Transcript Slide 1

MATTERS OF LEAVE AND
ACCOMMODATION
David G. Gabor, Esq.
The Wagner Law Group
David G. Gabor
Represents clients in:
Litigation
Negotiating and drafting contracts
Handling compliance issues
Creating corporate infrastructure
Drafting employee manuals, handbooks and policies
Training management and employees
Leading companies toward organizational excellence
Skilled negotiator, mediator and investigator
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Being Invisible
There are times when you want to be selected
and times that you don’t.
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The Challenge
Employers have a strong need for continuity,
productivity, and employee engagement.
Laws, rules, regulations, and judicial decisions place
demands on employers.
Employers (executives, human resources, managers,
supervisors) need to know how to handle requests for
leave and for reasonable accommodations.
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The Goal
Companies need to be prepared in advance for requests
for leave or for accommodations.
A coordinated approach between managers, executives
and human resources will reduce legal exposure.
During this webinar we will review recent cases and how
employers can avoid pitfalls in the future.
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Terms
Leave
Reasonable accommodation
Retaliation
Disparate treatment
Americans with Disabilities Act (“ADA)
Family Medical Leave Act (“FMLA”)
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EEOC and Press Releases
The Equal Employment Opportunity Commission
(“EEOC”) enforces federal employment laws.
The EEOC issues press releases when it files cases and
when its cases are resolved.
No employer wants to be the subject of an EEOC press
release.
Just ask Verizon and Supervalu.
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20 Million Reasons to Get it Right
Verizon was charged with:
• Denying reasonable accommodations to its employees;
• Failing to make exceptions to attendance policies for
employees whose “chargeable absences” were caused by
their disabilities; and
• Disciplining employees who needed accommodations.
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The Settlement
Verizon had to pay 20 million dollars.
Verizon had to revise its employment policies
and attendance plans to provide for reasonable
accommodations.
Verizon has to excuse certain absences.
Verizon must provide periodic ADA training to
supervisors who administer leave policies.
Verizon had to post a notice of the settlement.
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Press Release
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The EEOC issued a press release regarding this
settlement.
At the top of the press release the EEOC boasted
that this was the largest ADA settlement in EEOC
history.
The press release can be found on the EEOC
website at eeoc.gov.
Messages from the EEOC
The Verizon attendance plan that employees will be
disciplined merely because they accumulated a certain
number of absences, was challenged because it was
inflexible and did not provide for reasonable
accommodations for employees whose absences were
caused by disabilities.
Employers can engage in an interactive process once it
becomes apparent that an employee has a health issue.
This flexibility can enable a worker to remain employed –
a win for the worker, the employer and the economy.
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Not So Super
At Supervalu, American Drug Stores, and Jewel Food
Stores, nearly 1,000 employees with disabilities were
terminated at the end of their medical leave instead of
being brought back with reasonable accommodations.
The parties entered into a $3.2 Million consent decree.
The employers must also hire consultants to review
current job descriptions and to provide
recommendations on possible accommodations for
employees with disabilities.
Report regularly to the EEOC.
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Press Release
The EEOC issued a press release about this settlement.
A Regional Attorney employed by the EEOC was quoted
in that press release talking about what Supervalu,
American Drug Stores, and Jewel Food Stores did wrong.
Employees and customers have access to the press
release.
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Lessons Learned
It is important to engage in the interactive process.
Make sure that employees are aware that they do not
need to be 100% healed in order to be considered for a
return to work.
Employees should know that it is possible to find a
reasonable accommodation.
Job descriptions should not unreasonably limit or restrict
employees with disabilities from meeting requirements
for the position.
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Practice Tips
These cases underscore the importance of:
• Getting employees back to work quickly;
• Having policies and procedures that are flexible,
provide reasonable accommodations, and are
clearly communicated;
• Carefully tailoring Job descriptions to the needs
of the position; and
• Exercising caution when communicating with
employees.
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Education and Training
The laws governing these sorts of issues vary from
state to state. The best thing to do is to make a list
of all possible leave requests that employees can
make in each location and recognize the rights and
responsibilities of the employer and the employee.
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The Message
Managers need to be prepared.
Managers need to know how to respond to
employees.
Managers should be discouraged from making
promises or representations without prior
approval.
Managers must immediately bring issues or
potential issues to human resources.
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Possible Mistakes
Having a clearly communicated plan will prevent
mistakes such as:
Ignoring or discouraging appropriate requests.
Treating employees in a disparate manner.
Failing to follow a company policy or law.
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Privacy
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It is important that employers make every effort
to safeguard sensitive information shared by an
employee.
