Adapting to Leave of Absence Regulations

The intersection of workers’ compensation with laws on leave of absence and job accommodation has become increasingly challenging. With the expanding number of federal, state and municipal laws on the books, there is also confusion about how and when they overlap. There are many inconsistent approaches and far too many organizations forced to compensate for their errors. Fortunately, there are experts who can help increase our understanding of these laws and how to ensure we are implementing our leave and accommodation policies properly. Three of them agreed to explain and simplify this complex topic as guests on our most recent Out Front Ideas with Kimberly and Mark webinar:

• Jennifer Holland, senior manager, leave strategies at American Airlines
• Bryon Bass, senior vice president, workforce absence solutions at Sedgwick
• Jeff Nowak, attorney at Littler

The Challenges Workers’ compensation stakeholders face a variety of hurdles trying to navigate and implement leave and accommodation policies. The first hurdle that our panel addressed is the expanding number of such laws. According to the panel, more than 70 proposals introduced in state legislatures this year have a leave of absence component. Some seek to expand existing rights for unpaid leave; for example, covering relationships such as siblings or domestic partners. Others concern paid family leave. While it is unlikely that we will see the federal government adopt the idea, several jurisdictions are jumping on that bandwagon. New York, Washington, D.C., Washington and Massachusetts are in the process of developing regulations to implement such laws. Another challenge facing organizations is ensuring their policies correctly address the ways leave and accommodation laws affect one another. Workers’ compensation should generally run concurrent with other leave laws, yet many organizations do not do so. Or, they may not understand some aspects of workers’ compensation, such as allowing injured workers to take time off for medical appointments. Finally, the panel identified consistency as another problem area that can get employers in trouble. The Equal Employment Opportunities Commission, for example, has sued employers for failing to provide the same return-to-work opportunities to workers with occupational versus non-occupational injuries. Some states find themselves struggling to meet quick deadlines for implementing new laws. By the time the regulatory information is provided, there are just a few months to put the new rules in place to ensure they are fair to employees as well as businesses. Panelists observed that some of the challenges surrounding leave and accommodation laws can be directly attributed to problems at the employer level. Some organizations are resistant to change or fail to have internal discussions about why a particular accommodation cannot work and do not try to create alternative arrangements. In some instances, the employer does not even realize there is a request for a leave of absence or accommodation. These situations can end up being time-consuming and expensive. Two examples provided by our speakers demonstrated the need for organizations to recognize and respond appropriately to requests. In one example, a pregnant employee was prescribed bed rest and sought approval to work from home. When her request was denied and no discussion took place, she pursued the issue. That case is now headed to a jury to decide. See also: Absence Management: Work Comp’s Future?   In a second case, a store clerk with diabetes wanted permission to have orange juice available at her register. Again, the request was denied, and the employer failed to engage in the interactive process or offer any alternative. A jury’s finding in favor of the employee cost the company more than $750,000 in compensatory damages and attorneys’ fees, plus back pay. Accommodation Issues The interactive process is a vital, but very misunderstood, provision of the Americans with Disability Act (ADA). As we see from the two cases above, failure to adhere to the requirement can become a significant and costly problem. The interactive process simply means the process of engaging with the employee to determine:

• If there is a qualified disability, and, if so
• If a reasonable accommodation is possible.

The key word in the term, and the one that is often misunderstood, is "interactive." Both the employee and employer need to be part of the discussion. This can occur between the worker and supervisor, HR representative or, in some companies, an ADA coordinator or other specialist. According to the panel, the obligation to engage in the interactive process is triggered at any time the employer becomes aware of the need for accommodation. Stated a better way, it is triggered when the employer knows — or should have known — there was a disability affecting the employee’s ability to carry out the essential duties of the job. This is an area that can trip up employers because it means the employee does not have to make an actual request for accommodation for the interactive process to be triggered. It’s a common myth carried over from the early days of the ADA when the employee had a duty to ask for accommodation. That is no longer the case. The panelists pointed out that courts in recent years have found, based on observable behaviors of the employee, that there was a duty to begin a process to inquire if there is a disabling issue preventing the worker from effectively doing his job. Identifying "observable behaviors" can be difficult. Our speakers advise training front-line managers and supervisors to be familiar with such behaviors and understand when and to whom to raise the issue. Terms such as "interactive process" and "observable behaviors" are just two of many that can confound employers. Fortunately, there are excellent tools available to help, especially through the Job Accommodation Network (JAN). This is a service funded by the Department of Labor. The website is: www.askjan.org. Among its resources is one called the interactive process, in which JAN breaks it down into six steps to ensure compliance:

1. Recognize the request.
2. Gather information on restrictions and limits and how they are affecting the job.
3. Explore accommodation options with the employee.
4. Choose the accommodation that is most beneficial for both the employee and employer.
5. Implement the accommodation.
6. Monitor.

