Many employers applauded the Obama administration’s decision to again delay the “employer mandate,” but none louder than those in retail, hospitality and restaurants with fluctuating workforces, according to health care reform experts.
Determining who meets the Affordable Care Act’s definition of a full-time employee has been a sticking point for employers with workers who have changing hours or work seasonally. The law defines a full-time employee as someone who works at least 30 hours per week.
The latest delay, which was announced Feb. 10 by the Internal Revenue Service and U.S. Treasury Department, gives employers more time to plan. Companies will have until Jan. 1, 2016, to determine if they must provide health insurance coverage.
'We won’t have to worry about the government breathing down our backs for another year.'
—Steve Wojcik, National Business Group on Health
“Those with workers whose hours fluctuate or are not offering benefits that meet the ACA’s requirements will need to make decisions about health care benefits and staffing,” said Steve Wojcik, vice president of public policy for the National Business Group on Health, a coalition of large employers based in Washington, D.C.
This is the latest revision to the ACA and affects companies with 50 to 99 employees. Employers with more than 100 employees will be allowed to comply in stages, offering coverage to 70 percent of full-time workers in 2015 and 95 percent in 2016 and beyond, or they will be subject to tax penalties. Also, seasonal workers who are not employed for more than six months will not be considered full time, and employers will not be required to provide health care benefits to them, according to the revised rules.
Employers who are getting questions from employees asking how the changes will affect them in 2015 should send a “reassuring message” telling them that nothing will change, Wojcik said.
“We won’t have to worry about the government breathing down our backs for another year,” he said. “Even if it doesn’t change what we’re offering, at least we have another year to deal with the issue of whether or not we will be audited.”
In the early 2000s, the average worker paid about $2,000 for his or her share of health care benefits and out-of-pocket expenses.Today, those same employees are paying nearly $5,000 for the same coverage.
Try explaining that kind of spike in costs to employees when the topic of employer-sponsored health care coverage comes up.
“Employee contribution rates have accelerated dramatically in the past 10 years, and one reason is advances in technology,” said Tim Nimmer, chief health care actuary for consultancy Aon Hewitt.
According to a 2013 Aon Hewitt analysis, employee contributions and out-of-pocket costs climbed from $2,011 in 2004 to a projected $4,969 in 2014. But getting employees to understand and appreciate how much their employer contributes to their health care plan can still be a challenge.
“You hear a retiree say, ‘I remember when my health care spend was $1 a month.’ ” Nimmer said. “We take for granted the types of technology we have today. We always want the best and we want it now. We don’t want care that’s outdated by 10 or 20 years. Employers have paid that cost.”
In 2011, 44 percent of workers surveyed said their benefits were 'definitely worth it,' given the out-of-pocket costs. Last year that figure dipped to 32 percent, according to a Mercer survey.
According to the 2013 Mercer Workplace Survey, the perceived value of benefits is eroding among workers who complain about out-of-pocket health care expenses. In 2011, 44 percent of workers surveyed said their benefits were “definitely worth it,” given the out-of-pocket costs. Last year that figure dipped to 32 percent, according to the Mercer survey. And nearly three-fourths of employees surveyed feel that their employers should offer better benefits.
The most prevalent way to shift costs is through plan design changes like increasing deductibles, copayments or coinsurance, Nimmer said.
“These are the most easily communicated to employees,” he said. “If you change a deductible from $500 to $700, employees know what that means and we know that there’s an immediate impact on health care costs.” Other cost-saving strategies that don’t involve benefit plan changes include steering employees to the most cost-effective providers and using wellness incentives to encourage better lifestyle choices, he said. “Employers have a lot of different levers that they can pull.”
While employees need information to help them understand why and how their out-of-pocket expenses are increasing, Joann Hall Swenson, a communications consultant at Aon Hewitt, said that too much information can be a bad thing.
“We often find that clients, especially HR leaders and in the C-suite, want to give employees the whole rationale behind these changes. We say that’s well and good but employees want personal information about their health plan,” she said. “They want to know, ‘When I go into the doctor, what’s it going to cost me? Keep your rationale and all the details for the C-suite. People get lost and really annoyed. For employees, think about how communicating clearly and personally is important.”
In fact, more employees are asking for personal guidance in choosing their benefits than ever before, she said.
