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/


Study Reveals Importance of Personal Interactions in Return-to-Work

Originally posted March 03, 2014 by Kristy Tugman on http://www.voluntary.com

Most HR managers are aware of the impact that disability absences have on an organization’s bottom line. But what they may not realize is that the costs associated with these absences are also having an effect on the global economy, as businesses everywhere struggle with getting disability-related costs under control. In fact, one study showed that disability costs were 8 to 15% of payroll in 2002. Seven years later, a similar study found that statistic to hold true, while also suggesting that disability costs would rise by 37% in the future due to the aging population.

Other studies confirm that disability costs are indeed a concern for countries around the world: the U.K., Denmark, Sweden, Norway, Australia and Canada all report escalating disability payments. In Norway, for example, disability payments are about 2.4% of the country’s gross domestic product. And Canada reports that close to 10% of its working population is receiving disability benefits.

Unfortunately there’s no magic bullet for solving the challenge of disability absences, as employers have come to realize. But with so little research supporting effective techniques for return to work, most employers would agree that it’s time for researchers to explore the possible factors − particularly behavior-based techniques that have shown promise − involved in helping employees get back to work successfully.

A recent qualitative study of employees in a cross-section of industries, including manufacturing, television production, financial services and the legal profession, explored patterns and trends of those who went out on disability and their return to work experience. The findings were particularly instructive for employers seeking answers for how to motivate employees on disability to make the transition back to work.

Positive and negative consequences

The study identified several key themes of note, starting with the consequences of not returning to work. The researcher concluded that participants in the study experienced a range of consequences that evolved throughout their experience of being out of work. These included negative consequences, such as financial impact (not having enough money to pay the bills), a loss of personal identity (defining one’s self in terms of job duties) and a loss of control (over one’s destiny). Yet consequences could also be positive, with some participants expressing relief that they didn’t initially have to resume their job duties.

It also became clear that personal interactions were very important as motivators, and were linked to both positive and negative consequences. Not surprisingly, the most significant interactions for employees were those with their co-workers and managers. Employees who experienced negative interactions with their manager had a decreased sense of connection with their employer – and were less motivated to return to work. In addition, participants indicated that when their manager reached out to express concern about their disability, it helped to strengthen their sense of loyalty to the company. However, if a manager reached out only to inquire about when they planned to return to work, it put undue pressure on the employees and created anxiety.

Interactions with co-workers were even more significant for employees. Employees noted that positive interactions with their fellow workers made them feel as if they “owed” it to their peers to return to work. But when co-workers failed to reach out to those who were out on disability, employees said they felt a strong sense of disappointment and isolation.

Although it may seem counter-intuitive, the study revealed that negative consequences related to a loss of identity and control were factors that led to return to work in many cases. Employees expressed a direct connection between their identity, self-worth and work. Some participants said they were motivated to return to work because they feared “losing themselves” if they did not.

Likewise, when employees gave control to their physician about their return to work, they were not as likely to return. Initially, most of the participants did release control to their doctor, but as they began to recover from their disability, they slowly took control back through small steps toward independence and each made the decision to get back on the job as they felt more in control.

The findings from the study have clear implications for employers. For example, although co-workers play an important role in helping employees with disabilities feel connected to the company, they are often unsure about how to appropriately stay in touch. Some said they didn’t want to bother the employee or intrude on what they were going through. One simple way to reach out is to send a card from the team, letting the employee know he or she is being thought of. In addition, managers can contact the employee to ask about their well-being, rather than requesting a return-to-work date.

Employers also need to realize that what type of consequences the employee is experiencing can be useful in helping overcome the barriers to return to work. The study showed that what an employee was thinking and feeling played a significant role in influencing the level of recovery. For instance, when employees started to believe they were in control, they felt a sense of empowerment. When they began to take responsibility for their productivity, they saw it as a positive sign that they could adapt and ultimately recover and return to work.

If rehabilitation practitioners and employers can understand the consequences an employee is experiencing, they can both interact and intervene more effectively with their employees who are out on disability to produce a successful return to productivity – an outcome that is beneficial to all.

