Boy, Do I Have a Headache! When Employees Can't Come to Work: Best - - PowerPoint PPT Presentation

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

• ther employees. In addition, Leo is new and barely

made it past his first three months before taking time

• ff. 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?

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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

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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

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Examples of Reasonable Accommodations

Making physical facilities accessible, acquisition/modification

• f equipment or devices

Job restructuring Reassignment to a vacant position Part-time or modified work schedules Leave of absence Appropriate adjustment

• r modification of

examinations, training materials or policies

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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
• ther’s health or safety, employer does not have to provide

reasonable accommodation

• Also very high standard

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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?

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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.

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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

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Hwang v. Kansas State University,

(10th Circuit May 29, 2014)

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“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.”

Extended Leave as Accommodation

Echevarria v. AstraZeneca (1st 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

• nly leave requested in that case was 2 months

(after having been granted 12 months). Cites Hwang decision with approval.

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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

• f 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.

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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

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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.”

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• 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.”

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Managing the Interactive Process

Request

• No magic words

necessary

• May arise during

performance discussion

• Obvious need
• Could be doctor’s

note identifying restrictions

• May be made by

family member

Medical support

• No medical

documentation, no accommodation

• Requested

accommodation and medical documentation must agree

• Can ask medical

provider to identify nature of impairment, duration, functional limitations

• Provide to HR only

Consider options

• Talk with employee
• Ask about

preferred accommodation, but only obligated to provide effective accommodation

• Consider all

possible accommodations

• Look at employer’s

past practice

• Review essential

functions

• Provide written

response to request

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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

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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

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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

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Family and Medical Leave Act

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Real World Scenario

Jack works in NH for a financial services company with 52

• employees. He works in accounting, handling sensitive

financial information. He has always been a solid performer and rarely misses work. In early September, Jack calls in to report that he doesn’t feel well and needs to see a doctor. He calls back the next day and says he will be out for a few days

• r a week at most. The next week, Jack calls again and says

he might need a medical leave because he still doesn’t feel well and the doctor is not sure what is going on. After 5 weeks, Jack is still not back at work. Eventually, Jack starts to sign on to the system from home and tells his manager that he will just work from home a few hours per day for a while. Working from home is generally not permitted, especially for employees in the accounting department, given the sensitive financial information involved. What can the employer do to manage Jack’s absence?

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FMLA Basics

• Applies to covered employees of covered

employers

• Provides up to 12 or 26 weeks of unpaid

leave every 12 months

• Available for covered reasons only
• Employee must be returned to former job

– or an equivalent one with the same pay and benefits

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Certifications

• Be sure to use appropriate certification based
• n the specific reason for leave
• Employer must allow employee 15 days to

return completed certification

• If certification is incomplete, employer must

give employee 7 days to cure deficiency

• If employee provides complete certification,

employer may contact doctor for clarification and authentication only

• Direct supervisor may not contact provider

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Continuous Leave

• Always confirm eligibility
• Always calculate how much FMLA time has

already been used in 12-month period

• Employer cannot require employee to work

during leave

• Leave is job-protected unless position would

have been eliminated without leave

• Maintain benefits, but employer does not

have to permit accrual of paid leave during leave

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Returning from Leave

• Employee entitled to return to his/her
• wn job or equivalent position
• Can require all employees who are out on

FMLA leave for own serious health condition to provide certification from health care provider that they are able to resume work

• If employee returns with work

restrictions, treat as request for accommodation and go through usual accommodation process

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FMLA Leave May Be Taken Intermittently

• r on a Reduced Leave Schedule

Intermittent

• Separate blocks of

time due to single qualifying reason Reduced Leave Schedule

• Change in

employee’s schedule for a period of time, normally from full- time to part-time

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Reasons for Intermittent Leave

• Employee’s or family member’s

serious health condition

• Qualifying exigency
• Military caregiver
• Provide care or psychological

comfort to covered family member with serious health condition

• NOTE: available after healthy

birth or adoption of a child

• nly with employer’s approval

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Requirements for Intermittent Leave

Medical need

Medical need is best accommodated by intermittent or reduced leave schedule If planned medical treatment, employee must make reasonable effort to schedule so as not to disrupt operations