When health care was very inexpensive for employees, “you didn’t need that much information, but because of the complexity of health care today and the rising costs and all the different tools and options that they have, it’s confusing,” Swenson said.
According to David Slavney, a communications consultant with Mercer, the key message to employees needs to be, “We are all in this boat together.”
“Costs are going up for employers, too,” he said. “Certainly, employers are talking about how those costs are divided between employer and employee, but it’s a very tough conversation to have.”
Cynthia Horn worked for Knight Facilities Management as a janitor. Sometime in 2010, she developed a sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day. When that limitation failed to abate Horn’s symptoms, her doctor modified the restrictions to “no exposure to cleaning solutions.”
As a result, Knight Facilities fired Horn. It concluded that there was no work available to accommodate her restrictions, because the chemicals were airborne and merely working in the building resulted in exposure. Management spoke to Horn’s union rep, on Horn’s behalf, to try to find a solution before firing her, but none could be found. Notably, Knight Facilities refused to allow Horn to use a respirator, concluding that its use did not meet Horn’s restriction and, even if it did, it would cause an undue hardship because Knight Facilities would have to buy respirators for all of the other janitors.
In Horn v. Knight Facilities Management-GM, Inc. (2/25/14), the 6th Circuit affirmed the district court’s dismissal of Horn’s disability discrimination claim. In determining whether the employer could reasonable accommodate Horn’s disability, the court started, and ended, with the limitation imposed by Horn’s doctor—“no exposure to cleaning solutions.” Horn claimed that the company either should have: (1) eliminated restrooms on her cleaning route, or (2) provided her a respirator. The court disagreed:
We find that neither proposed accommodation is objectively reasonable because they both fail to comply with the physician-mandated restriction of “no exposure to cleaning solutions.” Eliminating the bathrooms on Horn’s route or assigning her to a new route without bathrooms are not reasonable accommodations because it is undisputed that Horn’s job still would have involved exposure to cleaning chemicals. Likewise, there is no evidence that working with a respirator would have complied….
Her restriction was “No exposure to Cleaning Solutions” and that would include using or touching cleaning solutions. And while Horn asserts that a respirator could have eliminated or significantly reduced her respiratory exposure, she provides no actual evidence to support this statement, much less evidence showing that a respirator would have prevented all exposure. Horn’s personal belief that she could handle cleaning solutions as long as she was wearing a respirator is irrelevant.
While the Americans with Disabilities Act requires that you engage a disabled employee in the interactive process, as Horn illustrates, the employee’s specific medical limitations can dictate the boundaries of that interactive process and the scope of the accommodations you have to consider offering. If you legitimately cannot make an accommodation that meets the employee’s limitations, then the employee is not “qualified” under the ADA, and therefore unprotected by that law.
Yesterday I reported on a lawsuit the Equal Employment Opportunity Commission has filed, claiming that some fairly generic terms in an employee severance agreement constitute illegal retaliation. In EEOC v. CVS, the agency claims an agreement that attempts to limit an employee’s communication with the EEOC unlawfully attempts to buy employee silence about potential violations of the law.
I try to shy away from hyperbole, but OH MY GOD, THIS CASE COULD BE RUINOUS!!!
When you compare the inoffensiveness of the provisions challenged in CVS to the hard-line position put forth by the EEOC, you begin to understand why this case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.
Employers settle lawsuits and pay employees severance in exchange for certainty. Employers don’t write checks to litigants (or potential litigants) out of the goodness of their hearts. They do so because they want to get rid of claims and potential claims. The provisions with which the EEOC has taken issue — a general release, a covenant not to sue, cooperation, confidentiality, non-disparagement, and the payment of attorneys’ fees upon a breach — are crucial for employers. You’d be hard pressed to find an agreement that does not contain some combination of most, if not all, of these provisions.
Yes, the anti-retaliation provisions of the employment discrimination laws prohibit employers from requiring that employees give up their statutory rights to file discrimination charges, cooperate in investigations, or provide information to the EEOC. But, the CVS agreement that the EEOC is challenging did not contain those requirements.
Instead, the challenged agreement expressly protected the employees’ statutory rights:
Moreover, nothing is intended to or shall interfere with Employee’s right to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, nor shall this Agreement prohibit Employee from cooperating with any such agency in its investigation. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any Released Claim brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.
