December 11, 2018
Matrix’s Gail Cohen Co-Presents with EEOC Counsel at DMEC Webinar
By Gail Cohen, Director, Employment Law/Compliance
I had the privilege of presenting last week with Chris Kuczynski, Assistant Legal Counsel of the EEOC in Washington D.C. on “EEOC Insights into What Employers Still Get Wrong about the ADA.” The presentation was a webinar through the Disability Management Employer Coalition (“DMEC”).
In putting our materials together, Chris and I identified four ADA issues
that seem to be particularly challenging to employers. For those who
were unable to attend, here are the four topics we covered and key
best practice pointers we discussed:
- Telework as a Reasonable Accommodation: Courts have often
sided with employers who deny telework as an accommodation on
the basis that the job requires teamwork and/or face-to-face
collaboration with clients and/or colleagues. But beware! The
EEOC will challenge employers who cannot demonstrate that
this is truly an essential job function. As a result, it is critical
for employers to conduct a job analysis and confirm that the
job description accurately captures the essential job functions as performed by employees. And, this job description
should accompany any ADA-compliant medical inquiry the employer makes to the employee’s healthcare provider
to understand whether telecommuting will assist the employee in performing his or her job functions, why it is
necessitated by the employee’s condition, and whether the provider can suggest alternative accommodations the
employer can offer.
- Qualification Standards v. Essential Job Functions: Chris explained a distinction employers often get wrong –
confusing qualification standards (requirements intended to predict whether someone can perform the job,
such as having a college degree or a commercial driver’s license) with essential functions (what the person actually
does on the job – lifting packages, selling things). The EEOC will challenge employers if a particular
qualification standard has the effect of screening out prospective employees in a discriminatory fashion.
Employers must be able to demonstrate that a particular qualification is both job-related and consistent with
business necessity. This is sometimes unsuccessful, as borne out by a case the EEOC brought on
behalf of a postal worker whose condition limited her to lifting 10 pounds and who challenged a 70-pound
lifting standard that the employer was unable to demonstrate was job-related and consistent with business
necessity. Indeed, the EEOC was able to demonstrate by talking to employees who performed the job that
they never lifted more than 35 pounds.
- Leave as Accommodation: The EEOC and courts agree that, in general, leave of absence is a reasonable
accommodation. But employers: Don’t just grant leave because the employee asks for it. The EEOC agrees that
it is entirely appropriate for an employer to conduct ADA-compliant medical inquiries when an employee
requests leave as an ADA accommodation. Such inquiries will assist the employer to ascertain why the
employee’s condition requires leave (continuous or intermittent), how much leave is necessitated,
whether such leave will enable the employee to return to work and perform the essential functions of his
or her job, with or without accommodation(s), and to explore alternatives to leave that may be effective
for the employee to report to work.
- Reassignment: Following an ADA leave of absence an employer must try to reinstate the employee. But, if the
employee cannot be accommodated in his or her current role, the accommodation of last resort must be
considered – reassignment. To the EEOC, this means the employer and employee working together to
identify positions open now or in the foreseeable future for which the employee is qualified and which are
substantially equivalent to his or her current role. The employer cannot simply sit back and let the employee
search and apply for open positions.
- BONUS OBSERVATION: During the Q & A following our presentation, an employer asked what can be done
if an employee refuses to participate in the interactive process. Chris explained that an employer who has
told the employee about the ADA process upfront, including the need for both parties to engage in good
faith in an interactive discussion, and who has documented its good faith efforts to do so will likely
prevail in an EEOC charge or other proceeding alleging failure to accommodate. The burden of proof
in such matters is on the party who is responsible for a breakdown in the interactive process and,
if an employee is that party, the employer is excused from any obligation to provide accommodation(s)
to that employee.
DMEC members can listen to a recording of the presentation and obtain a copy of our presentation materials through these links:
- Webinar recording: (Name and email are required to be directed into the recording)
Meanwhile, Marti is presenting too!
By Marti Cardi, Vice President, Product Compliance
While Gail was putting the finishing touches on her DMEC presentation with the EEOC, I had the opportunity to present a session at the National Workers’ Compensation and Disability Conference on December 5. The topic was “Return to Work without Violating FMLA, ADA and Workers’ Compensation Laws.” I don’t claim to be a workers’ comp expert so I partnered with Rich Montarbo, a great workers’ comp attorney from that challenging state of California. We discussed the many employer options as alternatives to leave of absence, or to shorten a leave and get employees back to work safely and legally. Our sister company Safety National posted a blog about the presentation so rather than rewrite the material, I will link you to that story here.
MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation requests and making the medical inquiries to which you are entitled to understand what an employee needs and how you can help. You always retain the final decision whether and how to accommodate, but Matrix manages the intake, medical assessment, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialists is at the ready with practical advice and expert guidance. To learn more, ping us at firstname.lastname@example.org.