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  • Human Resource ProFile Presents: Mark Stepaniak speaking on the ADADD.

  • Good Afternoon, I'm Mark Stepaniak. I am a Partner at Taft Stettinius & Hollister

  • in the Cincinnati office. I do labor employment & law.

  • Thank You for joining us today for HR ProFile's webinar

  • the topic of which is How Much is Too Much? Medical leave,

  • attendance policies and the interactive process

  • under the Americans with Disabilities Act as Amended (ADAAA)

  • now like all such presentations, this is not specific legal advice if you have

  • specific questions be sure to consult your

  • Council or you can find us on the world wide web (TaftLaw.com)

  • understanding

  • what is required under the Americans with Disabilities Act as Amended (ADAAA)

  • and what it allows is more important now than ever before

  • we all know that more people are now given protected disability status that

  • at any time

  • in history this is because ADA was amended a few years back

  • to dramatically lower the standard for qualifying as a person with a disability

  • that has to be accommodated

  • in a workplace. So why is that important?

  • it's important because all those folks

  • who are now disabled who previously were not considered disabled under the law

  • may be entitled to participate in the interactive process and consequently

  • they may be entitled

  • to an accommodation and if they are

  • that accommodation may blow up your time and attendance policy

  • it's very important to understand how the ADA

  • FMLA interfaces with your time and attendance rules

  • i have

  • noticed that some of our clients are particularly mesmerized

  • by the Family Medical Leave Act in other words they

  • spend all their time trying to determine eligibility whether the particular

  • condition

  • is a serious health condition that would qualify under the FMLA

  • and whether leave is appropriate

  • and they do this to the exclusion of analyzing the situation under the

  • Americans with Disabilities Act. A number of employers have found out the hard way

  • that the FMLA is a floor

  • and not a ceiling to how much leave a person is entitled to.

  • Some employers have discovered that

  • the hard way. Once they end medical leave at 12 weeks because the FMLA is

  • exhausted that they

  • nevertheless and accommodation obligations under the ADA

  • and if they didn't engage in the interactive process and didn't

  • offer those accommodations they can end up on the wrong

  • side of a lawsuit. How has this

  • phenomenon manifested itself? Well as this chart

  • indicates, in the last five years

  • we've seen a dramatic uptick in the number

  • up ADA, or disability charges filed with the EEOC

  • EEOC's published raw data indicates that the number of disability charges

  • filed

  • as well as the percentage of disability charges

  • as a function of all charges filed

  • continues to rise at a significant rate. As you can see from this graphic

  • back in 2008 there were seventeen thousand plus

  • ADA charges filed which represented one-fifth

  • of all the charges filed. In 2012

  • that figure was up to one-quarter of

  • all the charges filed and had increased in number

  • by 50 percent to 26,000

  • plus charges, and the reason for this is obvious more people now

  • are qualified as a person with a disability under the ADA

  • they can more likely bring a successful charge

  • we used the bat these charges out pretty easily by

  • arguing and proving that the person was not disabled

  • with the ADAAA amendments they lower that bar and many many more people are now

  • disabled than

  • were before in the eyes of the EEOC. now the biggest

  • and most surprising trend that we've experienced lately

  • is it attack on a very idea that attendance

  • is somehow import. You know Woody Allen once famously said that

  • eighty percent of life is just showing up BUT the EEOC believes that showing

  • up is not even necessary

  • for most jobs. let's look at whether

  • or not attendance is an essential job function.

  • probably the the scariest case in this area

  • is pending before the 6th Circuit Court appear Appeals which sits here in

  • Cincinnati involves

  • the EEOC in a Ford Motor Company case

  • in that case EEOC argued to the Sixth Circuit

  • that regular attendance is no longer

  • in an essential function for most jobs

  • the EEOC argues that case authority to the contrary, and there's quite a bit of it,

