Category Archives: disability

Employers Missing ADA Coverage in FMLA Cases

Employers are missing half of Family and Medical Leave Act cases involving employees’ serious illnesses that should also have been reviewed for Americans with Disabilities Act eligibility.

462011275 - disability and gavelThis according to Chicago-based ComPsych, in this report issued last week, June 24 to be exact, titled The Risk of Non-Compliance With ADA. The report breaks down by certain industries the percentage of FMLA cases that need ADA review, yet are being missed.

They include: retail at 13.2 percent, health services at 10.9 percent, manufacturing at 6.8 percent, public administration at 6.7 percent, trades at 6.5 percent and professional services at 5.9 percent.

These numbers, says Matt Morris, a vice president and licensed attorney at ComPsych, are “significant.”

“A common mistake employers make,” he says, “is to deem an FMLA leave request as ineligible, then not review it for ADA purposes.”

The potential consequences of such oversight “can be severe,” says Morris, “since one ADA misstep can lead to an investigation of the employer’s entire leave practices.” Hence the rash of recent ADA class-action lawsuits by the Equal Employment Opportunity Commission, he adds.

Indeed, the EEOC is coming off a record 2013 in terms of ADA penalties paid out by employers, a whopping $109.2 mill. Here are just three of the most sizable payments: $6.2 million by Sears Holding Co. involving 235 plaintiffs, $3.2 million by SuperValu involving 110 plaintiffs and $20 million by Verizon.

I asked Morris for a good example of an ineligible FMLA leave that would be covered under the ADA. Here’s what he said:

An employee has been at the company for six months and breaks his leg. He needs time off for rehab and to recoup, but is denied FMLA leave because he hasn’t been employed long enough. In this case, the employer should still review for ADA accommodation.”

Basically any ineligible FMLA leave for the employee’s own health condition (obviously not for baby bonding, etc.) has the potential to be an ADA leave, he tells me. “Although a ‘serious health condition’ under the FMLA and a ‘disability’ under the ADA are both two different standards, they are each very likely applicable to a health condition that forces someone to be out of work,” says Morris. And while the FMLA requires an employee to have been employed for 12 months and worked 1,250 hours in the last 12 months in order to be eligible, the ADA has no such standard. So, an ineligible FMLA employee still may have an ADA disability.

Perhaps the most common ADA misstep is waiting for an employee to “raise her hand” to request an ADA accommodation specifically or by name, Morris says. Courts have been clear that the “notice requirements under the ADA are nearly identical to those under the FMLA,” he says, but employers often don’t recognize that requests for FMLA leave are “hidden” requests for an accommodation — i.e., leave — under the ADA.

Interestingly, he tells me, employers all share a common misstep, which is that the company created and tried to enforce a standard policy — strange, in part, because generally this is exactly what HR tries to do: create uniformity and equality.

“But … they don’t consider whether the leave should be continued on a case-by-case basis,” says Morris. Maybe the more important thing is to note how easily one mistake can turn into something broader. What can happen — and, in fact, has been the way most of these cases start, he says — is:

1) The employee has an adverse action taken against her (usually, she’s fired).

2) She files a charge of discrimination with the EEOC (such charges are free to file, don’t require a lawyer, and often list several bases on which the employee believes she was discriminated against — for instance, race, sex, religion and then disability).

3) If the EEOC determines that, in that one case, the disability policy had a uniform cutoff — what it calls an ‘inflexible’ policy — it then uses its subpoena power to request the names of all employees who were subject to that policy (fired because they crossed that inflexible line).

4) The EEOC then sues on behalf of all, or most, employees subject to the policy and suddenly there are hundreds of plaintiffs.”

Thus far, this has only arisen because the policy was clear (“if you take more than X amount of time on leave, your job will not be protected”), but even if employers are detecting the right employees [for FMLA leave], they still have to have the expertise to apply such ADA standards as “reasonable accommodation,” “undue hardship” and “significant limitations (of a major life function)” appropriately.

