ADAAA Implications for Absence Management – Avoid that $20 Million Judgment

1. ADAAA Implications for Absence Management – Avoid that $20 Million Judgment October 27, 2011

2. Session Description:Join this timely webinar about the critical impact of the Americans with Disabilities Act Amendments Act and recent EEOC actions (such as the $20 million consent decree against Verizon) on company absence management practices. Reed Group absence management experts Kevin Curry and Martha Cardi will address steps employers must take to develop an effective ADA accommodation program and to ensure the integration of ADA considerations into various absence plans, including the FMLA, workers’ compensation, company disability plans, and more.Cindy Gonzales, US Disability Program Manager of Intel Corporation, will share the challenges the company faced on its path to successful integration of continued absence as an ADA accommodation into Intel’s wide array of absence benefits.

3. Presenters Cindy Gonzales, US Disability Program Manager Intel Corporation Cindy Gonzales is the US Disability Program Manager at Intel, where she has worked for 18 years.  After getting a business degree from New Mexico State University, Cindy owned and operated a hobby store business where her benefit learning’s began with a small group of employees.  She started her career at Intel in the Payroll team and then moved over to Benefits where she managed Intel’s in-house COBRA administration and Health Care Provider data exchange before both were outsourced.  She then took over as the supplier manager and added LOA Operations to her scope after it, too, was outsourced.  Finally, when a vendor change occurred moving both STD/LTD and LOA administration, she developed and created her current role as US Disability Program Manager, where she has been for the past 6 years. In this position, Cindy owns front to end program management the administration of Intel’s Short and Long-term Disability programs, including monitoring of trust accounts money flow, audit/compliance of the plans, resolving complex customer escalations and issues, and managing stakeholder relationships.  She also works with the Intel Global Benefits Design group on the strategy, design and implementation of related plan changes. 

4. Presenters Martha J. Cardi, Chief Compliance Officerand Employment Counsel Reed Group Martha Cardi is Chief Compliance Officer for Reed Group, a leave of absence software and services company.  Ms. Cardi is responsible for ensuring that Reed Group services are provided in compliance with state, federal, and local leave and employment laws. Her team tracks legislative developments, trends, and case law on an on-going basis. Ms. Cardi is the chief author, editor, and content expert for Reed Group’s Leave of Absence Advisor, an in-depth online referential guide to the Family and Medical Leave Act and state leave laws.  Ms. Cardi's expertise includes more than 25 years as in-house employment counsel for national companies and in private practice with Denver law firms, where she provided management clients with advice and counsel on employment compliance matters and represented clients in state and federal courts and agency proceedings. She is admitted to practice in Colorado. Ms. Cardi holds a B.A. from Colorado State University and a J.D. from the University of Colorado School of Law, and is rated AV Preeminent by Martindale-Hubbell.

5. Presenters Kevin Curry, Senior Vice President, National Practice Leader Reed Group Kevin Curry brings more than 15 years of experience in Integrated Absence management and consulting to Reed Group. As Practice Leader, he is responsible for setting and facilitating Reed Group's absence and disability business, with focus on technology, content and services. Before joining Reed Group, he was a well-known and highly respected senior absence management consultant in Mercer's Total Health Management practice, where he helped numerous employers achieve cost reduction and productivity improvements in FMLA, disability and broader employee absence management activities. Mr. Curry is a frequent speaker at industry conferences in the areas of Integrated Absence, Health & Productivity. Prior to his work on behalf of employers at Mercer, Curry held various leadership positions at CORE Inc.

6. Overview • ADA management requires employers to take down traditional silos for absence management which includes reviewing processes in traditional outsourced models. • Employers mistakenly treat their obligations under the ADA separate from and unrelated to their management of leaves of absence under the Family Medical Leave Act (“FMLA”), company medical or disability leaves, or Workers’ Compensation. • EEOC is focusing on failure to provide ADA accommodation at end of other leave programs – Supervalu, United, Sears, Verizon • Attendance policies must incorporate case-by-case assessment and employer’s duty for reasonable accommodation • Implementation of an “ADA policy” that prohibits discrimination against individuals with disabilities and outlines a reasonable accommodation process is essential.

7. Americans with Disabilities Act Amendment Act ADA Basic requirement: • Employer must provide a “reasonable accommodation” to a qualified individual with a disability: • Disability: A physical or mental impairment that substantially limits one or more major life activities ADA Amendments Act 2009: “Disability” threshold lowered: • New definition of “substantially limits”: limits the ability of an individual to perform a major life activity as compared to most people in the general population. • An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

8. Americans with Disabilities Act Amendment Act Accommodation process is now king! • Focus is no longer on whether an impairment is a “disability” • Rather, focus is on whether employers “have complied with their obligations” under ADA Leave of absence as an accommodation: • Can be a reasonable accommodation if it will enable the employee to do his/her job • No specific time limit; but unknown duration / open-ended leave is not reasonable • Employer must consider additional leave as an ADA accommodation at the end of other leave programs

