How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA Alec Beck Partner, Minneapolis Office Andrew Tanick Managing Partner, Minneapolis Office Ford and Harrison, LLP
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How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA
How to Manage the ADA and Employee Leave Laws Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA
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How to Manage the ADA and Employee Leave Laws
Employees Who Cannot (Or Will Not) Work: Balancing the ADA, Workers Compensation, and the FMLA
■ Requires Employers to Create and Provide a Safe Workplace
■ Provides Standards for Employers to Create a Safe Workplace (e.g., Ergonomic Standards for Work Stations)
■ All Workplace Accidents must be Reported to the applicable State Department (in “deferral states” or the federal OSHA office
Americans with Disabilities Act Protects persons with physical or mental impairments that
limit major life activities
Only protects employees who are “qualified” (i.e., can
perform all the job’s essential functions)
Covered employees may be entitled to “reasonable
accommodation” in order to allow them to become fully
qualified for their jobs
Once someone has disclosed a potential disability (and not
before!), employers have an obligation to find out of a
reasonable accommodation exists.
ADA: Who is Protected?
■ Qualified Individuals with
Disabilities – A disabled individual
who can perform the “essential
functions” of his/her job with or
without “reasonable
accommodation”
ADA: Definitions - Disability
1. A physical or mental
impairment that substantially
limits one or more major life
activities
2. Record of having such an
impairment
3. Being “regarded as” having
such an impairment
ADA Amendments Act
(ADAAA)
Effective January 1, 2009
Final Regulations effective May 24,
2011
Reasons for ADAAA
■ Congress felt Courts were construing
definition of “disability” too narrowly
■ The Supreme Court’s decisions in
Sutton v. United Airlines and in Toyota
Motor Mfg. v. Williams
■ The EEOC’s regulation defining
“substantially limits” as “significantly
restricted” was too high a standard
Overview: Changes to
Meaning of Disability 1. Expanded the definition of “major life activities.”
2. “Substantially Limits” redefined and broadened.
3. “Mitigating Measures” not considered.
4. List of Impairments that will “virtually always” be
disabilities.
5. Term “disability” to be interpreted broadly, no need
for extensive analysis.
6. “Regarded as” broadened.
Changes to Major Life Activities
■ Additions (in bold), include:
■ Caring for oneself, performing manual
tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting,
reaching, lifting, bending, speaking,
breathing, learning, reading,
concentrating, thinking,
communicating, interacting with
others, and working.
Changes to Major Life Activities
(cont.)
■ Major Life Activities now include “operation of a major bodily function,” including:
■ Functions of the immune system, special sense organs, and skin; normal cell growth; digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions
Substantially Limits Redefined
■ The term “Substantially Limits” to be determined
based on nine new "rules of construction,”
including:
■ “Substantially Limits” to be determined
broadly
■ An impairment is a disability “if it substantially
limits the ability of an individual to perform a
major life activity as compared to most people
in the general population.” Need not prevent,
or significantly or severely restrict.
Substantially Limits Redefined
(cont.)
■ Impairment lasting fewer than six months can
be substantially limiting
■ The primary focus under the ADA will be
whether covered entities have complied with
their obligations and whether discrimination
has occurred, not whether an individual’s
impairment substantially limits a major life
activity.
Substantially Limits Redefined
(cont.)
■ Scientific, medical, or statistical analysis not
required in comparing an individual to “most
people in the general population”
■ An impairment that is episodic or in remission
is a disability if it would substantially limit a
major life activity when active (e.g., MS,
epilepsy, bipolar disorder, cancer).
Mitigating Measures
■ Cannot take into account the “ameliorative effects” of mitigating measures
■ Person is “individual with a disability” if impairment would substantially limit a major life activity without benefit of the mitigating measure (e.g., meds)
■ Exception: ordinary eyeglasses and contact lenses
“Regarded as”
■ No longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity
■ New Amendments Act standard: an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA based on an impairment or perceived impairment (e.g., carpel tunnel syndrome)
Example: Obesity
Disabled Under ADAAA?
