The Hartford Insurance Group, Inc. · NYSE:HIG
The Hartford Insurance — The Hartford — Conference Presentation (July 2014)
54 slides from The Hartford Insurance's conference presentation, July 2014
Slide 1: ADA Leave as an Accommodation
ADA Leave as an Accommodation Welcome! We will get started shortly.
Slide 2: Disclaimer
Disclaimer Information conveyed in this presentation should not be construed as legal advice. Information provided in this presentation is for educational purposes only. No part of this presentation may be reproduced, published or posted without the permission of The Hartford and Jackson Lewis, LLP.
Slide 3: Today's Presenters
Today’s Presenters Presenter Tasos C. Paindiris Attorney at Law Jackson Lewis LLP Tasos.Paindiris@jacksonlewis.com www.jacksonlewis.com Facilitator Leah Stoddard Education & Sponsorships The Hartford Leah.Stoddard@thehartford.com www.TheHartford.com
Slide 4: Session Basics – Phone Lines
Session Basics – Phone Lines Participant phone lines have been muted
Slide 5: Session basics – asking questions
Session basics – asking questions
Slide 6: The Americans with Disabilities Act: Analyzing Leaves of Absence as an Accommodation
~ jacksonllewis 7) all we do is work Presented by: Tasos C. Paindiris, Esq. Miami Office The Americans with Disabilities Act: Analyzing Leaves of Absence as an Accommodation
Slide 7: Tasos C. Paindiris, Esq.
Tasos C. Paindiris, Esq. Managing Partner Jackson Lewis LLP 2 South Biscayne Blvd Suite 3500 Miami, FL 33131 305-577-7600 PaindirisT@jacksonlewis.com www.jacksonlewis.com
Slide 8: Jackson Lewis firm overview
Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation 750 attorneys in 53 locations nationwide Current caseload of over 6,500 litigations and approximately 415 class actions Founding member of L&E Global 3
Slide 9: Strategically Located Throughout the Nation to Serve Employers' Needs
Strategically Located Throughout the Nation to Serve Employers’ Needs f New Hampshire / Maine “ Minnesota Vermont _ Missouri Hawaii e \_ jackson |lewis 92 Locations Nationwide —_
Slide 10: Not legal advice notice
Information conveyed in this presentation should not be construed as legal advice. Information provided in this presentation is for educational purposes only. 5
Slide 11: Leave requests: already certified or new leave
Sometimes it is already certified and approved but sometimes it is a new leave Foreseeable or unforeseeable Difficult to verify how much notice employee had of need for leave Self-treating or treatment required Consistent or inconsistent with need stated in previously approved certification Sometime
Slide 12: The ADA prohibits discrimination against a qualified individual with a disability
The ADA prohibits discrimination against a “qualified individual with a disability.” This is defined as one who can perform the essential functions of the job, either with or without a reasonable accommodation. The prohibited discrimination includes “not making reasonable accommodations to the known
Slide 13: Undue hardship defined
An “undue hardship” is “an action requiring significant difficulty or expense,” when considering various factors, such as the nature and cost of the accommodation, the employer’s financial resources, the size of its workforce, and the impact of the accommodation on its operations. The ADA’s examples
Slide 14: Leave as a reasonable accommodation and the interactive process
Under the ADA, leave, flexible or even part-time work schedules may be required as a reasonable accommodation if they do not pose an undue hardship. The key to almost all ADA reasonable accommodation cases is an effective “interactive process” to explore potential accommodations. The ADA Amendments
Slide 15: Intermittent leave: no undue burden exception
Blocks of leave with days/weeks of absence at a time or can be taken intermittently in days, hourly increments or even fractions of hours. Intermittent leave must be medically necessary. Initial medical certifications should support the medical necessity of intermittent FMLA leave. Even if intermitt
Slide 16: Employee rights to unpaid leave
A right to UNPAID job-protected leave o If entitlement exists under the FMLA o If reasonable and not an undue hardship under the ADA A right to be free from retaliation or discrimination for exercising rights to leave (FMLA) or reasonable accommodation (ADA) A right to continued group health benefit
Slide 17: Paid leave sources
State Workers’ Compensation (partial pay) State Disability and/or sick pay laws (partial pay) Voluntary company policies and benefits o Vacation, sick time, personal time, PTO, bereavement leave o Short-term disability or salary continuation programs o Long-term disability Paid/Unpaid Leave Intersec
Slide 18: Fixed leave policies and termination
Many employers grant employees a defined amount of leave, usually measured in weeks or months. Once an employee’s available leave is exhausted, the employer will terminate the employee’s employment. The Equal Employment Opportunity Commission has challenged employers with so-called inflexible leave
Slide 19: EEOC warning on inflexible leave policies
EEOC has warned employers: "The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA [is] over . . . . Inflexible leave policies which ignore reasonable accommodations making it possib
Slide 20: Leave limits and the FMLA floor
Any “leave limits” analysis must begin with the fact that federal and state family and medical leave laws entitle eligible employees to a specific, minimum amount of leave. Comparing ADA and the federal Family and Medical Leave Act, the EEOC stated that an “otherwise qualified individual with a disa
Slide 21: 2002 EEOC Enforcement Guidance
In its 2002 Enforcement Guidance on Reasonable Accommodation and Undue Hardship, the EEOC stated that unpaid leave is a form of reasonable accommodation. May an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain pe
Slide 22: 2008 EEOC Guidance on performance and conduct standards
The EEOC reiterated this in its 2008 guidance The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities (“2008 Guidance”). If an employee with a disability needs leave beyond that provided for under an employer’s benefits program, the employer may
Slide 23: No obligation to provide indefinite leave
The 2008 Guidance provides one clear “leave limit.” Employers “have no obligation to provide leave of indefinite duration,....”
