The do’s and don’ts of ADA accommodations: 3 new rulings

More than 25,000 ADA charges were filed by the EEOC in the past year, despite employers best compliance efforts. Continue reading this blog post to learn more.


Employers are facing more disability discrimination lawsuits than ever – despite their best compliance efforts. 
In the past year alone, over 25,000 ADA charges were filed by the EEOC.

The right way to accommodate

One area that’s often a point of contention? The accommodation process. Workers and employers can have a very different idea of how a disability should be accommodated.

And while each disability needs to be evaluated on a case by case basis, several recent court rulings shed further light on employers’ ADA accommodation responsibilities.

1. In Brumley v. United Parcel Service, a court ruled that ADA accommodations don’t necessarily have to be given to employees immediately.

Melissa Brumley delivered packages for UPS when she hurt her back lifting a heavy box from her truck.

She took leave to heal, and her doctor said when she returned to work she could no longer lift packages or drive. Since these were two essential functions of her job, Brumley’s manager put her on leave while waiting on more information from her doctor.

After beginning the interactive process and considering a reassignment, Brumley’s doctor cleared her to go back to her old job, and UPS ended the process.

But Brumley sued the company for failing to accommodate her during those weeks she was on leave, which resulted in loss of pay.

A district court ruled in favor of UPS, and on appeal, the 6th Circuit agreed. It said just because the company didn’t accommodate the employee immediately didn’t mean it violated the ADA.

UPS began the interactive process and only stopped once Brumley was cleared to go back to her old job without an accommodation.

The key things the company did? Beginning the process and requesting additional info from Brumley’s doctor – this showed the court a good faith effort to comply with the ADA.

2. In Sharbono v. Northern States Power, a court ruled a company that failed to find an accommodation didn’t fail to fulfill its ADA duties.

After a foot injury, James Sharbono wasn’t able to wear the steel-toed boots required by his company’s safety procedures.

HR worked with Sharbono and suggested several accommodations, such as altering his boots and getting a custom pair made, but none worked out. Sharbono was forced to retire, and he sued for ADA violation.

But the 8th Circuit ruled the company acted in good faith. It worked with Sharbono and suggested several accommodations. It was only after exhausting all options that Sharbono was forced to retire. The court said the company fulfilled its ADA responsibilities, despite finding no accommodation for Sharbono.

3. In Stokes v. Nielsen, a court decided companies can be required to make accommodations that cover more than just essential job functions.

Jacqueline Stokes had impaired vision and received multiple accommodations that allowed her to do her job. Stokes then requested special meeting handouts, printed in large letters, that she could read beforehand.

Despite many promises from HR, Stokes never received her requested handouts. She sued, claiming to be denied a reasonable accommodation under the ADA.

While the company argued it gave Stokes everything she needed to do her job, therefore fulfilling its ADA responsibilities, the Fifth Circuit disagreed.

“Our circuit has explicitly rejected the requirement that requested modifications must be necessary to perform essential job functions to constitute a reasonable accommodation,” it said. And Stokes’ request was deemed reasonable.

This case shows if an employee makes a reasonable request for their job, it’s easier to just grant it.

SOURCE: Mucha, R. (4 January 2019) "The do’s and don’ts of ADA accommodations: 3 new rulings" (Web Blog Post). Retrieved from http://www.hrmorning.com/the-dos-and-donts-of-ada-accommodations-3-new-rulings/


Strategies to help employers minimize ADA missteps

Having a good ADA policy and making sure employees acknowledge that they've reviewed it are essential tools in helping prevent unforeseen disability discrimination claims. Continue reading to learn more.


Handling ADA accommodation requests is tricky. But having a good ADA policy, making sure employees acknowledge receipt of the policy, and properly instructing managers how to deal with requests are essential tools to help prevent unforeseen disability discrimination claims.

Take this scenario.

In a conversation about his tardy attendance, an employee tells his manager he is having difficulty arriving to work because his sleep apnea interferes with his rest and prevents him from waking up on time. He adds that he is being evaluated for drugs that could potentially help him. Is this a request for an accommodation under the ADA?

In general, the answer is probably yes, and the employer could face a potential disability discrimination claim if the request is ignored.

Title I of the ADA requires employers to provide reasonable accommodations to qualified individuals with disabilities. Failure to provide an accommodation is a form of disability discrimination. The employee’s request for an accommodation triggers an “interactive process” to determine what accommodation might be reasonable.

To trigger the interactive process, the employee does not even have to specifically mention the ADA or state that he is requesting a “reasonable accommodation.” Thus, if such a statement made to a manager could be considered a request for an ADA accommodation, how can an employer possibly monitor these types of employee requests and comply with the ADA?