So what should you be keeping top-of-mind? Here’s Morris’ caution:

Employers have been pining for three to four years for additional guidance from the EEOC on how to conduct the interactive process (how to determine a ‘reasonable’ amount of time, etc.). Chances are, given indications from the EEOC itself, the guidance will not come soon. Until then, employers will still be held responsible for appropriately applying these vague standards to a host of factors (e.g., What does the employee do? Could others help? Are there other jobs she could do? How long will the disability last? Are there things [you] can do to help reduce the time?)”

Hope this is helpful.

 

 

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A Big Potential Win for Telecommuting

telecommutingJane Harris, a resale steel buyer for Ford Motor Co., suffers from irritable bowel syndrome and sought accommodation from her employer to work from home four days per week, as her job mostly involved contact with suppliers and co-workers via phone and computer. Ford denied her request and later terminated her.

Harris and the Equal Employment Opportunity Commission filed suit against Ford, charging that the Dearborn, Mich.-based automaker had violated the Americans with Disabilities Act when it denied Harris’ request to work from home as an accommodation for her IBS. The agency also charged that Ford’s firing of Harris was in retaliation after she filed a charge with the EEOC alleging discrimination under the ADA.

A lower court ruled in the company’s favor, holding that attendance at the job site was an essential function of Harris’ job and that her disability-related absences meant she was not a “qualified” individual under the ADA. The court also said the EEOC could not prove Harris’ firing was retaliatory because it was based on attendance and performance issues that pre-dated her charge filed with the EEOC.

Earlier this week, the U.S. Court of Appeals for the Sixth District reversed the lower court’s rulings on both counts and said that the EEOC’s claim against Ford has enough merit to go to trial.

EEOC General Counsel David Lopez hailed the ruling as “the latest in a series of cases ensuring persons with disabilities are allowed the opportunity to use their talents fully.” The court’s decision “reaffirms the employer’s important obligation to provide a reasonable accommodation unless it can show it results in undue hardship,” he said in a statement.

For its part, Ford issued a statement that seems to suggest it will appeal the decision:

“Ford is disappointed with the court’s decision, which conflicts with earlier rulings by this court and other courts. We are evaluating our options for further review.”

Pavneet Singh Uppal, an employment attorney and regional manager partner with Fisher & Phillips in Phoenix, told the Phoenix Business Journal that the ruling could mean telecommuting is a viable option for accommodating disabled employees:

Under the ADA, regular and predictable attendance is usually considered to be an essential job function. In prior years, attendance meant physically showing up for work in person. However, as this case shows, employers must respond to technological advances. … [Telecommuting] cannot be summarily rejected and must be considered as one possible type of reasonable accommodation for a disabled employee.”

 

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Service-Dog ‘Fakers': Could It Happen at Work?

464734925 -- guide dogsThis was certainly intriguing: a release from KCRA in Sacramento, Calif., about a hearing before the California State Senate examining what appears to be a real problem out there: people masquerading their dogs as guide dogs for the disabled so they can bring them along to wherever they’re going.

I guess they would miss them that much, which says something about the kind of person who would conjure up such a scheme. Worse yet, what kind of person would actually then “play act” a disability, namely blindness?

“This is a big issue in California,” Phyllis Cheng, the executive director of the Fair Employment and Housing department, says in testimony. In fact, here is the entire senate-hearing report:

Here, too, is the Fox 45 news report on the problem:

So I’m wondering, could this become a problem in the workplace? I asked two employment attorneys — Keisha-Ann Gray at Proskauer (HREOnline‘s “Legal Clinic” columnist) and James McDonald, managing partner of the Irvine, Calif., office of Fisher & Phillips — for their takes on this.

They tell me that, although there is no hard-and-fast rule under the Americans with Disabilities Act requiring employers to allow guide dogs to accompany disabled employees, every employer with 15 or more employees is required to try and make a reasonable accommodation if the request is made, unless that accommodation would cause an undue hardship to the business or present a direct threat to health and safety.