  • is outdated because it predates recent technological advances

  • that allow people to telecommunicate and work from home with the

  • widespread use the internet to perform

  • most jobs. Now this case is still pending so we don't know whether or not

  • the EEOC is going to prevail or not but here the basic facts which I think

  • illustrate this issue

  • these are the facts in the EEOC versus FORD case. The employee

  • suffered from irritable bowel syndrome and

  • as a result she perhaps understandably sought to work from home

  • whenever she had a flare-up. Well the problem was the flare-ups could

  • be anywhere up to four days per week

  • and often without notice so what she asked Ford

  • for the right to do, was to work at home up to four days a week

  • without any prior notice to the company Ford argued that telecommuting

  • to work was not a reasonable accommodation for her position she

  • served as a steel buyer

  • which meant that she was buying raw steel

  • for Ford Motor to use in the construction of automobiles

  • and Ford argued that she needed to regularly interact with

  • her team members and fellow buyers. EEOC countered

  • that face to face interaction among employees on a team

  • is a mere employer preference and that an employer preference

  • should be given no weight when analyzing an ADA claim.

  • The EEOC argued further that

  • the essential functions of the job which we all know

  • disable persons are not able to shed the essential functions

  • but they said essential functions relates only to the

  • duties perform and not to the location

  • of where those duties are performed

  • and of course Ford perhaps contributed to its own problem by allowing

  • other non disabled employees to telecommunicate in other jobs

  • in other words when the EEOC was looking at this charge and

  • trying to decide whether telecommuting was a reasonable accommodation for this

  • particular charging party

  • when they saw that Ford had allowed other non-disabled people

  • perhaps a different job classifications, but nevertheless

  • to telecommute work from home, they said that that was evidence

  • that telecommuting is a reasonable accommodation

  • well for now EEOC's radical view

  • in this EEOC v Ford case is a minority view and it's not necessarily the law

  • when the sixth circuit finally rules on this case it will be the law in

  • Ohio, Kentucky, Michigan, and Tennessee

  • and no doubt persuasive authority in other jurisdictions.

  • So what should you do? Well one of the

  • issues of course in the Ford case had to do with occasional absences and

  • telecommuting

  • so you should check your job descriptions do your job descriptions

  • say

  • appropriately that attendance

  • is an essential job function/ good attendance is an essential job functions

  • if it doesn't say that specifically and certainly

  • for years it seemed almost axiomatic why would you say that in a

  • job description well now there's good reason to say if it's true

  • because it's absence may suggest to the EEOC that it's not an essential function

  • and then you should also consider whether you're telecommuting

  • policies are working against you. Now we're not recommending that you

  • eliminate, as a matter of policy telecommuting, but you least need to

  • understand that when you do allow it

  • you're going to make it easier for persons to claim that telecommuting in

  • their job

  • is a reasonable accommodation. So

  • now course in this case you were talking about sporadic absences

  • up to four days a week. What is the law

  • currently and how is it developing with respect to

  • extended absences.

  • Well, one thing we've seen is that employers who pay down millions of

  • dollars because of

  • inflexible leave policies and some of the most notable cases involve Supervalu

  • and Jewel-Osco who agreed to pay

  • $3.2 million dollars under a consent decree

  • in litigation brought by the EEOC in 2011

  • what problem did they have? Well they had a policy

  • that said if you are out medical leave you could not return

  • unless you were a hundred percent (100%) recovered or

  • had a "full release".

  • and the only accommodation they offered to folks who have disabilities

  • was extended medical leave. They didn't consider other

  • possible accommodations. The EEOC

  • contended and apparently the company

  • ultimately relented because there is a consent decree they contended that

  • this violated the employer's obligations to engage in

  • the interactive process

  • and offer reasonable accommodations were necessary.

  • Similarly the Sears Roebuck company agreed to pay 6.3 million dollars

  • under a consent decree in 2009

  • that was at the time, the largest ADA settlement

  • in history. I say at the time because you're about to see there's been an even

  • bigger one lately.

  • And what did Sears do?

  • basically Sears said that if you went on a workers comp leave and you reach maximum

  • medical improvement

  • they would end your employment without consideration

  • other possible reasonable accommodations

  • so in other words they were employing these companies were employing

  • hard fans limits regardless of length

  • on the amount leave that they would offer employees

  • now these are big companies with sophisticated human resource functions

  • we speculate that they did this because they probably have thousands of

  • employees on leave at any one time

  • what the EEOC wants you to do, of course is engage in the interactive process

  • which is individualized decision making, which of course is very difficult

  • when you've got lots of

  • employees on leave. EEOC's position in these cases is that

  • if you have a set period, maximum period for leave

  • "No leave shall be longer than, let's say, 12 months"