Realistically, there are two ways an employer can minimize ADA missteps in this scenario.

First, the employer should review and make sure that its ADA policy includes a definitive procedure for how an employee should request an ADA accommodation. An increasing number of courts are holding that even though an accommodation request may be informal, it does not necessarily excuse an employee’s failure to use the correct procedure, provided the procedure is clear and disseminated in advance. So once an employer has established a fixed set of procedures to request accommodations, an employee’s failure to follow this procedure could preclude a claim for failure to accommodate.

In one recent case, for example, an employer required employees to make all accommodation requests though it’s leave of absence administrator, a position it created specifically to deal with employee leave requests. The court held that the employee’s failure to use that specific procedure precluded her failure-to-accommodate claim. Thus, having a clear procedure that tells employees how, and to whom, they should direct their accommodation requests is essential to mitigating risk for failure to accommodate claims.

Second, even if an employer has a policy limiting the methods for accommodation requests, it also should inform managers and supervisors that when an employee who is trying to justify performance issues makes comments about his or her medical condition, such comments are potentially an accommodation request. The employer should direct supervisors and managers to immediately refer any such circumstance to human resources, in order to handle the interactive process.

This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

SOURCE: Kopp, J. (13 December 2018) "Strategies to help employers minimize ADA missteps" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/strategies-to-help-employers-minimize-ada-missteps


8 keys to developing a successful return to work program

What does your return to work program look like? Read this blog post for 8 tips to developing a successful return to work program at your organization.


No matter the size of your organization, there’s about a 99% chance at some point dealing with employees going on leave. Most HR professionals are well-versed on the logistics of what to do when an employee is on short- or long-term disability — but what sort of culture do you have in place that encourages and supports them with a return to work (RTW)? Developing a positive and open RTW culture benefits not only the organization but the employee and their teams as well.

An effective RTW program helps an injured or disabled employee maintain productivity while recuperating, protecting their earning power and boosting an organization’s output. There also are more intangible benefits including the mental health of the employee (helping them feel valued), and the perception by other team members that the organization values everyone’s work.

See also: 7 Ways Employers Can Support Older Workers And Job Seekers

Some other benefits of an RTW program can include improvement of short-term disability claims, improvement of compliance and reduction of employer costs (replacing a team member can cost anywhere from half to twice that employee’s salary, so doing everything you can to keep them is a wise investment).

Some of these may seem like common sense, but I’m continually surprised how many (even large) organizations don’t have an established RTW program. Here are eight critical elements of a successful program.

1. Support from company leadership.

No change will occur if you don’t have buy-in and support at the top. Make the case for a defined RTW program and explain the key benefits to leadership. Know what’s driving your existing absences: Is it musculoskeletal or circulatory? What’s the average length of absence? How many transition from STD to LTD? Come in with some of this baseline data and make the case for an RTW program. Having a return to work champion on the senior leadership team is essential to the program’s success.

2. Have a written policy and process.

There are many considerations when developing an RTW program including how it’s being administered, how employees learn more and engage with HR once out, and when they need to notify the company. Unless you have these policies in place, nobody will be held accountable. This also is an important time to bring in your legal consultation to assure you’re compliant with current company policies and municipal, state and federal laws.

3. Establish a return to work culture.

Once you have leadership support, make your RTW program just like any other championed within the organization. Develop clear messaging about what it means to employees, how they can get more information when they need it, steps for engaging with an RTW specialist and other key advantages. Then, disseminate this information through all appropriate channels including e-newsletters, intranet, brochures, posters and meetings.

4. Train your team members.

Educate managers on why an RTW program is important, why they should get behind it, how it impacts the organization, and what it means for both them and the returning employee. This training can be built into your onboarding process so that all new employees are made aware at day one. Having core messaging about the program and clear policies and procedures will assure everyone is singing from the same hymnbook.

5. Establish an RTW coordinator.

Depending on the size of your organization, this may be a part-time or full-time role. It’s essentially establishing someone as the day-to-day owner of work and could be a nurse, benefits coordinator or someone from your HR team. This person will need to work with various department managers (some who may at times be difficult) to define RTW roles, track compliance and measure success.

6. Create detailed job descriptions.

It’s important to have functional job descriptions for all employees which include physical requirements and essential duties. Often, when employees have an RTW, there are specific lifting, sitting or standing requirements. These are all compliance issues that the EEOC will pay close attention to.

