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MISHRM 2014 Annual Conference HR Amplified: Driven to be…

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1 MISHRM 2014 Annual Conference HR Amplified: Driven to be…

2 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM REASONABLE ACCOMMODATION IN AN UNREASONABLE LEGAL ENVIRONMENT Jennifer Gonzalez Hall, Render, Killian, Heath & Lyman 201 W. Big Beaver Road, Suite 1200 | Troy, MI (248)

3 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Introduction 1.Changes in the Legal Environment EEOC Enforcement Efforts Newsworthy Settlements 2.Employer’s Duty to Accommodate 3.Common Pitfalls Leave of Absence Attendance 4.Current Cases 5.Reducing Exposure/Best Practices 3

4 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Changes to the Legal Environment

5 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Times Have Changed Employee whose hand had been amputated was not protected by the ADA; employee testified that he could perform routine daily activities with prosthetic device, so he was not “substantially limited” That Was Then…This Is Now! Bridge worker’s claim for failure to accommodate his fear of heights can proceed to trial; question of fact regarding whether working at heights is essential function of bridge worker’s job

6 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM That Was Then… ADA passed in 1990; effective in 1992 Judicial focus (and EEOC enforcement) was whether an employee could meet definition of “disabled” under the ADA –Severity and duration of impairment –Whether impairment was substantially limiting Described by the USSC as “rigid standard” 6

7 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM That Was Then… Positive effects of medication/assistive devices were considered in deciding whether employer was “substantially limited” Judicial decisions were employer-friendly Persons with epilepsy, diabetes, MS, depression, bipolar disorder, and amputation were found not to meet the ADA definition of “disability” 7

8 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM This Is Now… ADA Amendments Act effective January 1, 2009 Final regulations effective May 24, 2011 Underlying definition of “disability” did not change: –physical or mental impairment that substantially limits one or more major life activities –record of impairment –regarded as impaired 8

9 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM This Is Now… ADAAA significantly lowered the threshold for “substantially limiting”: –“Not meant to be a demanding standard” –“Should not be unduly used as a tool for excluding individuals from the ADA’s protections” –“Significant or severe restriction is not required” –Even a short-term impairment may be a disability 9

10 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM This Is Now… Significantly expanded list of “major life activities” to include operation of major bodily functions or organs With the exception of “ordinary eyeglasses,” the determination of disability must focus on the individual’s condition without the positive effects of medication or other mitigating measures An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active 10

11 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM This Is Now… Congress now says: –“The definition of Disability shall be construed in favor of broad coverage…” –“The question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis…" New Focus –Did employer reasonably accommodate? –If not, why not? 11

12 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM A lways D isabled A lways A ssess A ccommodation 12

13 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Significant Increase in EEOC Enforcement Efforts Strategic Enforcement Plan identifies certain ADA issues as a national enforcement priority, including: –Coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat –Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA) 13

14 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Significant Increase in EEOC Enforcement Efforts Increase in Disability Charges –15,000+ charges in 2003 –Nearly 26,000 charges in 2013 Settlement dollars collected on disability charges have more than doubled in the past 10 years –$45.3 million in 2003 –$109.2 million in

15 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Employer’s Duty to Reasonably Accommodate It’s considered discrimination under the ADA to NOT reasonably accommodate a disabled worker unless: –It would create an “undue hardship” for the employer; or –It would result in a “direct threat” 15

16 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Employer’s Duty to Accommodate Consider each request for reasonable accommodation to determine: 1)Whether the accommodation is needed; 2)If needed, whether the accommodation will be effective; and 3)If effective, whether providing the reasonable accommodation will impose an undue hardship or direct threat 16

17 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Undue Hardship Considerations Nature and cost of the accommodation needed Resources and circumstances of the particular employer in relationship to the cost/difficulty of providing specific accommodation 17

18 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Direct Threat “Significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation” If an individual with a disability poses a direct threat that cannot be eliminated or reduced to an acceptable level by a reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA 18

19 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Reasonable Accommodation Challenges Leaves of absence Disability-related absences Untrained/inexperienced managers/supervisors 19

20 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM The following message is brought to you by the EEOC: (Excerpts from EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act) An employer may NOT apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period 20

21 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM EEOC’s Position An employee with a disability who is granted leave as a reasonable accommodation is entitled to return to his/her same position unless the employer demonstrates that holding open the position would impose an undue hardship 21

22 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM EEOC’s Position If an employer cannot hold a position open during the entire leave period without incurring undue hardship, the employer must consider whether it has a vacant, equivalent position for which the employee is qualified and to which the employee can be reassigned to continue his/her leave for the specified period of time and then, at the conclusion of the leave, be returned to this new position 22