In re-reading the EEOC’s complaint, the agency seems to take issue with two key facets of the challenged agreement:
The carve-out existed as a “single, qualifying sentence” in the “Covenant Not to Sue” section of the Agreement.
The carve-out did not expressly touch all of the challenged provisions in the Agreement.
Don’t shred your settlement and severance agreements just yet. As a I promised yesterday, I have a potential solution. Modify your agreements to bolster and clarify the protected-activity carve-out. In a provision separate and distinct from the release, waiver, or covenant not to sue, consider something like the following (modeled on the provisions in CVS):
Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws (including, but not limited to, Title VII, the ADA, the ADEA, GINA, USERRA, or their state or local counterparts) to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of the non-disparagement, confidentiality, or cooperation clauses of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.
Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss cheese of risk.
I cannot understate the potential significance of the EEOC’s position in CVS. This case bear monitoring, and I will continue to update you as the case proceeds. In the meantime, consider adopting changes to your stock separation and settlement agreements; the EEOC is definitely watching.
Traditional leave programs allocate a specific number of days for vacation and for sick time but PTO is a growing trend in workplaces.
Switching from a traditional leave program (sick time and vacation) to a paid-time-off system can have numerous advantages for employers and employees alike. PTO is a bank of days from which employees can draw for vacation, sick leave, doctors’ appointments and personal days off from work.
In contrast, traditional leave programs allocate a specific number of days for vacation and for sick time. A survey conducted by WorldatWork, an association of human resources professionals, shows that PTO use grew by 43 percent from 2002 to 2010, while traditional programs declined by 24 percent during the same period. The WorldatWork survey, titled “Paid Time Off Programs and Practices,” also notes that while the vast majority of PTO programs include vacation, sick and personal days, 3 out of 4 employers who offer PTO continue to offer separate programs for holidays, bereavement and jury duty.
Using a PTO system, organizations can significantly reduce unscheduled absences. Employers seeking a competitive advantage in attracting and retaining high-caliber employees at all levels should consider transitioning to a PTO design if their corporate cultures and financial means allow them to do so.
Moving from a traditional leave program to a PTO system has many advantages, including: reducing unscheduled absences, and the costs and productivity losses associated with them; making an employer more attractive to current and potential employees, especially those who value discretionary time off; reducing administrative/compliance costs, as PTO use no longer requires validation in most instances; and empowering employees to make their own decisions regarding the amount of vacation and personal time spent away from work — a sharp contrast with employer-controlled sick time and vacation programs.
According to a 2013 report from the U.S. Bureau of Labor Statistics, although 77 percent of private-sector workers had access to paid vacations in 2012, down from 82 percent in 1992-93, more workers had access to sick leave (61 percent compared with 50 percent), personal leave (37 percent compared with 15 percent) and family leave (11 percent, up from 2 percent 20 years ago). What’s more, the study revealed that 26 percent of employers now offer “consolidated-leave” packages, including PTO. Benefits specialists agree that the future lies in paid-leave packages rather than with the traditional sick-time/vacation model.
That PTO “is an effort for companies to save money and also [to] offer employees some flexibility with their leave time and usage,” said Lisa Mullins, director of employee relations for the Kentucky Community & Technical College System told the Society for Human Resource Management’s online newsletter last September. “It’s due to the flexibility demands of today’s workforce.”
There are also employer benefits to consolidated leave because PTO plans have the potential to encourage workers to use more vacation time and rely less on the occasional sick day as a means of staying out of the office. “The trend seems to be [leading] toward PTO,” said Robert Micera an adjunct professor at SUNY Stony Brook and St. Joseph’s College. “The reasons are to drive associates toward managing their time off to their desires and to decrease the number of unplanned absences that the employer has to deal with.” Micera said in the same SHRM article.
To help ensure that PTO programs are equitable to employees, employers typically increase leave time in bands of two to five years as employees’ seniority increases.
PuttingaPTO Program Into Play
After an employer has established that a paid-time-off plan is the right type of leave policy for the company to offer, the employer should take the necessary steps to ensure that the program’s implementation and maintenance are flawless.
First, there should be clear directivesfor employees prior to plan implementation. Such directives include requiring employees to give a specific amount of notice (e.g., three days) before using a PTO day unless the employee is sick or has an emergency. In that vein, the employer must define what constitutes an emergency situation and use that definition consistently to avoid perceptions of giving some employees “preferential treatment.”