7. Create modified duty options.

Some of the strongest pushback I get is from managers who claim there’s no way to modify an employee’s duties. However, when asked about back-burner projects they haven’t gotten to, the same manager will quickly come back with 5-10 tasks. Often, it’s a combination of that employee’s existing duties and some of these special projects which make a perfectly modified list of responsibilities.

8. Establish evaluation metrics.

Senior leaders love metrics, so if you can benchmark on the front end how many people are out and what that equates to in lost time/productivity, you can easily begin to evaluate what having an RTW program brings to the organization. Make your RTW coordinator responsible for tracking this information and share it with not only senior leadership but also managers and even team members. This will help reinforce the importance of the program to everyone.
SOURCE: Ledford, M. (2 October 2018) "8 keys to developing a successful return to work program" (Web Blog Post). Retrieved from https://www.benefitnews.com/list/8-keys-to-developing-a-successful-return-to-work-program

The big difference between long-term care and long-term disability insurance

Do you know the difference between long-term care and long-term disability insurance? These two types of insurance may have similar names, but they are very different. Continue reading to learn more.


The longer people live, the more likely they are to face illnesses that necessitate custodial care either at home, in an assisted-living facility, or in a nursing home. So it stands to reason that there’s a resurgence of interest in long-term care and long-term disability insurance.

While the two types of coverage have similar names, they’re very different. As an employer, it’s important to understand the difference and educate employees on why they’d need each type of coverage. Here is a rundown.

Long-term care insurance

Long-term care insurance covers the cost of custodial care if a person is no longer able to perform at least two activities of daily living. These activities include eating, bathing, dressing, moving from a bed to a chair (called transferring), using a toilet or caring for incontinence.

Most people think LTC insurance is for older people who need to turn to a nursing home for care near the end of their lives — which is also part of the reason more employees are asking for LTC insurance. But LTC insurance can cover anyone who requires extended care.

LTC goes beyond medical care to include living assistance for a severe illness or disability for an extended period of time. Although older people use the most LTC services, a millennial or middle-aged employee who has been in an accident or suffered a debilitating illness might also need long-term care. In fact, 40% of people receiving long-term care services are 18-64 years old, according to America’s Health Insurance Plans. Actor Christopher Reeve was 42 when he was thrown from his horse and was paralyzed. He received long-term care services for nine years before his death.

Most people believe something like that will never happen to them, but it’s important to plan for the possibility. While Reeve had financial resources to cover his healthcare, that’s not typically the case for the average person. LTC can be very expensive, depending on the level of services needed and the length of time the individual needs it. One year in a nursing home can average more than $50,000. In some regions, it can cost twice that amount.

When offering LTC insurance, employees choose the amount of the benefit — typically an amount granted each month — and the length of time the benefit covers — such as two years, three years or 10 years. Obviously, as the benefit amount or length of time increases, so does the premium.

LTC insurance premiums are based on a person’s age, which means the earlier employees buy, the lower the premiums. If a person first buys the insurance at age 32, they lock in a better rate than if they purchase the insurance at age 54. Rates may increase only by a class action that is approved by state insurance regulators. Finally, LTC insurance is portable, which means employees take the policy with them if they move onto another job, or retire.

Long-term disability insurance

Long-term disability insurance may sound somewhat similar to LTC insurance, but the two are very different and important in their own right. Most workers don’t believe they’ll ever become disabled and need LTD insurance. Unfortunately, more than one in four 20-year-olds will become disabled before they reach retirement, according to the Social Security Administration.

LTD insurance is an income-replacement benefit that kicks in when the employee loses income for an extended period of time due to a disability. LTD insurance can be used for living expenses, not just covering care.

LTD insurance starts after short-term disability ends, typically after three to six months. In most cases, it pays 50-60% of an employee’s salary until they can return to work or, in some cases, until they retire. The more working years an employee has in front of them, the more they need LTD. Unlike long-term care insurance, LTD is typically not portable unless the policy contains conversion privileges. It ends when the employee changes employers.

If you offer both types of insurance, make sure your employees understand the difference. These types of insurance will help them in different ways — both important and more beneficial to have at a young age, but for varying reasons.

As an employer, you’re likely employing multiple generations of workers right now. Offering a range of benefits, including long-term disability and long-term care insurance, can help employees prepare for the unexpected now and in the future.

SOURCE: Granfors-Hunt, L (24 August 2018) "The big difference between long-term care and long-term disability insurance" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/how-long-term-care-long-term-disability-insurance-differ?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001


Long-Term Disability Insurance Gets Little Attention But Can Pay Off Big Time

Is disability coverage worth it? At Saxon, we love to keep you updated on the latest news in the retirement world, and today, we want to dive into disability coverage. Check out this engaging and helpful article we pulled from KHN.