Panelists stressed that monitoring is especially important because the person’s situation can change, and employers need to ensure the accommodation is still effective. One piece of advice our speakers provided concerns transitional duty and how that affects ADA requirements. Transitional duty is not intended to be permanent. There should be a timeframe that triggers an assessment to determine what the next steps will be. More permanent restrictions may be imposed, and the employer should determine if essential job functions will be affected and, if so, what to do. This is also an area where consistency of policy is crucial. Similar options must be provided to workers, regardless of the nature of the injury. There are situations where employers have been sued for failing to offer similar opportunities to people with similar injuries. Finally, the panelists noted that employers need to understand what is meant by "reasonable accommodation." It is a change to the way a job is done, a change to the work environment that allows the person to perform all the essential functions of the job. It could be a change in schedule or a change in process, for example. It may involve a leave of absence. Leave of Absence "Reasonable" in terms of extended leaves of absence (LOAs) can be another confusing issue. In response, courts have generally said that employees have to show that whatever amount of time they are seeking will allow them to return to their jobs. They have sought to determine if the leave will be a factor in helping the person return. One problem area our panelists identified is that physicians’ notes seeking extended leaves often do not indicate whether or when the person will likely be able to return to work. Both the employee and physician need to indicate that an additional leave will have a reasonable estimation to return to work and that the extended leave will aid the process. Panelists commented that a major concern related to LOAs for employers is potential abuse, such as directly before or after holidays or other planned periods of time off. There can be a fine balance for employers trying to determine whether the leave is warranted, and erring on either side can be problematic. See also: The Key to Lower Health Care and Absence Costs   There are also situations of potential abuse when the employee takes off more time than suggested by the physician. These can be legitimate, as the physician’s time is an estimate, and the worker may need more time. But there can also be cases in which the worker is taking advantage of the system. The panelists stated that any situation that suggests possible abuse must be viewed carefully. Working closely with field supervisors and managers who have closer relationships with the employee than an HR representative can provide great insight. Also, employers can look for patterns (i.e., whether leave requests are occurring on a regular basis). Where states and municipalities are adopting new paid leave laws can be extremely challenging to incorporate them into existing rights laws. For example, newly adopted laws may involve new job protections. Bereavement for relationships not previously allowed may now be included. A trend panelists identified is leaves of more than 12 weeks. Layering on LOAs plus sick time and vacations in a way that meets a state’s requirements can be daunting. Our speakers are trying to encourage different states to adopt similar practices to make it easier for employers to navigate the complexities of the leave interactions. So far, however, that has not occurred. Our guest experts warn that employers need to be cautious about terminating workers who are on LOAs. The timing must be done with care to ensure their leave is not perceived as causing the termination. Employers can take steps to ensure they stay compliant with the myriad of leave laws. According to the panel:

• Use partners, such as in-house attorneys, or outside experts, such as a third-party administrator, who can guide and interpret the laws to determine if there will be an impact.
• Keep documentation for disciplinary decisions concerning a worker who is or has been out on leave. It is important to show that the decisions are well-supported. The documentation may also warrant an independent layer of decision-making so it shows a decision, such as termination, was not made solely by a manager. An HR representative or attorney should review such decisions to make sure they are legal.
• Avoid hasty decisions to deny accommodation. Instead, be guided by five simple words: How can I help you? Fully and carefully review the request, engage the worker, seek additional information, if needed, discuss the request with managers and, regardless of the decision, make sure it is defensible. If a requested accommodation cannot be implemented, tell the employee why it cannot and make sure the decision is backed up. Seek alternative solutions. Set a time limit, such as two weeks or one month, then reassess the situation to see if it is working. Put all of this in writing so you can defend any and all actions later if necessary.
• Consult free resources. In addition to the JAN website, the EEOC, Society for Human Resource Management and Disability Management Employer Coalition websites also have valuable resources available.