DMEC 2017 Virtual Education Forum Understanding Leave as an ADA Accommodation September 12, 2017 1
PROGRAM FACULTY Terri Rhodes Chief Executive Officer DMEC 800-789-3632, Ext. 117 trhodes@dmec.org www.dmec.org Michelle Jackson AVP, Workforce Solutions Group Unum 804-346-1350 mijackson@unum.com Daris Freeman AVP & Counsel, JD Unum 423-294-4763 dfreeman3@unum.com Kelli DosReis Benefits Administrator Fujifilm Holdings America Corporation 914-282-8000 Kelliann_DosReis@fujifilm.com 2
Understanding Leave as an ADA Accommodation Daris Freeman September 2017 3
Agenda Defining reasonable accommodation Common ADA accommodations Interactive process Collecting information Undue hardship analysis Amount/length of leave Frequency, predictability and flexibility of leave Business impacts Best practices Questions 4
What is a Reasonable Accommodation? ADA REQUIREMENTS Americans with Disability Act Prohibits discrimination in employment on the basis of disability Requires employers provide reasonable accommodations to applicants and employees (absent undue hardship) Defining reasonable accommodation Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities 5
Employer polling question What do you think is the most common accommodation granted? Schedule modifications Accessibility Leave Workstation modifications 6
Most Common ADA Accommodations Adjusting Work Schedules Making the workplace accessible Providing leave Acquiring or modifying equipment Restructuring jobs/modifying employee duties Promoting stay at work Reassigning vacant positions Adjusting or modifying exams, training material or processes Providing readers and interpreters Source: 2016 DMEC Employer Leave Management Survey White Paper 7
Unum ADA Experience APPROVED REQUESTS Accommodation Type Other Includes: - Reassignment - Job restructure - Change in job duty Leave Schedule Modification Other 8
EEOC Guidance MAY 2016 Leave as a reasonable accommodation Enables the employee to return to work and do the essential functions of the job EEOC guidance issued: Application of existing leave policies Leave as a reasonable accommodation Maximum leave policies 100% healed policies Reassignment Undue hardship 9
Recognizing a Request Explicit employee request Exhausted leave Obvious or known Interactive Process 10
Interactive Process Timely, good faith communication Exchange of information no delays or obstructions Collection of medical information Explore/implement accommodation options Monitoring the accommodation 11
Ask the Right Questions DETERMINING IF LEAVE IS A REASONABLE ACCOMMODATION Employee What is the specific request? What essential function(s) is he/she unable to do and in what way? How will the request enable the employee/applicant to perform the essential function(s)? 12
Ask the Right Questions DETERMINING IF LEAVE IS A REASONABLE ACCOMMODATION Physician Disability description o What is the nature of the impairment? o Which activities are limited and to what extent? Accommodation needs o What are the restrictions and limitations specific to the employee s job duties? o What duration and schedule of leave is medically supported? o Will leave enable the employee to return to work and perform the essential functions of the job? o Are there any alternatives to leave? o Why is an extension of leave needed? Why was the previous duration inaccurate? 13
Undue Hardship Considerations AMOUNT/LENGTH OF LEAVE Amount/ length of leave Frequency Business impacts Flexibility Predictability 14
Amount of leave 15
Employer Poll Questions Do you have a maximum leave policy and if so, how much leave is automatically granted? 12 weeks 6 months 12 months Don t know No policy 16
Maximum Leave Policies Employers may have defined maximum leave policies BUT must make exceptions absent undue hardship Applies to unscheduled leave policies Individualized assessment required Can consider the impact of leave already taken Recent EEOC settlements Lowe s - $8.6M UPS - $2 17
Amount/Length of Leave HOW MUCH IS ENOUGH? There is no specific duration of leave that must be provided Depends on the circumstances Asking the right medical questions can help Internal policies may impact decision Courts consistently quote reasonable accommodation is by its terms most logically construed as that which, presently, or in the immediate future, enables the employee to perform the essential functions of the job in question. EEOC - indefinite leave is not a reasonable accommodation Employee cannot say whether or when he/she will be able to return to work Multiple extensions of leave may become indefinite 18