  • then, you have by definition precluded the interactive process

  • and they actually may be on to something... think about it

  • an employee brings in a doctor's note, this is a hypothetical,

  • so it doesn't have to necessarily

  • make sense but employee brings in a doctor's note that says

  • please excuse Joe from work he's having this a particular

  • medical procedure, he is disabled and he's going to be out

  • 53 weeks. Well what if your policy said no to leave can exceed 52

  • weeks? What EEOC would say

  • is that the accommodation under that fact pattern isn't whether or not it's

  • reasonable

  • to give somebody fifty three (53) weeks off, that seems like a long

  • period time, the accommodation in that case is whether or not you have to give them

  • an additional one week

  • from 52 to 53 so in that case the employer would find itself in the nearly impossible

  • situation arguing

  • well of course we could give Joe 52 weeks off

  • but how could we possibly be expected the giving 53 weeks off

  • alright, so that's the analysis when you have a fixed leave period

  • The question is, Is additional leave,

  • beyond that a reasonable accommodation and you only know that

  • if you engage in the interactive process

  • now I told you that the Sears case was eclipsed in terms of being the largest

  • settlement

  • in EEOC history

  • In 2011 Verizon

  • agreed to pay $20 million dollars to settle a nationwide EEOC

  • disability suit.

  • According to EEOC Verizon had denied reasonable accommodation to employees

  • and disciplined them, or fired them

  • pursuant to a no fault attendance plan. Well lots of us have no

  • fault attendance policy's and of course we know that the FMLA

  • played havoc with those because if the person qualifies for

  • FMLA leave you can't apply your no fault attendance policy

  • well the EEOC is following suit saying that well wait a minute

  • if the person is disabled, and remember many more people are disabled

  • Alan used to be disabled in the eyes of the you see

  • that if you're applying that no vote attendance policy to somebody who's

  • missing work

  • because of a disability you might be discriminating against

  • what's the cure the cure is you have to engage in the interactive process you

  • have to meet with the employee

  • discover what a combination they may need in decide whether or not

  • flexing your attendance policy is a reasonable accommodation

  • now be careful we're not saying that flexing your attendance policy

  • is always in every case a reasonable accommodation and then you must do so

  • when I am saying is that you need to engage in the interactive process

  • if you're about terminator discipline somebody who is disabled

  • didn't come to work because other disability when you're no fool

  • attendance problems

  • here's exactly where you see is to say about this

  • the EEOC has issued guidance on disability and it says and I quote

  • it's laid out here on the screen if an employee with a disability

  • need additional unpaid leave

  • as a reasonable accommodation the employer must

  • modified snowfall policy to provide employees with the additional leave

  • unless the employer can show in other words the employer as it were true

  • that there is another effective accommodation

  • that would enable the person to perform the essential job functions

  • up the position so for example

  • her the person rather than needing leave you know we

  • remove a nonessential functional we get him a chair

  • lower the high to the table for working on allowing it them to telecommute

  • move to a vacant position that sort of thing or

  • and less important show that granting additional leave would cause im

  • undue hardship well as you know is HR professional

  • that the employer bears the burden of proof on showing an undue hardship

  • ninety hardship is judged under very very

  • rigid standards that takes into consideration

  • resources the tour resources at the company and it's very difficult to show

  • an undue hardship in many cases print now

  • bf I'll not grantor

  • if granting this additionally wouldn't put a

  • undue burden on other employees act sometimes can be

  • proved to be an undue hardship tell you is that this is a case specific analysis

  • from which the only general rule you can drive is that

  • if you're about the discipline somebody under a leave policy

  • actually policy go for it as policy

  • and that person is disabled must engaging interactive process

  • on and that's what's required here engaging in the interactive process

  • making some sort of ended

  • visualized assessment now we're not saying

  • that limitless leave is required

  • what we're saying is that inquire is required

  • what is needed in how the person might be accommodated

  • a quick word or two about substance abuse

  • you all know that current illegal drug use

  • is not protected under the ADA federal government made a policy decision that

  • said when I can accommodate current illegal drug users

  • because we're trying to stamp out illegal drugs but alcoholism

  • is protected can also form grow

  • use somebody who you know was up heroin abuser

  • a year or two ago now works for you that person's history

  • drug abuse would be protected if you're not a current user

  • well oftentimes when employees show up to work drunk

  • rather me and fired employer will offer rehab opportunity and some sort of last

