What Should You Do?
Editor – This is the 5th in a 5 part series from The New York Law Journal discussing legal pitfalls for US employers under the new Americans with Disabilities Amendment Act of 2008 (ADAAA). Canada is one of the few G7 countries without comprehensive disability employment protection legislation that protects persons with disabilities in the workforce and in society. Progress on disabilities and human rights has moved to the back burner as Canada slips behind the rest of the developed world in its treatment of the largest minority in Canada, the disabled.
Previous article New ADAAA part 4 – Family and Medical Leave
By Barbara E. Hoey, New York Law Journal, March 26, 2009
It is important for employers to review their companies’ ADA and FMLA policies and processes. Companies need to look at their policies and make sure they accurately reflect the law, and make sure these policies actually work. The latter is more difficult, but is critical. The company in the Pennsylvania case had an FMLA policy, but had an HR manager who apparently did not know the nuances of the law, and paid dearly for it.
Some key items to review: Update your policy’s definition of a “disability”; update your notice forms; make sure that your FMLA policy covers the two new military leaves; update your medical certification forms; and update your rules on absence notification and return-to-work certification, to make sure that the company takes advantage of its rights.
• Companies should update job descriptions and document the essential functions of every job. Even under the ADAAA an employer is still not required to eliminate or substantially modify the essential functions of a job, in order to accommodate a disabled employee. In order to use this defense, make sure that job descriptions are accurate and define the “essential” functions of every position.
• It is important to make sure that the “accommodation process” happens and is documented. Last year, Federal Express was hit with punitive damages because it did not take affirmative steps to ensure that its ADA accommodation process was followed. (EEOC v. Federal Express Corp., 513 F.3d 360 (4th Cir. 2008)). In order to avoid that result, there must be a record that the “interactive process” was followed in every case. Do not allow HR or managers to make knee-jerk decisions, assuming that the employee is not “disabled,” that there is no “light duty,” and that every employee must be 100 percent healed before they can return to work. The company may have to err on the side of “over-accommodation” and provide reasonable accommodations whenever it can. Last, document everything, as good documentation will be essential if you are challenged.
• Know your rights. Many employers do not take advantage of all of their rights under the ADA and the FMLA. You do not have to meet every demand for an accommodation. However, if the employer denies a request, it will need good documentation. Companies have rights to “push back” on requests. Does the employer demand good medical certifications and send employees out for independent medical exams (IMEs)? Do you have a physician or medical consultant to review employee medical records?
• A safety threat is still a good defense. You do not need to put employees in a job if they pose a “direct threat” to the safety of themselves or others. Remember that the employer bears the burden of proving a “direct threat,” which is defined as a “significant risk of substantial harm . . . that cannot be eliminated or reduced by reasonable accommodation.” 26 CFR 1630.2(r). The employer’s proof and the factors it considered all need to be carefully documented.
• Training is essential. Employers must train all supervisors, managers and human resources personnel on the new standards. They are often the first to hear requests for light duty, and other claims of disabilities. They need to understand how to respond, or they may create liabilities for the company.
All of these new protections must be viewed in light of the current recession. Employees know that companies are cutting back, and are frightened of losing their jobs. There may be a feeling that coming forward with a disability will “protect” them from layoffs. In addition, those who have claimed a disability and are fired or laid off are more likely to seek out a plaintiff’s lawyer or allege wrongdoing. Be prepared, do your training, and you can avoid being caught in the next tidal wave of disability litigation.
The year 2009 marks the beginning of a ‘brave new world’ for employers, in handling employees with health issues. New laws and regulations together create a broad class of employees who can claim they are ‘disabled,’ and are potentially entitled to protected leave and to seek job accommodations.
Barbara E. Hoey is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren. She can be reached at bhoey@kelleydrye.com.
Endnotes:
1. In fact, plaintiff had worked for the employer’s predecessor, so was qualified for FMLA leave under Department of Labor regulations, which applied to an employer’s “successor in interest,” 29 USC §2611(2)(A)(ii). Brown v. Nutrition Mgmt Services, 2009 U.S. Dis. LEXIS 4199 (E.D. Pa. 2009).
2. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).
Leave a Reply