字幕列表 影片播放 列印英文字幕 Human Resource ProFile Presents: Mark Stepaniak speaking on the ADADD. Good Afternoon, I'm Mark Stepaniak. I am a Partner at Taft Stettinius & Hollister in the Cincinnati office. I do labor employment & law. Thank You for joining us today for HR ProFile's webinar the topic of which is How Much is Too Much? Medical leave, attendance policies and the interactive process under the Americans with Disabilities Act as Amended (ADAAA) now like all such presentations, this is not specific legal advice if you have specific questions be sure to consult your Council or you can find us on the world wide web (TaftLaw.com) understanding what is required under the Americans with Disabilities Act as Amended (ADAAA) and what it allows is more important now than ever before we all know that more people are now given protected disability status that at any time in history this is because ADA was amended a few years back to dramatically lower the standard for qualifying as a person with a disability that has to be accommodated in a workplace. So why is that important? it's important because all those folks who are now disabled who previously were not considered disabled under the law may be entitled to participate in the interactive process and consequently they may be entitled to an accommodation and if they are that accommodation may blow up your time and attendance policy it's very important to understand how the ADA FMLA interfaces with your time and attendance rules i have noticed that some of our clients are particularly mesmerized by the Family Medical Leave Act in other words they spend all their time trying to determine eligibility whether the particular condition is a serious health condition that would qualify under the FMLA and whether leave is appropriate and they do this to the exclusion of analyzing the situation under the Americans with Disabilities Act. A number of employers have found out the hard way that the FMLA is a floor and not a ceiling to how much leave a person is entitled to. Some employers have discovered that the hard way. Once they end medical leave at 12 weeks because the FMLA is exhausted that they nevertheless and accommodation obligations under the ADA and if they didn't engage in the interactive process and didn't offer those accommodations they can end up on the wrong side of a lawsuit. How has this phenomenon manifested itself? Well as this chart indicates, in the last five years we've seen a dramatic uptick in the number up ADA, or disability charges filed with the EEOC EEOC's published raw data indicates that the number of disability charges filed as well as the percentage of disability charges as a function of all charges filed continues to rise at a significant rate. As you can see from this graphic back in 2008 there were seventeen thousand plus ADA charges filed which represented one-fifth of all the charges filed. In 2012 that figure was up to one-quarter of all the charges filed and had increased in number by 50 percent to 26,000 plus charges, and the reason for this is obvious more people now are qualified as a person with a disability under the ADA they can more likely bring a successful charge we used the bat these charges out pretty easily by arguing and proving that the person was not disabled with the ADAAA amendments they lower that bar and many many more people are now disabled than were before in the eyes of the EEOC. now the biggest and most surprising trend that we've experienced lately is it attack on a very idea that attendance is somehow import. You know Woody Allen once famously said that eighty percent of life is just showing up BUT the EEOC believes that showing up is not even necessary for most jobs. let's look at whether or not attendance is an essential job function. probably the the scariest case in this area is pending before the 6th Circuit Court appear Appeals which sits here in Cincinnati involves the EEOC in a Ford Motor Company case in that case EEOC argued to the Sixth Circuit that regular attendance is no longer in an essential function for most jobs the EEOC argues that case authority to the contrary, and there's quite a bit of it, is outdated because it predates recent technological advances that allow people to telecommunicate and work from home with the widespread use the internet to perform most jobs. Now this case is still pending so we don't know whether or not the EEOC is going to prevail or not but here the basic facts which I think illustrate this issue these are the facts in the EEOC versus FORD case. The employee suffered from irritable bowel syndrome and as a result she perhaps understandably sought to work from home whenever she had a flare-up. Well the problem was the flare-ups could be anywhere up to four days per week and often without notice so what she asked Ford for the right to do, was to work at home up to four days a week without any prior notice to the company Ford argued that telecommuting to work was not a reasonable accommodation for her position she served as a steel buyer which meant that she was buying raw steel for Ford Motor to use in the construction of automobiles and Ford argued that she needed to regularly interact with her team members and fellow buyers. EEOC countered that face to face interaction among employees on a team is a mere employer preference and that an employer preference should be given no weight when analyzing an ADA claim. The EEOC argued further that the essential functions of the job which we all know disable persons are not able to shed the essential functions but they said essential functions relates only to the duties perform and not to the location of where those duties are performed and of course Ford perhaps contributed to its own problem by allowing other non disabled employees to telecommunicate in other jobs in other words when the EEOC was looking at this charge and trying to decide whether telecommuting was a reasonable accommodation for this particular charging party when they saw that Ford had allowed other non-disabled people perhaps a different job classifications, but nevertheless to