Could this kind of cheating actually lead to workplace “dog parks” though? Well, maybe not dog parks, but both say yes, they could see this kind of problem occurring at work. Such widespread scheming is definitely humanely possible, they say. “I know of people personally who claim their pets are service animals and they put a little vest on the animal so they can go in restaurants, etc.,” McDonald says.

Neither attorney gave much credence to this getting out of hand, necessarily, in corporate America. Thinking realistically, if you consider the fact that employees bringing dogs to work would then have to care for them for the entire day (and we’re talking food, exercise and potty breaks), “that might mitigate this a little bit,” McDonald says.

The bottom line to keep in mind, says Gray, is that this is the very type of situation that could get you in legal trouble if not handled properly. Faking questions aside, “once the employer is aware they have someone who can perform essential functions of the job, but would need help to perform the job based on a disability,” that employer must engage in a reasonable-accommodation dialogue.

And although “reasonable” does mean it does not create undue hardship or safety hazards, proving that a particular dog might bite or “seems irritable” could get dicey.

I’m thinking trying to nail someone for faking a disability or service-dog credentials could get dicey, too.

Best advice, from Gray: “If you’re thinking of denying a person a request for a reasonable accommodation, for whatever reason, get counsel involved.”

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Momentum Building for Putting Disabled to Work

Nice to see how much attention RespectAbilityUSA has gotten in just a little more than a month since I posted this plea to employers by the Washington-based nonprofit to get more disabled Americans into the workforce.

122470463 -- disabled execThe group — dedicated to empowering people with disabilities — made sure I saw this latest release touting all the big names to have signed on since that plea went out Jan. 13, including BMX bike legend and host of MTV’s The Challenge, T.J. Lavin; Delaware Gov. Jack Markell; U.S. Rep. Pete Sessions, R-Texas; U.S. Rep. Brad Sherman, D-Calif.; and Paralympian Matt Cowdrey.

Yes, the word is getting out. So much so that Lavin is now starring in a new public-service ad for RespectAbilityUSA that started airing Feb. 14. In the ad, he says “whether it is me, you, or someone who just wants to work — we all should have the same opportunity to achieve the American dream.”

Last month’s post included results from a just-completed RespectAbility poll showing three out of four people with disabilities surveyed value a job and independence over government benefits. This latest announcement, one short month later, mentions companies that are starting to get it, such as Walgreen’s, EY and AMC. They “have found people with disabilities to be highly valued employees who drive their company’s productivity as loyal, safe employees,” the release says.

Now, says Respectability President Jennifer Laszlo Mizrahi, “it is time for other companies to open new doors for people with disabilities.”

“The bottom line,” she says, “is that people with disabilities want a hand up, not a hand out. They want to work side-by-side with people who don’t have disabilities, make their contribution to society, pay their taxes and achieve the American dream.”

I like how Lavin puts it, too: “Recognize the disability, respect the ability, but imagine the possibility.”

We’ll keep watching this momentum and where it heads. In the meantime, employers and their HR executives should be bracing for two final rule revisions — issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs and impacting affirmative-action plans for veterans and people with disabilities — that go into effect on March 24. I have a news analysis appearing soon on our website, HREOnline.com, about these new rules and what they mean, and will share a link here when it goes live.

You might say the rules, revising the OFCCP’s Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act, are the government’s way of ensuring this momentum does, indeed, go forward.

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Broadening Definitions Under the ADA

In case you missed it, employers were recently given further insight as to what qualifies these days as a disability under the ADA Amendments Act of 2008.

On Jan. 23, the Fourth Circuit Court of Appeals ruled that, as long as a temporary impairment is sufficiently severe, it would qualify as a disability, reversing a district court decision regarding a wrongful-discharge claim.

200249331-001The case involved Carl Summers, who, as a senior analyst for Altarum Institute, fell and injured himself while exiting a commuter train. Summers, who underwent leg surgery and was told by doctors he might not be able to walk normally for at least seven months, was provided with short-term-disability benefits. He suggested that he start working part-time from home and gradually return to full-time work, but representatives from Altarum failed to follow up on Summer’s return-to-work plan or suggest any alternative reasonable accommodation. The firm eventually terminated him, installing another analyst in his position.

