MISHRM 2014 Annual Conference

MISHRM 2014 Annual Conference HR Amplified: Driven to be…

Reasonable Accommodation in an Unreasonable Legal Environment Jennifer Gonzalez Hall, Render, Killian, Heath & Lyman 201 W. Big Beaver Road, Suite 1200 | Troy, MI 48084 (248) 457-7840

Introduction • Changes in the Legal Environment • EEOC Enforcement Efforts • Newsworthy Settlements • Employer’s Duty to Accommodate • Common Pitfalls • Leave of Absence • Attendance • Current Cases • Reducing Exposure/Best Practices

Changes to the Legal Environment

That Was Then… This Is Now! Times Have Changed Employee whose hand had been amputated was not protected by the ADA; employee testified that he could perform routine daily activities with prosthetic device, so he was not “substantially limited” Bridge worker’s claim for failure to accommodate his fear of heights can proceed to trial; question of fact regarding whether working at heights is essential function of bridge worker’s job

That Was Then… • ADA passed in 1990; effective in 1992 • Judicial focus (and EEOC enforcement) was whether an employee could meet definition of “disabled” under the ADA • Severity and duration of impairment • Whether impairment was substantially limiting • Described by the USSC as “rigid standard”

That Was Then… • Positive effects of medication/assistive devices were considered in deciding whether employer was “substantially limited” • Judicial decisions were employer-friendly • Persons with epilepsy, diabetes, MS, depression, bipolar disorder, and amputation were found not to meet the ADA definition of “disability”

This Is Now… • ADA Amendments Act effective January 1, 2009 • Final regulations effective May 24, 2011 • Underlying definition of “disability” did not change: • physical or mental impairment that substantially limits one or more major life activities • record of impairment • regarded as impaired

This Is Now… • ADAAA significantly lowered the threshold for “substantially limiting”: • “Not meant to be a demanding standard” • “Should not be unduly used as a tool for excluding individuals from the ADA’s protections” • “Significant or severe restriction is not required” • Even a short-term impairment may be a disability

This Is Now… • Significantly expanded list of “major life activities” to include operation of major bodily functions or organs • With the exception of “ordinary eyeglasses,” the determination of disability must focus on the individual’s condition without the positive effects of medication or other mitigating measures • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

This Is Now… • Congress now says: • “The definition of Disability shall be construed in favor of broad coverage…” • “The question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis…" • New Focus • Did employer reasonably accommodate? • If not, why not?

Always Disabled Always Assess Accommodation

Significant Increase in EEOC Enforcement Efforts • Strategic Enforcement Plan identifies certain ADA issues as a national enforcement priority, including: • Coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat • Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA)

Significant Increase in EEOC Enforcement Efforts • Increase in Disability Charges • 15,000+ charges in 2003 • Nearly 26,000 charges in 2013 • Settlement dollars collected on disability charges have more than doubled in the past 10 years • $45.3 million in 2003 • $109.2 million in 2013

Employer’s Duty to Reasonably Accommodate • It’s considered discrimination under the ADA to NOT reasonably accommodate a disabled worker unless: • It would create an “undue hardship” for the employer; or • It would result in a “direct threat”

Employer’s Duty to Accommodate • Consider each request for reasonable accommodation to determine: • Whether the accommodation is needed; • If needed, whether the accommodation will be effective; and • If effective, whether providing the reasonable accommodation will impose an undue hardship or direct threat

Undue Hardship Considerations • Nature and cost of the accommodation needed • Resources and circumstances of the particular employer in relationship to the cost/difficulty of providing specific accommodation

Direct Threat • “Significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation” • If an individual with a disability poses a direct threat that cannot be eliminated or reduced to an acceptable level by a reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA

Reasonable Accommodation Challenges • Leaves of absence • Disability-related absences • Untrained/inexperienced managers/supervisors

The following message is brought to you by the EEOC: (Excerpts from EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act) • An employer may NOTapply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period

EEOC’s Position • An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship

EEOC’s Position • If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for the specified period of time and then, at the conclusion of the leave, be returned to this new position

Notable EEOC Settlements • $6.2 million– Sears Roebuck & Co. paid to resolve allegations of an inflexible leave policy under which disabled workers were terminated after exhausting workers compensation leave instead of providing reasonable accommodations of their disabilities (N.D. Illinois, 2010) • $3.2 million– Supervalue, Inc. paid to settle allegations relating to an “overly rigid and illegal disability policy” in its Jewel-Osco stores. (N.D. Illinois, 2011). Still in the news due to alleged violations of the consent decree resulting in recommendations for additional damages and extension of conciliation agreement

Notable EEOC Settlements • $20 million– Verizon paid to resolve allegations that it refused to make exceptions to its no fault attendance policy for individuals whose absences were caused by their disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step that could ultimately result in more serious disciplinary consequences, including termination (District of Maryland, July 2011)

Notable EEOC Settlements • $75,000 – GGNSC Administrative Services (central billing/collections for Golden Living) paid to resolve allegations that it fired employee following her request for extended leave to recover from knee surgery (E.D. Wisc. Sept. 2013) • $60,000– Mercy Hospital paid to resolve allegations that it failed to accommodate and terminated a nurse with MS by refusing to allow her to return from a leave of absence (E.D. Mich. September 2013)

Notable EEOC Settlements • $135,000– Alorica, Inc. agreed to pay to resolve claim that predecessor Ryla Teleservices wrongfully terminated and denied employee’s request for a 4-week extension of disability leave to treat bipolar disorder and depression (N.D. Georgia December 2013) • $1.35 million– Princeton Healthcare System will pay to resolve claims that its fixed leave policy failed to consider leave as a reasonable accommodation in violation of the ADA (Dist. New Jersey, June 2014)

When Is Additional Leave Reasonable? • Additional leave time/job protection beyond FMLA and beyond employer’s policy limits can be a reasonable accommodation: • Case-by-case basis • EEOC: leave from work is not a reasonable accommodation where the employee does not have a job to which to return at the conclusion of the leave

When Is Additional Leave Reasonable? • If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with additional leave, unless: • another effective accommodation exists; or • it would create an undue hardship

Risks of Non-Compliance • Jury trial • Back pay • Lost benefits • Compensatory damages • Punitive damages • Attorney’s fees

Question of the Day • Good grief! How am I supposed to enforce my leave of absence and attendance policies?

