discrimination Act ) I m too stressed to, you know, work. Best Practices Q&A and a partridge in a pear tree

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40

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42 Agenda SEPA SHRM CHAPTER MEETING ADA: The Basics (The other basics) Hiring Accommodations FMLA/ADA/PDA Interplay ( PDA stands for Pregnancy Discrimination Act ) I m too stressed to, you know, work. ***eyeroll facepalm*** Best Practices Q&A and a partridge in a pear tree

43 ADA Basics Purpose SEPA SHRM CHAPTER MEETING Coverage/Eligibility Reasonable Accommodations

44 Purpose of the ADA SEPA SHRM CHAPTER MEETING The ADA prohibits discrimination against applicants and employees who are qualified individuals with a disability by providing for equal opportunities for work.

45 On the next episode of Keeping up with the Kardashians Kim, Khloe, and that other Kardashian daughter whose name begins with a K are thinking of opening a bakeshop called, That s How the Kookie Krumbles. In the wee hours before the grand opening, Kourtney (as if we could play it off like we didn t know her name) wakes up in a panic over ADA coverage for the workforce. Because, of course When will THtKK become an ADA-covered employer? And if THtKK has a Philly location?

46 Coverage/Eligibility SEPA SHRM CHAPTER MEETING Covered Employer: 15 or more employees for 20 weeks during current or preceding calendar year. Disability: An impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Qualified Individual: Must be able to perform the essential functions of the job with/without reasonable accommodation.

47 Disability SEPA SHRM CHAPTER MEETING How easy is it to establish?

48 Disability SEPA SHRM CHAPTER MEETING How easy is it to establish?

49 Disability SEPA SHRM CHAPTER MEETING How easy is it to establish?

50 Examples of major life activities hearing, seeing, speaking, breathing, blogging, walking, caring for oneself, learning or working

51 Qualified individual SEPA SHRM CHAPTER MEETING One who can perform the essential functions of the job with or without reasonable accommodation

52 How are essential functions determined? whether the reason the position exists is to perform that function, the degree of expertise or skill required to perform the function. a written job description (or CBA) the time spent performing a function, the consequences of not requiring that an employee perform a function, and Your judgment

53 Reasonable Accommodations SEPA SHRM CHAPTER MEETING Absent undue hardship, employers must provide reasonable accommodation to employees / applicants with disabilities.

54 Reasonable Accommodations (con t) Interactive Dialogue: A good faith discussion between employer and employee to determine, after an individualized assessment, what reasonable accommodation(s) will allow the employee to perform the essential functions of his/her job Generally, initiated by the employee

55 I'll be ready... forever and always I'm always here... Mitch has been deaf since his birth, but can detect noises through his cochlear implant. In 2006, Mitch passed County s Baywatch lifeguard training program. Upon receiving his lifeguard certification (and having mastered the art of slow-motion running), Mitch applied for a lifeguard position at County s Baywatch wave pool. County is concerned that Mitch s hearing impairment could affect his ability to safely perform the lifeguard position. What should County do?

56 How to identify reasonable accommodations How can we help you?

57 Other hiring considerations SEPA SHRM CHAPTER MEETING Medical Examinations and Disability-Related Inquiries Ban the Box Pre-Offer: Do NOT ask an applicant whether she is disabled or about the nature or severity of a disability Do NOT require the applicant to take a medical examination. DO ask an applicant, How are you? DO ask an applicant, Can you do this job?

58 Other hiring considerations POST-offer SEPA SHRM CHAPTER MEETING an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category Drug Testing

59 Reasonable Accommodations (con t) Undue hardship: An individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense

60 Reasonable Accommodations (con t) Undue hardship factors: the nature and cost of the accommodation needed; the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and the impact of the accommodation on the operation of the facility

61 Reasonable Accommodations (con t) Examples of reasonable accommodations making existing facilities accessible; job restructuring; light duty; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; reassignment to a vacant position; telecommuting (maybe); and leave from work *Source: The U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Available at

62 Vandelay! Say Vandelay!" George, a full-time employee in Vandelay Industries latex shipping department with disc degenerative disease, states that he cannot pack packages for shipment because of recurrent pain in his back. Vandelay Industries also employs two part-time employees who could assist George if necessary. George has also expressed interest in a sales position, for which Vandelay Industries has been interviewing candidates since the prior sales representative resigned two months earlier. The sales rep. position requires driving to fulfill its essential functions. What factors should the employer assess in evaluating George s accommodation requests?

63 FMLA/ADA Interplay SEPA SHRM CHAPTER MEETING Disability vs. Serious Health Condition ADA "disability" is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. FMLA "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves... [i]npatient care... or [c]ontinuing treatment by a health care provider."

