On February 24, 2020, I had the wonderful opportunity to interview Adam Morell, the National Director of ADA Compliance with Sedgwick on “Navigating the Interactive Process.”
- 2020 is the 30 year anniversary of its passage.
- 2019: There were more disability cases filed than any other protected class of Title VII protections.
- 2008: 20% cases filed were disability-related.
- 2020: 33% cases filed were disability-related (a 13% increase in 12 years or about 1% per year).
The 2008 Amendments to the ADA basically put a stop to the quibbling over what medical conditions are protected under the law and instead directed employers to focus on engaging in what’s really important…making accommodations.
On the other hand, the Family Medical Leave Act (FMLA) is 27 years old. As a society, we understand FMLA better than the ADA. WHY? The metrics to FMLA are much better spelled out making it easier to manage. An employee must work at least one year or 1250 hours to earn 12 weeks of protected leave in the following year. There is less guesswork with the FMLA whereas the ADA is less defined, requiring employer discretion for each employee situation.
There are 3 types of categories for accommodation for an employer to explore:
- Modify the position
- Provide leave (after FMLA is exhausted)
- Reassign to an open position for which the employee is qualified
Leave under the ADA doesn’t kick in until after FMLA runs out. Many employers don’t run this appropriately. But they should…ADA presents a bigger litigation risk. Twice as many ADA cases are filed than FMLA.
WHEN TO START THE PROCESS:
Employers should connect with their employees about 10 weeks into any FMLA leave to start the interactive process. To get started, send an employer-employee friendly letter that the FMLA leave is running out. Let the process start using the existing medical documentation provided through FMLA. For employers, engaging early represents an excellent opportunity to educate employees about the process, something most are totally unfamiliar with.
- Ensure that the medical documentation is specific and clear. You have a right under the ADA to seek clarity. “ Seek first to understand” (Stephen Covey).
- Partner with the employee. Balance the needs of the employee and the employer.
- Document all efforts.
- Never lose sight of the backbone of the interactive process – to engage. Accommodate where you can in the work environment because it makes good business sense.
The courts made it very clear in several decisions that they want employers and employees to agree on accommodations. The ADA is a challenge because it’s a “swamp of imprecise language” and each employee situation must be evaluated on a case-by-case basis.
If the policy and the practice to engage are consistent then the risk of litigation is vastly reduced. Inflexible leave policies are a No-No.
Here’s a 2016 case: Employee wanted the employer to hire an aide to help her do the job. Courts determined the request was unreasonable.
Instead, help people deal with the “what-if.” Be up to date…follow legal trends…train your people. Several Court Circuits have been involved in some big ADA decisions: 2nd, 4th 5th 8th
The ADA must offer leave unless doing so is an undue hardship. How much leave is reasonable? That’s a good question…best practices generally involve working in 60-day increments not to exceed 180 days total. Danger lurks once you go beyond 6 months. Intermittent, unpredictable leave isn’t required under the ADA but it’s imperative for employers to also look under the guise of the FMLA.
The “Leave of Absence” litigation is murky waters. 100% healed policies are adverse to the philosophy of the ADA. Paying people to stay at home is not what the ADA supports.
NOTE: Employees cannot sustain an ADA case if they fail to meet attendance policies. A major course case called TROUTMAN v. TIME WARNER addressed the issue around employee engagement. In this case, the employee requested an accommodation by leaving work at 2pm due to difficulties with anxiety driving through rush hour traffic. The employer offered to work with her on arranging van/car pools, the use of public transportation and an early departure from work at 4pm. However, she refused to engage in the interactive process and left work whenever she felt the need due to her medical condition. Her attendance then became a performance issue, no longer protected under the ADA, and her position was not supported by the court.
#1 Engage in a dialogue that is geared towards a partnership. Not required to grant the accommodation an employee wants when/if alternatives exist that work. Are REQUIRED to engage in the interactive process.
#2 Be flexible.
#3 Document, document, document!
Upcoming webinar on April 9, 2020 - “To Outsource or To Not? That is the question. Listeners of the Podcast and readers of this blog post are able to attend free using this Promo Code: 20Sedgwick1. Register at http://dmec.org/conferences-and-events/calendar-of-events/.