Our parent company, Presagia, recently returned from the 2019 Disability Management Employer Coalition (DMEC) Compliance Conference, which featured informative, inspiring and insightful content focused on absence and disability management. The sessions from this year's conference were filled with tips and strategies on everything from the importance of using the ADA interactive process to provide accommodations to upcoming leave laws. In this latest post we share three important lessons from this year's conference to help you maintain a compliant workplace!
Accommodations & The Importance Of The Interactive Process
Right from the beginning of the conference, the importance of using the interactive process to assess and determine accommodations for employees under the Americans with Disabilities Act (ADA) was at the forefront. As you may know, some accommodation requests submitted by employees are straightforward, while other times the answer isn’t so clear. Luckily, Jaclyn Kugell’s preconference workshop, The Answer Is No! Say “No” Legally And Effectively, addressed how employers can legally and effectively deny a leave of absence or accommodation request. Just because an employee requests an accommodation, it doesn’t necessarily mean that they are guaranteed or fit the criteria for one.
In this session, Kugell used court cases wherein the employer was justified in denying a leave of absence or accommodation. For example, the Hancock v. Washington Hospital Center, 13 F. Supp. 3d 1 (D.D.C. 2014) where an employee who worked as a nurse could no longer perform an essential function of her job (lifting 15-20 pounds or performing triage). The employer granted a temporary accommodation by placing her on light duty, eliminating the need to perform triage - which included lifting up to 20 pounds. Eventually the employer removed this temporary accommodation and told the employee that she had to return to full duty. The court ruled in favor of the employer, because an accommodation that eliminates the essential function of a job is considered unreasonable.
Kugell provided some tips for employers and case managers to consider when evaluating whether to grant a leave or accommodation:
- Does the employee meet the definition of a “serious health condition?”
- When it comes to stress as a serious health condition, the employee must have proof and effectively demonstrate the occurrence.
- An accommodation that eliminates the essential function of that job is not considered reasonable.
- Accommodations that place undue hardship are often denied, such as when the accommodation leads to other employees working harder or longer.
Learning From Others’ Mistakes
Employers are constantly trying to mitigate risks while balancing both the FMLA, ADA and the needs of their employees. The biggest risk for employers? ADA litigation, as employers have developed an increasingly strong understanding of the FMLA.
That’s why we loved Frank P. Alvarez’s general session, A Look Back: Insights Into Key 2018 FMLA & ADA Cases, which clearly addressed the complexity that employers face who are trying to manage the FMLA, ADA, voluntary leave and paid time off. In this session, Alvarez highlighted that ADA-employment lawsuits have increased from 2012 to 2018, going from 2020 to 2681 cases, respectively. Court cases were used to illustrate the complexity of accommodations and attendance.
For example, in the case, Ward v. Massachusetts Health Research Inst., Inc., 209 F.3d 29 (1st Cir. 2000), they ruled that for the plaintiff’s data entry job, a set schedule was not an essential function. The jury explained that the plaintiff’s main duty, data entry, didn’t have to be completed at a particular time, as long as the task was completed before the laboratory opened the following day.
On the other hand, sometimes regular attendance and a set schedule are essential functions of a job, as illustrated by Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537 (8th Cir. Dec. 19, 2018). In this case, the employee, who worked for a meat and processing facility (her duties involved labeling boxes, stacking and supplying empty boxes to the production line and moving pallets and packed boxes) took 195 unplanned days of leave within a year, for personal and medical reasons due to her lung disease. The employer won this case since the employee could not prove she “could regularly and reliably attend work, an essential function of her employment.” The court declared that employers are not required to provide an unlimited absentee policy under the ADA.
The session also covered some developments since the well-known case, Severson v. Heartland Woodcraft, Inc., in which the Seventh Circuit declared that taking a multi-month leave of absence is not considered a reasonable accommodation. Alvarez reviewed several recent cases in which indefinite leave as an accommodation continued to be rejected by the court.
This session left us with three important tips for employers to know with regards to the ADA and attendance:
- Be clear on job descriptions. Know whether regular attendance is an essential function of the job or isn't, such as with Ward v. Massachusetts Health Research Inst., Inc.
- The importance of absence tracking. If regular attendance is an essential function of the job, determine whether the employee was fulfilling regular attendance, while the employee is given an accommodation.
- Master the ADA interactive process. If the employee hasn’t fulfilled their essential function (regular attendance), ask whether they could if they’re given a reasonable accommodation.
Leave Laws On The Horizon
One recurring topic throughout the conference was upcoming leave laws and employer preparedness. For employers and leave case managers, it’s important to stay up to date on the current laws and to be aware of those on the horizon. Staying up to date with this information not only helps your employees, but also helps protect your company from financial and legal issues related to non-compliance.
Frank Alvarez, Sheri Giger and David Mohl, all from Jackson Lewis P.C., presented the general session, Building an Effective Paid Time Off & Sick Leave Program: What You Need to Know, which highlighted the complexities of administering paid time off and sick leave programs. Statutory paid leave programs are making things more complicated these days, resulting in employers having obligations under these laws while also managing their own company policies (i.e. personal and vacation days).
For employers, it’s not only important to understand these laws but where and whom these laws apply to. Currently there are four states that provide paid family medical leave - California, New Jersey, New York, and Rhode Island - all managed through temporary disability programs. Jurisdictions with upcoming paid family leave laws include the state of Washington, the District of Columbia (contributions commence in 2019 and benefits in 2020), and Massachusetts (contributions commence in 2019 and benefits in 2021). Hawaii is also in the beginning phases of studying a paid family leave program, with potential legislation due during 2019.
To help address this complex issue, the Jackson Lewis team provided some questions employers can answer when building an effective paid time off and sick leave program:
- What are the company’s current policies?
- What does the “ideal” paid time off and leave program look like?
- Where are the gaps?
- Where are the process improvements?
- What are the applicable laws?
From the new leave laws that are just around the corner, to the ADA, it’s clear that employers and case managers have a lot on their plate in 2019, and managing it all manually is a recipe for disaster! Luckily, with leave law reference guide like Leave Genius, employers can stay up-to-date and compliant with current and new leave laws!