The Reasonable Accommodations Coordinators Handbook: Revised Myrtle Gregg-LaFay Dept of Labor and Economic Growth & Toni McFarland OSE/Employee Health Management - PowerPoint PPT Presentation

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The Reasonable Accommodations Coordinators Handbook: Revised Myrtle Gregg-LaFay Dept of Labor and Economic Growth & Toni McFarland OSE/Employee Health Management

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Title: The Reasonable Accommodations Coordinators Handbook: Revised Myrtle Gregg-LaFay Dept of Labor and Economic Growth & Toni McFarland OSE/Employee Health Management


1
The Reasonable Accommodations Coordinators
Handbook RevisedMyrtle Gregg-LaFayDept of
Labor and Economic GrowthToni
McFarlandOSE/Employee Health Management
2
Disability as Defined by the ADA
  • Impairment
  • Substantially Limits
  • Major Life Activity
  • Mitigating Measures
  • Qualified Employee

3
Accommodations Decision Chart
  • Disabled ?
  • Qualified ?
  • Reasonable ?

4
Civil Service Regulation 1.04Reasonable
Accommodation
  • C.S. Rule 1-7 EEO
  • C.S. Rule 1-8 Prohibited Discrimination
  • 1-8.2 Accommodation of Disabilities
  • Rule 3-1.4 Reasonable Accommodations in Testing
  • Standards

5
Disability Accommodation Request by Employee Form
  • CS1668 Form
  • Available in Text Only format also
  • Instructions

6
Response to Disability Accommodation Form (to
be initiated by Reasonable Accommodation
Coordinator)
  • CS1669 Form

7
Reasonable Accommodation Process Flow Chart
  • Employee initiates w/CS1668
  • RAC (walk thru) approval/denial
  • Supervisor - arranges for RA
  • RAC - evaluation

8
Staff Accommodation Roles and Responsibilities
  • Employee
  • Departmental RAC
  • OHR Director
  • Immediate Supervisor

9
EHM At Risk Program Procedures
  • Referral made to EHM
  • EHM covers costs of evaluation only
  • Include with request
  • Disclosure statement
  • Medical that requests chair/ergonomic eval
  • Needs only to say there is a problem or pain

10
EHM Request for At Risk Assessment Form
  • Only accept forms submitted by RAC or their
    designee
  • This form is also used to request WorkSmart
    evaluations

11
State of Michigan At Risk Services Flow Chart
12
Referral Approvals
  • EHM staff reviews and approves
  • Then the request is sent to the DM-MRS staff for
    the evaluation to be completed

13
Purchase of Employee Accommodation Services
Equipment
  • DMB Procurement of Commodities Services
    Procedure 0510.13
  • DLEG Sample Guidelines for
  • Purchasing Commodities
  • Purchasing Services
  • Print Requests
  • DMB Form AS-1

14
Purchasing Equipment for Employees on Workers
Compensation or LTD
  • Once the evaluation is complete EHM will receive
    a copy of the report and then order the equipment
    recommended.
  • EHM will work with the TPAs and the departments
    to coordinate the equipment purchases.

15
Space Renovation Modification
  • DLEG Sample Language
  • State Owned Space
  • State Leased Space
  • DMB-123 Form
  • DMB Procedure 0210.03-Modular Furniture
  • DMB Procedure 0210.05-Space Modification

16
Staff Accommodations Needed to Participate in
Training Organized By the Department (Samples)
  • Employees Responsibilities
  • Immediate Supervisors Responsibilities
  • Training Organizers Responsibilities

17
Training Programs Presented by Other
Organizations (Samples)
  • Employee Responsibilities
  • Immediate Supervisors Responsibilities

18
Michigan Rehabilitation Services Disability
Management
  • Return to Work Services
  • At Risk Services
  • Training Services

19
Michigan Rehabilitation Services DM Request for
Services Form
20
State Travel Accommodations
  • Air Transport
  • Assigned State Vehicle (Individual or Office)
  • Premium Mileage