For instance, does having a sick child count as an emergency? What about a flat tire? A hangover? Waking up on the wrong side of the bed? If the policy is straightforward and outlined clearly, employees will be unlikely to take advantage of their new-found freedom.
Secondly, a clear-cut program should define the types of absences an employer includes in the PTO bank. The program also states explicitly how many PTO days will be available to employees based on job level, seniority or other factors. Additionally, the program makes clear whether PTO replaces all forms of paid absence or if the employer has separate policies for typically unanticipated leaves such as bereavement or jury duty.
Thirdly, a successful PTO program should also specify whether employees are allowed to carry over unused days from one year to the next, and if not, whether the account must be paid out by year’s end, and what the formula is for calculating unused PTO days. For example, will the employee get 100 percent of the cash value of unused PTO days or a lesser percentage? Another part of the program that should be explicit is whether employees leaving the company receive in cash the value of their PTO account, or if they forfeit unused days.
Fourthly, the program should be administered by, and coordinated with, the company’s payroll functionand should be reviewed on a regular basis (e.g., annually or every two years) by top and senior management, and HR department staff.
Developing and implementing a program that is clearly defined in all of its aspects, and mutually beneficial to the employer and employees, minimizes the probability of “hard feelings” creating challenges related to morale or productivity.
—Marisa Warford
According to the WorldatWork study referenced previously, on average, a PTO system gives an employee with less than one year of service 15 days off, compared with eight vacation days and seven sick days under a traditional system. After one to two years of services, the PTO days increase to 19 compared with 12 vacation days and nine sick days. After five to six years of service, the numbers are 23 vs. 25, and after a decade of service the differential is 24 vs. 26.
Although a PTO system may provide employees with fewer total days of paid leave, it gives them more flexibility in how they use their time away from the office.
As for how employees are treating increased autonomy, “Most people don’t abuse the privilege,” said Jess Clayton, a spokeswoman at outdoor clothing retailer Patagonia Inc. who started in the HR department, told Experience Life magazine in the October 2012 issue. “In fact, it makes you work harder because you’re trusted to get your job done. You want to do a better job. And when you’re burned out and need to go for a big run or go surfing, you do it, and then you come back the next day even more energized.”
Potential Challenges of PTO
The transition from a sick time and vacation model to PTO is, at best, cost-neutral to employers in the short-term, and can encounter resistance from employees with an entitlement mentality toward sick leave.
Among employees receptive to PTO, such plans can pose problems for employers because employees have more control over when they take time off. Some employees take advantage of their new-found freedom and are gone more frequently than they would be if they had specific days off for
certain purposes.
Additionally, because many employees view PTO as a lump of vacation time, they come to work when they are ill because they do not want to use time to stay home and rest. As a result, other employees get sick and productivity decreases.
Furthermore, new employees tend to accrue time off faster than employees who have been with the company for longer periods of time, and when employees leave the company, employers generally (and some state laws mandate them to) pay out PTO days because they are considered a vacation benefit. In contrast, sick days are not typically paid out under a traditional plan.
Upon implementing a PTO plan, some employers may feel compelled to pay longtime employees for their accrued vacation and sick time to prevent them from banking a tremendous number of paid days off and hampering productivity throughout the year. This aspect of transitioning to PTO can have serious financial implications for the employer. It is, therefore, important for employers to thoughtfully evaluate how to handle existing vacation and sick accruals when transitioning to a PTO program.
Other drawbacks include employees using their PTO time early in the year, giving them no safety net if they get sick later on. To address this issue, PTO is usually accrued rather than credited all at once and employers can implement policies regarding whether any amount of PTO may be used in advance of actual accrual.
PTO plans can also breed resentment among employees as some workers use them to care for sick children or elderly parents while others with fewer personal responsibilities use them for recreation or vacation
Before implementing PTO, employers should make certain that this benefit option fits with the company’s culture, which should accept or encourage flexible work schedules and locations, such as flex-time or flex-place arrangements.
The Value of Communication
Successful implementation of a PTO program depends largely on communication. HR professionals can help employees fully understand their options and the precise value of their benefits packages to eliminate any “disconnect” between the dollar amount employers spend on benefits and the employees’ perceptions of the value of their benefits packages.