23 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Notable EEOC Settlements $6.2 million – Sears Roebuck & Co. paid to resolve allegations of an inflexible leave policy under which disabled workers were terminated after exhausting workers compensation leave instead of providing reasonable accommodations of their disabilities (N.D. Illinois, 2010) $3.2 million – Supervalue, Inc. paid to settle allegations relating to an “overly rigid and illegal disability policy” in its Jewel-Osco stores. (N.D. Illinois, 2011). Still in the news due to alleged violations of the consent decree resulting in recommendations for additional damages and extension of conciliation agreement 23

24 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Notable EEOC Settlements $20 million – Verizon paid to resolve allegations that it refused to make exceptions to its no fault attendance policy for individuals whose absences were caused by their disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step that could ultimately result in more serious disciplinary consequences, including termination (District of Maryland, July 2011) 24

25 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Notable EEOC Settlements $75,000 – GGNSC Administrative Services (central billing/collections for Golden Living) paid to resolve allegations that it fired employee following her request for extended leave to recover from knee surgery (E.D. Wisc. Sept. 2013) $60,000 – Mercy Hospital paid to resolve allegations that it failed to accommodate and terminated a nurse with MS by refusing to allow her to return from a leave of absence (E.D. Mich. September 2013) 25

26 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Notable EEOC Settlements $135,000 – Alorica, Inc. agreed to pay to resolve claim that predecessor Ryla Teleservices wrongfully terminated and denied employee’s request for a 4-week extension of disability leave to treat bipolar disorder and depression (N.D. Georgia December 2013) $1.35 million – Princeton Healthcare System will pay to resolve claims that its fixed leave policy failed to consider leave as a reasonable accommodation in violation of the ADA (Dist. New Jersey, June 2014) 26

27 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM When Is Additional Leave Reasonable? Additional leave time/job protection beyond FMLA and beyond employer’s policy limits can be a reasonable accommodation: –Case-by-case basis –EEOC: leave from work is not a reasonable accommodation where the employee does not have a job to which to return at the conclusion of the leave 27

28 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM When Is Additional Leave Reasonable? If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with additional leave, unless: –another effective accommodation exists; or –it would create an undue hardship 28

29 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Risks of Non-Compliance Jury trial Back pay Lost benefits Compensatory damages Punitive damages Attorney’s fees 29

30 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Question of the Day Good grief! How am I supposed to enforce my leave of absence and attendance policies? 30

31 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Using the Interactive Process to Your Advantage 1.Communicate 2.Document 31

32 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Benefits of the Interactive Process A mutually agreeable accommodation gets the job done by an experienced worker without job loss or turnover Failing to reach an accommodation after a good-faith attempt is a defense: “If the employer demonstrates good faith consultation with employee to identify and make reasonable accommodation…” –No punitive damages –No compensatory damages 32

33 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Using the Interactive Process Effectively 1.Analyze job functions 2.Determine precise job limitations 3.Identify potential accommodations 4.Select an effective accommodation 33

34 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Step 1 – Analyze Job Functions Individual assessment of the particular job duties Job description Employee input Fair and accurate Obtain employee agreement 34

35 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Step 2 – Determine Job Limitations What are the individual’s precise limitations? What job functions are affected? What are the barriers to performance? Is impairment progressive, stable, or unpredictable? Healthcare provider certification 35

36 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Step 3 – Identify Potential Accommodations Brainstorm all possible solutions Employee’s ideas Manager’s ideas Additional ideas Outside resources List all ideas considered 36

37 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Step 4 – Select Effective Accommodation List why potential accommodations are not effective Consider employee preference Agree to a selection if possible (consider trial basis) If no agreement, choose an effective one Selection need not be the “best” 37

38 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Friendly Reminders… Remember to consult both the employee and the Manager Document your efforts Consider use of Reasonable Accommodation worksheet (or variant) 38

39 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Reasonable Accommodation Worksheet

40 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Leave and Attendance Considerations Has the employee provided sufficient documentation supporting medical need for the requested time off? Is there any need for an IME? How long has employee been employed? How much leave is available under normal leave/attendance policies? 40

41 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Leave and Attendance Considerations How much leave/time off has the employee already taken? How have business operations been impacted to date? How has employee’s work been completed during employee’s absence to date? Would it be reasonable to continue using the same method of coverage for the new request? – If not, why not? 41

42 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Leave and Attendance Considerations What is the impact on business operations if the requested leave or absence is approved? What are the employee’s essential job functions and how will those get completed if the request is approved? Is time off the only effective accommodation? Or, can other workplace changes be made that would permit employee to perform essential job functions? 42