telecommute work from home, they said that that was evidence that telecommuting is a reasonable accommodation well for now EEOC's radical view in this EEOC v Ford case is a minority view and it's not necessarily the law when the sixth circuit finally rules on this case it will be the law in Ohio, Kentucky, Michigan, and Tennessee and no doubt persuasive authority in other jurisdictions. So what should you do? Well one of the issues of course in the Ford case had to do with occasional absences and telecommuting so you should check your job descriptions do your job descriptions say appropriately that attendance is an essential job function/ good attendance is an essential job functions if it doesn't say that specifically and certainly for years it seemed almost axiomatic why would you say that in a job description well now there's good reason to say if it's true because it's absence may suggest to the EEOC that it's not an essential function and then you should also consider whether you're telecommuting policies are working against you. Now we're not recommending that you eliminate, as a matter of policy telecommuting, but you least need to understand that when you do allow it you're going to make it easier for persons to claim that telecommuting in their job is a reasonable accommodation. So now course in this case you were talking about sporadic absences up to four days a week. What is the law currently and how is it developing with respect to extended absences. Well, one thing we've seen is that employers who pay down millions of dollars because of inflexible leave policies and some of the most notable cases involve Supervalu and Jewel-Osco who agreed to pay $3.2 million dollars under a consent decree in litigation brought by the EEOC in 2011 what problem did they have? Well they had a policy that said if you are out medical leave you could not return unless you were a hundred percent (100%) recovered or had a "full release". and the only accommodation they offered to folks who have disabilities was extended medical leave. They didn't consider other possible accommodations. The EEOC contended and apparently the company ultimately relented because there is a consent decree they contended that this violated the employer's obligations to engage in the interactive process and offer reasonable accommodations were necessary. Similarly the Sears Roebuck company agreed to pay 6.3 million dollars under a consent decree in 2009 that was at the time, the largest ADA settlement in history. I say at the time because you're about to see there's been an even bigger one lately. And what did Sears do? basically Sears said that if you went on a workers comp leave and you reach maximum medical improvement they would end your employment without consideration other possible reasonable accommodations so in other words they were employing these companies were employing hard fans limits regardless of length on the amount leave that they would offer employees now these are big companies with sophisticated human resource functions we speculate that they did this because they probably have thousands of employees on leave at any one time what the EEOC wants you to do, of course is engage in the interactive process which is individualized decision making, which of course is very difficult when you've got lots of employees on leave. EEOC's position in these cases is that if you have a set period, maximum period for leave "No leave shall be longer than, let's say, 12 months" then, you have by definition precluded the interactive process and they actually may be on to something... think about it an employee brings in a doctor's note, this is a hypothetical, so it doesn't have to necessarily make sense but employee brings in a doctor's note that says please excuse Joe from work he's having this a particular medical procedure, he is disabled and he's going to be out 53 weeks. Well what if your policy said no to leave can exceed 52 weeks? What EEOC would say is that the accommodation under that fact pattern isn't whether or not it's reasonable to give somebody fifty three (53) weeks off, that seems like a long period time, the accommodation in that case is whether or not you have to give them an additional one week from 52 to 53 so in that case the employer would find itself in the nearly impossible situation arguing well of course we could give Joe 52 weeks off but how could we possibly be expected the giving 53 weeks off alright, so that's the analysis when you have a fixed leave period The question is, Is additional leave, beyond that a reasonable accommodation and you only know that if you engage in the interactive process now I told you that the Sears case was eclipsed in terms of being the largest settlement in EEOC history In 2011 Verizon agreed to pay $20 million dollars to settle a nationwide EEOC disability suit. According to EEOC Verizon had denied reasonable accommodation to employees and disciplined them, or fired them pursuant to a no fault attendance plan. Well lots of us have no fault attendance policy's and of course we know that the FMLA played havoc with those because if the person qualifies for FMLA leave you can't apply your no fault attendance policy well the EEOC is following suit saying that well wait a minute if the person is disabled, and remember many more people are disabled Alan used to be disabled in the eyes of the you see that if you're applying that no vote attendance policy to somebody who's missing work because of a disability you might be discriminating against what's the cure the cure is you have to engage in the interactive process you have to meet with the employee discover what a combination they may need in decide whether or not flexing your attendance policy is a reasonable accommodation now be careful we're not saying that flexing your attendance policy is always in every case a reasonable accommodation and then you must do so when I am saying is that you need to engage in the interactive process if you're about terminator discipline somebody who is disabled didn't come to work because other disability when you're no