Amount/Length of Leave EEOC SCENARIOS Employee has been out of work a year and requires one more month with definitive return to work Not indefinite leave 1,2 Employee originally takes 12 weeks of leave and is granted another 6 weeks of leave. Employee then requests an additional 6 week extension. When questioned, the doctor indicates that complications exist and the patient unresponsive to treatment, that leave could extend months Indefinite leave 1 19
Amount/Length of Leave COURT CASES Employee was out of work 6 months one year and several months the next. Although the physician had provided an estimated return to work date, she had a history of taking leave, not improving as expected and not returning to work as scheduled. Leave is an objectively unreasonable accommodation where an employee has already received significant amounts of leave and has demonstrated no clear prospects for recovery. 1 Employee had been out of work a year and required an additional 2 months of leave. The court ruled that leave was a reasonable accommodation based primarily on the fact that the employer used temporary employees to fill the job both during leave and following termination. 2 1 Williams v. AT&T Mobility Services, LLC, 2016 WL 3172917 (W.D.Tenn, June, 6, 2016) 2 Garcia-Ayala v. Lederle Parenterals, Inc.,212 F.3d 638 (1st Cir. May 18, 2000) 20
Undue Hardship Considerations FREQUENCY/FLEXIBILITY/PREDICTABILITY Amount/length of leave Frequency Business impacts Flexibility Predictability 21
Flexibility/Predictability/Frequency EVALUATING ACCOMMODATION FOR INTERMITTENT LEAVE Bookkeeper with MS requests 1-3 days of intermittent leave at a time, unpredictably, which the doctor supports. Employer initially grants 6 months of leave, but says they may re-evaluate if leave has negative business impacts. Employee missed 12 days over the 6 month period. Employer was able to adjust without burdening coworkers; employee provided as much notice as possible and made up missed work when possible; appropriate to extend accommodation 1 Nursing Tech with lymphedema missed 29 days in 4 months and requested increased sick days as a reasonable accommodation. Request not a reasonable accommodation purpose is to enable an employee to perform essential functions patient care requires predictable and regular attendance. 2 1 EEOC Guidance on Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016) 2 Francis v. Wyckoff Heights Medical Center, No. 13-cv-2813 (E.D.NY, March 30, 2016) 22
Undue Hardship Considerations BUSINESS IMPACTS Amount/length of leave Frequency Business impacts Flexibility Predictability 23
Business Impacts Productivity losses decreased effectiveness, temporary workers, overburdened employees Quality impacts Lost sales Decreased client satisfaction and service Delayed projects missed deadlines Increased management burden 24
Business Impacts Assembly line worker missed 12 days in 2 months without notice. The doctor says various treatments have not controlled the symptoms and there is no way to predict when the symptoms will suddenly flare up. There are no expected changes in this situation for the foreseeable future. Nature of assembly line means unpredictable absences are extremely disruptive to the business and productivity. 1 Event coordinator missed 14 days in 2 months without notice. Doctor says need for leave will continue similarly. Based on role (strict deadline requirements) and issues created when employee was out of work (delayed work, reassignment of coworkers), ongoing, frequent and unpredictable nature of the absences makes additional leave an undue hardship. 1 1 EEOC Guidance on Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016) 25
Does Leave Have to be Paid? Paid leave Apply paid leave policies consistently regardless of disability Unpaid leave No paid leave program Ineligible for leave program Exhausted other leaves (FMLA, WC) 26
Leave Policies EMPLOYER OBLIGATIONS Benefits should continue under the same terms as for employees on similar types of leave. Employers may establish a maximum amount of leave as long as exceptions are made when a reasonable accommodation is required, absent undue hardship. In letters addressing end of leave, employers must notify the employee of the process if additional leave is needed as a reasonable accommodation. 100% healed policies violate ADA. Employers must work with employees who require accommodation to return to work. Reinstatement is dependent upon undue hardship analysis. 27
Best Practices Consistently engage in the interactive process. Obtain necessary medical documentation. Monitor business impacts from the beginning of leave Review policies for maximum leave or 100% healed standards. Document, document, document! 28
Questions? Thank you for attending our fifth VEF session of 2017! The next VEF is on November 7 th 2017 Topic : Employer On-Site Clinics Centers of Excellence Drive Improved Well-being and Productivity 29