Boy, Do I Have a Headache! When Employees Can't Come to Work: Best Practices for Managing Leave and Other Accommodations Suzanne W. King and Charles S. Einsiedler, Jr. June 8, 2017
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Real World Scenario Sal, the day-shift supervisor, just called to tell you that a new production employee, Leo, has been leaving work early and missing days here and there due to migraines. Sal is very frustrated because these attendance problems are unpredictable and create more work for other employees. In addition, Leo is new and barely made it past his first three months before taking time off. Sal has already disciplined Leo for violating the attendance policy, but wants to know what else he can do. In the course of the conversation, Sal mentions that Leo does not wear his hard hat because it hurts his head. What can the employer do? 3
Overview of the ADA Prohibits discrimination against any: • Qualified individual with a disability • Individual with record of disability; or • Individual who is regarded as disabled • Requires employers to make reasonable • accommodations for the known physical or mental disabilities of otherwise qualified individuals unless the accommodation would cause an undue hardship 4
Who is Protected by the ADA? If the employer is a covered employer, • every employee who is disabled is covered! No length of service threshold • No hours threshold • All employees, all positions • In Maine, the MHRA protects • all employees of all employers 5
Examples of Reasonable Accommodations Making physical facilities accessible, Reassignment to a Job restructuring acquisition/modification vacant position of equipment or devices Appropriate adjustment Part-time or modified or modification of Leave of absence work schedules examinations, training materials or policies 6
Limitations on Duty to Accommodate Undue hardship • Very high standard • Consider: nature and cost of accommodation; overall financial resources of facility; number of employees; impact on operations of the facility; and overall financial resources of employer • Burden is on employer to prove undue hardship, but see Echevarria Significant risk of substantial harm • If accommodation would pose a “direct threat” to employee or other’s health or safety, employer does not have to provide reasonable accommodation • Also very high standard 7
Evaluating Request for Leave as Accommodation Is leave necessary or are there other • effective accommodations? How long is it expected to last? • How will job be covered during leave? • Will leave likely facilitate return to work? • Does this leave create an undue • hardship? 8
Extended Leave as Accommodation Garcia-Ayala v. Lederle Parenterals, 212 F.3d 638 (1st. Cir. 2000) First Circuit held that employer’s policy of terminating employees after 12 months of disability leave unlawful in the absence of a showing of undue hardship. Employer was able to cover plaintiff secretary’s duties with temporary employees. No evidence replacements resulted in increased cost, inefficiencies or lack of effectiveness. 9
Extended Leave as Accommodation LaFlamme v. Rumford Hospital, (D. Me. 2015) Injured nurse terminated after leave of 12 months, even though expected to return in “30 - 60 days”, which became about 75 days. Court, citing Garcia-Alaya, said nurse’s leave request not indefinite, even though date of return was not specific and kept being postponed. Hospital failed to show undue hardship in keeping nurse on unpaid leave. Jury verdict of about $36,000, plus attorneys fees of $140,000 10
Hwang v. Kansas State University, (10 th Circuit May 29, 2014) “Unsurprisingly”?!! Are Inflexible Leave Policies Lawful After All? Hwang Court: “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no .” 11
Extended Leave as Accommodation Echevarria v. AstraZeneca (1 st Cir. May 2, 2017) Court affirms summary judgment to employer where disable employee requested 12 month leave after taking 5 month leave. Finds request for length of leave unreasonable on its face. Does not reach undue hardship defense. Distinguishes Garcia-Ayala on the basis that the only leave requested in that case was 2 months (after having been granted 12 months). Cites Hwang decision with approval. 12
Automatic Leave Cut Offs and 100% Cured Policies EEOC v. UPS, Inc., (N.D. IL February 12, 2014) EEOC challenged UPS policy that results in administrative separation of employment after 12 months of leave. Individuals could not return to work following leave until 100% healed, even if employees could perform essential functions with reasonable accommodation. Court denied UPS motion to dismiss class action. Acknowledging that although regular job attendance can be an essential job requirement, plaintiffs’ claims were not premised on attendance, but rather on UPS’s imposition of a 100% healed requirement on those seeking to return. 13
Highlights of 2016 EEOC ADA Leave Guidance Employer must grant equal access to leave under employer’s leave policies; cannot require minimum service as condition to leave Employer should engage in interactive dialogue if no leave available under policies Employer can ask for updates if employee requests leave extension or return date uncertain Employer cannot ask for updates if employee granted leave with fixed return date, but can check on progress “Maximum leave” or “no fault” leave policies may have to be modified; generally unlawful under the ADA. Employer should modify form letters to let employees on leave know they can get additional unpaid leave if they are disabled 14
Highlights of 2016 EEOC ADA Leave Guidance 100% healed policies unlawful — Employer must reinstate and provide reasonable accommodations if that allows employee to perform job duties. ER cannot refuse reinstatement b/c of “safety risk”; there must be a “direct threat” (significant risk of substantial harm that cannot be accommodated) EEs who cannot return to current job must be placed in vacant position if qualified, without requiring EE to compete. (exception seniority systems) No undue hardship because return to work date not definitive or changes due to changed circumstances. “Indefinite leave— meaning that an employee cannot say whether or when she will be able to return to work at all —will constitute an undue hardship.” 15
Q. Does the ADA require an employer to provide indefinite intermittent leave? A. No, part time or modified work schedules may be reasonable accommodations, but only if they will enable plaintiff to perform the essential functions of the job. Mecca v. Florida Health Services , (M.D. FL. February 3, 2014) “An employer does not have to wait indefinitely for an employee’s medical condition to be corrected, especially when it is uncertain whether the condition will improve.” 16
Managing the Interactive Process Request Medical support Consider options • No magic words • No medical • Talk with employee necessary documentation, no • Ask about accommodation • May arise during preferred performance • Requested accommodation, discussion but only obligated accommodation and to provide effective medical • Obvious need documentation must accommodation •Could be doctor’s agree • Consider all note identifying possible • Can ask medical restrictions accommodations provider to identify • May be made by nature of impairment, •Look at employer’s family member duration, functional past practice limitations • Review essential • Provide to HR only functions • Provide written response to request 17
Important Reminders About The Interactive Process Accommodation has to be effective, not ideal • Ensure interactive process occurs promptly – • undue delay could be violation Employee is obligated to engage in good faith • Employer cannot force an employee to accept an • accommodation, but if employee refuses an effective accommodation, employee may not be qualified to do the job Document interactive process and keep in • confidential medical file, not personnel file Process should be handled by HR not employee’s • supervisor 18
What about Leo? Leo likely covered by ADA, but employer should • get medical documentation confirming that Leo’s migraines substantially limit a major life activity If disabled, likely need to provide time off as • accommodation Get estimate of frequency from doctor and then check • that actual pattern is consistent If frequency and duration make it very difficult to • provide coverage, consider different position Consider hard hat as separate accommodation • request Leave related to migraines should not lead to • discipline for violation of attendance policy 19
Best Practices for Compliance with ADA Include disability in list of protected classes • in EEO policy Include in Handbook and job application: • “The employer will make reasonable accommodations for qualified applicants/employees with known disabilities, in accordance with applicable law” Update job descriptions • Implement accommodation policy • 20
Family and Medical Leave Act 21
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