64 FMLA/ADA Interplay (con t) SEPA SHRM CHAPTER MEETING Disability vs. Serious Health Condition (con t) Some FMLA "serious health conditions" may be ADA disabilities, for example, most cancers and serious strokes. Other "serious health conditions" may not be ADA disabilities, for example, pneumonia, a routine broken leg or hernia.

65 FMLA/ADA Interplay (con t) Pregnancy SEPA SHRM CHAPTER MEETING Definitely covered under FMLA Definitely not covered under ADA But, conditions related to childbirth may be covered under ADA

66 FMLA/ADA Interplay (con t) SEPA SHRM CHAPTER MEETING Medical Certifications, Inquiries and Confidentiality ADA: Only medical examinations or inquiries regarding an employee s disability, which are job-related and limited to determining the employee s ability to perform the job, the need for an accommodation, and whether an accommodation would be effective. FMLA: When an employee requests leave under the FMLA for a serious health condition, employers will not violate the ADA by asking for the information specified in the FMLA certification form.

67 FMLA/ADA Interplay (con t) Light duty SEPA SHRM CHAPTER MEETING ADA: Required to be offered if it is a reasonable accommodation (i.e. one that does not create an undue hardship for the employer); and no other reasonable accommodation exists. FMLA: Not required.

68 FMLA/ADA Interplay (con t) Leave SEPA SHRM CHAPTER MEETING ADA: There is no specific limit on leave. The inquiry should focus on what would constitute an undue hardship for the employer. FMLA: 12 workweeks in a 12-month period.

69 But, how much leave is reasonable? There is no clear-cut answer Each situation is fact-specific In other words

70 (wait for it ) 105

71 Your lawyer s two favorite words 106

72 It depends 107

73 Cheers or jeers? SEPA SHRM CHAPTER MEETING Woody, a bartender, had surgery for his bad back in January. He was supposed to be back slingin drinks in late March. However, in mid-march, Woody submits a note from his doctor saying that he won t return until May. What should Cheers do? What if Cheers has a six-month personal leave policy? Nunes v. Wal-Mart Stores, Inc., 164 F.3rd 1243 (9th Cir. 1999); Hwang v. Kansas State Univ. (10th Cir. 2014).

74 Factors to consider when determining how much leave is reasonable Undue hardship factors Amount and length of leave Frequency of the leave Predictability Your employee handbook and other leave-related policies Leave to other employees without disabilities

75 FMLA/ADA Interplay (con t) Fitness for Duty SEPA SHRM CHAPTER MEETING ADA: Permitted as long as the medical examination and inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job. FMLA: Permitted for leave taken for the employee s own serious health condition consistent with employer s uniform policy.

76 FMLA/ADA Interplay (con t) Reinstatement SEPA SHRM CHAPTER MEETING ADA: The employee must be reinstated unless doing so would create an undue hardship for the employer. FMLA: The employee must be reinstated or placed in a position with comparable pay, seniority, benefits and other terms and conditions of employment.

77 Yadda, yadda, yadda ADA violation Fresh off its balloon-oil bladder HELLLOOO! and its ketchup/mustard single bottle, Vandelay Industries thinks that it has stumbled upon the next big thing: requiring employees on FMLA who are returning to work to first perform feats of strength and certify that they are 100% healed. Get out! What should Vandelay do instead?

78 ADA and Mental Health Coverage FMLA SEPA SHRM CHAPTER MEETING Other accommodation options New EEOC Guidance

79 FMLA/ADA SEPA SHRM CHAPTER MEETING Brandon, a waiter at the Peach Pit, has been out on FMLA leave since crashing his best-friend Dylan s Mustang. A few days before his FMLA leave exhausts, Brandon calls his boss, Nat, and informs him that, due to an anxiety disorder related to the crash (and hearing about Dylan s related mishap), his doctor will not medically clear him to return to work. Nat informs Brandon that he is shorthanded and needs Brandon back at work. When Brandon does not return to work after his FMLA leave exhausts, Nat terminates Brandon s employment because Nat no longer has job protection under the FMLA. Can the Peach Pit fire Brandon? If so, what should it do first?

80 Best Practices SEPA SHRM CHAPTER MEETING Policies: Employer policies should clearly address ADA issues and employer should post the required notices in the workplace. ADA accommodation policy Be wary of no-fault attendance policies Don t require that employees be 100% healed

81 Best Practices (con t) SEPA SHRM CHAPTER MEETING Communication, Documentation, Training: Job descriptions Training managers to identify ADA requests Individualized assessment Interactive dialogue Privacy

82 Best Practices (con t) SEPA SHRM CHAPTER MEETING More communication Stay apprised of employee status Flexibility Adapt to changes in disability-related issues, changes in business

83 Questions?

84 Sources SEPA SHRM CHAPTER MEETING United States Department of Labor ( United States Equal Employment Opportunity Commission ( Society for Human Resource Management (

85 Eric s contact information That s Eric! Not Eric! Telephone: emeyer@dilworthlaw.com Blog: TheEmployerHandbook.com