In Sept. 2012, Summers filed a complaint under the ADA, alleging he was wrongfully terminated because of his disability.

In its ruling, the Fourth Circuit said “an impairment is not categorically excluded from being a disability simply because it is temporary” and that Summer’s alleged impairment “falls under the amended Act’s expanded definition of disability.”

I asked Paul Mollica, of council with Outten & Golden LLP in Chicago, for his thoughts on what the decision—which many believe could be the first ruling of its kind under the ADAAA—means for employers.

Going forward, he told me, employers are going to need to accept that the “lessons learned up to this point aren’t true anymore” and “retool” accordingly.

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The Ever-Expanding ADA

Gavel and JudgeMany employers are already unclear on what employees are protected under the American with Disabilities Act, and unsure of their responsibilities in complying with the ADA.

And, the ranks of the disabled continue to grow, as we recently saw when the American Medical Association issued guidelines classifying obesity as a disease.

An appeals court’s recent decision in the case of Anthimos Gogos v. AMS Mechanical Systems Inc. may broaden the ADA just a bit further, to include individuals with temporary conditions.

The details, according to the lawsuit:

Anthimos Gogos began working as a welder and pipe fitter for AMS in December 2012. The following month, Gogos’ blood pressure spiked significantly, and he experienced intermittent vision loss. Soon after arriving for work on Jan. 30, 2013, Gogos discovered redness in his right eye. With his supervisor’s permission, Gogos left to seek medical treatment, but encountered his general foreman before he left the building. According to court records, Gogos told the foreman he was heading to the hospital because “my health is not very good lately.” The foreman “immediately fired” Gogos.

Gogos sued the company, alleging disability bias. A lower court initially ruled that high blood pressure didn’t qualify as a disability, as it is a “transitory” condition. An appeals court recently disagreed, however, overturning the ruling in favor of Gogos.

In its decision, the appeals court explained that an impairment may qualify for ADA protection even if it is “transitory and minor” or episodic. In this case, the employee’s high blood pressure and recurrent blindness significantly impaired his circulatory function and eyesight. The case now heads to trial.

The court’s ruling that the plaintiff’s spikes in blood pressure and intermittent vision loss satisfied the definition of disability “wasn’t surprising,” says Ellen McLaughlin, a partner in the Chicago office of Seyfarth Shaw and past national chair of the firm’s labor and employment law department.

“The [ADA] Amendments Act made it clear that, if an impairment substantially limits a major life activity, an employee will be determined to be disabled,” says McLaughlin, “even if the impairment is transitory or minor.”

The difficulty for employers and HR, she says, “lies in determining how long an impairment must last to be considered a disability under the Amendments Act.”

HR must be “very cautious” in making judgments that impairments of short-term duration are not disabilities, says McLaughlin.

“Instead, [HR] should look to see how the case law is developing in this area. It’s always easier to have bright-line tests, but, unfortunately, for the time being this area is for the most part very grey.”

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Disabled Americans Want Jobs, Not Benefits

Linking a Jan. 8 release with Jan. 7 news that the Social Security disability system may have been bilked out of hundreds of millions of dollars by 9/11 responders and others 183174586 -- disabled at workfaking disabilities, RespectAbilityUSA made a special plea to employers to turn some numbers around and get more disabled Americans into the workforce.

In the release, RespectAbility — a Washington-based nonprofit focused on empowering people with disabilities — included results from its latest poll showing three out of four people with disabilities surveyed value a job and independence over government benefits. (Here is a link to the final poll announcement made on Friday, with slides.)

“Too many people with disabilities are prevented from having a real job at a real wage because of employer misconceptions and because the structure of the benefit system prevents people from working more,” says Jennifer Laszlo Mizrahi, the company’s president. “Republican, Democrat, Independent — what comes across clearly in the poll is that people with disabilities want to work, pay taxes and be full members of our society.”