Using the Interactive Process to Your Advantage • Communicate • Document

Benefits of the Interactive Process • A mutually agreeable accommodation gets the job done by an experienced worker without job loss or turnover • Failing to reach an accommodation after a good-faith attempt is a defense: “If the employer demonstrates good faith consultation with employee to identify and make reasonable accommodation…” • No punitive damages • No compensatory damages

Using the Interactive Process Effectively • Analyze job functions • Determine precise job limitations • Identify potential accommodations • Select an effective accommodation

Step 1 – Analyze Job Functions • Individual assessment of the particular job duties • Job description • Employee input • Fair and accurate • Obtain employee agreement

Step 2 – Determine Job Limitations • What are the individual’s precise limitations? • What job functions are affected? • What are the barriers to performance? • Is impairment progressive, stable, or unpredictable? • Healthcare provider certification

Step 3 – Identify Potential Accommodations • Brainstorm all possible solutions • Employee’s ideas • Manager’s ideas • Additional ideas • Outside resources • List all ideas considered

Step 4 – Select Effective Accommodation • List why potential accommodations are not effective • Consider employee preference • Agree to a selection if possible (consider trial basis) • If no agreement, choose an effective one • Selection need not be the “best”

Friendly Reminders… • Remember to consult both the employee and the Manager • Document your efforts • Consider use of Reasonable Accommodation worksheet (or variant)

Reasonable AccommodationWorksheet

Leave and Attendance Considerations • Has the employee provided sufficient documentation supporting medical need for the requested time off? • Is there any need for an IME? • How long has employee been employed? • How much leave is available under normal leave/attendance policies?

Leave and Attendance Considerations • How much leave/time off has the employee already taken? • How have business operations been impacted to date? • How has employee’s work been completed during employee’s absence to date? • Would it be reasonable to continue using the same method of coverage for the new request? • If not, why not?

Leave and Attendance Considerations • What is the impact on business operations if the requested leave or absence is approved? • What are the employee’s essential job functions and how will those get completed if the request is approved? • Is time off the only effective accommodation? Or, can other workplace changes be made that would permit employee to perform essential job functions?

Leave and Attendance Considerations • Is attendance integral to the employee’s position? • Can the employee perform any of his/her essential job functions from home? • Has the employee provided an estimated return to work date? • If the time off is granted, is the employee likely to return to work in the reasonable future?

Leave and Attendance Considerations • Is there a vacant position for which the employee is qualified that would enable the employee to continue working with existing restrictions? • What does the employee believe would be reasonable?

Guidance from the Courts

Hope for Employers • Doak v. Johnson, et al., ---F.Supp.2d --- (D.C., Feb. 10, 2014) • Plaintiff suffered from hypothyroidism, depression, migraines, chronic pain, and sleep apnea • Plaintiff requested accommodation to increase her productivity, including telecommuting and adjusted work schedule with the option to make up missed work during weekend hours • Plaintiff missed 50% of work hours from January – July 2010, and 40% of work hours from July 2010 – October 2010

Hope for Employers • “The repeated absences, and the deleterious effect they had on her team at the Coast Guard…served as legitimate reasons for terminating [Plaintiff] that are distinct from her disability” • “In the end, [Plaintiff’s] requested work accommodation was an unpredictable, flexible schedule that allowed her to come into work whenever she could make it. This was unreasonable as a matter of law. Making it to work regularly is an essential function of the job that [Plaintiff] could not muster even with the requested accommodation”

Hope for Employers • McKenzie-Nevolas v. Deaconess Holdings, LLC, 2014 WL 518086 (W.D. Ok. Feb. 7, 2014) • Plaintiff, a medical assistant, requested time off for doctors’ appointments for cellulitis and infectious mastitis • Mastitis was a physical impairment that affected the operation of a major bodily function (skin and soft tissue) • “Because Plaintiff’s infection (impairment) was limited to one part of her body and was not chronic but temporary and of short duration, the Court finds that there is no genuine issue of material fact regarding disability, and that Plaintiff did not have a disability which substantially limited one or more major life activities… Reasonable jurors could not find that Plaintiff had a ‘disability’ within the meaning of the ADAAA”

Hope for Employers • “From March 2010 through November 2010, Plaintiff took off work to attend doctors’ appointments on 7 occasions. During that same period, Plaintiff either left work early or was off work the entire day on 16 occasions due to Plaintiff being sick or caring for a sick family member” • An “essential function of Plaintiff’s position was physical presence or attendance during clinic hours to assist the physicians in the delivery of healthcare” • “Because of Plaintiff’s excessive absences, there is no genuine issue of material fact that she was not qualified for her position within the meaning of the ADA. Reasonable jurors could not find otherwise”

Hope for Employers • Farran v. First Transit, Inc., 2014 WL 496927 (D. Nev. Feb. 6, 2014) • Plaintiff, bus mechanic, was injured on the job • Spent majority of 2010 on leave • Took leave in October 2010 for two surgeries, and leave ran out • Employer provided “nearly a month of additional, unpaid leave” • Terminated after failure to return to work on November 15 (date established by his physician) and failure to respond to return demand

MISHRM 2014 Annual Conference