by Gail Cohen, Esq. - Assistant General Counsel Employment and Litigation
May 02, 2016
One of Matrix’s promises to our clients it to be on top of developments in the world of accommodations and leaves of absence. One way we do this is to develop relationships with the head honchos at the agencies that administer key laws: the U.S. Department of Labor for FMLA, and the U.S. Equal Employment Opportunity Commission for the ADA. Last week two members of our compliance team had opportunities to further those relationships. Gail Cohen attended a meeting in Washington DC with two EEOC Commissioners, and Marti Cardi presented together with the DOL’s FMLA Branch Chief at the Disability Management Employer Coalition (DMEC) national FMLA/ADA Compliance Conference. Here are summaries of these key events.
DMEC presentation with FMLA Branch Chief On Monday April 25, Helen Applewhaite (head of the DOL’s FMLA branch) and Marti Cardi (Matrix’s Vice President of Product Compliance) jointly presented a plenary session at the DMEC conference entitled, “The DOL Steps Up For Employers: Hands-On FMLA Leave Management Guidance.” A copy of the full presentation is available below. The session had 3 main areas of focus.
First, Applewhaite addressed specific challenges the DOL still sees employers struggling with more than 23 years after enactment of the FMLA. These included the many employer notice obligations required by the regulations, including posting, general policy, eligibility, rights and responsibilities, and designation notices. These may seem to employers like simple requirements, but the DOL continues to see violations of these notice obligations, which can be the basis for an FMLA interference claim. Cardi added a reminder of the employer’s obligation to notify an employee each time a certification form will be required for a leave, addressed in the recent case Graziadio v. Culinary Institute of America (2nd Cir. 2016). Conference attendees were reminded to ensure not only that they comply with these notice requirements, but also that the contents are up to date. Anything prepared prior to 2013 (the last major revision to the FMLA regulations) needs a close review and update.
Second, Cardi addressed FMLA challenges she sees from the practitioner’s perspective – areas that are not well addressed in the FMLA regulations and other DOL materials. One such area is the use of second and third opinions in the certification process. An employer can require a second opinion when it has reason to doubt the validity of the original certification from the employee’s health care provider (HCP) – but the term “validity” is never defined in the regulations or other DOL resources. Cardi presented examples of circumstances that might justify a second opinion: the HCP’s area of practice does not relate to the serious health condition at issue; the HCP is a close relative of the employee; the same HCP has provided identical certification information for multiple employees; or frequency and duration that are extremely excessive for the condition.
Third, throughout the session, Applewhaite and Cardi referred attendees to resources available to employers on the DOL FMLA website (www.dol.gov/whd/fmla). These include links to the FMLA regulations themselves plus important guidance like fact sheets, FAQs, forms, Administrator Interpretations, and more. Applewhaite also introduced the extensive new Employer’s Guide to the Family and Medical Leave Act, available on the FMLA website. See our prior blog post about the new Guide here. Applewhaite and Cardi reminded attendees that using broad internet searches for answers to FMLA questions is risky. Some sources are less than trustworthy, and even those that are dependable (such as this one!) may become out of date on a particular topic down the road.
Meeting with EEOC Commissioners Feldblum and Lipnic On Tuesday, April 26, 2016, Gail Cohen had the privilege of attending a small meeting with EEOC Commissioners Victoria Lipnic and Chai Feldblum at EEOC headquarters in Washington, D.C. The meeting was sponsored by the Labor and Employment Section of the Association of Corporate Counsel. During the meeting the Commissioners addressed certain important ADA-related topics.
ADA Leave as an Accommodation – Interaction with the FMLA According to Commissioner Feldblum, anytime an employee makes a request for FMLA leave for his or her own serious health condition, this is an opportunity for the employer to also consider its obligations to engage in the interactive process under the ADA. Commissioner Feldblum further expressed the opinion that the requirement to initiate consideration of leave as an accommodation under the ADA arises even if the employee has not returned the required certification of health care provider to support his or her need for FMLA leave despite being afforded the opportunity to do so. We at Matrix do not agree with the EEOC’s interpretation that an employer has to chase after an employee who has failed to support his or her request for FMLA leave. However, it is wise to consider, prior to taking any adverse action against that employee for an absence not supported by FMLA paperwork, what other steps, if any, the employer might want to take to ensure that a decision to take adverse action in close proximity to an FMLA request is appropriate and well-documented.
EEOC Priorities For ADA Enforcement At the meeting, Cohen had the opportunity to ask Commissioners Lipnic and Feldblum about the EEOC’s priorities for ADA enforcement. Those priorities are:
- Leave as an accommodation under the ADA. Many employers have inflexible leave policies with automatic termination at a certain point, such as exhaustion of a certain number of weeks of leave, completion of the worker’s compensation process without being able to return to work full time/full duty, and exhaustion of disability benefits without being “100% healed.” The Commission continues to stress the need for an individualized analysis of the employee’s specific situation to determine whether or not an extension of leave may be a reasonable accommodation that will enable the employee to return to work;
- Employer job descriptions that identify as essential job functions items which are actually “qualification standards.” Commissioner Feldblum cautioned that the EEOC is scrutinizing employer job descriptions to ensure that they describe essential functions – which she defined as the tasks required to perform the job as opposed to a pre-existing qualification for the position. An example she gave is whether “the ability to work any shift” is truly an essential job function as opposed to something that is not truly a job requirement and therefore is fair game for employers to be flexible.
- Commissioners take a sunny view of the hurdle of hardship. Both Commissioners expressed the opinion that showing a requested accommodation is an undue hardship is not the insurmountable hurdle employers believe it to be. If an accommodation is reasonable and effective, then the employer’s only reason not to provide the accommodation is that it poses an undue hardship. Despite the Commissioners’ optimism, employers must closely analyze the hardship posed by a requested accommodation and be able to support a hardship determination with specific facts (financial, operational, or otherwise).
- Reassignment as an ADA accommodation. Many employers don’t fully understand their obligation to provide reassignment to a vacant position as the accommodation of last resort. If an employee’s limitations prevent him or her from performing the essential functions of the job, the employer has the obligation to search for a vacant position for which the employee is qualified. See our post on this topic here.
MATRIX CAN HELP! The Americans with Disabilities Act presents many challenges for employers. Addressing accommodation requests doesn’t have to be one of them. Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process and reduce the risk of being involved in a lawsuit for failure to accommodate. We will initiate an ADA claim for your employee, conduct the medical intake if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more. Contact Matrix at 1-800-866-2301 to learn more about these services.