Addressing the 9/11 scandal — involving New York cops and firefighters allegedly making fraudulent claims of depression and anxiety to their doctors for lucrative awards — Mizrahi says her organization is “disgusted by the actions of individuals [that make] the rest of us with real disabilities and those who care about them look guilty, and it makes it more difficult to have important conversations about our hopes, aspirations and dreams of entering the workforce and being active, contributing members of society.”

The release cites findings that 70 percent of working-age Americans with disabilities are outside the workforce, compared to 28 percent of people with disabilities. It also includes data showing the disability community gives President Obama, Congress and their governors failing grades in how much they trust them to increase their employment opportunities.

This certainly isn’t the first time we at HRE have covered the merits of attracting, hiring and retaining people with disabilities. Three of my recent favorites are this recent blog post by Senior Editor Andrew R. McIlvaine about a disability summit co-hosted by the U.S. Chamber of Commerce highlighting companies that are doing those things right, our December benefits column by Carol Harnett about disability’s power to instruct and how she learned early on that everyone deserves a fair chance, and this November feature by Julie Cook Ramirez about a company — Innotrac — going the distance to give disabled workers just such a chance.

I like the numbers RespectAbility provides though, even though they sadly underscore a huge discrepancy between what disabled Americans want and what they’re currently getting.

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A Broader Definition of ‘Reasonable Accommodation’

Meanwhile …

As the nation stays riveted on Washington’s dramatic avoidance of a default/continued-shutdown guillotine, I’ll venture to point out that legal events impacting employers have 93424272-- handicap parkingbeen rumbling along in other rings of this governmental circus.

A posting about this recent case, for instance, caught my eye — a ruling from the Fifth Circuit Court of Appeals that further broadens the Americans with Disabilities Act’s definition of “reasonable accommodation” to include — well, sort of — granting a free on-site parking space so an employee has an easier time getting to the door.

The ruling in the case, Feist vs. State of Louisiana, essentially takes employers beyond the ADA requirement that an employee be accommodated so he or she can accomplish the essential functions of the job to now include a guidance from the U.S. Equal Employment Opportunity Commission saying reasonable accommodation must include anything that enables workers “to enjoy equal benefits and privileges of employment.”

In this case, yes, a free parking spot — which Assistant Attorney General Pauline Feist requested of her employer, the Louisiana Department of Justice, due to osteoarthritis in her knee. (According to the case, she was denied the spot by her employer, filed a discrimination charge with the EEOC, was later fired for poor performance, and filed suit in the Fifth Circuit’s district court, claiming disability bias and retaliation. The district court ruled in favor of the Louisiana DOJ, but the appeals court took her side, essentially saying there was more to her accommodation than simply allowing her to do the essential functions of the job.)

“In short, the court said, there doesn’t need to be a link between an employee’s essential functions of a job and a request for reasonable accommodation,” writes HRMorning.com‘s Dan Wisniewski in his post.

He cites this HR takeaway from Christopher Ward, writing on the Labor & Employment Law Perspectives blog:

The Fifth Circuit’s decision … follows a clear trend suggesting that employers must take a broad view of their obligations with respect to disabled employees. Following the Court’s conclusion, an employer’s accommodation analysis is not limited to an evaluation of whether a potential accommodation is reasonable as measured against an employee’s job functions; instead, the focus should be simply [on] whether the potential accommodation is reasonable … . Prudent employers should thus focus their accommodation analyses more on the reasonableness of potential accommodations themselves and put less emphasis on the accommodation’s impact on the employee’s ability to perform his or her job functions.

Just more to focus — or refocus — on as you let out the breath you’ve been holding, wondering if there’d be a government looming over you at all.

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RA and the Workplace

RAMany of us — myself included — know someone who suffers from rheumatoid arthritis. The disease, an autoimmune disorder characterized by progressive joint destruction that can leave hands and feet gnarled and misshapen and afflict its sufferers with chronic pain and discomfort, affects approximately 2.1 million Americans (the overwhelming majority of them women). In addition to the physical pain it inflicts, people with RA can also suffer from lost earnings and ruined careers: Twenty percent to 30 percent of people with RA can become permanently disabled within two to three years of diagnosis if they aren’t treated.