■ George weighs 400 pounds. He seems to have problems breathing, but has not been diagnosed with any underlying illnesses that cause his obesity or any conditions resulting from his obesity. His employer has noticed that he seems to be wheezing some, but doesn’t think he has any diagnosable impairment. Still, his employer is concerned that the breathing problems and weight are interfering with his productivity. His boss, Donald Trump, fires him.
Pre-ADAAA
■ No. There is no proof that the employer
thought George was substantially limited
in any major life function because of his
breathing.
Post - ADAAA
■ Yes. Since employer took action
against George because of perceived
impairment (whether real or not).
Rule No. 1:
A Workplace Medical Condition Will
Involve EACH of these Statutes
Second Rule – Analyze Each
Injury in the Following Order:
■ FMLA (For now Obvious Reasons)
■ OSHA (File the Correct Forms)
■ Workers’ Compensation (Ditto)
■ ADA/Disability Discrimination
■ LTD/STD Issues
■ COBRA (Any Time Employee is
Gone)
Complying with the law – and
still trying to keep the lights on
■ Our natural orientation is to be supportive
■ A good business model requires helping all employees be successful in their jobs
■ Where the “good business model” doesn’t do the trick, the labor contract probably does
But...
■ Handling medically-related issues can be extremely complicated, and leads to cynicism and corner-cutting
■ The challenge is to comply with the law while protecting both employee AND employer rights
■ Sometimes the process seems ridiculous or impossible
Let’s take an example to illustrate this subject...
Hypothetical Situation
Bob’s qualifications are a
bit substandard
Bob is somewhat “quirky”
Performance issues
Personality issues
Due to a pressing need
for a bookkeeper, you
hired “Bob”
He’s not just “eccentric”
Exhibiting anti-social traits
Talking to himself
Talking to the water cooler
Bad personal hygiene
Missing a good deal of work
Doesn’t like you much
Bob’s Got Issues . . . but it doesn’t stop there . .
.
You’ve got a Dilemma . . .
(1) You’re a Good Person
(2) You Want to Do the Right Thing
(3) Bob Obviously Needs Help
(4) What Should you Do?
(5) Ask Him if Something’s Wrong?
If Bob says “yes”...
Then you’ve taken on obligations you didn’t have before.
NO.
Rule No. Three:
Ignorance is Bliss
What do we do with Bob?
. . . Nothing
(Except Treat Him Just Like Anybody Else
– Provide Counseling and Possibly
Discipline)
Let’s Change the Hypothetical . . .
We’re Not Going to Go too Far
out of our way to help Bob . . .
We’re Going to Take “Appropriate
Administrative Action” with
Regard to Bob’s Employment
Status
… We’re going to Tube him …
What’s the First Thing Every Manager Would
Do?
Fire First, and THEN contact
HR?
No! How about . . . Check with the
company’s Policies and Employment
Records to Make Sure that We’re
Okay to Proceed with a Termination?!
Big Dealership Employee Handbook
Article XVI –Discharge and Discipline
“The employer shall not discharge or suspend any non-probationary employee without just
cause, and shall give notices of infractions/complaints to the employee in
writing….”
EDITORIAL NOTE]: The law defines “just cause” as,
among many other things, violating reasonable work rules, insubordination, failure of attendance, etc…. Many dealerships have collective bargaining agreements
explicitly containing this standard
[
Employee Performance
Feedback
Employee: Bob B. Counter
Supervisor: Ida S. Pizreviews
Rating: Above Average
Comments: Bob is a good
performer. I wish I had
a hundred more like
him. We bowl together
on Thursdays.
Rule No. 4:
Please …
Please . . .
Please . . .
Be Honest in your
Performance Reviews (Even
Though It’s Sometimes No
Fun)
(Pretty Please?!)
“Paper the File”
(What you have to do when you
haven’t followed Rule No. 4)
What if we don’t have good
documentation?
