MATTERS OF LEAVE AND ACCOMMODATION

1. MATTERS OF LEAVE AND ACCOMMODATION David G. Gabor, Esq. The Wagner Law Group

2. David G. Gabor • Represents clients in: • Litigation • Negotiating and drafting contracts • Handling compliance issues • Creating corporate infrastructure • Drafting employee manuals, handbooks and policies • Training management and employees • Leading companies toward organizational excellence • Skilled negotiator, mediator and investigator

3. Being Invisible There are times when you want to be selected and times that you don’t.

4. The Challenge • Employers have a strong need for continuity, productivity, and employee engagement. • Laws, rules, regulations, and judicial decisions place demands on employers. • Employers (executives, human resources, managers, supervisors) need to know how to handle requests for leave and for reasonable accommodations.

5. The Goal • Companies need to be prepared in advance for requests for leave or for accommodations. • A coordinated approach between managers, executives and human resources will reduce legal exposure. • During this webinar we will review recent cases and how employers can avoid pitfalls in the future.

6. Terms • Leave • Reasonable accommodation • Retaliation • Disparate treatment • Americans with Disabilities Act (“ADA) • Family Medical Leave Act (“FMLA”)

7. EEOC and Press Releases • The Equal Employment Opportunity Commission (“EEOC”) enforces federal employment laws. • The EEOC issues press releases when it files cases and when its cases are resolved. • No employer wants to be the subject of an EEOC press release. • Just ask Verizon and Supervalu.

8. 20 Million Reasons to Get it Right Verizon was charged with: • Denying reasonable accommodations to its employees; • Failing to make exceptions to attendance policies for employees whose “chargeable absences” were caused by their disabilities; and • Disciplining employees who needed accommodations.

9. The Settlement • Verizon had to pay 20 million dollars. • Verizon had to revise its employment policies and attendance plans to provide for reasonable accommodations. • Verizon has to excuse certain absences. • Verizon must provide periodic ADA training to supervisors who administer leave policies. • Verizon had to post a notice of the settlement.

10. Press Release • The EEOC issued a press release regarding this settlement. • At the top of the press release the EEOC boasted that this was the largest ADA settlement in EEOC history. • The press release can be found on the EEOC website at eeoc.gov.

11. Messages from the EEOC • The Verizon attendance plan that employees will be disciplined merely because they accumulated a certain number of absences, was challenged because it was inflexible and did not provide for reasonable accommodations for employees whose absences were caused by disabilities. • Employers can engage in an interactive process once it becomes apparent that an employee has a health issue. • This flexibility can enable a worker to remain employed – a win for the worker, the employer and the economy.

12. Not So Super • At Supervalu, American Drug Stores, and Jewel Food Stores, nearly 1,000 employees with disabilities were terminated at the end of their medical leave instead of being brought back with reasonable accommodations. • The parties entered into a $3.2 Million consent decree. • The employers must also hire consultants to review current job descriptions and to provide recommendations on possible accommodations for employees with disabilities. • Report regularly to the EEOC.

13. Press Release • The EEOC issued a press release about this settlement. • A Regional Attorney employed by the EEOC was quoted in that press release talking about what Supervalu, American Drug Stores, and Jewel Food Stores did wrong. • Employees and customers have access to the press release.

14. Lessons Learned • It is important to engage in the interactive process. • Make sure that employees are aware that they do not need to be 100% healed in order to be considered for a return to work. • Employees should know that it is possible to find a reasonable accommodation. • Job descriptions should not unreasonably limit or restrict employees with disabilities from meeting requirements for the position.

15. Practice Tips These cases underscore the importance of: • Getting employees back to work quickly; • Having policies and procedures that are flexible, provide reasonable accommodations, and are clearly communicated; • Carefully tailoring Job descriptions to the needs of the position; and • Exercising caution when communicating with employees.

16. Education and Training The laws governing these sorts of issues vary from state to state. The best thing to do is to make a list of all possible leave requests that employees can make in each location and recognize the rights and responsibilities of the employer and the employee.

17. The Message • Managers need to be prepared. • Managers need to know how to respond to employees. • Managers should be discouraged from making promises or representations without prior approval. • Managers must immediately bring issues or potential issues to human resources.

18. Possible Mistakes Having a clearly communicated plan will prevent mistakes such as: • Ignoring or discouraging appropriate requests. • Treating employees in a disparate manner. • Failing to follow a company policy or law.

