Lessons in Ignorance: The Intersection of FMLA and Workers' Comp

I had the good fortune to attend a legal update hosted by the Atlanta Law firm of Drew Eckl & Farnham. The afternoon session on employment law was moderated by attorney Joe Chancey (a very well spoken attorney). Joe used a verison of the Socratic Method and posed several scenarios to the audience and solicited answers from them. He then had a panel attorney give the correct answer. The session was very good, but in listening to the answers that the HR people in the audience give I was dismayed at the lack of knowledge displayed. (Guess that is why they were there for education.) I of course knew all the correct answers. (He says with great humility!)

One scenario posed dealt with a workers' compensation situation and FMLA. There was a lot of confusion about this scenario. Many people did NOT know that you can run Family and Medical Leave time concurrently with someone being out of work for Workers' Comp. Not only can you do that, you SHOULD do that. Otherwise you run the risk of extending considerably the amount of time someone can be away from work. Many audience members thought that Workers' Comp time had to play out entirely before someone could be charged with FMLA time. One audience member was even unaware that FMLA could be used for your PERSONAL illness. She thought it was for family only. (I sighed heavily at that.)

This session pointed out that there is a great deal of lack of education or knowledge in many areas of HR, but particularly in the arena of intersection of FMLA, ADA and Workers' Compensation. I do not have the space here to cover that topic, other than the lesson mentioned above about running concurrent calendars on FMLA and Workers' Comp time. But if you have to deal with this it is critical you understand this. The mistakes can be very expensive. In fact I may develop an E-book on this topic. So stay tuned.

An Important Step in the ADAA: The Interactive Process

This post may be a bit "HR geeky", but supposedly I am the "HR technician." I am not really sure about that but if I save someone's fanny from a lawsuit I will be happy. (BTW, nothing I say on this post should be construed to be legal advice. I am NOT an attorney! If I were I would probably have a lot more money than I do. Assuming of course I was a good one.) I did however go and and listen to several attorneys from Freeman, Mathis & Gary in a law update they presented this morning. I paid close attention as they discussed the interactive process required in the ADA Amendments Act when someone is asking for a reasonable accommodation. They mentioned that they are finding this is an area many of their clients are not doing well, and I imagine if that is true for their clients it is probably more widespread.

The key point about the interactive process is that it needs to be truly interactive. A series of emails is probably not going to be sufficient. You need to have a conversation, preferably face-to-face. And because the HR representative holding this discussion is probably not really aware of the job being discussed you need to have someone who knows the job involved with the discussion as well. You need to look at job functions, the job description, and current medical documentation of the employee's condition. The current condition is important because time may have passed from the original situation and physical changes may have occurred (for better or worse.)

The second key point about the interactive process is that it needs to be well documented. You need to have:

• Dates and times communication is attempted.
• Dates and times conversations actually occured and who was involved.
• What options were considered and what was rejected and the reasons why those rejections were made.
• When the employee was notified of the decision and any ensuing discussions that took place.

Once you have done all of that you are not done. The law allows the employee to appeal that decision and to ask you to reconsider your decision and to explore other options. Again this needs to be interactive. You have to show that you were listening and considering. Off-handed rejections or refusal to participate in the interactive process will most likely land you in court.

So for those of you who have not revised your process you need to take a look at your policy, your procedures, and your documentation processes to make sure you are prepared to handle the new demands of the interactive process. This law makes it much easier for people to claim a disability. So good preparatin is important. Good luck.

EEOC Is Making a List and Checking It Twice and It Isn't Even Christmas Time Yet

Here we are in the middle of October. The end of the year is rushing toward us, probably faster than we want it to. The Halloween decorations will be down in the retail stores and they will be putting the "ThanksChristmasGivingDay" decorations up and Santa will appear in the malls. The song that features the words "..he's making a list and checking it twice" will be blaring on the radio and over the store speakers. (Did that reminder of how close Christmas is make you wince?)

Well there is already one group that is making a list and checking it twice and it is NOT Santa. It is the EEOC. A One Minute Memo from the law firm SeyfarthShaw, LLP arrived in my email this morning entitled EEOC Takes Aim at Companies Policies Limiting The Duration of Medical Leaves. (click on the title to see the pdf) The opening line for this document is "Recent actions by the U.S. Equal Employment Opportunity Commission (EEOC) have signaled its intent take a more aggressive approach in enforcing the Americans with Disabilities Act (ADA). One employment practice that the EEOC is specifically targeting involves company medical leave of absence policies that place limits on the amount of medical leave."

When the ADAAA (The Americans with Disabilties Act Amendments Act of 2008) became effective on January 1, 2009 it was evident that, with the broadened definitions of disability and the requirement for an active accommodation discussion, more lawsuits would be filed against employers. And this is becoming true. The SeyfarthShaw memo goes on to say "Over the past two months, the EEOC has also filed a number of pattern and practice lawsuits on behalf of employees of large employers alleging that the employers violated the ADA by rejecting extensions of medical leave as a reasonable accommodation for employees with disabilities. The EEOC asserts that any employer that maintains an inflexible maximum leave policy, which it will not extend or otherwise modify in order to accommodate individuals with disabilities, is unlawful." And along with this statement a warning from the EEOC was issued "Acting Chairman of the EEOC, Stuart J. Ishimaru, highlighted the administration’s increased focus on ADA enforcement, noting that these cases 'should send a wake-up call to corporate America that violating the American with Disabilities Act will result in vigorous enforcement by the EEOC.' EEOC Regional Attorney John Hendrickson confirmed the EEOC’s position that policies that 'set arbitrary deadlines for returning to work after medical treatment unfairly keep disabled employees from working.'"

So what does this mean for HR? It means you need to review your policy and make sure it it up to date. You need to make sure that if someone asks for an accommodation you engage in a vigourous interactive process that is documented. And you need to realize that an extension of a medical leave will probably be seen as a reasonable accommodation.

The big question yet unanswered is: When will an extension be considered unreasonable? This will probably only be decided by a court case. Which one of you out there wants to be the test case?