Working from home for medical reasons poses challenges for employers

Did you know: There has been an 11 percent increase in remote work since 2014, according to SHRM. This increase in remote work is posing new challenges for HR teams when the request is due to medical reasons. Continue reading to learn more.


While working from home has become much more popular in recent years – an 11% increase just since 2014, according to SHRM – this can pose challenges for HR teams when the request is due to medical reasons.

Even if your workplace has guidelines for remote workers, requests to telecommute as an accommodation must be carefully reviewed to assure you’re in compliance with ADA regulations

The ADA prohibits discrimination in employment based on disability, and requires employers to provide reasonable accommodations to applicants and employees. A reasonable accommodation entails any changes in the work environment, or in the way things are customarily done, which enables an individual with a disability to enjoy equal employment opportunities.

In these cases, it’s important for both the HR rep and a physician to gather information about the accommodation request to gauge if telecommuting is medically necessary or simply a personal preference.

The HR rep needs to gather specific information from the employee, including the following:

  • Explanation of why it’s medically necessary to work from home
  • The essential job functions the employee finds challenging to perform in the office
  • The duration of the request to work from home
  • Whether telecommuting for a period of time enables the employee to return to work in the office and perform essential functions of the job
  • Confirmation that they have a dedicated workspace with phone, Wi-Fi and other essential technology

Meanwhile, the physician should gather certain information from the HR rep, including:

  • A description of the medical condition
  • How working from home will help the employee better manage that medical condition and perform the essential job functions
  • The restrictions (things the employee cannot do) and limitations (things the employee should not do)
  • Why the employee can work from home but not in the office
  • How long the employee will require the accommodation (short or long term)
  • Likelihood that the employee will ever be able to perform their essential job functions from the office

With more offices adopting an agile model with open workspaces, employees now have more natural lighting, feel less cramped and have more opportunity for collaboration with their colleagues. However, these advantages to many people can be challenges for others.

Light and odor sensitivity, as well as distractions, are some of the most frequent triggers of medical conditions that drive the need for accommodations. In many cases, some simple modifications to the workplace can help solve or alleviate some of the employee’s challenges.

Light sensitivity, or photophobia, is intolerance to light, which can cause a painful reaction to strong lighting. Adjustments can be made to help alleviate this, including head lighting modifications, window shading, cubicle shields for fluorescent lights, polarized glasses and/or prescription eyewear.

Odor sensitivity is another common issue in open workspaces – especially for employees who previously were in a contained space with infrequent interaction with colleagues. Consider workplace signage prohibiting perfume or cologne in the office, enforcing a fragrance policy, air purifiers throughout or in select areas, a transition to scent-free cleaning products, or upgrading the ventilation system in the office to allow more air flow. For food smells, ask employees to eat in a designated area and not bring food to their workspace.

Distractibility is the inability to sustain attention or attentiveness to one task. With agile workspaces often involving moving around frequently or being positioned in a high-traffic area, this can be challenging to some employees. Consider providing noise-canceling headphones, white noise machines, cubicle shields, noise barriers or an adjustment to the office configuration. Consider allocating space within the open work plan that’s off-limits for meetings and away from heavy foot traffic.

While agile workspaces have many benefits, they can pose challenges to your workforce. It’s your responsibility to work with employees to accommodate medical requests which may result from light sensitivity, distractions or even odors. Following these simple tips can help assure a healthy, happy and productive workplace for your team.

SOURCE: Holliday-Schiavon, K. (23 May 2019) "Working from home for medical reasons poses challenges for employers" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/remote-work-for-medical-reasons-challenging-for-employers


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


Employers Assess Risk Tolerance with Wellness Program Incentives

Do you offer wellness programs to your employees? Employers are now uncertain to what extent they can use incentives as part of a wellness program. Continue reading to learn more.


Employers designing 2019 wellness programs must decide what approach to take on program incentives without Equal Employment Opportunity Commission (EEOC) guidance on the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

The commission has a Notice of Proposed Rulemaking tentatively slated for January 2019. Last year, the U.S. District Court for the District of Columbia decided the commission's 2016 ADA and GINA wellness regulations were arbitrary and vacated them, effective Jan. 1, 2019.

Employers again are "in the uncomfortable position of not knowing with certainty whether and to what extent they can use incentives as part of a wellness program that involves medical examinations, disability-related inquiries and/or genetic information," wrote Lynne Wakefield and Emily Zimmer, attorneys with K&L Gates in Charlotte, N.C., in a joint statement.

