I had the wonderful opportunity to interview Adam Morell, the National Director of ADA Compliance with Sedgwick on “Navigating the Interactive Process: Focusing on the needs of the employee while balancing the business needs of the organization.”
Appeals courts universally stress the importance of the interactive dialogue, and a recent 5th circuit sums it up nicely, saying that employers and employees must have "flexible, interactive discussions" about
employees' accommodation requests.
Here is a transcript of key highlights:
• 2020 is the 30-year anniversary of its passage.
• 2019: There were more cases filed pertaining to disability than any other protected class of Title VII protections.
• 2008: 20% cases filed were disability-related.
• 2020: 33% cases filed were disability-related (a 13% increase in 12 years or about 1% per year).
The 2008 ADA Amendments put a stop to the quibbling over what medical conditions are protected under the law and redirected employers to focus on what’s really important…making accommodations.
On the other hand, the Family Medical Leave Act (FMLA) is 27 years old. As a society, we understand FMLA better than the ADA because the metrics to FMLA are defined making it easier to manage, i.e. must work at least 1 year or 1250 hours to earn 12 weeks of protected leave. The ADA is less defined, requiring employer discretion for each employee situation.
Leave under the ADA doesn’t kick in until after FMLA runs out.
WHEN TO START THE PROCESS:
Employers should connect with their employees about 10 weeks into any FMLA leave to start the interactive process. To get started, send an employer-employee friendly letter that the FMLA leave is running out. Let the process start using existing FMLA medical documentation. For employers, engaging early represents an excellent opportunity to educate employees about the process, something most are totally unfamiliar with.
1) Ensure that the medical documentation is specific and clear. You have a right under the ADA to seek clarity. “Seek first to understand” (Stephen Covey).
2) Partner with the employee. Balance the needs of the employee and the employer.
3) Document all efforts.
4) Never lose sight of the backbone of the interactive process – to engage. Accommodate where you can in the work environment because it makes good business sense.
The courts made it very clear in several decisions that they want employers and employees to agree on accommodations. The ADA is a challenge because it’s a “swamp of imprecise language” and each employee situation must be evaluated on a case-by-case basis. And, ADA presents a bigger litigation risk as twice as many ADA cases are filed than FMLA.
The “Leave of Absence” litigation represents murky waters. 100% healed policies are adverse to the philosophy of the ADA. Paying people to stay at home is not what the ADA supports.
A major course case called TROUTMAN v. TIME WARNER addressed the issue around employee engagement. An employee requested an accommodation to leave work early but refused to engage in the interactive process to explore options. Her attendance then became a performance issue, no longer protected under the ADA, and her position was not supported by the court.
Key Takeaways:
#1 Engage in a dialogue that is geared towards a partnership. Not required to grant the accommodation an employee wants when/if alternatives exist that work. Are REQUIRED to engage in the interactive process.
#2 Be flexible.
#3 Document, document, document!
Upcoming webinar on April 9, 2020 - “To Outsource or To Not? That is the question. Listeners and readers are able to attend free using Promo Code: 20Sedgwick1. Register at http://dmec.org/conferences-and-events/calendar-of-events/.
