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MATTERS OF LEAVE AND ACCOMMODATION

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David G. Gabor. Represents clients in: Litigation. Negotiating and drafting contracts. Handling compliance issues. Creating corporate infrastructure. Drafting ... – PowerPoint PPT presentation

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Title: MATTERS OF LEAVE AND ACCOMMODATION


1
MATTERS OF LEAVE AND ACCOMMODATION
David G. Gabor, Esq. The Wagner Law Group
2
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

3
Being Invisible
  • There are times when you want to be selected
  • and times that you dont.

4
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.

5
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.

6
Terms
  • Leave
  • Reasonable accommodation
  • Retaliation
  • Disparate treatment
  • Americans with Disabilities Act (ADA)
  • Family Medical Leave Act (FMLA)

7
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.

8
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.

9
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.

10
Press Release
  • 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.

11
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.

12
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.

13
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.

14
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.

15
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.

16
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.

17
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.

18
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.

19
Privacy
  • 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.

20
The Employer Has Rights
  • In Grady v. Wal-Mart, the company granted Gradys
    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.

21
An Interesting Question
  • 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.

22
The Outcome
  • 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.

23
Talking Too Much
  • 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.

24
Lee Continued
  • The human resource manager told Lee that the
    company needed reliable and healthy employees.
  • Lees boss was also upset that Lee had requested
    FMLA leave without first consulting her and for
    perceived inadequate notice.

25
The Importance of Careful Communication
  • The court denied the Hospitals motion for
    summary judgment.
  • The court focused on the comment about the
    Hospitals desire for reliable and healthy
    employees and the angry reaction from Lees boss.
  • This underscores the importance of training
    managers with respect to what can and can not be
    said when an employee requests leave.

26
How to Approach a Request
  • How should an employer respond to a request for
    leave that exceeds twelve weeks?
  • Automatic denial
  • Automatic approval
  • Let the manager make the decision
  • Let human resources make the decision
  • Have interactive meetings with the employee after
    human resources and the manager meet.

27
Notice While on Leave
  • 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.

28
A Reminder
  • An employee engages in a protected activity when
    requesting leave, an accommodation, or when
    filing a claim for workers-compensation.
  • In Belyea v. Florida, Department of Revenue, the
    employee was allowed to proceed with the case.
    The employer proposed employees firing on
    December 15, the employee filed with the EEOC on
    December 20, and the employee was fired on
    December 30.

29
Another Reminder
  • 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 employees request
    to take time off.

30
One More Reminder
  • 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.

31
Final Tips
  • 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.

32
Final Tips Continued
  • 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.

33
Thank You!
  • Thank you for taking the time to attend this
    webinar.
  • Class dismissed.

34
Contact Information
David G. Gabor The Wagner Law Group dgabor_at_wagnerl
awgroup.com 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 Florida Office 7121 Fairway Drive,
Suite 203Palm Beach Gardens, FL 33418 Tel (561)
293-3590 Fax (561) 293-3591
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