There are a host of laws on the state and federal
level that protect confidential information.
The Employer Has Rights
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In Grady v. Wal-Mart, the company granted
Grady’s request for FMLA leave for a surgery.
Even though the surgery was canceled, Grady
remained on leave for four days instead of
returning to work.
Wal-Mart was within its rights to terminate
Grady for failing to notify the company that the
procedure was canceled.
An Interesting Question
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The FMLA protects employees who have worked
for the company for more than one year.
What happens when a full-time employee with
eleven months of service tells her employer that
she is going to take FMLA leave for the birth of
her child in three months?
This actually happened in Pereda v. Brookdale
Senior Living Communities, Inc.
The Outcome
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Although Pereda was not yet eligible for
protection when she requested leave, she would
be protected when she gave birth.
The Court noted that “…a pre-eligible employee
has a cause of action if an employer terminates
her in order to avoid having to accommodate
that employee with rightful FMLA leave rights
once that employee becomes eligible.”
The Court found for the employee.
Talking Too Much
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In Lee v. Waukegan Hospital Corp., Lee advised
her boss of a medical condition in late 2008.
Lee submitted paperwork for FMLA leave on
March 10, 2009.
During a meeting on March 20, 2009, Lee was
told that her employment was being terminated.
Lee asked if her taking FMLA leave had anything
to do with the decision to terminate her.
Lee Continued
The human resource manager told Lee that the
company needed “…reliable and healthy
employees.”
Lee’s boss was also upset that Lee had requested
FMLA leave without first consulting her and for
perceived inadequate notice.
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The Importance of Careful Communication
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The court denied the Hospital’s motion for
summary judgment.
The court focused on the comment about the
Hospital’s desire for reliable and healthy
employees and the angry reaction from Lee’s
boss.
This underscores the importance of training
managers with respect to what can and can not
be said when an employee requests leave.
How to Approach a Request
How should an employer respond to a request for
leave that exceeds twelve weeks?
a) Automatic denial
b) Automatic approval
c) Let the manager make the decision
d) Let human resources make the decision
e) Have interactive meetings with the employee
after human resources and the manager meet.
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Notice While on Leave
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In Rivera-Melendez v. Pfizer the court found that
the employer has a duty to notify an employee
on military leave of certain developments.
Pfizer was restructuring and several employees
needed to apply for new positions or risk losing
their jobs.
The employee then has the burden of showing
that he would have applied for and obtained a
new position had he been notified.
A Reminder
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An employee engages in a protected activity
when requesting leave, an accommodation, or
when filing a claim for worker’s-compensation.
In Belyea v. Florida, Department of Revenue, the
employee was allowed to proceed with the case.
The employer proposed employee’s firing on
December 15, the employee filed with the EEOC
on December 20, and the employee was fired on
December 30.
Another Reminder
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In Towns v. Northeast Mississippi Electric Power
Association, we are reminded that an employee
need not expressly assert rights under the FMLA
or even mention the FMLA when inquiring about
FMLA leave.
Instead, the issue is whether the information
imparted to the employer is sufficient to
reasonably apprise it of the employee’s request
to take time off.
One More Reminder
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When an employer grants a reasonable
accommodation to an employee it is critical for
managers to be aware of the accommodation.
Managers can then prepare for the
accommodation and properly administer it.
The employer should make sure that the
employee is not retaliated against and that the
employee, to the extent possible, is able to keep
medical conditions private.
Final Tips
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Be aware that it is common for more than one
law to apply.
Keep in mind that state and local laws vary.
Prepare a list of all possible requests for leave
that can be made at each work location.
Be familiar with the laws pertaining to leave.
Make sure that your written policies comply with
applicable law.
Final Tips Continued
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Make sure that supervisors/managers are
trained and ready for requests for leave.
Make sure that supervisors/managers promptly
report ALL issues to human resources.
Watch out for possible claims of retaliation.
Watch out for potential claims of disparate
treatment.
Conduct occasional audits to make sure the
process is working.
Thank You!
Thank you for taking the time to attend this
webinar.
Class dismissed.
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Contact Information
David G. Gabor
The Wagner Law Group
[email protected]
www.wagnerlawgroup.com
Boston Office
99 Summer Street, 13th Floor
Boston, MA 02110
Tel: (617) 357-5200 Fax: (617) 357-5250
San Francisco Office
315 Montgomery Street, Suite 902
San Francisco, CA 94104
Tel: (415) 625-0002 Fax: (415) 829-4385
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Florida Office
7121 Fairway Drive, Suite 203
Palm Beach Gardens, FL 33418
Tel: (561) 293-3590 Fax: (561) 293-3591