fool attendance problems here's exactly where you see is to say about this the EEOC has issued guidance on disability and it says and I quote it's laid out here on the screen if an employee with a disability need additional unpaid leave as a reasonable accommodation the employer must modified snowfall policy to provide employees with the additional leave unless the employer can show in other words the employer as it were true that there is another effective accommodation that would enable the person to perform the essential job functions up the position so for example her the person rather than needing leave you know we remove a nonessential functional we get him a chair lower the high to the table for working on allowing it them to telecommute move to a vacant position that sort of thing or and less important show that granting additional leave would cause im undue hardship well as you know is HR professional that the employer bears the burden of proof on showing an undue hardship ninety hardship is judged under very very rigid standards that takes into consideration resources the tour resources at the company and it's very difficult to show an undue hardship in many cases print now bf I'll not grantor if granting this additionally wouldn't put a undue burden on other employees act sometimes can be proved to be an undue hardship tell you is that this is a case specific analysis from which the only general rule you can drive is that if you're about the discipline somebody under a leave policy actually policy go for it as policy and that person is disabled must engaging interactive process on and that's what's required here engaging in the interactive process making some sort of ended visualized assessment now we're not saying that limitless leave is required what we're saying is that inquire is required what is needed in how the person might be accommodated a quick word or two about substance abuse you all know that current illegal drug use is not protected under the ADA federal government made a policy decision that said when I can accommodate current illegal drug users because we're trying to stamp out illegal drugs but alcoholism is protected can also form grow use somebody who you know was up heroin abuser a year or two ago now works for you that person's history drug abuse would be protected if you're not a current user well oftentimes when employees show up to work drunk rather me and fired employer will offer rehab opportunity and some sort of last chance agreement up finally some good news there are some recent cases that have held that a return to work agreement in other words base where lol contract with the employees that says reaffirmation of stay clean when I come back I'll can be enforced against simple way without running afoul love the ADA that some courts upheld that violation a return to work agreement is not the same as terminating for disability cell persons now always be sure work drunk you could fire them for that they ask to be rehabbed you offer them rehab they agree they sang to return to work agreement where they say they're not gonna show up for work under the influence again they violate that terminating man at that point these courts adele is not the same as firing them for alcoholism it's firing them for violating the return work agreement are likewise Court's appellate failing to complete treatment can justify determinations the person says please boss Camino the chance let me go to rehab don't finish the rehab can you then terminate them yes you not terminating them for being an alcoholic her former drug abuser your terminating them prepared complete the treatment now be careful can't go too far you see on the screen abort point that says driver no return policy on wall this particular case the employer was a trucking company employees came forward and said why an alcohol problem the employer and net seemingly yep generously said what they will do what you can to rehab and we'll find another job but you can never drive for us again and the EEOC the court said that that was a violation a the law the never drive again policy was going a step too far other courts have upheld that dad where employees detectable amounts of alcohol in her blood during a require drug test that the employer can take action on that without being accused of discriminating against employees because it was out all well what else do you need to know couple things number one was very important indefinite leave is not be reasonable accommodation in other words for employees comes to you and says after some reasonable period of time for medical assessment and says I need a medical leave and I don't know how long I'm gonna be out most courts have held that that is not request for a reasonable accommodation definitely leave with no known and a is different then a request for leave for a specific period of time that's beyond perhaps with your policies otherwise would allow sup let's but this through a hypothetical for illustration purposes fellow as a heart attack people sat on the ground and you say to him you're waiting for the ambulance when will you be coming back and he says I don't know you can't fire him for requesting an indefinite leave but once a person's been stabilizers doctor looks I'm in the doctor says you know you can come back in six or eight weeks that would be lesson 13 risk it take the open layout picture on the interactive process would be can I accommodate this guy beginning leave for thirteen week if after some reasonable period on the other hand doctor says this guy's condition seems to be permanent I love is never coming back then loss says in most jurisdictions that that's something you would not have to accommodate likewise if you offer employees as a reasonable accommodation light-duty light duty is different than removing nonessential functions light duty means in most def in them common vernacular means actually removing a sensual functions from a job which not required to do under the ADA I'll that you don't have to offer that forever so if you got a disabled employees say well do you get back on your