43 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Leave and Attendance Considerations Is attendance integral to the employee’s position? Can the employee perform any of his/her essential job functions from home? Has the employee provided an estimated return to work date? If the time off is granted, is the employee likely to return to work in the reasonable future? 43

44 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Leave and Attendance Considerations Is there a vacant position for which the employee is qualified that would enable the employee to continue working with existing restrictions? What does the employee believe would be reasonable? 44

45 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Guidance from the Courts Hope for Employers Denial of Summary Judgment Unpaid leave can be reasonable accommodation Technological advances reduce need for physical presence Questions of fact Indefinite attendance/leave is unreasonable Attendance as essential function 45

46 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers Doak v. Johnson, et al., ---F.Supp.2d --- (D.C., Feb. 10, 2014) –Plaintiff suffered from hypothyroidism, depression, migraines, chronic pain, and sleep apnea –Plaintiff requested accommodation to increase her productivity, including telecommuting and adjusted work schedule with the option to make up missed work during weekend hours –Plaintiff missed 50% of work hours from January – July 2010, and 40% of work hours from July 2010 – October

47 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers –“The repeated absences, and the deleterious effect they had on her team at the Coast Guard…served as legitimate reasons for terminating [Plaintiff] that are distinct from her disability” –“In the end, [Plaintiff’s] requested work accommodation was an unpredictable, flexible schedule that allowed her to come into work whenever she could make it. This was unreasonable as a matter of law. Making it to work regularly is an essential function of the job that [Plaintiff] could not muster even with the requested accommodation” 47

48 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers McKenzie-Nevolas v. Deaconess Holdings, LLC, 2014 WL (W.D. Ok. Feb. 7, 2014) –Plaintiff, a medical assistant, requested time off for doctors’ appointments for cellulitis and infectious mastitis –Mastitis was a physical impairment that affected the operation of a major bodily function (skin and soft tissue) –“Because Plaintiff’s infection (impairment) was limited to one part of her body and was not chronic but temporary and of short duration, the Court finds that there is no genuine issue of material fact regarding disability, and that Plaintiff did not have a disability which substantially limited one or more major life activities… Reasonable jurors could not find that Plaintiff had a ‘disability’ within the meaning of the ADAAA” 48

49 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers –“From March 2010 through November 2010, Plaintiff took off work to attend doctors’ appointments on 7 occasions. During that same period, Plaintiff either left work early or was off work the entire day on 16 occasions due to Plaintiff being sick or caring for a sick family member” –An “essential function of Plaintiff’s position was physical presence or attendance during clinic hours to assist the physicians in the delivery of healthcare” –“Because of Plaintiff’s excessive absences, there is no genuine issue of material fact that she was not qualified for her position within the meaning of the ADA. Reasonable jurors could not find otherwise” 49

50 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers Farran v. First Transit, Inc., 2014 WL (D. Nev. Feb. 6, 2014) –Plaintiff, bus mechanic, was injured on the job –Spent majority of 2010 on leave –Took leave in October 2010 for two surgeries, and leave ran out –Employer provided “nearly a month of additional, unpaid leave” –Terminated after failure to return to work on November 15 (date established by his physician) and failure to respond to return demand 50

51 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers –“As one trial court persuasively summarized, ‘There are two limits on the bounds of reasonableness for leave of absence. The first limit is clear; the employee must provide the employer an estimated date when she can resume her essential duties…The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the near future’” 51

52 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers –“[Plaintiff] was undisputably provided with several leaves of absence prior to October 15, Although [Plaintiff] had exhausted all of his available FMLA leave by July 21, 2010, [employer] then granted [Plaintiff] an additional 30 days’ leave, and then provided [Plaintiff] with more than a month to recover from his October 15, 2010 surgery” –“While [Plaintiff’s] union expressed confidence that he would be able to resume his job without restrictions in early January 2011, this opinion was not substantiated by any medical evidence…” 52

53 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Hope for Employers –Even assuming that the nine-month leave would not have posed an undue hardship, “[Plaintiff’s] argument has a fatal logistical flaw: an employer would not know whether the employee’s absence would pose an ‘undue hardship’ until after the employee had fully recovered and the need for accommodation ceased to exist” –Plaintiff cannot establish denial of any reasonable accommodation where he had not provided any expected return to work date at the time of his termination 53

54 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Denial of Summary Judgment Alexander v. Boeing Co., 2014 WL (W.D Wash. July 28, 2014) –Plaintiff suffered from chronic migraines, and asked to work flexible hours/partial days from home –“While maintaining a regular and predictable work schedule (as opposed to physical presence) may be an essential function of Plaintiff’s job, there is a genuine dispute of material fact regarding whether Plaintiff could perform this essential function had she been provided a reasonable accommodation of flexible or partial days that had been successful in the past” 54