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Transfer to Alternative Position

• Employer may require employee

to transfer temporarily to an available position for which the employee is qualified and which better accommodates recurring periods of leave

• New position must have equivalent

pay and benefits (but not equivalent duties)

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Transfer Can’t Discourage Employee

• r Impose Hardship

Violation

White collar employee Laborer

Violation

Day shift Night shift

Violation

Work at headquarters Move to branch a significant distance away

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Calculating Intermittent Leave

• One hour (or shorter if employer

accounts for leave on shorter basis)

• Actual workweek is basis of leave

schedule (i.e., may not be 40 hours)

• Employee can’t be required to take

more leave than is medically necessary

• Overtime hours may be counted

against 12 weeks

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Calculating Intermittent Leave

Employee usually scheduled to work 48 hours/week can only work 40 8/48 = 1/6 week Employee usually scheduled to work 40 hours/week takes one day off each week 8/40 = 1/5 week Employee usually scheduled to work 40 hours/week can only work 4 hours/day 20/40 = ½ week Employee usually scheduled to work 30 hours/week can only work 20 hours 10/30 = 1/3 week

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Paying Exempt Employees

• FMLA leave is unpaid
• Permissible to deduct

from salary for any hours taken as intermittent or reduced leave schedule

• Deductions do not

compromise the exempt status

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Tracking Intermittent Leave

• Carefully review Certification of Health

Care Provider

– Ensure actual use of leave is consistent with projected need – If not, follow up with health care provider

• Employee should report when absence is

for FMLA reason

– If fraud, can discipline

• Generally, HR should track rather than

supervisor if possible

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FMLA and ADA Working Together

• Different definitions
• Disability vs. serious health condition
• Eligibility
• Duration
• Employees entitled to leave under both

laws

• FMLA is the floor, not the ceiling
• In practice, employees often entitled to much

more than 12 weeks of leave

• ADA may require other accommodations

in addition to leave under FMLA

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What about Jack?

• Jack is eligible for FMLA leave for 12 weeks
• Start the FMLA paperwork when Jack calls back to say he

needs up to a week off

• At this point, employer is on notice of the potential for an FMLA-

qualifying condition

• Pay close attention to duration of leave and get updates as

needed

• Do not permit Jack to begin working without authorization

from his doctor

• Treat work from home as a request for an accommodation

– require medical support specifically for the need to work from home

• If work from home is approved, then FMLA leave converts

to intermittent leave – track carefully

• If work from home is not approved, employee can return

to work on a reduced schedule, or resume continuous leave

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WHAT ABOUT MATT

• Q. Can an employer terminate an

employee whom it suspects has abused FMLA?

• A. Yes, provided the employer can show a

reasonable, good faith belief of the abuse, uncovered after a thorough investigation that includes an interview with the employee.

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Investigate suspected abuse of leave

Tillman v. Ohio Bell (6th Cir. October 8, 2013)

• Tillman (employee) technician investigating

customer phone problems began having back problems in 2006. Intermittent leave through 2008.

• Pattern of absences on Saturdays, extended

weekends and before or after vacations.

• Tillman “forecasted” incapacity in advance to extend

periods of time off work.

• Surveillance conducted showing Tillman physically

active at home.

• An outside medical review by consultant doctor

produced opinion that activities uncovered by surveillance were inconsistent with someone with incapacitating back pain.

• Tillman was interviewed and did not have plausible

explanations to certain questions.

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Why did Ohio Bell win?

• Court found Ohio Bell had “honest belief”

that Tillman had abused his FMLA leave.

• Ohio Bell reasonably relied upon

investigation report, surveillance tapes, medical opinion by consulting physician, 2.5 year pattern of use of FMLA leave to extend time off and Tillman’s apparent ability to “forecast” when he would become incapacitated.

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Investigate suspected abuse of leave

Seeger v. Cincinnati Bell Telephone(6th Cir. 2012)

• Seeger took FMLA leave and concurrent

paid leave to treat and recover from herniated disc in his back.

• CBT terminated him for disability fraud

after Seeger’s coworkers saw him at the Oktoberfest in downtown Cincinnati during his FMLA leave.