Slide 24: Scope of leave obligation left to the courts
The scope of the employer’s reasonable accommodation obligation with regard to leave limits has been left to the courts. What are the standards for determining whether to grant leave as a reasonable accommodation under the ADA?
Slide 25: Two court perspectives on leave
Courts have approached the issue (whether explicitly or implicitly) from two perspectives. First: whether the leave would fulfill its medical purpose, i.e., whether the leave would be “instrumental to effect or advance a change in the employee’s disabled status with respect to the job, so that the e
Slide 26: Some leave is required, not indefinite leave
No court has held that an employer need not provide any leave as a reasonable accommodation under the ADA It appears at least some leave is required, though indefinite leave is not.
Slide 27: Courts evaluate medical prognoses
Courts evaluate the medical prognostications of the employee’s health care provider. What is the likelihood that the leave will enable the employee to perform the essential functions of the position upon return to work? “Simply the possibility of improvement is not enough...; recovery must be reason
Slide 28: Whether the employee would be qualified after leave
Courts consider both the medical affirmations as well as the absence of such information to determine whether the employee would be “qualified” at the end of the leave. For example, courts have held that a request for leave was not a request for a reasonable accommodation because:
Slide 29: Examples of unreasonable leave requests
For example, courts have held that a request for leave was not reasonable because: “nothing ... suggests that the future would look different from the past”; “the plaintiff failed to demonstrate that... additional time off to recuperate would have enabled her to have consistent attendance at work”;
Slide 30: Return to work in the near future
An employee needing leave cannot now do the essential functions of a job Courts have asked whether leave would enable an employee to perform the essential functions of the position in “the near future,” “presently or in the near future,” “presently or in the immediate future,” or in the “identifiabl
Slide 31: Employer leave policy as a benchmark
Where an employer’s leave policy provides more leave that the employee is requesting, some courts have held that the employer must provide at least as long as a leave as its policy allows.
Slide 32: Temporary replacement and undue hardship
Courts have also considered whether the employer has hired a temporary employee to replace the employee on leave. In rejecting an employer’s undue hardship argument, a court noted that the employer was not pressured to replace the plaintiff because it had hired a temporary employee for the position
Slide 33: Attendance and the ADA
ADA ensures an accessible workplace and reasonable accommodations for an individual with a disability seeking to participate in the workforce on the same basis as other employees. Does the law give an individual with a disability the right to a job that he or she does not have to come to regularly?
Slide 34: Accommodating periodic absences
The extent of an employer’s obligation to accommodate periodic absences has also been left to the courts. The typical pattern in cases addressing this issue is: (1) the plaintiff has been terminated for excessive absenteeism; and (2) he or she claims the absences were due to a disability and the emp
Slide 35: Working from home
Working from Home: Some courts have indicated that particular jobs may not necessarily require attendance. For some jobs, an employee can effectively perform all work related duties at home, suggesting that working from home might be an appropriate accommodation in certain cases.