  • chance agreement

  • up finally some good news there are some recent cases

  • that have held that a return to work

  • agreement in other words base where lol contract with the employees that says

  • reaffirmation of stay clean

  • when I come back I'll can be enforced against simple way without running afoul

  • love the ADA that

  • some courts upheld that violation a return to work agreement is not the same

  • as terminating for disability cell

  • persons now always be sure work drunk you could fire them for that

  • they ask to be rehabbed you offer them rehab

  • they agree they sang to return to work agreement where they say they're not

  • gonna show up for work

  • under the influence again they violate that

  • terminating man at that point these courts adele is not the same as firing

  • them for alcoholism

  • it's firing them for violating the return work agreement

  • are likewise Court's appellate failing to complete treatment

  • can justify determinations the person says please boss Camino the chance let

  • me go to rehab

  • don't finish the rehab can you then terminate them yes you not terminating

  • them for being an alcoholic her former drug abuser

  • your terminating them prepared complete the treatment

  • now be careful can't go too far you see on the screen abort point that says

  • driver no return policy on wall this particular case

  • the employer was a trucking company employees came forward and said why an

  • alcohol problem

  • the employer and net seemingly yep generously said what they will do what

  • you can to rehab

  • and we'll find another job but you can never drive for us again

  • and the EEOC the court said that

  • that was a violation a the law

  • the never drive again policy was going a step too far

  • other courts have upheld that dad where

  • employees detectable amounts of alcohol in her blood during a

  • require drug test that the employer can take action on that

  • without being accused of discriminating against employees because it was out all

  • well what else do you need to know

  • couple things number one was very important indefinite leave is not be

  • reasonable

  • accommodation in other words for employees comes to you and says after

  • some reasonable period of time

  • for medical assessment and says I need a medical leave and I don't know how long

  • I'm gonna be out

  • most courts have held that that is not request for a reasonable accommodation

  • definitely leave with no known and a is different

  • then a request for leave for a specific period of time that's

  • beyond perhaps with your policies otherwise

  • would allow sup let's but this through a hypothetical for illustration purposes

  • fellow as a heart attack people sat on the ground and you say to him

  • you're waiting for the ambulance when will you be coming back and he says I

  • don't know

  • you can't fire him for requesting an indefinite leave

  • but once a person's been stabilizers doctor looks I'm in the doctor says

  • you know you can come back in six or eight weeks that would be

  • lesson 13 risk it take the open layout picture

  • on the interactive process would be

  • can I accommodate this guy beginning leave for thirteen week

  • if after some reasonable period on the other hand doctor says this guy's

  • condition seems to be permanent I love is never coming back

  • then loss says in most jurisdictions that

  • that's something you would not have to accommodate likewise if you offer

  • employees

  • as a reasonable accommodation light-duty light duty is different than removing

  • nonessential functions light duty

  • means in most def in them common vernacular means

  • actually removing a sensual functions from a job which

  • not required to do under the ADA I'll that you don't have to offer that

  • forever

  • so if you got a disabled employees say well do you get back on your feet were

  • gonna

  • you have to do this that and the other thing these 3par's have your job

  • having offer that you don't have to continue their forever

  • likewise extension a request for some short term disability

  • need not be indefinite so many employees as I need six months of

  • and you determine if that's a reasonable accommodation

  • on and then he comes back and says I'm more time off

  • if it's a specific period time you go to the interactive process to determine if