• CBT got affidavits from coworkers they

saw Seeger drinking a beer and walking unassisted and seemingly unimpaired through the festival.

• Court held that CBT made a “reasonably

informed and considered decision before terminating Seeger.”

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“The determinative question is not whether Seeger actually committed fraud, but whether CBT reasonably and honestly believed that he did.”

• Do not over-rely on hearsay. Interview witnesses

directly.

• Get and preserve evidence.
• Do not invade privacy, but Facebook and emails

posts from coworkers may be fair game.

• Always give accused due process.
• Use surveillance only after reasonable suspicion.

Fair Investigation

• Prepare (with assistance of counsel) an

investigation report summarizing the investigation.

• Carefully explain each of the reasons that

decision-maker relied upon in finding abuse

• ccurred.
• Request that the accused employee put his or her

defense in writing.

Good Documentation

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Think before you call: contacting employee during leave

Terwilliger v. Howard Memorial Hospital (W.D. AR 2011)

• Terwilliger on FMLA leave for back surgery
• Supervisor called her weekly, when is she coming back to work?
• Court denied summary judgment on FMLA interference claim.
• Court said the calls could have “chilling effect” discouraging her

from exercising her rights to take leave.

Massey-Diaz v. University of Iowa Community Medical Services, Inc. (8th Cir. 2016)

• Massey-Diaz on FMLA leave for a broken foot, which became

intermittent leave

• She had work-related communication with her employer.
• Court granted summary judgment on FMLA interference claim.
• Court said a few de minimis, work-related communications with the

employee to pass on institutional knowledge or documents, or as a professional courtesy, may be permissible, where such communication was voluntary and not coerced, and not a condition

• f employment.
• Court said that this case is distinguishable from those cases

whereas employers are asking or requiring an employee to work while on leave. Such requirements can cross the line into interference.

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Duty to Provide Leave for Known Disability/Serious Health Conditions Duty Not to Make Disability Related Inquiries About Reason for Absence

Competing Duties of Employer

EEOC Says:

Asking Employees to Explain Medical Absences Violates ADA

EEOC v. Dillard’s Inc., (S.D. California 2012)

Dillard’s attendance policy stated that health-related absences would not be excused unless the employee submitted a doctor’s note stating “the nature of the absence (such as migraine, high blood pressure, etc.”). Four unexcused absences of any kind resulted in termination. Employee brought in doctor’s notes for absences indicating she was out for medical related reasons, but refused to disclose her condition. She was terminated for unexcused absences. Question was whether the policy requiring employees to “state the condition being treated” constituted a prohibited inquiry under the ADA (42 U.S.C. §12112(d)(4)). Court rejected Dillard’s defense of business necessity. In December of 2012, Dillard’s settled class action for $2 Million. Settlement also resolved claims for terminating employees who exceeded maximum leave policy.

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Managing Performance Issues

• Adopt clear attendance and leave policies
• Address performance issues promptly
• Consider attendance and performance

separately

• Adjust performance metrics appropriately if

employee is on extended leave

• Do not reference leave or accommodations in

any performance discussion or evaluation

• Avoid termination immediately after

employee discloses medical condition, requests a leave or an accommodation, or returns from leave

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Attendance Policy

Report to work regularly and on time Requirements regarding absence reporting Address tardiness and early quit Prohibit (and define) excessive absence

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Include:

Attendance Policy Is unpaid time off available? Only after paid time is used? No call/no show (but be careful with state leave laws) Address work from home – is it allowed? With approval only?

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Include:

Action Items

• Are policies up to date?
• FMLA
• Reasonable accommodation
• Attendance
• Provide training for supervisors and

managers

• Audit reasonable accommodation process
• Audit FMLA process

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Charles S. Einsiedler, Jr.

254 Commercial Street Portland, ME 04101 100 Summer Street 22nd Floor Boston, MA 02110 ceinsiedler@pierceatwood.com

Suzanne W. King

sking@pierceatwood.com PH/207.791.1388 One New Hampshire Avenue Suite 350 Portsmouth, NH 03801 PH/617.488.8159