The Society for Human Resource Management (SHRM) "has long advocated for proposals that will ensure consistency between the wellness rules that the EEOC has jurisdiction over, the ADA and GINA, with those provided under the ACA [Affordable Care Act]," said Nancy Hammer, SHRM vice president, regulatory affairs and judicial counsel. "While EEOC's 2016 rulemaking effort adopted the ACA's 30 percent incentive, it added new requirements that would have discouraged employers from providing wellness options for employees. We are hopeful that the EEOC is able to revisit the rules to ensure both consistency with existing rules and flexibility to encourage employers to adopt innovative programs to improve employee health and reduce costs."

ADA and GINA Requirements

Employers have long sought guidance over whether and when wellness program incentives—rewards or penalties for participating in biometric screenings and health risk assessments connected with the programs—comply with the ADA and GINA.

The ADA prohibits employers from conducting medical examinations and collecting employee medical history as part of an employee health program unless the employee's participation is voluntary, noted Ann Caresani, an attorney with Tucker Ellis in Cleveland and Columbus, Ohio.

GINA prohibits employers from requesting, requiring or purchasing genetic information from employees or their family members, unless the information is provided voluntarily.

The EEOC in 2000 asserted that for a wellness program to be voluntary, employers could not condition the receipt of incentives on the employee's disclosure of ADA- or GINA-protected information.

However, in 2016, the commission issued regulations providing that the use of a penalty or incentive of up to 30 percent of the cost of self-only coverage would not render involuntary a wellness program that seeks the disclosure of ADA-protected information. The regulations also permitted employers to offer incentives of up to 30 percent of the cost of self-only coverage for disclosure of information, in accordance with a wellness program, about the manifestation of a spouse's diseases or disorder, Caresani said.

Wakefield and Zimmer noted that the EEOC's 2016 wellness regulations applied to wellness programs that provided incentives tied to:

  • Biometric screenings for employees and spouses.
  • Disability-related inquiries directed at employees, which might include some questions on health risk assessments.
  • Family medical history questions, such as risk-assessment questions that ask about the manifestation of disease or disorder in an employee's family member and/or such questions about the disease or disorder of an employee's spouse.
  • Any other factors that involve genetic information.

Court Actions

The AARP challenged the 2016 rule, arguing that the 30 percent incentives were inconsistent with the voluntary requirements of the ADA and GINA. Employees who cannot afford to pay a 30 percent increase in premiums would be forced to disclose their protected information when they otherwise would choose not to do so, Caresani explained.

While the 30 percent cap was consistent with the Health Insurance Portability and Accountability Act (HIPAA) as amended by the ACA, the AARP said this was inappropriate, as HIPAA and the ADA have different purposes, noted Erin Sweeney, an attorney with Miller & Chevalier in Washington, D.C..

In addition, the change from prohibiting any penalty to permitting one of 30 percent was not supported by any data, according to the AARP.

In the summer of 2017, the U.S. District Court for the District of Columbia held that the EEOC's rule was arbitrary. The court sent the regulations back to the EEOC for further revisions.

In December 2017, the court vacated the 2016 rule after the EEOC initially said that the new rule would not be ready until 2021.

Conservative to Aggressive Approaches

Wakefield and Zimmer observed that employers may take several different approaches as they design wellness programs for next year:

  • No incentives (most conservative approach). These types of wellness programs can still include biometric screening and health risk assessments that employees and spouses are encouraged to complete, but no rewards or penalties would be provided in connection with their completion.
  • Modest incentives (middle-ground approach). A modest incentive is likely significantly less than 30 percent of the cost of self-only coverage, given the court's finding that the EEOC did not provide adequate justification for an incentive level-up to 30 percent.
  • Up to 30 percent incentives (more aggressive approach). Although the court did not rule that a 30 percent incentive level would definitely cause a wellness program to be considered involuntary, incentives at this level after 2018 likely will expose employers to lawsuits, they wrote.

Multiple-Point Program

One good way to demonstrate compliance, they noted, is a multiple-point program in which participants engage in different activities and earn an incentive by participating in enough activities apart from biometric screenings, risk assessments or providing their spouse's health information.

For example, an employer could let employees take health care literacy quizzes or offer a program that measures a worker's activity as opposed to fitness, Caresani noted. She said, "Programs that are participatory are probably less effective than outcome-based programs, but they are more popular with employees and are less likely to pose litigation risks."

