Good Afternoon, I'm Mark Stepaniak. I am a Partner at Taft Stettinius & Hollister

in the Cincinnati office. I do labor employment & law.

Thank You for joining us today for HR ProFile's webinar

the topic of which is How Much is Too Much? Medical leave,

attendance policies and the interactive process

under the Americans with Disabilities Act as Amended (ADAAA)

now like all such presentations, this is not specific legal advice if you have

specific questions be sure to consult your

Council or you can find us on the world wide web (TaftLaw.com)

understanding

what is required under the Americans with Disabilities Act as Amended (ADAAA)

and what it allows is more important now than ever before

we all know that more people are now given protected disability status that

at any time

in history this is because ADA was amended a few years back

to dramatically lower the standard for qualifying as a person with a disability

that has to be accommodated

in a workplace. So why is that important?

it's important because all those folks

who are now disabled who previously were not considered disabled under the law

may be entitled to participate in the interactive process and consequently

they may be entitled

to an accommodation and if they are

that accommodation may blow up your time and attendance policy

it's very important to understand how the ADA

FMLA interfaces with your time and attendance rules

i have

noticed that some of our clients are particularly mesmerized

by the Family Medical Leave Act in other words they

spend all their time trying to determine eligibility whether the particular

condition

is a serious health condition that would qualify under the FMLA

and whether leave is appropriate

and they do this to the exclusion of analyzing the situation under the

Americans with Disabilities Act. A number of employers have found out the hard way

that the FMLA is a floor

and not a ceiling to how much leave a person is entitled to.

Some employers have discovered that

the hard way. Once they end medical leave at 12 weeks because the FMLA is

exhausted that they

nevertheless and accommodation obligations under the ADA

and if they didn't engage in the interactive process and didn't

offer those accommodations they can end up on the wrong

side of a lawsuit. How has this

phenomenon manifested itself? Well as this chart

indicates, in the last five years

we've seen a dramatic uptick in the number

up ADA, or disability charges filed with the EEOC

EEOC's published raw data indicates that the number of disability charges

filed

as well as the percentage of disability charges

as a function of all charges filed

continues to rise at a significant rate. As you can see from this graphic

back in 2008 there were seventeen thousand plus

ADA charges filed which represented one-fifth

of all the charges filed. In 2012

that figure was up to one-quarter of

all the charges filed and had increased in number

by 50 percent to 26,000

plus charges, and the reason for this is obvious more people now

are qualified as a person with a disability under the ADA

they can more likely bring a successful charge

we used the bat these charges out pretty easily by

arguing and proving that the person was not disabled

with the ADAAA amendments they lower that bar and many many more people are now

disabled than

were before in the eyes of the EEOC. now the biggest

and most surprising trend that we've experienced lately

is it attack on a very idea that attendance

is somehow import. You know Woody Allen once famously said that

eighty percent of life is just showing up BUT the EEOC believes that showing

up is not even necessary

for most jobs. let's look at whether

or not attendance is an essential job function.

probably the the scariest case in this area

is pending before the 6th Circuit Court appear Appeals which sits here in

Cincinnati involves

the EEOC in a Ford Motor Company case

in that case EEOC argued to the Sixth Circuit

that regular attendance is no longer

in an essential function for most jobs

the EEOC argues that case authority to the contrary, and there's quite a bit of it,

is outdated because it predates recent technological advances

that allow people to telecommunicate and work from home with the

widespread use the internet to perform

most jobs. Now this case is still pending so we don't know whether or not

the EEOC is going to prevail or not but here the basic facts which I think

illustrate this issue

these are the facts in the EEOC versus FORD case. The employee

suffered from irritable bowel syndrome and

as a result she perhaps understandably sought to work from home

whenever she had a flare-up. Well the problem was the flare-ups could

be anywhere up to four days per week

and often without notice so what she asked Ford

for the right to do, was to work at home up to four days a week

without any prior notice to the company Ford argued that telecommuting

to work was not a reasonable accommodation for her position she

served as a steel buyer

which meant that she was buying raw steel

for Ford Motor to use in the construction of automobiles

and Ford argued that she needed to regularly interact with

her team members and fellow buyers. EEOC countered

that face to face interaction among employees on a team

is a mere employer preference and that an employer preference

should be given no weight when analyzing an ADA claim.