Thankfully, recent advances in medicine have enabled many people with RA to lead lives of relative comfort and stay in the workplace. So-called DMARDs (disease-modifying anti-rheumatic agents) can slow the disease and alleviate and even prevent many of its symptoms. Of course, these drugs are also very expensive. Employees who have RA may forgo some of the necessary treatments if they’re forced to choose between, say, paying the rent and this month’s injection. Situations such as these will ultimately cost the employer as well, according to a new report from the nonprofit Integrated Benefits Institute.

Inadequate coverage and treatment for the disease can lead to increased costs associated with missed work and lost productivity, according to the study, conducted by IBI president Tom Parry and IBI’s research director, Kimberly Jinnett. However, so-called Value-Based Insurance Plans can “encourage early and aggressive use of disease-modifying anti-rheumatic agents,” according to the study. VBIPs are designed to increase medication and treatment adherence among sufferers of chronic diseases like diabetes and RA by eliminating certain deductibles and copays. You can read more about them here.

Parry elaborates further:

Employees who shy away from treating their illness early and aggressively because of higher deductibles and co-pays may experience poorer health and a greater likelihood of short-term disability. Time away from work — particularly with episodes of longer-duration STD — has significant consequences for employers in the form of lost productivity.”

In other words, shouldering the bulk of the costs for DMARDs can not only alleviate the pain of those with RA, but the pain caused to the organization when a skilled and valuable employee departs for good.

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Disabled Shouldn’t Mean ‘Unemployed’

“Just because a man lacks the use of his eyes doesn’t mean he lacks vision.” That’s a quote from Stevie Wonder, who didn’t let lifelong blindness stop him from becoming one of the most successful pop musicians in the world. However, given that his fellow disabled Americans currently have a labor force participation rate of only 20 percent (compared to 70 percent for non-disabled Americans) and an unemployment rate of 14 percent (compared to 7.6 percent for their non-disabled counterparts), it’s a good bet that there’s a lot of talent going to waste due to a lack of outreach and accommodation by companies that may never know what they’re missing out on. The U.S. Chamber of Commerce is trying to change this via its partnership with the U.S. Business Leadership Network to highlight “inclusion practices related to disability employment.”

Last week, the two organizations hosted their second annual disability summit, which highlighted companies that can serve as models for the rest of the business community for their efforts in attracting and retaining disabled employees. “Leveraging the skills, talents and experience of workers with disabilities is not only essential to our workforce competitiveness, but it’s also the right thing to do,” said Chamber CEO Thomas J. Donohue, in announcing a new report (titled Leading Practices in Disability Inclusion) that summarizes what those companies are doing.

The report doesn’t contain anything truly groundbreaking, but it does serve as a good reminder of the importance of reaching out to organizations that work with disabled people to ensure they know about job opportunities and the resources available to help them succeed in those jobs. The companies profiled include Florida Blue, Florida’s Blue Cross/Blue Shield health insurer, which since 2006 has participated in Disability Mentoring Day. During the event, disabled participants are paired with a mentor to experience a “day in the life” of working at the insurer and are then matched with recruiters who provide them with career advice to assist them in their job search. Florida Blue also provides various internship programs for people with disabilities and tries to help its non-disabled employees understand what it’s like for their disabled counterparts via a voluntary program where they experience having a disability in a simulated work environment.

IBM, meanwhile, partners with the American Association for the Advancement of Science to provide internships and full-time job opportunities for the disabled and provides its recruiters, employees and managers with disability awareness training. It also provides consulting services to other companies that seek to “integrate accessibility solutions” into their corporate activities. Microsoft, like many of the companies profiled, offers an employee resource group that serves disabled employees as well as the parents of disabled children. The technology company also developed a “disability tool kit” for its recruiters to ensure they engage in effective and respectful communication when working with disabled job candidates. Here at HRE, we’ll also be focusing on disability in the workplace with a three-part series beginning with our November issue that will profile companies that are standouts for going the extra mile to reach out to disabled workers.

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