 

 


Obesity’s disease label could spell trouble for employers

Originally posted by Andrea Davis on http://ebn.benefitnews.com

Earlier this year, the American Medical Association deemed obesity a disease. AMA board member Patrice Harris, M.D., said in a statement that “recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans.”

While there is still debate within the medical community as to whether obesity is a disease — the AMA’s own House of Delegates recommended the body not adopt the resolution declaring it a disease — there is speculation the AMA’s decision could open the door to more discrimination claims under the American with Disabilities Act.

EBN spoke to Jay Starkman, CEO of Engage PEO, about the AMA classification of obesity and how it might affect employer decisions.

What are the implications for employers?

Employers need to treat obese individuals like they would anybody else with a disability. … There was always an issue about whether or not an obese person was disabled under the Equal Employment Opportunity Commission guidelines. [Under the] ADA, “disability” is defined as an impairment that substantially limits a major life activity. … but there was always a question about whether or not obesity was one of those things.

One of the issues that existed for a long time was whether or not there needed to be some type of underlying disorder that caused the obesity, whether psychological or physical. By classifying obesity as a disease, it’s pretty clear that whether or not there’s an underlying disorder isn’t going to be a relevant inquiry any more. So that means that employers can’t make hiring decisions — hiring, firing, promotions, raises, compensation — based upon whether or not someone is obese.

Do employers need to consider any changes to their current employee policies?

The first is make sure you have very clear job descriptions — before hiring — that lay out any physical requirements of a position. The second thing is, if somebody is disabled, [because of] obesity or whatever, if it is possible to make a reasonable accommodation for them, that needs to be done.

What else might be important for employers to know?

The definition of “obese” is really in flux right now. A lot of the EEOC cases that existed prior to the AMA coming out with this defined it as “severely” obese or “morbidly” obese.  …  So nobody is sure what will constitute a disability, because the number of people that are 20% overweight in America is far different than the one for people that are double the standard weight. So I just think that it needs to be a very serious concern in people’s minds.


Five biggest mistakes when designing a supplemental disability plan

Originally published July 19, 2013 by Christopher R. Kristian on http://ebn.benefitnews.com

Supplemental disability income plans are so mainstream today they are thought of as plain vanilla. That’s all well and good until the other shoe falls. And it often does. When employers experience problems with existing voluntary disability plans, most of these issues can be traced back to when the plan was originally designed.

No one wants problems, particularly when they involve serious health or disability issues. As many an employer can attest, mistakes do occur and they often create unnecessary complications and unhappiness.

By avoiding the five most common mistakes, companies can increase the chances of having their plan run well and having it valued by employees.

Supplemental plans emerged from the need for increased disability protection from the income disparity between highly compensated employees and rank and file employees. This disparity can become particularly severe when employees are eligible for variable compensation such as bonuses. The industry calls this “reverse discrimination” since most employees are covered at 60% of gross compensation, while those with variable compensation are covered at a drastically lower replacement rate.

Most employers have made an effort to close this gap by offering a supplemental plan to cover this coverage gap. In effect, supplemental plans are individual disability products offered at deeply discounted rates. They usually are written on a guaranteed standard issue basis. Even so, when designing this coverage, employers should be aware of five common mistakes and how to avoid them.

1. Deciding not to offer a supplemental plan and opting to change the definition of earnings in the current plan, as well as raising the group plan’s long-term disability cap. This approach seems to make sense until one of two things occurs. By raising the cap to accommodate relatively few employees, the cost for that increase in insurance is spread over the entire population. When this occurs, it turns out to be anything but cost effective in the long run. In fact, it’s downright expensive.

If it happens to seem cost effective at the moment, just wait until there is a claim or two and your group rates go through the roof. That’s when most employers with this problem begin scrambling for a better solution. Typically, this particular scenario can be avoided by using a risk sharing or risk transfer approach with a supplemental plan.