SOURCE: Smith, A. (1 August 2018) "Employers Assess Risk Tolerance with Wellness Program Incentives" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/risk-tolerance-wellness-program-incentives.aspx


EEOC Issues Final Rules on Employee Wellness Programs

From the U.S. Equal Employment Opportunity Commission.

WASHINGTON, DC--The U.S. Equal Employment Opportunity Commission (EEOC) today issued final rules that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses. The two rules provide guidance to both employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act, as amended by the Affordable Care Act (Affordable Care Act).

The rules permit wellness programs to operate consistent with their stated purpose of improving employee health, while including protections for employees against discrimination. The rules are available in the Federal Register at Regulations Under the Americans with Disabilities Act and Genetic Information Nondiscrimination Act (GINA). EEOC also published question-and-answer documents on both rules today, available at Q&A ADA Wellness Final Rule and Q&A GINA Final Rule, and two documents for small businesses Facts on ADA and Wellness and Facts on GINA and Wellness.

Many employers offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease. These programs sometimes use medical questionnaires or health risk assessments and biometric screenings to determine an employee's health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels. Some of these programs offer financial and other incentives for employees to participate or to achieve certain health outcomes.

The ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions of their family members, including spouses. Both laws, however, allow employers to ask health-related questions and conduct medical examinations, such as biometric screenings to determine risk factors, if the employer is providing health or genetic services as part of a voluntary wellness program. Last year, EEOC issued proposed rules that addressed whether offering an incentive for employees or their family members to provide health information as part of a wellness program would render the program involuntary.

The final ADA rule provides that wellness programs that are part of a group health plan and that ask questions about employees’ health or include medical examinations may offer incentives of up to 30 percent of the total cost of self-only coverage. The final GINA rule provides that the value of the maximum incentive attributable to a spouse’s participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee. No incentives are allowed in exchange for the current or past health status information of employees’ children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee’s spouse, and an employee’s children.

The final rules, which will go into effect in 2017, apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan.

“The EEOC received comments on both rules from a broad array of stakeholders and considered them carefully in developing this final rule,” said EEOC Chair Jenny R. Yang. “The Commission worked to harmonize HIPAA’s goal of allowing incentives to encourage participation in wellness programs with ADA and GINA provisions that require that participation in certain types of wellness programs is voluntary. These rules make clear that the ADA and GINA provide important safeguards to employees to protect against discrimination.”

 


 

Program Design

Both rules also seek to ensure that wellness programs actually promote good health and are not just used to collect or sell sensitive medical information about employees and family members or to impermissibly shift health insurance costs to them. The ADA and GINA rules require wellness programs to be reasonably designed to promote health and prevent disease.

 


 

Protecting Confidentiality

The two rules also make clear that the ADA and GINA provide important protections for safeguarding health information. The ADA and GINA rules state that information from wellness programs may be disclosed to employers only in aggregate terms.

The ADA rule requires that employers give participating employees a notice that tells them what information will be collected as part of the wellness program, with whom it will be shared and for what purpose, the limits on disclosure and the way information will be kept confidential. GINA includes statutory notice and consent provisions for health and genetic services provided to employees and their family members.

Both rules prohibit employers from requiring employees or their family members to agree to the sale, exchange, transfer, or other disclosure of their health information to participate in a wellness program or to receive an incentive.

The interpretive guidance published along with the final ADA rule and the preamble to the GINA final rule identify some best practices for ensuring confidentiality, such as adopting and communicating clear policies, training employees who handle confidential information, encrypting health information, and providing prompt notification of employees and their family members if breaches occur.

 


 

EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at EEOC.gov.


More on the EEOC and Wellness Programs

Source: ThinkHR.com

The U.S. Equal Employment Opportunity Commission’s (EEOC) recent litigation against employers over incentives granted to employees participating in wellness programs may be a concern for other employers. Specifically, the EEOC has asserted that the size of the incentive that is lost by employees that refuse to participate could render an employer’s wellness program “involuntary” and in conflict with the Americans with Disabilities Act (ADA). Our recent blog post on this issue highlights the concern.

The EEOC’s action raises issues that have confused employers and benefit advisors for many years: What types of wellness program rewards or penalties are acceptable under the ADA? Will programs that comply with other federal laws for employer-sponsored health plans avoid claims of discrimination under the ADA?