9. What is the interactive discussion? Accommodation is an interactive process • Requires two-way communication with employee • Employer is not required to give employee his first choice of accommodation • Employer can require medical documentation to establish • the existence of a disability (if it is not obvious) • the need for accommodation, and • that a specific accommodation will enable employee to perform the essential functions of his/her position • Request for medical information must be “job-related and consistent with business necessity” – and don’t forget GINA

10. Recent Case Law EEOC campaign against ADA violations related to Leaves: • fixed leave of absence policies violate the Americans with Disabilities Act.  • employers must engage in interactive accommodation process at the end of an employee’s leave if the employee needs more time off or a workplace accommodation • EEOC is actively engaging in litigation against large companies that violate this principle: • Verizon Communications – July 2011 • $20 million     Failing to make exceptions to “no fault” attendance plans for individuals whose absences were caused by disabilities    • Supervalu, Inc., Jewel Food Stores, Inc. - January 2011 • $3.2 million    Terminating employees with disabilities who were not 100% recovered at the end of medical leaves of absence

11. Recent Case Law • United Airlines- December 2010   • $600,000  Requiring reservation sales reps on disability leave either to retire or go out on extended leave, then terminating upon leave exhaustion        • Sears, Roebuck and Co. - Late 2009       • $6.2 million    Terminating employees following exhaustion of workers’ compensation leave without engaging in the interactive accommodation process     Reed Group prediction:  FMLA leave exhaustion practices that violate ADA  is next EEOC target case.

12. Triggering Events to Initiate the Interactive Process • Employee requests an accommodation • FMLA Ineligibility • FMLA Exhaustion • Short-term Disability • Extended Illness banks/Salary Continuation • Workers Compensation • Company Medical Leave

13. Intel JourneyCindy Gonzales, US Disability Program ManagerIntel Global Benefits Program Office

14. Intel Overview – Who We are Intel Corporation: The World’s Largest Semiconductor Manufacturer Leading Manufacturer of Computer, Networking & Communications Products 300 Facilities in 50 Countries Over $37B in Annual Revenues from Customers in Over 120 Countries 22 Consecutive Years of Positive Net Income Approximately 97,000 Employees (50K US) 43,000 tech degrees, 12,000 Masters in Science, 4,000 PhD’s, 4,000 MBA’s Top Ten Most Valuable Brands in the World for 10 Consecutive Years Invests $100 Million Each Year in Education Across More than 50 Countries The Single-Largest Corporate Purchaser of Green Power in the US One Million Hours of Volunteer Service in Our Communities in 2008

15. Intel Overview – What we do WiMAX NAND Handhelds Netbooks Desktop Laptop IA Consumer Electronics VisualComputing Server Health Embedded Silicon Process Platform Architecture Market Creation Intel Employees

16. Intel Overview – LOA and Disability Program Design Out-sourced: • All Leave Administration & Intake • All STD/LTD Claims Administration In-sourced: • Business Partner Support • Occupational Health, HR Legal, HR, General Accounting, Employee Contact Center, Payroll, Risk Mgmt (workers comp) • Controls • Customer Care • Data Management • Employee Relations/Education • Process Administration • Program Management • Disability • Leave • Sabbatical • Projects • Quality Assurance • Supplier Management of leave/disability administration vendor Intel ~35% of LOA/Disability Administration is handled internally at Intel

17. Intel Overview - Description of job/work environment The base of the Intel Atmosphere and Culture • Develop product categories and products that require a creative, risk-taking work environment (office jobs in HR, R&D, Projects, etc..) • Designing and building chips with extremely precise, submicron detail that necessitates a disciplined, attention-to-detail work style (factory jobs; majority of our population) • The high-tech industry is extremely competitive, and requires an aggressive, "never-rest-on-your-laurels" atmosphere (both office & factory jobs)

18. Intel ADA Process – Previous model • Intel Occupational Health (OH) - Process Owner • Two types of request: • ADA request for workplace accommodation made by employee • ADA request for additional leave time and job protection while employee out on MLOA • Intel Priorities & Challenges: • Priorities: • OH primary responsibility is handling Workers Compensation (WC) cases for the company • OH additional responsibility was to spend quality time working the interactive ADA process • Challenges: • ADA interactive process is time consuming when working with Dr, Mgr, HR Legal, etc; this took time away from OH WC responsibilities • OH resources • *sometimes the employee cannot be accommodated in their current job (current position) but a similar position exists in the same job scope/class so they are transferred as the accommodation without going through re-assignment. 

19. Intel ADA Process: High-level workflow, Previous Model Summary Intel Occupational Health (OH) - owner

20. Intel ADA Process – Current model • Reed Group – Process Owner • Two types of request: • ADA request for temporary workplace accommodation made by employee • ADA request for additional job protection while employee out on MLOA • Help Overcome Intel Challenges: • Due to Reed handling temporary and job protection accommodation requests, OH has been able to balance out their work load between their responsibilities. • This approach adds an additional proactive reach out to help with the increased quality required to administer accommodations under ADA. • OH balanced resourcing enabled their group to maximize the efficiency of their current resources verses requesting additional head count.

21. Intel ADA Process: High-level workflow, Current Model Summary Reed Group – Process Owner

22. Question?