This week, while attending the 2022 Disability Management Employer Coalition (DMEC) Annual Conference, Marti Cardi had the honor of acting as one of the moderators (together with Marjory Robertson of Sun Life) for a panel that included Helen M. Applewhaite, Director of the FMLA Division for the U.S. Department of Labor and Rita Byrnes Kittle, Supervisory Trial Attorney from the Denver Field Office of the Equal Employment Opportunity Commission.

In this lively and interactive session, the panel covered various topics facing employers under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Here are some of the key takeaways!

Common Mistakes Employers Make

Applewhaite and Kittle identified common employer mistakes that cause easily avoided problems under the FMLA and ADA:

FMLA Mistake 1, Fail to Communicate

Applewhaite reminded the attendees that employers should communicate with employees before, during, and after leave!
- Employers are often overly cautious in communicating with employees about their FMLA leave. Talking with employees about problems during the certification process and return-to-work plans, as well as just checking in with employees while on leave, can help avoid miscommunication and can resolve FMLA leave issues that could be fixed easily.
- Such actions are not only permissible under the FMLA, but personal contact with an employee out on leave will continue to engage the employee and help protect the employer in any later litigation.
FMLA Mistake 2, Inflexibility

Employers who are inflexible on employee notice requirements and late certification submissions often find themselves in trouble. An example includes employers who strictly follow the 15-day return of certification requirement.
- Again, communication is key. The employer should first find out from the employee why the certification is late.
- Was it caused by circumstances beyond the employee’s control?
- Employers who win FMLA lawsuits often go above and beyond just the minimum requirements set forth in the FMLA regulations to assist the employee in requesting leave and complying with all the requirements.
- Successful employers also look beyond the rules alone and apply an element of fairness in analyzing a specific situation
ADA Mistake 1, Inflexibility

Like the FMLA, inflexible employer policies which do not permit any exceptions will often run afoul of the ADA.
- Kittle stressed that under the ADA, employers may be required to make exceptions to their policies and procedures as a reasonable accommodation.
ADA Mistake 2, Failing to Follow Up

Kittle also reminded employers that once an accommodation is provided, that is not the end of the story.
- Employers should periodically check in with the employee to evaluate how the accommodation is working, especially during the early days of the accommodation.
- If circumstances change (for example, the employee’s impairment improves or declines), the employer may need to reevaluate the effectiveness of the accommodation through a new interactive process
ADA Mistake 3, Making Decisions based upon Stereotypes

Employers may not make decisions based upon stereotypes or assumptions about an employee’s protected class, including a disability. Each employee’s situation must be analyzed on the particular facts.
- Caregiver discrimination is a current example. Employers should not assume the mother is the caregiver and not the father.

COVID-19 Issues

Request to Work from Home as Accommodation

The panel discussed how to handle accommodation requests from employees who want to continue to work from home when the rest of the workforce is returning to the office. Key points include:
- An employer cannot decline to make an exception to a return-to-work policy as an accommodation on the basis that other employees will also want to work from home.
- Undue hardship needs to be an actual disruption of operations based on facts, not something based upon fear or speculation as to how an accommodation might work out.
- Employers may not discuss medical information or medical facts with other employees who inquire about why an employee appears to be treated more favorably.
- Based on experience during the COVID-19 pandemic, employers may need to revisit whether working in the office in person is still an essential job function for a given position.
COVID-19 does not always equal Serious Health Condition
- An employee who has COVID-19 must still meet the FMLA definition of a serious health condition to be entitled to FMLA leave and protections.

The Dobbs Decision and Aftermath

Request to Work from Home as Accommodation

The panel discussed how the U.S. Supreme Court decision, Dobbs v. Jackson Women's Health Organization, impacts the FMLA and ADA.
- Applewhaite reminded attendees that there are no changes to the FMLA requirements and the definition of serious health condition as a result of Dobbs. An employee who needs time off to obtain an abortion must still meet the definition of serious health condition.
- The panel also agreed that time off for travel to a medical procedure would, in most instances, be covered by the FMLA.
- As an example, the panel discussed how an employer who needs to travel out of state to receive special cancer treatment should not be treated any differently than an employee who needs to travel out of state to obtain an abortion (if the individual’s condition equates to a serious health condition) – and vice versa.
- Kittle similarly stated that under the Pregnancy Discrimination Act, pregnancy cannot be treated differently from other medical conditions that are similar on the employee’s ability to work.

The panel provided several resources for employers who are wrestling with these issues, which can be found here.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and integrated disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.