The ADA generally prohibits employers from requiring employees to answer disability-related questions or to undergo medical exams (except certain health/safety exams in specific professions or industries). The EEOC, which regulates various ADA provisions, has confirmed that employers may conduct health assessments or exams as part of a voluntary wellness program without violating the ADA. Medical records must be kept confidential and separate from personnel records.

While the EEOC has not published clear guidance as to the meaning of “voluntary” participation, the need for clarification is apparent. The Health Insurance Portability and Accountability Act (HIPAA), has long permitted health plans to make wellness rewards (incentives or penalties) up to certain limits — those limits were increased under the Affordable Care Act (ACA) starting in 2014. These ACA limits may inform strategy on employer implementation of incentives to promote participation in wellness programs.

Penalties and Rewards

The ADA speaks of penalties, but in the vernacular of the ACA, the term “reward” refers both to an incentive payment or a penalty surcharge. Further, the ACA categorizes wellness programs as either “participatory” or “health-contingent” and applies different rules for each category.

Participatory programs do not depend on health status and no specific health outcome is required. For example, a program that rewards all employees that complete a health risk assessment, without regard to the results, is a participatory program. A health-contingent program is one that offers the reward only to employees that either meet an initial health standard (such as satisfactory biometric screenings) or do not meet the initial standard but meet a reasonable alternative standard (such as attending an educational program).

Starting with 2014 plan years, the maximum allowable reward (incentive or penalty) in a health-contingent wellness program under the ACA is 30 percent of the health plan cost, or 50 percent if the program is designed to prevent or reduce tobacco use. (Health plan cost generally is the COBRA rate minus the 2 percent administrative fee.) If the program is merely participatory, however, there is no limit under the ACA for the amount of reward an employer can give an employee.

Regardless of the ACA provisions for wellness programs, the EEOC presently believes that compliance with the ADA prevents employers from offering rewards amounting to steep or enormous penalties — even in a participatory-only program. In its recent case, the EEOC cites the difference between employees paying 25 percent versus 100 percent of the cost for health insurance based on whether they participated in a wellness program as an “enormous penalty.”

Considering the EEOC’s public comments endorsing voluntary wellness programs, and that their enforcement activity is focused on programs imposing penalties that they describe as enormous or steep, it appears likely the use of wellness program incentives will continue to be permitted. However, compliance with the reward limits and reasonable alternatives required under the ACA needs to be complimented with awareness of the EEOC’s concern over excessive penalties. Formal guidance from the EEOC is still pending.

For more information about wellness programs under the ACA, read the Final Rule.

 


Employer mistakes with leave of absence policies can be costly

Originally posted September 18, 2014 by Linda Hollinshead on http://ebn.benefitnews.com.
The Family and Medical Leave Act and the Americans with Disabilities Act have been in effect for more than two decades. Yet, these laws continue to present challenges for employers seeking to balance the legal entitlements of employees against the need to meet operational and workload demands.

While both FMLA and ADA provide employees with the right to take a leave of absence under qualifying circumstances, employers often lose sight of the fact that the combination of these laws, as well as state leave law obligations, may increase employer responsibilities. When employers fail to consider their legal responsibilities under each law, the potential for legal exposure increases significantly.

Leave of absence issues can be frustrating for employers – particularly when a recently hired employee develops a medical issue that results in an inability to work. Most employers would like to tell new employees that their short tenure disqualifies them from leave. Yet, even where an employee does not meet the FMLA eligibility requirements because he has not worked for the employer for a total of 12 months, worked 1250 hours in the 12 month period preceding the commencement of the leave, or works at a small work site, that new employee, if disabled, may still be entitled to a leave of absence under ADA or applicable state law.

Likewise, even after an employee has exhausted FMLA leave, employers must be careful not to prematurely terminate an employee who cannot resume duties immediately and on a full-time basis.

The ADA and applicable state law require an employer to consider whether additional leave is a reasonable accommodation or presents an undue hardship and must be prepared to consider providing other types of reasonable accommodations (e.g., adjusted work schedule, work from home arrangements or the removal of non-essential job functions) to enable the employee to return to work.  The failure to consider the potential leave obligations to an employee both before and after the use of FMLA leave creates significant legal exposure for employers.

Another area of concern for employers is the new EEOC guidance regarding pregnancy discrimination. The FMLA provides leave to employees related to the birth and care of a child. Moreover, while under the ADA, pregnancy is generally not considered an impairment and, therefore, not a disability, employees may have other medical conditions or impairments related to their pregnancy (e.g., diabetes) that are covered disabilities and for which an employee may be eligible for leave or other reasonable accommodations.