21
Staff Accommodation Telephone Resource Sheet
  • DLEG Sample - Most Common Questions
  • Who to Call (updated)

22
Parking Policy-Draft
23
BREAK
24
Legal Case Review Case StudiesCheryl
Schmittdiel, OSE/CANToni McFarland, OSE/EHM
25
The Americans with Disabilities ActADA
  • Toni McFarland, OSE/EHMCheryl Schmittdiel,
    OSE/CNA

26
Eligibility
  • Employers Subject to ADA
  • Employers with 15 or more employees for 20 or
    more calendar weeks in the current or proceeding
    year.
  • Individuals Eligible for ADA Protection
  • Qualified individuals with a disability

27
Definitions
  • Qualified Individual With A Disability
  • an individual with a disability as defined by
    the ADA who satisfies the requisite skill,
    experience, education and other job-related
    requirements of the employment position such
    individual holds or desires, and who, with or
    without reasonable accommodation, can perform the
    essential functions of such a position.

28
Individual with a disability
  • An individual with a physical or mental
    impairment that substantially limits one or more
    of the major life activities of such individual
  • A record of such an impairment
  • Being regarded as having such an impairment

29
Essential Functions
  • The fundamental job duties of the position.
  • - the term essential functions does not
    include the marginal functions of the position.

30
A function is essential if
  • The reason the position exists is to perform the
    function.
  • There are a limited number of employees available
    among whom the performance of the function can be
    distributed.
  • The function is so highly specialized that the
    person is hired for his/her expertise or ability
    to perform the function.

31
Reasonable Accommodation
  • Modifications or adjustments to the work
    environment, or to the manner or circumstances
    under which the positionis customarily
    performed, that enable a qualified individual
    with a disability to perform the essential
    functions of that position

32
Undue hardship
  • Undue hardship means financial difficulty or
    actions that would be unduly extensive,
    substantial, or disruptive, or those that would
    fundamentally alter the nature or operation of
    the business
  • Undue hardship must be determined on a
    case-by-case basis

33
Key Requirements
  • Interaction with the employee
  • The employer must engage in an informal,
    interactive process with the employee to
    determine an appropriate reasonable
    accommodation.
  • The employee may initiate this process.
  • The employer should initiate this process without
    being asked if the employer knows or has reason
    to know that such a discussion should take place.
  • The employer may ask for reasonable
    documentation about the employees disability
    and functional limitations if not obvious.

34
Types of reasonable accommodations
  • Job restructuring
  • Leave
  • Length of leave based on undue hardship
    standard
  • Employee is entitled to return to the original
    position
  • Modified or part-time schedule

35
Reassignment to a vacant position
  • Michigan Supreme Court has said that another
    position is not considered a reasonable
    accommodation (Rourk vs Oakwood Hospital Corp.)

36
Medical Information Inquiries
  • Employers may only
  • Require medical information that is job-related
    and consistent with business necessity
  • Inquire into the ability of an employee to
    perform job-related functions

37
Appropriate questions
  • When can the employee return-to-work
  • Physical limitations that are job-related/essentia
    l-function-related
  • Whether a condition will create an unsafe
    situation
  • Whether the employee can work a full shift

38
Questions that may not be asked
  • If an illness or disease is in remission
  • The likelihood of full recovery
  • Physical limitations that are not
    job-related/essential-function-related

39
Confidentiality
  • Medical information must be kept confidential
  • Medical information must be maintained on
    separate forms and in separate medical files

40
  • NOTE Employers can only restrict an employees
    return to work under certain circumstances
  • if it creates a direct threat, which is defined
    as a significant risk of substantial harm to
    the health or safety of the individual or others
    that cannot be eliminated or reduced by a
    reasonable accommodation.
  • if the employees restrictions cannot be
    accommodated so that they would be able to do the
    essential functions of the position.