Tools such as rewards statements; benefits workshops/fairs; employee meetings; intranet tools; printed materials; phone numbers and email addresses for answering employees’ questions; and mobile apps are effective in helping organizations to ensure that employees value, understand and use their benefits programs. Typically, insurance carriers or brokers/consultants provide, or assist with developing, those kinds of services and work with corporate HR professionals to explain to employees the finer points of the various programs.
With support from HR professionals inside and outside of the organization, management should make certain that the organization is committed to the chosen course of action. Management should also ensure that there is no equivocating about changing to a PTO program, or about the merits of the program and the rationale for making the switch.
PTO is an innovative benefits plan that can offer many tangible and intangible rewards to employees and employers. Determining if PTO is right for a particular organization requires deep reflection and number-crunching by the leadership team on whether the organization’s environment, culture and financial health can support such a program. Such reflection and transition may also require assistance from outside advisers throughout the development and implementation phases of the initiative.
Marisa Warford is director of HR consulting for Sagewell Partners, an Alliant Co. Sagewell is a benefits consulting firm.Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.
Fertility is a touchy subject. And unless you have experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it is difficult to understand the stress it causes.
Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization, or IVF, are time-consuming and time-sensitive.
What happens when a woman undergoing IVF treatments needs time off for those treatments? If her company fires her because of her infertility, could she present a sex-discrimination claim? Is infertility a disability protected by the Americans with Disabilities Act? Several judicial decisions and U.S. Equal Employment Opportunity Commission actions provide some insight.
In Hall v. Nalco Co., the 7th Circuit Court of Appeals permitted a woman fired during her IVF treatments to proceed with her Title VII sex-discrimination claim. It did not help the employer’s cause that plaintiff Cheryl Hall’s manager told her that the termination “was in [her] best interest due to [her] health condition,” and that the company’s employee relations manager’s notes reflect that Hall had “missed a lot of work due to health,” and cited “absenteeism — infertility treatments” as the reason for her termination.
In permitting Hall’s pregnancy discrimination claim to go to a jury, the 7th Circuit relied on the fact that employees “terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women.”
This issue is very much on the EEOC’s radar, which means it should be on employers’ radars, too.
Thus, an adverse action based on one’s need for time off from work to undergo fertility treatments is equal to sex discrimination. Stated another way, an employer that fires a female employee for missing work for IVF treatments discriminates not on infertility alone, but on the basis of medical conditions related to pregnancy.
Pregnancy is not the only type of unlawful discrimination fertility treatments implicate. Recently, the EEOC announced the settlement of a disability discrimination claim brought against an employer that fired a female employee after she disclosed that she was undergoing fertility treatments. In announcing the settlement, Timothy Riera, director of the EEOC’s Honolulu office, noted, “Federal law protects workers who are discriminated against due to their infertility, a covered disability. Workers who undergo fertility treatments should be treated like any other employee with a disability — with equal and careful consideration of reasonable accommodation requests.”
The EEOC’s approach to infertility as an ADA-covered disability is not novel. More than a dozen years ago, in LaPorta v. Wal-Mart Stores Inc., a Michigan federal court concluded that because infertility substantially limits the major life activity of reproduction, it was an ADA-covered disability. With the expansion of the definition of disability under the ADAAA, the act’s coverage of infertility should not be in dispute. (In that case, Wal-Mart was accused of denying a single day off as a reasonable accommodation for the employee’s fertility treatment).
There are three takeaways from this issue:
1. It is highly risky to terminate an employee who is seeking time off from work to undergo fertility treatments, whether you call it pregnancy/sex discrimination, or disability discrimination. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a nonpregnancy-related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures. Otherwise, an employer risks violating Title VII and the ADA.
2. Family responsibility continues to be a hot issue in the courts, and it is becoming easier and easier for employees to get these types of cases to juries.
3. Infertility and its treatments are stressful on parents-to-be. Fertility treatments, particularly in vitro fertilization, are time-consuming and time-sensitive. Do not exacerbate an employee’s stress by toying with her time away from work. Employers that deny time off for fertility treatments may find themselves in a discrimination lawsuit.
While this issue is seldom litigated, employers that fail to accommodate employees’ infertility treatments or otherwise discriminate against employees undergoing fertility treatments could see an explosion of these types of claims. As the EEOC reminds us, “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.”