More recently, in considering an employer’s obligation under the Pregnancy Discrimination Act not to discriminate against employees on the basis of pregnancy, the EEOC has emphasized that an employer is obligated to provide leave and hold a position open for an employee with a pregnancy related absence for the same length of time that positions are held open for employees on temporary disability leave.

As an enforcement matter, the EEOC appears to be taking the position that pregnant employees with medical conditions are eligible for leave as an accommodation, even if not disabled. Similarly, some state and local non-discrimination laws (e.g., New Jersey and Philadelphia) have more recently expanded employers’ obligations to accommodate pregnant employees.

This trend requires that employers view their obligation to provide leave to pregnant employees more broadly than just the FMLA and should be prepared to consider and grant leave requests (and provide job protection benefits) to such employees even where FMLA is not applicable.

In many instances, an employee seeking a leave of absence for his or her own medical condition has also applied for short term disability or workers compensation benefits. Employers should be cautious not be base their decision on whether to approve an employee’s leave request on an insurance carrier’s decision regarding insurance benefits.

For example, while an individual may be denied short term disability benefits under an insurance plan’s definition of a covered condition, this does not diminish the fact that the employee may still have a serious health condition necessitating a leave of absence. Similarly, when an employee is denied workers compensation benefits while the carrier investigates whether the injury was work-related, the employee may still be disabled under the law, and therefore, entitled to a leave as an accommodation.

Given the varying definitions of qualifying conditions under the insurance contracts, employers should not rely on the carriers to make a determination of leave eligibility. Instead, employers take control of the leave approval process and require employees to directly provide supporting medical documentation.

In light of the complexities of managing the various leave laws, employers should regularly review and update their leave policies to ensure they adequately address obligations under the FMLA, ADA and state law. In particular, references to a fixed leave period after which employment is terminated should be removed and descriptions of the availability of disability and workers compensation insurance benefits should be clearly stated as insurance benefits, not leave entitlements.

Finally, managers should be trained to report all employee requests for leave to human resources to enable the prompt assessment of the obligation to provide leave.


ADA accommodation just has to be reasonable

Originally posted May 29, 2014 by Eric B. Meyer on www.benefitspro.com.

This is my son's first year playing t-ball. The rules, in case you're not familiar with them, are simple: Everybody hits. Everybody (eventually) rounds the bases. Everybody scores.

Some games, my son wants to lead off. Some games, he wants to hit last. Ultimately, it doesn't matter where he hits. The coach can place him anywhere in the batting order because he will hit, he will round the bases, and he will score.

The Americans with Disabilities Act is similar in that respect. It requires an employer to accommodate an employee with a disability if doing so will not create an undue hardship for the employer and will allow that employee to perform the essential functions of the job.

The ADA regulations include a non-exhaustive list of reasonable accommodations. Does the employee get to choose which one? Sure, the employee can express his/her desire. But, ultimately, the employee should get one that is reasonable, whether it is the employee's choice -- or not.

A recent case reflects this. In Bunn v. Khoury Enterprises, Inc., Mr. Bunn, who is disabled (visual impairment), sought an accommodation to allow him to perform his essential job functions. So, the employer restructured the employee's job. The accommodation worked. But, since it was not the accommodation Mr. Bunn wanted, he sued, claiming a violation of the ADA.

The lower court granted summary judgment to the employer and, on appeal, the 7th Circuit affirmed, because the job restructuring, while not the employee's preference, nonetheless allowed the employee to perform the essential functions of the job:

"In short, it was exactly the kind of accommodation envisioned by the regulations applicable to the ADA....the undisputed facts show that Khoury did what it was required to do by law....In this area of the law, we are primarily concerned with the ends, not the means...Bunn's apparent displeasure with the way in which Khoury decided on that accommodation, or with its failure to provide the exact accommodation he would have preferred, is irrelevant."

Does this mean that employers should resort to the my-way-or-the-highway approach to workplace accommodations? Certainly not. Oftentimes, providing the employee with a preferred accommodation will not increase expense or inconvenience and, instead, will satisfy the employee.

And although the 7th Circuit underscored that an employee will not prevail on a "failure-to-accommodate" ADA claim by merely showing that the employer failed to engage in an interactive process with the employee or that it caused the interactive process to break down, an employer that goes through the interactive process should have an easier time establishing it acted reasonably when responding to an employee's request for accommodation.

Because, after all, an employer just needs to act reasonably.