©SHRM 2010

The Interplay Between Reasonable Accommodations and Medical Leaves: Legal and Practical ImplicationsUpdated Resources

Susan W. Brecher, Esq. and Judy Young

•SHRM 2011 Annual Conference & Exposition

June 26-29, 2011Las Vegas, Nevada

©SHRM 2010

Overall Goals

• Multiple perspectives on FMLA leaves and ADA disability accommodations

• Analyzing the interplay and implications of FMLA and ADA> Regulations and Guidelines> Court Cases> Best Practices

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Perspectives

• Analysis and implications> ADAAA expansion of ADA > Interplay between medical leaves and

disability accommodations

• Roles of HR professionals and managers

• Presentation of issues through a case study

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Presentation of Issues: Case Study

Jean Manager tells Sonia HR: • Opal Employee has a cancer

• Opal wants to change her schedule

• Opal needs to change it for> Doctor appointments > Treatments > Limit her hours or work at home

What additional information do you need? What steps would you take?

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Guiding Questions for Analysis and Implications

1. When would you ask for documentation? What would you request?

2. What is expected from an interactive process?

3. How do you prevent discrimination and/or retaliation when providing accommodations and leave time?

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FMLA Interplay with ADA

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Layers of Employee Rights

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Policies & Practices

Agreements

Court Cases

Local Laws

State Laws

Federal Laws Enforcement Agencies

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Relevant Overview Information: ADA

ADA• Is an employee right

• Disability: > Mental or physical impairment that

substantially limits a major life activity> Person has a record of the disability> Person is regarded as having a disability

• Reasonable accommodations require engaging in an interactive process

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Relevant Overview Information: ADAAA

ADAAA• Interprets definitions of disability more

broadly

• Includes bodily functions as major life activities

• Shifts focus to nondiscrimination and reasonable accommodations

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Relevant Overview Information: ADAAA

ADAAA• Clarifies that “regarded as disabled” does not

require reasonable accommodations

• EEOC regulations interpret that a “record of a disability” may require reasonable accommodations

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Relevant Overview Information: FMLA Interplay with ADA

FMLA• Is an employee benefit

> Must be entitled > Leave limited to 12 work-weeks within 12

months and includes intermittent leave

• Employee’s serious medical condition is broader than ADA disability

• Leave for family member’s serious medical condition is not an ADA accommodation

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Presentation of Issues: Case Study

What role does Opal’s position play?Opal as a receptionist or Opal as an accountant

• Opal wants to change her schedule

• Opal needs to change it for> Doctor appointments > Treatments > Limit her hours or work at home

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1. When Would You Ask For Documentation? What Would You Request?

• Is Opal requesting medical leave and/or accommodations?

• What can you discuss with Opal before requesting medical documentation?

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1. When Would You Ask For Documentation? What Would You Request?

• What medical information can you request from Opal for> ADA Accommodations> FMLA leave

• How does GINA impact the medical information requested?

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Continued

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1. When Would You Ask For Documentation? What Would You Request?

• What information do you supply the medical provider about Opal’s job functions?

• What should Jean Manager know about the information received from Opal’s medical provider?

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Continued

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2. What Is Expected From An Interactive Process?

• What do you discuss with Opal about the accommodations?

• Who should be involved in the interactive process and when?

• What considerations help determine whether to provide Opal her accommodation of choice and why?

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2. What Is Expected From An Interactive Process?

• How often would you revisit Opal’s request for the schedule change?

• How do you handle accommodations if Opal’s essential job functions change?

• What options are available if Opal is not entitled to FMLA leave?

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Continued

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3. How Do You Prevent Discrimination/Retaliation

• What is discrimination and retaliation under > ADA> FMLA

• How do you handle making changes to Opal’s working conditions or assignments?

• How do you address performance based issues with Opal?

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Best Practices

• Review leave policies and their interaction with regard to disabilities and medical conditions

• Consider disabilities or medical conditions on a case-by-case basis

• Exercise good faith effort because benefits may outweigh the drawbacks

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Best Practices

• Identify an organizational “go-to” person(s) for all disability and leave-related questions

• Include a disclaimer with medical information requests in order to comply with GINA

• Ensure that medical information is not shared and is kept separately

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Best Practices

• Focus on the interactive process rather than disability determination

• Develop guidelines for addressing an interactive process and documenting accommodation requests

• Consider the implications of leave when accommodations include modifications of work schedules

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Continued

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Best Practices

• Ensure that managers know how to effectively navigate> Disclosure and medical information > Accommodation requests

• Make certain that only accommodation information filters down from HR to managers

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Continued

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Best Practices

• Educate managers about their responsibilities under ADA and FMLA in order to avoid discrimination and retaliation

• Ensure that managers understand the impact of timing when making employment decisions

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Continued

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Resources

• EEOC

> Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA

http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm

> Notice Concerning the ADA Amendments Act of 2008

http://www.eeoc.gov/policy/docs/fmlaada.html

> Q&A About Cancer in the Workplace and the ADA

http://www.eeoc.gov/facts/cancer.html

> Requests for Medical Information in Procedures for Providing Reasonable Accommodation for Individuals with Disabilities in Section D.

http://www.eeoc.gov/eeoc/internal/reasonable_accommodation.cfm#D

> Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the ADA

http://www.eeoc.gov/policy/docs/guidance-inquiries.html

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Resources (cont.)