19. Privacy • It is important that employers make every effort to safeguard sensitive information shared by an employee. • There are a host of laws on the state and federal level that protect confidential information.

20. The Employer Has Rights • In Grady v. Wal-Mart, the company granted Grady’s request for FMLA leave for a surgery. • Even though the surgery was canceled, Grady remained on leave for four days instead of returning to work. • Wal-Mart was within its rights to terminate Grady for failing to notify the company that the procedure was canceled.

21. An Interesting Question • The FMLA protects employees who have worked for the company for more than one year. • What happens when a full-time employee with eleven months of service tells her employer that she is going to take FMLA leave for the birth of her child in three months? • This actually happened in Pereda v. Brookdale Senior Living Communities, Inc.

22. The Outcome • Although Pereda was not yet eligible for protection when she requested leave, she would be protected when she gave birth. • The Court noted that “…a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” • The Court found for the employee.

23. Talking Too Much • In Lee v. Waukegan Hospital Corp., Lee advised her boss of a medical condition in late 2008. • Lee submitted paperwork for FMLA leave on March 10, 2009. • During a meeting on March 20, 2009, Lee was told that her employment was being terminated. • Lee asked if her taking FMLA leave had anything to do with the decision to terminate her.

24. Lee Continued • The human resource manager told Lee that the company needed “…reliable and healthy employees.” • Lee’s boss was also upset that Lee had requested FMLA leave without first consulting her and for perceived inadequate notice.

25. The Importance of Careful Communication • The court denied the Hospital’s motion for summary judgment. • The court focused on the comment about the Hospital’s desire for reliable and healthy employees and the angry reaction from Lee’s boss. • This underscores the importance of training managers with respect to what can and can not be said when an employee requests leave.

26. How to Approach a Request How should an employer respond to a request for leave that exceeds twelve weeks? • Automatic denial • Automatic approval • Let the manager make the decision • Let human resources make the decision • Have interactive meetings with the employee after human resources and the manager meet.

27. Notice While on Leave • In Rivera-Melendez v. Pfizer the court found that the employer has a duty to notify an employee on military leave of certain developments. • Pfizer was restructuring and several employees needed to apply for new positions or risk losing their jobs. • The employee then has the burden of showing that he would have applied for and obtained a new position had he been notified.

28. A Reminder • An employee engages in a protected activity when requesting leave, an accommodation, or when filing a claim for worker’s-compensation. • In Belyea v. Florida, Department of Revenue, the employee was allowed to proceed with the case. The employer proposed employee’s firing on December 15, the employee filed with the EEOC on December 20, and the employee was fired on December 30.

29. Another Reminder • In Towns v. Northeast Mississippi Electric Power Association, we are reminded that an employee need not expressly assert rights under the FMLA or even mention the FMLA when inquiring about FMLA leave. • Instead, the issue is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take time off.

30. One More Reminder • When an employer grants a reasonable accommodation to an employee it is critical for managers to be aware of the accommodation. • Managers can then prepare for the accommodation and properly administer it. • The employer should make sure that the employee is not retaliated against and that the employee, to the extent possible, is able to keep medical conditions private.

31. Final Tips • Be aware that it is common for more than one law to apply. • Keep in mind that state and local laws vary. • Prepare a list of all possible requests for leave that can be made at each work location. • Be familiar with the laws pertaining to leave. • Make sure that your written policies comply with applicable law.

32. Final Tips Continued • Make sure that supervisors/managers are trained and ready for requests for leave. • Make sure that supervisors/managers promptly report ALL issues to human resources. • Watch out for possible claims of retaliation. • Watch out for potential claims of disparate treatment. • Conduct occasional audits to make sure the process is working.

33. Thank You! Thank you for taking the time to attend this webinar. Class dismissed.

34. Contact Information David G. Gabor The Wagner Law Group dgabor@wagnerlawgroup.com www.wagnerlawgroup.com • Boston Office • 99 Summer Street, 13th Floor • Boston, MA 02110 • Tel: (617) 357-5200 Fax: (617) 357-5250 • San Francisco Office • 315 Montgomery Street, Suite 902 • San Francisco, CA 94104 • Tel: (415) 625-0002 Fax: (415) 829-4385 • Florida Office • 7121 Fairway Drive, Suite 203Palm Beach Gardens, FL 33418 • Tel: (561) 293-3590 Fax: (561) 293-3591