•Let’s Assume You Followed the Rules and Got Appropriate Documentation
•You’ve Followed the Progressive Discipline Policy
•You’ve Worked with Management/Ops, and They’ve Signed off on your Plans
•You Go Through Channels, and Set Up the Meeting with Bob
•And . . .
Okay …
Bob is experiencing extreme psychological injury due to the
unfair and predatory treatment by his supervisor. The stress
has aggravated his ulcer. He will need in-patient
psychotherapy for 6 weeks, or until his insurance money runs
out. In addition, he has a substantial exacerbation of a pre-
existing borderline personality syndrome, overlaid with
explosive personality disorder, and Chronic ADD. Patient is
disoriented times three, and cannot return to work at his
normal job unless and until the main stressor in his life, his
supervisor is removed from the workplace. The patient will
need twelve weeks off of work, combined with intense
psychotherapy. After that, he may return to work on an as-
tolerated basis, so long as he does not have to work with his
former supervisor. I am now discharging this patient, as there
is nothing else I can do for him at the moment
Dr. Laura Schlessinger, Ph.D.
■ Put the gun down, cowboy
■ Self-Identified as (1) having a
serious health condition; (2)
having workers’ comp issues;
and (3) being possibly disabled
■ Cat’s “Out of the Bag”
Regarding the Medical
Condition
What to do?
Since the condition
has been disclosed. . .
You are hereby released from Rule 3…now
we’ve got to start asking some medical
questions.
Workers’ Compensation Injury?
What he’s got
■ Stress
■ Ulcer
■ Explosive
Personality Disorder
■ Borderline
Personality
■ Attention Deficit
What he wants
■ Twelve Weeks Off
■ Psychological
Treatment
■ Medical Treatment
■ Modified Duty Job
■ Wage Loss Benefits
■ Medical Benefits
Rights Under the FMLA
■ Bob’s Entitled to Twelve
Weeks Off of Work, either
all at once or “intermittently”
■ Also entitled to same or
substantially similar position
on return
Do we have to give Bob
FMLA?
YES!
Rule No. 5:
FMLA Rights Are
- Absolute –
(And NO, common sense doesn’t enter into it)
Bob has a right to twelve weeks’ leave if his
doctor says so
Twelve Weeks Are Up, and…
Back to Work!
■ BUT!
■ Bob has “self-
identified” as
potentially
disabled
- We need to
address the
medical
condition
■ ADA DISABILITY
CRITERIA:
■ A physical or mental
impairment that
substantially limits one or
more major life activities;
■ A record of such an
impairment; or
■ Being regarded as having
such an impairment
Question: Does Bob
Have a Legal
Disability?
Answer: We Have No Idea at This Point
(but probably)
Rule Number 6:
Know What You’re Talking About –
Use all of Your Resources to Get the
Information You Need
What Happens Next?
■ Second note says return to
work with restrictions
■ Bob says he needs a few
more weeks off to really heal
up
■ You could assign Bob to a
modified duty position
• Is there an obligation to create a light duty
position?
• Can we insist that Bob accept light duty?
• How can we use light-duty?
Bob can return to
on an as-tolerated
basis, so long as he
doesn’t have to
work with numbers.
Dr. Laura.
Big Dealership
Accommodation Policy
[I]t is the intent of the Dealership to enhance the
health and well-being of our disabled employees by
providing reasonable accommodation to them to
assist them in returning to work, whether they have
become disabled by illness or injury. . . . The
Dealership will reasonably accommodate a qualified
person’s disability as long as it does not cause undue
hardship to the Dealership. Should our Dealership not
have any jobs, with or without modification, that can
be done by you with your skills, experience, and
disability, we may be able to provide assistance to you
in securing employment with another employer. . . .
Obvious Question:
Since He Only Gets Light Duty if he
Has a Legal Disability – then
IS HE DISABLED??
(NOW We’ve GOT to Answer that
Question)
Interactive Process
■ Employer and the employee enter into a dialogue to explore accommodation options.
■ Purpose is to determine job-related limitations, identify possible accommodations, assess effectiveness.