MISHRM 2014 Annual Conference

MISHRM 2014 Annual ConferenceHR Amplified: Driven to be…

MISHRMP.O. Box 99463Troy, Michigan 48099

(844) 4-MISHRMhttp://mishrm.org



REASONABLE ACCOMMODATION IN AN UNREASONABLE LEGAL ENVIRONMENT

Jennifer GonzalezHall, Render, Killian, Heath & Lyman

201 W. Big Beaver Road, Suite 1200 | Troy, MI 48084

(248) 457-7840





Introduction1. Changes in the Legal Environment

• EEOC Enforcement Efforts• Newsworthy Settlements

2. Employer’s Duty to Accommodate

3. Common Pitfalls• Leave of Absence• Attendance

4. Current Cases

5. Reducing Exposure/Best Practices

3





Changes to the Legal Environment





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”

That Was Then… This Is Now!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”

6





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”

7





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

8





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

9





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

10





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?

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Always

Disabled

Always

Assess

Accommodation

12





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)

13





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

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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”

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Employer’s Duty to Accommodate• Consider each request for reasonable accommodation to

determine:

1) Whether the accommodation is needed;

2) If needed, whether the accommodation will be effective; and

3) If effective, whether providing the reasonable accommodation will impose an undue hardship or direct threat

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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

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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

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Reasonable Accommodation Challenges

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

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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 NOT apply 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

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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

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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

22





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

23





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)

24





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)

25





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)

26





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

27





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

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

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Question of the Day

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

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Using the Interactive Process to Your Advantage1. Communicate

2. Document

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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

32





Using the Interactive Process Effectively

1. Analyze job functions

2. Determine precise job limitations

3. Identify potential accommodations

4. Select an effective accommodation

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

34





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

35





Step 3 – Identify Potential Accommodations

• Brainstorm all possible solutions• Employee’s ideas• Manager’s ideas• Additional ideas• Outside resources• List all ideas considered

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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”

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Friendly Reminders…• Remember to consult both the employee and the

Manager• Document your efforts• Consider use of Reasonable Accommodation worksheet

(or variant)

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Reasonable AccommodationWorksheet

Reasonable AccommodationWork Sheet

Employee Name: _____________________________ _ Date: _______

Good Faith Interactive Process. You have requested an accommodation inconnection with your work based on a substantial physical or mental impairment.We believe the best way to determine if a reasonable accommodation exists is toengage in a good faith interactive process in the hope that an effectiveaccommodation can be identified. This process cannot guarantee that aneffective accommodation will be identified. However, by your participation in thisprocess we can be assured that all alternatives have been fairly considered.

The process involves four steps:Step 1 – Analyze Job FunctionsStep 2 – Determine Precise Job LimitationsStep 3 – Identify Potential AccommodationsStep 4 – Select the Most Appropriate Accommodation

Below is a Work Sheet that will focus on each of these Steps. The informationcollected will assist us in identifying a reasonable accommodation for you. Wethank you for your cooperation.

Step 1 - Analyze Job Functions

Attach Job/Position Description

List additional job functions that should be included or excluded.

1.2.3.4.5.6.7.8.9.

Does this accurately describe the functions of your job? ___Yes ___ No

Step 2 - Determine Precise Job Limitations

Identify what job functions you are currently not able to perform.

Identify any barriers to job performance.

Attach Health Care Provider certification, if requested.

Step 3 - Identify Potential Accommodations

What suggestions do you have that will accommodate your limitations.

Additional ideas and suggestions to be considered.

Outside resources to be considered.

Step 4 - Select an Effective Accommodation

The accommodations identified above are either effective or ineffective because:

The accommodation selected is: ______________________________________.

Manager Date

Employee Date35655v2





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?

40





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?

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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?

42





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?

43





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?

44





Guidance from the Courts

Hope for Employers

Denial of Summary Judgment

Unpaid leave can be reasonable accommodation

Technological advances reduce need for physical presence

Questions of fact

Indefinite attendance/leave is unreasonable

Attendance as essential function

45





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

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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”

47





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”

48





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”

49





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

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Hope for Employers– “As one trial court persuasively summarized, ‘There

are two limits on the bounds of reasonableness for leave of absence. The first limit is clear; the employee must provide the employer an estimated date when she can resume her essential duties…The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the near future’”

51





Hope for Employers– “[Plaintiff] was undisputably provided with several

leaves of absence prior to October 15, 2010. Although [Plaintiff] had exhausted all of his available FMLA leave by July 21, 2010, [employer] then granted [Plaintiff] an additional 30 days’ leave, and then provided [Plaintiff] with more than a month to recover from his October 15, 2010 surgery”

– “While [Plaintiff’s] union expressed confidence that he would be able to resume his job without restrictions in early January 2011, this opinion was not substantiated by any medical evidence…”

52





Hope for Employers– Even assuming that the nine-month leave would not

have posed an undue hardship, “[Plaintiff’s] argument has a fatal logistical flaw: an employer would not know whether the employee’s absence would pose an ‘undue hardship’ until after the employee had fully recovered and the need for accommodation ceased to exist”