In other words, this issue is very much on the EEOC’s radar, which means it should be on employers’ radars, too.
What do you do when one of your workers is injured? Send them a get-well card, of course, but also keep in mind that a number of federal and state laws may come into play.
There is also the so-called “Bermuda Triangle” of employment law: workers’ compensation, the Family and Medical Leave Act and the Americans with Disabilities Act. Because the interplay of these laws presents dangerous territory, fraught with the potential for disaster and potential liability, employers should be aware of the complexity of these laws. This article is intended to introduce you to the basic purpose of each law, which employers/employees are covered by each law, and what is generally required by each law.
Employers should also be aware that individual state laws may impose additional (and sometimes inconsistent) requirements, and that workers’ compensation schemes vary in each state.
· What Does Each Law Address? Workers’ compensation is governed by state law and provides financial assistance, medical care and other benefits to workers who suffer a job-related injury or disability. The FMLA is a federal law that provides a worker temporary leave for a “serious health condition” that either the employee or the employee’s family member is dealing with. The U.S. Labor Department’s Wage and Hour Division enforces the law. Finally, the ADA is a federal law that prohibits employers from discriminating against a person with a “disability” during hiring and employment, and the U.S. Equal Employment Opportunity Commission enforces it.
· Who Is Covered by Each Law? These laws do not apply equally to all employers and employees. Workers’ compensation generally applies to all employers and covers all employees upon hire, but each state has its own law, so employers should be familiar with the workers’ compensation provisions of each state in which the employer has employees. The FMLA applies to private employers with 50 or more employees working within 75 miles from the employee’s worksite and only covers employees who have worked for their employers for at least 1,250 hours over the 12 months immediately prior to the leave. Finally, the ADA applies to private and public employers with 15 or more employees. But again, applicable state laws may provide broader coverage.
· What Does Each Law Require? Because each law has different requirements, their interplay is often challenging. Workers’ compensation programs vary from state to state, but generally provide workers with job-related injuries benefits such as medical care, temporary total disability benefits, vocational rehabilitation benefits, permanent partial disability benefits, permanent total disability benefits, and death benefits for surviving family members, and often prohibit retaliation against employees for filing workers’ compensation claims. The FMLA, on the other hand, entitles an eligible worker to 12 weeks of unpaid leave for treatment and recovery of a “serious health condition” or to take care of an immediate family member with a “serious health condition,” but requires the employer to continue to provide the worker with health insurance and allow the worker to return to the same or equivalent job after the leave. Finally, the ADA requires an employer to make reasonable accommodations, such as providing a modified work schedule, or even a period of leave, in some circumstances, for employees’ disabilities if that accommodation is necessary for the employee to perform the essential job functions.
· How Do These Laws Apply to a Particular Situation? What would you do if an employee (with chronic absenteeism issues) is injured on the job, and begins receiving benefits from your state’s workers’ compensation program, and requests an indefinite leave of absence as a result of that injury? Or when that employee is out of work for months, and you need to fill that employee’s position? The answers to those questions are not simple. However, you should begin with the understanding that the definition of a job-related injury or disability for workers’ compensation purposes is not the same as the definition of a “disability” under the ADA or a “serious health condition” under the FMLA. You should also be aware that there are different triggering events, notice requirements and documentation requirements for each law. You should continue to familiarize yourself with applicable state and federal laws, and legal counsel is often necessary to help you navigate this “Bermuda Triangle.”
All is not lost, however, for an employer who needs to deny a leave of absence to a sick or injured employee, provided that the circumstances are right and the request is handled correctly.
To be eligible for protection under the ADA, an employee must be a “qualified” individual with a disability. “Qualified” means that the employee must be able to perform the essential functions of the job with, or without out, a reasonable accommodation. If regular attendance is a bona fide essential function of the job, then an employee who needs a leaves of absence as his or her only accommodation will not be “qualified,” entitling an employer to deny the accommodation request.
“Isn’t regular attendance essential to every job,” you ask? Unfortunately, in the context of the ADA, the answer is “no.”
Attendance may be an essential function of a job, provided that the circumstances warrant such a finding.
Is an organization sufficiently staffed such that an employee’s job functions can be performed in his or her absence?