  • that's reasonable

  • it's indefinite and you don't have to agree to that

  • well course many plaintiffs lawyers in Las other doctors have figured out well

  • here's the trick is

  • is you know aspirin definitely because that's not a reasonable accommodations

  • are you ask for specific leave

  • and you just keep rolling in dough he needs three months of

  • the other three months he needs another three at the end of that he needs

  • another three

  • so what's the law on that %uh won't even the EEOC

  • said the employer can in a con in that

  • contact a request up the treating physician information about why his

  • first estimate was an addict

  • are inaccurate and could be relied upon

  • arm the M most courts will uphold

  • you've got to wonder to the generations the idea that a

  • this rolling leave is really nothing but indefinitely even disguised

  • and does not need to be a comedy

  • we talk a lot about the interactive process

  • let's go over some key points that up first

  • some ports and this isn't true every jurisdiction that some courts have said

  • that you have to distinguish

  • between conduct in a manifestation other disabilities so for example

  • a guy is sleeping on the job you be sleeping on the job because he's

  • narcoleptic

  • other words he falls asleep and you can control that do

  • a problem with his brain %uh that sleeping on the job in many instances a

  • manifestation of his disability in

  • firing him for sleeping is the same thing as firing him for being

  • narcoleptic

  • which in a lab to do now course if

  • not being asleep at work is an essential function and probably is for most jobs

  • but certainly for

  • let air traffic controllers security guard is good idea

  • an essential function then not the person simply isn't qualified for the

  • job

  • now that doesn't mean that you might consider other combinations which could

  • be

  • a medical leave of absence if medically is going to do any good

  • another job give somebody a medical leave of absence if at the end of it

  • they're going to have the exact same problem

  • or considering them perhaps for some other position

  • whereas narcolepsy problem would be as critical

  • I'll the second ballpoint talks about adjustment medication

  • there was a rather unusual case were person

  • was getting psychoactive drugs for psychiatric problem

  • came to work Monday out with leaner I'm raw meat

  • and severe any employer thought that inappropriate and fire

  • and the court believe youre not found that he that the company the other

  • reasonably accommodate that fellow and the reason was that his bizarre behavior

  • with the meeting the beer

  • was a manifestation his I'll

  • the the drugs manifestation the disability compounded

  • by bizarre interaction with the drugs

  • and that he should have been given medical leave time to get his meds

  • under control so how could that problem cure it could have been cured

  • to the interactive process rather than just blow him up when he showed up

  • acting up unusual at work gracious at him down

  • trying to figure out what the deal was then considered whether we

  • was possible a third bullet point talk about their goodbyes vacancies

  • this particular case a woman was cancer sufferer

  • she came to work said I don't think I can do my job anymore it's just too

  • physical

  • chemo and cancers wiped me out employer said well okay fine im or accept a

  • resignation

  • she later sued and the court said that

  • what the company should have done was engaging interactive process and

  • reviewed with her

  • other vacant positions that perhaps she could have done

  • so that was a failure to engage in Iraq process

  • some oil similarly on that last bullet point

  • %uh it's the same case up

  • in an instance the im the one's position sent in a letter saying that she needed

  • all these different combinations in the importer read is that what we can't do

  • that

  • and so they just terminator when the court ultimately said what they should

  • have done

  • was sat down there and gone through the last suggested accommodations and said

  • well we can do 13 but not too in five

  • maybe we can do for and that would have been the interactive process having

  • failed to do that

  • they set themselves up war

  • potential legal liability sup the sum up

  • as you can see under the new vastly more liberal

  • adaa you're gonna have a lot more people qualify

  • as disabled as a result have a lot more chances

  • and to get hung up on the ADA so

  • here are the takeaway tips number one never

  • ever apply limit only other sizes leaves 11 to six months 12 months whatever

  • without engaging in the interactive process

  • if you discover from the interactive hurt process that the person needing

  • much longer leave

  • perhaps you can't comment if they need an indefinite leave you don't have to

  • accommodate

  • that they need an additional shortly you at least Hampton

  • him engage in your active process so you can show that you could not accommodate

  • a number two if somebody does aspirin nationally that you cannot accommodate

  • you must consider other accommodations in other words well

  • we can't give you another 10 months of you've already been out for a year

  • but we do have this position over here that's avail

  • doesn't mean you have to offer position would means you have to go through the

  • list the

  • available positions to determine whether or not that is a reasonable

  • accommodation

  • they are you gauging the iraqi processes where you're going to get her

  • and number three as you engage in the interactive process

  • do that with a witness in document your efforts in the conversation

  • if the employee is telling you when there's nothing I could do I can't do

  • that job I can do this job I don't know when I'm coming back

  • document all at and you should be okay

  • hopefully this was helpful you have any questions let us know thank you very

  • much

Human Resource ProFile Presents: Mark Stepaniak speaking on the ADADD.

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