Slide 36: Cases: open-ended absence requests rejected
Where plaintiff with visual disturbances “simply wanted to miss work whenever she felt she needed to and apparently for so long as she felt she needed to,” the Seventh Circuit held that this request was not reasonable. Where plaintiff had asthma and Barrett’s syndrome, the court noted that “the only
Slide 37: Cases: flexible schedules and attendance
Where plaintiff with fibromyalgia sought a more flexible work schedule and that her attendance rate be computed without counting sick days relating to a shoulder injury, court held this is a request for permission to work only when her illness permits and undermines the policy of regular attendance
Slide 38: Cases: extra employees and making up time
Court rejected plaintiff’s suggestion that defendant-hospital retain and compensate extra employees on plaintiff’s scheduled work days to be available in case he fails to report to work. Court said this does not address how employer could accommodate plaintiff, was merely a way for the employer to d
Slide 39: Cases: unfettered ability to leave work
Court held that employee’s request for “unfettered ability to leave work at any time” because there was possible exposure to an irritant was not reasonable, and that employer’s offer to let employee “exit the area” was an offer of a reasonable accommodation. Court held plaintiff’s request was not fo
Slide 40: 2008 EEOC Enforcement Guidance on attendance
2008 EEOC Enforcement Guidance Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the
Slide 41: Chronic tardiness and absenteeism
Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice. The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer’s operatio
Slide 42: Operational strains from absences
an inability to ensure a sufficient number of employees to accomplish the work required; a failure to meet work goals or to serve customers/clients adequately; a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them;
Slide 43: EEOC Examples: assembly line employee
EEOC Examples: After exhausting FMLA leave, an assembly line employee with asthma needs more unforeseeable time off. The EEOC opines that due to the lack of notice of the absences, the strain they place on the assembly line, and the lack of time to obtain a replacement, accommodating the employee’s
Slide 44: EEOC Examples: office worker with epilepsy
EEOC Examples An office worker with epilepsy, ineligible for FMLA leave, has two seizures at work within three months and, each time, takes the rest of the day off but returns the next day. The employee’s doctor predicts the employee will have approximately six seizures annually. The EEOC noted that
Slide 45: EEOC Examples: event coordinator
EEOC Examples After exhausting FMLA leave, an event coordinator requests more intermittent leave as a reasonable accommodation. The leave dates are unpredictable but are expected to last one to three days. After the employer agrees to provide the accommodation, the employee takes 14 leave days over
Slide 46: Requests after attendance problems develop
Does an employer have to grant a reasonable accommodation to an employee with a disability who waited until after attendance problems developed to request it? An employer may impose disciplinary action, consistent with its policies as applied to other employees, for attendance problems that occurred
Slide 47: EEOC Example: employee with diabetes
EEOC Example An employee with diabetes is given a written warning for excessive absenteeism, and then tells his employer that his absences were related to his diabetes, and asks that the discipline be withdrawn and he be provided leave when necessary. The employee’s doctor predicts that the employee
Slide 48: EEOC Example: bank manager
EEOC Example A bank manager was given a verbal warning for arriving an hour late regularly, prompting her to ask that she be allowed to arrive at 9 a.m. instead of 8 a.m. because of the side effects of medication she takes for her disability. Arriving at 9 a.m. would not affect the ability of the ma
Slide 49: ADA is the last step
ADA is Last Step: Employers must remember that the ADA is the last piece of their leave-management analysis. Employers must confront the ADA leave question if employees have first exhausted all leave entitlements under state and federal leave laws, such as the FMLA.
Slide 50: Under-employment
Under-employment: Employers must be wary of claims that they may have “under-employed” individuals on leave because they have not fully explored “non-leave” accommodations that might have eliminated or reduced the need for leave. These accommodations might include restructuring job responsibilities,
Slide 51: Leave tracking
Leave Tracking: The inability to track accurately the amount of leave provided under FMLA or company policies, such as short-term disability or workers’ compensation benefit programs, also may hamper an effective defense of ADA claims.
Slide 52: Case-by-case basis
Case-by-case Basis: The EEOC clearly believes that inflexible leave “policies” are unlawful because they preclude the possibility of additional leave as a reasonable accommodation. Employers are drawn to such policies to reduce the risk of disparate treatment or retaliation and ease leave administra
Slide 53: Communication
Communication: To reduce the emotion that often drives employment litigation, employers should notify employees who are out on leave, before the leave ends, whether and when they may be entitled to additional leave as a reasonable accommodation. Employers can develop template letters communicating t
Slide 54: Thank You!
Thank You! al we dois | Workplace law. In four time zones and 53 majorlocations coasttocoast. =——~S jackson lewis Positive Solutions for the Workplace*® \_ jackson|lewis oo J