55 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Denial of Summary Judgment Schwab v. Northern Illinois Medical Center, ---F.Supp.2d --- (N.D.Ill. May 20, 2014) –Plaintiff, part-time registrar, with history of breast cancer discovered a lump and requested change to “registry” status and/or one month personal leave to be available for last minute medical appointments relating to cancer testing –“There are issues of fact as to whether granting this request would have imposed an undue hardship on [employer]” 55

56 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Denial of Summary Judgment –“ At the time [Plaintiff] requested a month of personal leave in August of 2010, it is undisputed that the Patient Access department was short-staffed, particularly during the overnight shift that [Plaintiff] worked…While being short-staffed could certainly justify denial of [Plaintiff’s] personal leave request, there is evidence in the record from which a reasonable jury could conclude that staff constraints were not a consideration in the decision and that Human Resources had initially approved the request, only to revoke it upon [Plaintiff’s] termination” 56

57 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Denial of Summary Judgment Poole v. Centennial Imports, Inc., 2014 WL (D. Nev. May 19, 2014) –Plaintiff informed manager he would need time off for knee surgery (his third) –“Knee pain qualifies as a physical impairment” –“To the extent [employer] is arguing that [Plaintiff’s] alleged disability was transitory and minor, that is a question of fact for the jury” 57

58 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Denial of Summary Judgment –“A leave of absence for medical treatment may be a reasonable accommodation under the ADA. Where a leave of absence would reasonably accommodate an employee’s disability and permit him, upon his return, to perform the essential functions of the job, that employee is otherwise qualified under the ADA” –“The ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation” 58

59 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Denial of Summary Judgment –“The ADA does not require an employee to show that a leave of absence is certain or even likely to be successful to prove that it is a reasonable accommodation. As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation” 59

60 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Denial of Summary Judgment –“[Plaintiff] admits that he could not perform any job, other than talking on the phone while lying prone with his leg elevated, for three months after the surgery. He could not return to a sales job for at least three months, and possibly six months…This could have placed [employer] in the potentially difficult position of granting an indefinite leave of absence to [Plaintiff]. But [employer’s] failure to engage in the mandatory interactive process with [Plaintiff] renders it impossible to assess the reasonableness of [Plaintiff’s] desired medical leave of absence” 60

61 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM On the Horizon… Supreme Court Case – Young v. UPS –Pregnant delivery driver with lifting restrictions was required to take unpaid maternity leave rather than be transferred to a less strenuous position. Plaintiff argues that the PDA requires employers to provide pregnant workers with the same accommodations of other non-pregnant workers who are similar in their ability/inability to work 61

62 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM On the Horizon… Supreme Court Case – Young v. UPS –Claim raised under the PDA, but Court has opportunity to clarify employers’ reasonable accommodation obligations under the ADA –Petition for Certiorari granted July 1, 2014 –Briefing schedule through October, 2014 –Oral argument not yet scheduled 62

63 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM On the Horizon… EEOC v. Erie Strayer Co. (W.D. Pennsylvania) –EEOC filed federal complaint July 21, 2014 seeking to enjoin employer’s policy of requesting/requiring all employees absent for any duration to disclose (or authorize their physician to disclose) the nature of their illness or injuries, and any physical limitations 63

64 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM On the Horizon… Strayer Complaint directly contradicts existing EEOC Guidance: –Q. May an employer request that an employee provide a doctor's note or other explanation when the employee has used sick leave? (Question 15) –Yes. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to provide a doctor's note or other explanation, as long as it has a policy or practice of requiring all employees to do so. 64

65 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Best Practices Review existing policies with legal counsel to build in flexibility for reasonable accommodation of disability- related absences Continue to track all absences for purposes of determining effect on business/undue hardship Continue interactive process to determine if reasonable accommodation could make attendance more regular 65

66 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Best Practices For frequent, unpredictable disability-related absences causing disruption to business, explore possibility of transfer to vacant position or leave of absence Document hardship of LOA and subsequent extensions – even during FMLA period Focus on (and document) individualized inquiry Review for disparate impact 66

67 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Best Practices Consider independent medical evaluation in cases of suspected abuse (though remember this is rarely the end of the story) Be patient – additional changes will likely be forthcoming 67

68 MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM MISHRM P.O. Box Troy, Michigan (844) 4-MISHRM Jennifer Gonzalez Hall, Render, Killian, Heath & Lyman 201 W. Big Beaver Road, Suite 1200 Troy, MI (248)


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