• EEOC (cont.)

> Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA

http://www.eeoc.gov/policy/docs/accommodation.html

> Work at Home/Telework as a Reasonable Accommodation

http://www.eeoc.gov/facts/telework.html

> Small Employers and Reasonable Accommodation

http://www.eeoc.gov/facts/accommodation.html

> The ADA: Applying Performance and Conduct Standards to Employees with Disabilities

http://www.eeoc.gov/facts/performance-conduct.html

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Resources (cont.)

• EEOC Testimony from June 8th, 2011 Hearings: Use of Leave as Reasonable Accommodation

> Experts Give EEOC Range of Views on Leave as a Reasonable Accommodation

http://www.eeoc.gov/eeoc/newsroom/release/6-8-11b.cfm

> Written Testimony of John Hendrickson Regional Attorney, EEOC

http://www1.eeoc.gov//eeoc/meetings/6-8-11/hendrickson.cfm?renderforprint=1

> Written Testimony of Christopher Kuczynski Assistant Legal Counsel, EEOC

http://www.eeoc.gov/eeoc/meetings/6-8-11/kuczynski.cfm

> Written Testimony of Brian East Senior Attorney Texas Disability Rights

http://www.eeoc.gov/eeoc/meetings/6-8-11/east.cfm

> Written Testimony of Claudia Center, Director Disability Rights Program Legal Aid Society – Employment Law Center

http://www.eeoc.gov/eeoc/meetings/6-8-11/center.cfm

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Resources (cont.)

• EEOC Testimony from June 8th, 2011 Hearings (cont).

> Written Testimony of Ellen McLaughlin, Partner Seyfarth Shaw LLP

http://www.eeoc.gov/eeoc/meetings/6-8-11/mclaughlin.cfm

• Genetic Information Nondiscrimination Act (GINA):

> Questions and Answers for Small Businesses: EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008 (with special attention to question #16)

http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm

> Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008

http://eeoc.gov/laws/regulations/gina-background.cfm

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Resources (cont.)

• National Employee Technical Assistance Center

http://www.askearn.com

• Job Accommodation Network (JAN)

http://www.askjan.org

> Fact Sheet: The Interactive Process

http://askjan.org/topics/interactive.htm

• Office of Disability and Employment Policy (ODEP):

> Employment Laws: Medical and Disability-Related Leave

http://www.dol.gov/odep/pubs/fact/employ.htm

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Resources (cont.)

• Cornell University Employment and Disability Institute:

> Research – http://www.ilr.cornell.edu/edi/m-research.cfm

> Publications – http://www.ilr.cornell.edu/edi/m-pubs.cfm

> Resources – http://www.ilr.cornell.edu/edi/m-resources.cfm

• Relevant Cases (ADA/FMLA)

> EEOC v. Sears & Roebuck Co. (2010)

(Settled out of court for $6.2m)

> EEOC v. Supervalu Supermarket Chain (2011)

(Settled out of court for $3.2m)

> Fleck v. Wilmac Corp. LEXIS 54039 (U.S. Dist. 2011)

> Meinelt v. P.F. Chang’s China Bistro Inc. LEXIS 57303 (U.S. Dist. 2011)

> Stoppi v. Wal-Mart Transportation LEXIS 88364 (U.S. Dist. 2010)

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Resources (cont.)

• Relevant Cases (ADA only)

> Anderson v. JP Morgan LEXIS 5885 (11th Cir. 2011)

> Fisher v. Vizioncore Inc. LEXIS 125855 (U.S. Dist. 2010)

> Livingston v. Fred Meyer Stores Inc. 388 Fed. Appx. 738 (9th Cir. 2010)

> Miller v. Illinois Dept. of Transportation No. 09-3143 (7th Cir. 2011)

> Peyton v. Fred’s Stores of Arkansas 561 F.3d 900 (8thCir. 2009)

> Rauen v. US Tobacco Mfg . 319 F.3d 891 (7th Cir. 2003)

> US Airways Inc. v. Barnett Lexis 3034 (U.S. Supreme Court. 2002)

• Relevant Cases (FMLA only)

> Carmona v. Southwest Airlines Co. 604 F.3d 848. (5th Cir. 2010)

> Incorvati v. Best Buy Co. Civil No. 10-1939 (U.S. Dist. 2010)

> Picarazzi v. John Crane Inc. LEXIS 11432 (U.S. Dist. 2011)

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Thank You

Susan W. Brecher Esq. Human Capital Development Cornell University, ILR School swb6@cornell.edu

Judy YoungEmployment and Disability InstituteCornell University, ILR School jy335@cornell.edu

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