The EEOC argued further that

the essential functions of the job which we all know

disable persons are not able to shed the essential functions

but they said essential functions relates only to the

duties perform and not to the location

of where those duties are performed

and of course Ford perhaps contributed to its own problem by allowing

other non disabled employees to telecommunicate in other jobs

in other words when the EEOC was looking at this charge and

trying to decide whether telecommuting was a reasonable accommodation for this

particular charging party

when they saw that Ford had allowed other non-disabled people

perhaps a different job classifications, but nevertheless

to telecommute work from home, they said that that was evidence

that telecommuting is a reasonable accommodation

well for now EEOC's radical view

in this EEOC v Ford case is a minority view and it's not necessarily the law

when the sixth circuit finally rules on this case it will be the law in

Ohio, Kentucky, Michigan, and Tennessee

and no doubt persuasive authority in other jurisdictions.

So what should you do? Well one of the

issues of course in the Ford case had to do with occasional absences and

telecommuting

so you should check your job descriptions do your job descriptions

say

appropriately that attendance

is an essential job function/ good attendance is an essential job functions

if it doesn't say that specifically and certainly

for years it seemed almost axiomatic why would you say that in a

job description well now there's good reason to say if it's true

because it's absence may suggest to the EEOC that it's not an essential function

and then you should also consider whether you're telecommuting

policies are working against you. Now we're not recommending that you

eliminate, as a matter of policy telecommuting, but you least need to

understand that when you do allow it

you're going to make it easier for persons to claim that telecommuting in

their job

is a reasonable accommodation. So

now course in this case you were talking about sporadic absences

up to four days a week. What is the law

currently and how is it developing with respect to

extended absences.

Well, one thing we've seen is that employers who pay down millions of

dollars because of

inflexible leave policies and some of the most notable cases involve Supervalu

and Jewel-Osco who agreed to pay

$3.2 million dollars under a consent decree

in litigation brought by the EEOC in 2011

what problem did they have? Well they had a policy

that said if you are out medical leave you could not return

unless you were a hundred percent (100%) recovered or

had a "full release".

and the only accommodation they offered to folks who have disabilities

was extended medical leave. They didn't consider other

possible accommodations. The EEOC

contended and apparently the company

ultimately relented because there is a consent decree they contended that

this violated the employer's obligations to engage in

the interactive process

and offer reasonable accommodations were necessary.

Similarly the Sears Roebuck company agreed to pay 6.3 million dollars

under a consent decree in 2009

that was at the time, the largest ADA settlement

in history. I say at the time because you're about to see there's been an even

bigger one lately.

And what did Sears do?

basically Sears said that if you went on a workers comp leave and you reach maximum

medical improvement

they would end your employment without consideration

other possible reasonable accommodations

so in other words they were employing these companies were employing

hard fans limits regardless of length

on the amount leave that they would offer employees

now these are big companies with sophisticated human resource functions

we speculate that they did this because they probably have thousands of

employees on leave at any one time

what the EEOC wants you to do, of course is engage in the interactive process

which is individualized decision making, which of course is very difficult

when you've got lots of

employees on leave. EEOC's position in these cases is that

if you have a set period, maximum period for leave

"No leave shall be longer than, let's say, 12 months"

then, you have by definition precluded the interactive process

and they actually may be on to something... think about it

an employee brings in a doctor's note, this is a hypothetical,

so it doesn't have to necessarily

make sense but employee brings in a doctor's note that says

please excuse Joe from work he's having this a particular

medical procedure, he is disabled and he's going to be out

53 weeks. Well what if your policy said no to leave can exceed 52

weeks? What EEOC would say

is that the accommodation under that fact pattern isn't whether or not it's

reasonable

to give somebody fifty three (53) weeks off, that seems like a long

period time, the accommodation in that case is whether or not you have to give them

an additional one week

from 52 to 53 so in that case the employer would find itself in the nearly impossible

situation arguing

well of course we could give Joe 52 weeks off

but how could we possibly be expected the giving 53 weeks off

alright, so that's the analysis when you have a fixed leave period

The question is, Is additional leave,

beyond that a reasonable accommodation and you only know that

if you engage in the interactive process

now I told you that the Sears case was eclipsed in terms of being the largest

settlement

in EEOC history

In 2011 Verizon

agreed to pay $20 million dollars to settle a nationwide EEOC

disability suit.

According to EEOC Verizon had denied reasonable accommodation to employees

and disciplined them, or fired them

pursuant to a no fault attendance plan. Well lots of us have no

fault attendance policy's and of course we know that the FMLA

played havoc with those because if the person qualifies for

FMLA leave you can't apply your no fault attendance policy

well the EEOC is following suit saying that well wait a minute

if the person is disabled, and remember many more people are disabled

Alan used to be disabled in the eyes of the you see

that if you're applying that no vote attendance policy to somebody who's

missing work

because of a disability you might be discriminating against

what's the cure the cure is you have to engage in the interactive process you

have to meet with the employee

discover what a combination they may need in decide whether or not

flexing your attendance policy is a reasonable accommodation