“It won’t happen to me.” Maybe that sentiment explains consumers’ attitude toward long-term disability insurance, which pays a portion of your income if you are unable to work.

Sixty-five percent of respondents surveyed this year by LIMRA, an association of financial services and insurance companies, said that most people need disability insurance. But the figure shrank to 48 percent when people were asked if they believe they personally need it. The proportion shriveled to 20 percent when people were asked if they actually have disability insurance.

As the annual benefits enrollment season gets underway at many companies, disability coverage may be one option worth your attention.

Some employers may be asking you to pay a bigger share or even the full cost. That can have a hidden advantage later, if you use the policy. Or you may find that your employer has automatically enrolled you — or plans to — unless you opt out. A growing number of employers are going that route to boost coverage that they feel is in their employees’ best interests, not to mention their own, since insurers usually require a minimum level of employee participation in order to offer a plan.

Benefits consultants agree that although long-term disability coverage lacks the novelty appeal of some other benefits that companies are offering these days — hello, pet insurance — it can prove much more valuable in the long run.

“This is a really critical safety-net benefit,” said Rich Fuerstenberg, a senior partner at human resources consultant Mercer.

If you become disabled because of accident, injury or illness, long-term disability insurance typically pays 50 to 60 percent of your income, while you’re unable to work. The length of time the policy pays varies; some policies pay until you reach age 65.

Long-term disability generally has a waiting period of three or six months before benefits kick in. That period would be covered by short-term disability insurance, if you have it.

Many long-term disability claims are for chronic problems such as cancer and musculoskeletal conditions. According to the Council for Disability Awareness, the average duration of a claim is nearly three years — 34.6 months.

Not everyone has savings to support them through that time. When the Federal Reserve Board surveyed adults about household economics in 2015, 53 percent said they don’t have a rainy day fund that could cover them even for three months. More troubling, nearly half of respondents — 46 percent — said that faced with a hypothetical $400 emergency expense, they didn’t have the cash to cover it.

According to the Social Security Administration, 1 in 4 people who are 20 years old now will be disabled before they reach age 67.

Overall, 41 percent of employers offer long-term disability insurance, according to LIMRA, though the proportion of larger employers who offer it is generally much higher. Compared with health insurance, premiums cost a pittance — $256 annually in 2016 on average for group plans, LIMRA says. Many employers pick up the whole tab or charge workers a small amount.

However, as employers continue to shift benefit costs onto employee shoulders, long-term disability is no exception. Increasingly, they’re offering the coverage as a “voluntary” benefit, meaning employees pay the entire premium.

The upside is that if employees pay for the coverage themselves with after-tax dollars and they ever become disabled and need to use the coverage, the benefits will be tax-free.

“If an employee can choose to pay for coverage on a post-tax basis, or is paying on a voluntary basis, it’s better for them,” said Jackie Reinberg, national practice leader for absence, disability management and life at benefits consultant Willis Towers Watson.

Some employers may pay for a core basic benefit that replaces 40 or 50 percent of income and offer workers the opportunity to “buy up” to more generous income replacement of 60 or 70 percent.

Although voluntary coverage has a tax advantage, disability consultants are concerned that leaving it up to employees, especially if they’re choosing among several other voluntary coverage options like cancer insurance, critical illness coverage and yes, pet insurance, increases the odds they’ll skip buying long-term disability coverage.

“These coverages all feel the same, and if you’re going to choose one at all you tend to go with the one that’s cheapest and the one that you think you might use,” said Carol Harnett, president of the Council for Disability Awareness, a membership group of disability insurers that does education and outreach about disability issues.

Auto-enrollment can make a big difference. Employers that auto-enroll employees in voluntary long-term disability plans may get 75 percent of employees to participate, compared with 30 percent for employers that leave it completely up to workers, said Mike Simonds, CEO of disability insurer Unum US.

If you were offered long-term disability coverage when you were hired and didn’t sign up, it may be tougher to do so during the open enrollment period, said Fuerstenberg. A growing number of health plans require employees to show “evidence of insurability,” meaning they must answer a series of health-related questions before they’re approved. Some long-term disability policies may also have preexisting condition provisions that won’t pay benefits for a condition for up to a year, for example.

 

You can read the original article here.

Source:

Andrews M. (10 October 2017). "Long-Term Disability Insurance Gets Little Attention But Can Pay Off Big Time" [web blog post]. Retrieved from address https://khn.org/news/long-term-disability-insurance-gets-little-attention-but-can-pay-off-big-time/