– Plaintiff cannot establish denial of any reasonable accommodation where he had not provided any expected return to work date at the time of his termination

53





Denial of Summary Judgment• Alexander v. Boeing Co., 2014 WL 3734291

(W.D Wash. July 28, 2014)– Plaintiff suffered from chronic migraines, and asked to

work flexible hours/partial days from home– “While maintaining a regular and predictable work

schedule (as opposed to physical presence) may be an essential function of Plaintiff’s job, there is a genuine dispute of material fact regarding whether Plaintiff could perform this essential function had she been provided a reasonable accommodation of flexible or partial days that had been successful in the past”

54





Denial of Summary Judgment• Schwab v. Northern Illinois Medical Center,

---F.Supp.2d --- (N.D.Ill. May 20, 2014)– Plaintiff, part-time registrar, with history of breast

cancer discovered a lump and requested change to “registry” status and/or one month personal leave to be available for last minute medical appointments relating to cancer testing

– “There are issues of fact as to whether granting this request would have imposed an undue hardship on [employer]”

55






– “At the time [Plaintiff] requested a month of personal leave in August of 2010, it is undisputed that the Patient Access department was short-staffed, particularly during the overnight shift that [Plaintiff] worked…While being short-staffed could certainly justify denial of [Plaintiff’s] personal leave request, there is evidence in the record from which a reasonable jury could conclude that staff constraints were not a consideration in the decision and that Human Resources had initially approved the request, only to revoke it upon [Plaintiff’s] termination”

56





Denial of Summary Judgment• Poole v. Centennial Imports, Inc.,

2014 WL 2090810 (D. Nev. May 19, 2014)– Plaintiff informed manager he would need time off for

knee surgery (his third)– “Knee pain qualifies as a physical impairment”– “To the extent [employer] is arguing that [Plaintiff’s]

alleged disability was transitory and minor, that is a question of fact for the jury”

57






– “A leave of absence for medical treatment may be a reasonable accommodation under the ADA. Where a leave of absence would reasonably accommodate an employee’s disability and permit him, upon his return, to perform the essential functions of the job, that employee is otherwise qualified under the ADA”

– “The ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation”

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– “The ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation”

59






– “[Plaintiff] admits that he could not perform any job, other than talking on the phone while lying prone with his leg elevated, for three months after the surgery. He could not return to a sales job for at least three months, and possibly six months…This could have placed [employer] in the potentially difficult position of granting an indefinite leave of absence to [Plaintiff]. But [employer’s] failure to engage in the mandatory interactive process with [Plaintiff] renders it impossible to assess the reasonableness of [Plaintiff’s] desired medical leave of absence”

60





On the Horizon…• Supreme Court Case – Young v. UPS

– Pregnant delivery driver with lifting restrictions was required to take unpaid maternity leave rather than be transferred to a less strenuous position. Plaintiff argues that the PDA requires employers to provide pregnant workers with the same accommodations of other non-pregnant workers who are similar in their ability/inability to work

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On the Horizon…• Supreme Court Case – Young v. UPS

– Claim raised under the PDA, but Court has opportunity to clarify employers’ reasonable accommodation obligations under the ADA

– Petition for Certiorari granted July 1, 2014– Briefing schedule through October, 2014– Oral argument not yet scheduled

62





On the Horizon…• EEOC v. Erie Strayer Co. (W.D.

Pennsylvania)– EEOC filed federal complaint July 21, 2014

seeking to enjoin employer’s policy of requesting/requiring all employees absent for any duration to disclose (or authorize their physician to disclose) the nature of their illness or injuries, and any physical limitations

•

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On the Horizon…Strayer Complaint directly contradicts existing EEOC Guidance:

– Q. May an employer request that an employee provide a doctor's note or other explanation when the employee has used sick leave? (Question 15)

– Yes. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to provide a doctor's note or other explanation, as long as it has a policy or practice of requiring all employees to do so.

• 64





Best Practices• Review existing policies with legal counsel to build in

flexibility for reasonable accommodation of disability-related absences

• Continue to track all absences for purposes of determining effect on business/undue hardship

• Continue interactive process to determine if reasonable accommodation could make attendance more regular

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Best Practices• For frequent, unpredictable disability-related absences

causing disruption to business, explore possibility of transfer to vacant position or leave of absence

• Document hardship of LOA and subsequent extensions – even during FMLA period

• Focus on (and document) individualized inquiry• Review for disparate impact

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Best Practices• Consider independent medical evaluation in cases of

suspected abuse (though remember this is rarely the end of the story)

• Be patient – additional changes will likely be forthcoming

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Jennifer Gonzalez

Hall, Render, Killian, Heath & Lyman

201 W. Big Beaver Road, Suite 1200

Troy, MI 48084

(248) 457-7840

www.hallrender.com

[email protected]

MISHRM 2014 Annual Conference

Documents

legal environment mishrmp

rigid standard6 mishrmp

ada definition of disability

mental impairment

ada employee

final regulations effective

fear of heights

heath lyman201