feet were gonna you have to do this that and the other thing these 3par's have your job having offer that you don't have to continue their forever likewise extension a request for some short term disability need not be indefinite so many employees as I need six months of and you determine if that's a reasonable accommodation on and then he comes back and says I'm more time off if it's a specific period time you go to the interactive process to determine if that's reasonable it's indefinite and you don't have to agree to that well course many plaintiffs lawyers in Las other doctors have figured out well here's the trick is is you know aspirin definitely because that's not a reasonable accommodations are you ask for specific leave and you just keep rolling in dough he needs three months of the other three months he needs another three at the end of that he needs another three so what's the law on that %uh won't even the EEOC said the employer can in a con in that contact a request up the treating physician information about why his first estimate was an addict are inaccurate and could be relied upon arm the M most courts will uphold you've got to wonder to the generations the idea that a this rolling leave is really nothing but indefinitely even disguised and does not need to be a comedy we talk a lot about the interactive process let's go over some key points that up first some ports and this isn't true every jurisdiction that some courts have said that you have to distinguish between conduct in a manifestation other disabilities so for example a guy is sleeping on the job you be sleeping on the job because he's narcoleptic other words he falls asleep and you can control that do a problem with his brain %uh that sleeping on the job in many instances a manifestation of his disability in firing him for sleeping is the same thing as firing him for being narcoleptic which in a lab to do now course if not being asleep at work is an essential function and probably is for most jobs but certainly for let air traffic controllers security guard is good idea an essential function then not the person simply isn't qualified for the job now that doesn't mean that you might consider other combinations which could be a medical leave of absence if medically is going to do any good another job give somebody a medical leave of absence if at the end of it they're going to have the exact same problem or considering them perhaps for some other position whereas narcolepsy problem would be as critical I'll the second ballpoint talks about adjustment medication there was a rather unusual case were person was getting psychoactive drugs for psychiatric problem came to work Monday out with leaner I'm raw meat and severe any employer thought that inappropriate and fire and the court believe youre not found that he that the company the other reasonably accommodate that fellow and the reason was that his bizarre behavior with the meeting the beer was a manifestation his I'll the the drugs manifestation the disability compounded by bizarre interaction with the drugs and that he should have been given medical leave time to get his meds under control so how could that problem cure it could have been cured to the interactive process rather than just blow him up when he showed up acting up unusual at work gracious at him down trying to figure out what the deal was then considered whether we was possible a third bullet point talk about their goodbyes vacancies this particular case a woman was cancer sufferer she came to work said I don't think I can do my job anymore it's just too physical chemo and cancers wiped me out employer said well okay fine im or accept a resignation she later sued and the court said that what the company should have done was engaging interactive process and reviewed with her other vacant positions that perhaps she could have done so that was a failure to engage in Iraq process some oil similarly on that last bullet point %uh it's the same case up in an instance the im the one's position sent in a letter saying that she needed all these different combinations in the importer read is that what we can't do that and so they just terminator when the court ultimately said what they should have done was sat down there and gone through the last suggested accommodations and said well we can do 13 but not too in five maybe we can do for and that would have been the interactive process having failed to do that they set themselves up war potential legal liability sup the sum up as you can see under the new vastly more liberal adaa you're gonna have a lot more people qualify as disabled as a result have a lot more chances and to get hung up on the ADA so here are the takeaway tips number one never ever apply limit only other sizes leaves 11 to six months 12 months whatever without engaging in the interactive process if you discover from the interactive hurt process that the person needing much longer leave perhaps you can't comment if they need an indefinite leave you don't have to accommodate that they need an additional shortly you at least Hampton him engage in your active process so you can show that you could not accommodate a number two if somebody does aspirin nationally that you cannot accommodate you must consider other accommodations in other words well we can't give you another 10 months of you've already been out for a year but we do have this position over here that's avail doesn't mean you have to offer position would means you have to go through the list the available positions to determine whether or not that is a reasonable accommodation they are you gauging the iraqi processes where you're going to get her and number three as you engage in the interactive process do that with a witness in document your efforts in the conversation if the employee is telling you when there's nothing I could do I can't do that job I can do this job I don't know when I'm coming back document all at and you should be okay hopefully this was helpful you have any questions let us know thank you very much
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