Will the employer sustain added overtime costs as a result of an employee’s absence?
Will the employer have to hire substitute employee(s) to cover for the absent employee?
Does a written job description list attendance as an essential function?
Does the employer have formal policies providing for leaves of absence, or otherwise have a history of granting leaves to employees?
In other words, does the proposed accommodation impose an unreasonable and undue hardship on the employer? If the answer is yes, then attendance is an essential function, and a leave of absence cannot be a reasonable accommodation.
The Southern District of Indiana recently examined this issue in EEOC v. AT&T Corp. In that case, AT&T denied a leave of absence to an employee, Lupe Cardona, needing time off for Hepatitis-C treatments. AT&T argued that regular attendance was an essential function of the employee’s job as a customer service specialist. The court disagreed, and concluded that a jury should make the ultimate determination:
The only evidence AT&T submitted in support of its argument that attendance was an essential function of the job was the disciplinary notices it provided to Cardona for her absences.
The job description for Cardona’s position failed to list attendance as an essential function.
AT&T maintains 22 different leave-of-absence plans, which belies its claim that attendance is an essential function.
As the court pointed out in AT&T, “regular attendance is important in any job.” Important, however, does not always equate to essential. The bona fides must support the claim. Given the hard line the EEOC has drawn against the rote denial of leaves of absence as an ADA accommodation, employers should make a careful determination before denying a leave of absence as a reasonable accommodation. You might be able to support the decision based on attendance as a reasonable accommodation, but, as the AT&T case illustrates, you must have the facts to support your decision.
Let’s break this down. Filing a lawsuit claiming a violation of the Fair Labor Standards Act (or Title VII, or the Americans with Disabilities Act, or the Age Discrimination in Employment Act …) is protected activity. Refusing to hire someone who engaged in protected activity is illegal retaliation. Ergo, refusing to hire someone who filed a lawsuit claiming a violation of the FLSA (or Title VII…) is illegal retaliation.
So, if Wang can prove that prospective employers are not hiring her because of her prior lawsuit against a former employer, then she would have a good retaliation claim. Hunches, however, do not equal proof, and, the proof, as they say, is in the pudding. It may be that other applicants are more qualified. Or, it may be that employers are wary of hiring a qualified, but litigious, employee.
Employers don’t like getting sued. Therefore, it makes sense that they want to minimize their risk of getting sued by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory, and could result in the very lawsuit they are trying to protect against — provided, of course, that the applicant can prove the prior lawsuit was the reason (or a motivatingfactor, depending on the nature of the underlying protected activity) for the failure to hire.
What’s the answer for businesses? Hire blind. Not every lawsuit will be as highly publicized as Wang’s. If you are going to search applicants’ backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don’t look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it. And, if you happen to come across a lawsuit against an ex-employer in an applicant’s past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.
How does one take a supposed cultural value “off the wall” and into the work that’s happening every day? It turns out that it just takes down-to-earth application of accountability for the concept to become real. In the modern workplace, accountability is mostly about doing what you say you will do, by a given deadline, and in a high-quality, error-free fashion. The rest is more difficult, but crucial: If there is failure to complete work on time and in support of others, what happens?
First, do your employee onboarding and orientation materials include a detailed discussion of the concept and how it applies in the organization? It may sound trite, but getting the word in use is a big part of getting behind the concept. In addition, be sure to provide examples of the benefits that accrue when coming through with quality work – with contrasting stories of the pitfalls of not taking responsibility for one’s actions. This may provide for an initial emphasis on accountability.
Project management and planning processes are all about accountability. These systems – even in their most rudimentary state – must be taken seriously if they are to aid in the timely completion of work. Do they need to have greater reach (and documentation) in more projects and systems? In addition, when customers are involved, accountability involves a host of potential dilemmas. Emphasizing these opportunities (such as only making promises one can keep) in service guidelines, instructions, and training materials further brings the concept to reality.
But the most important impact of the concept of accountability is in the emphasis placed on it by leaders, from first-line supervisors to executives. As in every organizational culture, accountability matters, but only to the extent that leaders also mean what they say, emphasize timely and accurate completion of work, and respect colleagues. Do your managers have the skills and motivation to encourage accountability in their units, teams, or departments? If not, the term “accountability” is destined to remain in your list of corporate values, but not in the hearts and minds of your associates.