41
Workers Compensation
42
Exclusive Remedy Principle
  • No-fault insurance
  • The employer is obligated to pay workers
    compensation claims no matter who is at fault
  • The employee cannot sue the employer for
    negligence that caused the claim

43
Lawsuits still possible
  • Employee can sue employer for claims falling
    outside the realm of workers compensation
  • Employees often sue over whether or not an injury
    or illness is covered by workers compensation
  • Employer not complying with workers compensation
    laws (e.g., no insurance)
  • Injury or illness not covered by workers
    compensation
  • Employer retaliation for pursuing a claim

44
Benefits
  • Medical Costs
  • Income replacement is generally based upon a
    percentage of lost wage up to a statutory maximum
  • - Permanent total disability
  • - Temporary total disability
  • - Permanent partial disability
  • - Temporary partial disability
  • Death benefits for family members

45
Compensable Injuries Illnesses
  • Compensable
  • Illnesses or injuries arising out of and in the
    course of employment
  • In the course of employment can include
    situations outside of normal job duties

46
Generally non-compensable
  • Traveling to and from work

47
FMLA Light-duty Alternative Position Rules
48
Restoration rule
  • Employees can make a voluntary and uncoerced
    acceptance of a light-duty assignment while
    recovering from a serious health condition.
    (29CFR825.220)
  • The employees right to restoration to the same
    or an equivalent position is available until 12
    weeks have passed within the 12- month period,
    including all FMLA leave taken and the period of
    light-duty.

49
Additional points
  • Additional leave may still be available, but
    job restoration rights will have expired.
  • If FMLA leave time is still available, and
    employee takes further FMLA time for another
    condition or family member, employer should
    maintain job restoration benefits

50
Light-duty vs. Alternate Position
  • Seemingly contradictory FMLA rules (29CFR825.702)
  • Employer cannot require employee to take a
    light-duty job in lieu of leave.
  • Employer can require employee to transfer
    temporarily to an alternate position during
    reduced schedule/intermittent leave in order to
    accommodate recurring periods of leave.

51
Alternate position rule
  • If employee is physically capable of performing
    all the essential functions of his/her position,
    and
  • the employee requires a reduced
    schedule/intermittent leave
  • then the employer may require employee to
    transfer to alternate position that better
    accommodates employers business requirements

52
Examples
  • Employee needs reduced schedule/intermittent
    leave
  • Employee cannot work full schedule due to own
    serious health condition but can perform all
    essential functions

53
Light-duty rule
  • If employee cannot physically perform one or more
    essential functions of his/her position,
  • Then he/she is entitled to take full-schedule
    FMLA leave
  • But the employer can offer (not require) that
    employee take a light-duty position during
    recovery
  • Presumably, light-duty offered by employer would
    accommodate employers business requirements

54
FMLA ADA
  • The employer should analyze employees rights
    under each law separately and then analyze
    potential regulatory overlaps

55
Issues Before 12-Weeks of FMLA Allotment is
Used
56
FMLA leave vs. reasonable accommodation
  • If an employee is entitled to ADA protections,
    and cannot perform one or more essential
    functions of his/her job because of a serious
    health condition, he/she is entitled to an FMLA
    leave
  • The employer must allow the employee to take FMLA
    leave, if they are eligible
  • The employer should offer return to work with a
    reasonable accommodation (if available), but may
    not require it

57
Alternate position vs. reasonable accommodation
  • An employee may be entitled to both an
    intermittent FMLA leave and ADA protections.
  • If the intermittent leave situation would create
    a difficult situation for the employer, the
    employer may consider requiring the employee to
    take an alternate position.

58
However, the employer should first
  • Consider a reasonable accommodation that would
    allow the employee to return to his/her job and
    allow the employee to return to work.
  • If an accommodation is not possible or the
    employee refuses it in favor of taking the
    intermittent FMLA to which he/she is entitled,
    the employer can require the employee take the
    alternate position during the intermittent leave
    period.
  • The employee should receive the same pay and
    benefits for the time worked in the alternate
    position until FMLA protections are exhausted.

59
Employees request for leave
  • If an employee requests time off for a reason
    related or possibly related to a disability, the
    employer should consider this a request for an
    ADA reasonable accommodation as well as FMLA
    leave.
  • Medical certification may be required and
    disability-related inquiries may be made to
    determine whether the employee is entitled to ADA
    protections.
  • If the employee states that he/she wants to
    invoke rights under the FMLA, the employer should
    not make additional inquiries related to ADA
    protection.

60
Medical Certification
  • The employer will not violate the ADA by asking
    for the medical information allowed under FMLA.
  • The medical certification must be kept
    confidential and should be kept separate from
    personnel files.