2. Choosing a very good technology platform over a better guaranteed-issue offer.

Supplemental programs and the insurers that offer them are constantly improving technology so they’re able to deliver enhanced enrollment capabilities. Many companies opt for a lower guaranteed standard issue offer so they can obtain what they perceive as a state-of-the-art system. This has a strong appeal, but seems designed only to provide ready-made bragging rights at industry get-togethers.

If the guaranteed standard issue offers are close by perhaps a couple of hundred dollars, choose the technology. However, if there is a substantial cost differential, go with the larger guaranteed standard issue offer. If you do not, the covered employees will suffer during a claim.

3. Failing to develop a well thought out enrollment strategy. Enrollment strategies are critically important, particularly if a company is implementing a voluntary supplemental plan.

Ensure that the plan is well-communicated and that each participant is contacted not only through an enrollment packet, but also through a simple phone call so employees can have their questions answered. This is particularly important since most carriers usually expect 20% to 30% of the employee group to participate.

It is critical to reach the target to satisfy the guaranteed standard issue unlimited offer going forward. If this does not occur, it’s possible that new participants may be barred from obtaining coverage. Selecting a large firm doesn’t always mean it is competent. It’s almost always in your best interest to go with a firm with expertise in the supplemental disability coverage arena.

4. Settling for an inadequate guaranteed issue offer on an employer-sponsored program. The supplemental disability income market has changed with the addition of new products. Usually, if the company is paying for the coverage, carriers will issue guaranteed standard issue coverage. But it is possible to go a step further and layer an additional product, commonly referred to as high limit coverage, that will cover up to 60% of highly compensated employees’ total compensation and will cover an income up to $2,000,000.

5. Unnecessarily subjecting your employee group to underwriting. Companies continue to subject their employees to medical underwriting unnecessarily. Since disability income insurance is a complicated process, the risks of having an employee declined, rated or have coverage exclusion are almost assured. Subjecting employees to underwriting usually indicates a poor plan design or lack of innovation.

Supplemental disability income protection has a strong appeal today, particularly with the unpredictability of the economy. Offering a well-designed supplemental plan avoids unnecessary pitfalls and can help create employee satisfaction.

 


Women more at risk when it comes to disability

Source: eba.benefitnews.com
By Marli D. Riggs
June 12, 2012

Women – whether they’re a working or stay-at-home mom, single or married – are most at risk both financially and physically when it comes to disability, according to a new study conducted by The State Farm Center for Women and Financial Services at The American College.

Half of women respondents say that if they were to become disabled, the impact on their household’s finances would be at least “somewhat devastating.” In fact, 18% of women (compared to only 12% of men) are “extremely concerned” about the impact a disability could have on their financial situation.

Women are almost twice as likely as men to think their cash reserves would last less than one month in the event of a disability (22% versus 12%.) Furthermore, women are not only more apt to experience financial hardship due to a disability; they are also significantly more likely than their male counterparts to develop a disability in the first place.

Arthritis, the leading cause of disability among adult Americans, is twice as more likely to affect women than men. The incidence of disability for females has risen at a disproportionate rate relative to males. Between 1999 and 2009, Social Security Disability Insurance applications for women grew by 72% versus 42% for men.

Single women are especially financially vulnerable —more than one in four (28%) see the consequences of disability as “totally devastating.” Married women are also at risk; they are more likely (20%) than married men (11%) to say they are concerned that their spouse will become disabled and unable to work.

Employer-sponsored plans are the most common means of disability insurance, however less than half have this benefit with women less likely than men (45% vs. 51%) to be covered. Female entrepreneurs are at even greater risk.

Another survey’s data, released by The American College in January 2012, reveals a gap in coverage for many women who own or work for a small business. It found that roughly 22% of women small business owners own, and offer their employees, short and long-term disability coverage.

“The implications of this research are startling. Financial services professionals need to start educating their clients – especially their female clients – about the steps they can take to prepare for disability,” says Mary Quist-Newins, director of The State Farm Center for Women and Financial Services at The American College. “These professionals have the unique opportunity to empower women to make sure they’re fully prepared and aware of their options.”