61
Restoration and reasonable accommodation
  • When an employee is returning from an FMLA leave
    and is also protected by ADA, there are two
    issues to consider
  • - FMLA allows the employer to return the
    employee to a different shift, schedule, or
    position which better suits the employees
    personal needs and
  • - ADA requires that reasonable accommodations
    be considered for the original position before
    considering an alternate position
  • The ADA allows employers to offer as a reasonable
    accommodation job restructuring and/or a modified
    work schedule

62
Restoration to the same or equivalent job
  • When an employee is ready to return to work after
    an FMLA leave, and is also protected by the ADA,
    the employer must return the ADA-protected
    employee to his/her original position unless
  • the employer can show that this would cause an
    undue hardship, or
  • the employee is no longer qualified for his/her
    original position, with or without reasonable
    accommodation

63
Issues After FMLA is Exhausted
  • Extending Leave
  • Extending unpaid leave beyond the 12 weeks
    required by FMLA may be a reasonable
    accommodation for an employee covered by the ADA
  • If leave is extended beyond 12 weeks, FMLA
    protections do not apply, but the ADA does
    stipulate that the employees job be kept open,
    and the employee be reinstated to the original
    position upon return when leave is provided as a
    reasonable accommodation

64
When FMLA is exhausted the employee still
cannot r-t-w
  • Attempt to provide a reasonable accommodation
    that would allow the employee to perform his/her
    regular job
  • Consider extension of leave as a reasonable
    accommodation
  • Need not create a position as an accommodation

65
FMLA Workers Compensation
66
FMLA Light-duty
  • If an employee is on workers compensation and
    has an FMLA-qualifying absence at the same time,
    and a light-duty assignment is identified and
    available, the employer may offer the light-duty
    assignment, but may not require the employee to
    take it
  • Consequences of employees choice
  • If FMLA is chosen by the employee instead of the
    light-duty assignment
  • - The employee may lose workers compensation
    benefits

67
  • NOTE After 12 weeks of FMLA and light-duty,
    if the employee is still unable to resume normal
    duties, it is quite likely that he/she is
    protected by the ADA.

68
OtherIssues
69
Workers compensation and other paid benefits
  • When an employee is on an FMLA leave concurrently
    with workers compensation, the provision for
    substitution of the employees accrued paid leave
    is not applicable since the workers
    compensation absence is not unpaid.
  • However, Civil Service Regulation 5.13 states
    Leave credits may be utilized to the extent of
    the difference between the two-thirds payment and
    the employees regular salary or wage.

70
Contact with physicians
  • Workers compensation rules allow direct contact
    with the employees physician, therefore the
    employer can contact the physician directly, even
    if the leave is run concurrently with FMLA.
  • The employer may choose not to require FMLA
    medical certification under these circumstances,
    since the workers compensation medical
    information typically provides more information
    than FMLA allows.

71
FMLA, ADAWorkers Compensation
72
FMLA, ADA Workers Compensation
  • The employee has an occupationally-related injury
    or illness (workers compensation), and
  • is a qualified individual with a disability (ADA)
    whether or not the impairment is directly related
    to the workers compensation injury or illness,
    and
  • is eligible for FMLA leave.

73
Coordination Considerations
  • Allow the employee to take FMLA leave if he/she
    wants it.
  • Do not require the ADA-protected employee to take
    a job with a reasonable accommodation in lieu of
    FMLA leave.

74
  • NOTE With the employees approval, it is
    permissible to restore him/her to a different
    shift, schedule or position

75
Light duty assignments or Transitional
Employment (TE)
  • Employee can voluntarily do light-duty or TE
  • Performing lightduty or TE for more than
    12-weeks may result in the employee losing FMLA
    restoration rights.

76
  • NOTE Since leave is occupationally-related,
    the employer can contact the physician directly
    (the TPA is the SOM contact point for W/C).
  • - The employer need not require or even request
    an FMLA medical certification, since medical
    information generated due to workers
    compensation situation will be more detailed.

77
QUESTIONS ANSWERS QUESTIONS ANSWERS QUE
STIONS ANSWERS
78
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