Reliance Matrix was honored to attend and present at two sessions last month at the 2024 Disability Management Employer Coalition (DMEC) Compliance Conference, March 25-28, 2024.

On March 26, 2024, Reliance Matrix's Lana L. Rupprecht had the honor of moderating with Marjory Robertson of Sun Life on a panel comprised of Christine M. Schott, Senior Advisor, Wage and Hour Division at the U.S. Department of Labor (DOL), and Jocelyn Samuels, Vice Chair of the U.S. Equal Employment Opportunity Commission (EEOC). During that session, Insights from the DOL and EEOC: Current FMLA and ADA Challenges, Christine and Jocelyn addressed numerous questions addressing employer challenges under the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).

Then, on March 27, 2024, the Reliance Matrix team addressed, in an engaging and interactive session, How to Manage an Uncooperative Employee under the ADA where Eric Broutman, Director-Employment Law and Litigation Counsel, and Armando Rodriguez, Product Compliance Counsel used vignettes to show the best way to handle uncooperative employees under the ADA.

We received follow up questions after these sessions. Here are just a few of those questions below with our responses.

Question:

How should an employer analyze an employee's essential job functions under the ADA if it does not have or maintain updated job descriptions?

Answer:

The ADA protects a "qualified individual with a disability." A person is "qualified" and protected by the ADA if that person can "perform the essential functions of a job...with or without reasonable accommodation. "Essential functions" of a job are the most important job duties, the critical elements that must be performed to achieve the objectives of the job. Removal of an essential function would fundamentally change the job.

With respect to this question, first, the ADA does not require an employer to develop or maintain job descriptions. But, if an employer prepares a written job description before advertising or interviewing applicants for a job, this can be just one piece of evidence to determine if a certain job function is essential. According to the EEOC guidance, however, "the job description will not be given greater weight than other relevant evidence."

The EEOC further states:

A written job description may state that an employee performs a certain essential function. The job description will be evidence that the function is essential, but if individuals currently performing the job do not in fact perform this function, or perform it very infrequently, a review of the actual work performed will be more relevant evidence than the job description.

EEOC Guidance provides that in addition to job descriptions, it will consider evidence such as:

the actual work experience of present or past employees in the job,
the time spent performing a function,
the consequences of not requiring that an employee perform a function, and
the terms of a collective bargaining agreement.

See, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act | U.S. Equal Employment Opportunity Commission (eeoc.gov)

The ADA: Your Responsibilities as an Employer | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Question:

When an employee is out on FMLA leave, can I call and check in on their return-to-work date and how they are doing? I do not want to be accused of interfering with their time off.

Answer:

Checking in with employees while on leave to ensure they are doing ok and to see if they need anything not only is what a caring employer should do, but such actions are permitted by the FMLA. In fact, courts have held that there is no right in the FMLA to be "left alone."

What is not permitted, however, is requiring an employee to work while on FMLA. That can lead to an interference claim if the employee is requested to perform tasks that are more than just what is considered "de minimus." De minimis work-related contact would include a short telephone call to request client contact information, or to give the employee an update on workplace news.

As to how often an employer should check in with an employee who is out on FMLA leave, that is fact specific and is judged on whether it is reasonable under the circumstances. It would of course depend on the reason for the employee's leave, how long the employee is scheduled to be out on leave, and the content of the conversation. When in doubt, check with your legal counsel.

Question:

Is it possible for employers to exceed minimum legal requirements with respect to FMLA leave or ADA accommodation practices without creating a precedent for future employees? If an employer goes above and beyond minimum legal requirements for an employee, will that later result in greater scrutiny for other employees?

Answer:

Great questions!

Employers who provide more leave to an employee than what is legally required under the FMLA or applicable state law when there is no specific employer policy, may find themselves in trouble if they fail to do so in the future for a similarly situated employee.

If an employer provides an employee with, for example, a schedule adjustment as an ADA accommodation or other type of accommodation, they may need to be prepared to consider this for other similarly situated employees requesting such an accommodation in the future. If they are unable to do so, an employer should be prepared to have a legitimate business reason as to why they can make an accommodation for one employee but not another.

The best practice is to consistently follow your policies and practices and to treat all similarly suited employees the same. Of course, business needs may change, and if that is the case, make sure you have all facts and supporting reasons well documented.

Question:

Is working in-person an essential job function under the ADA?

Answer:

This is a question that has received significant attention recently in the post-pandemic workplace. The EEOC and some courts have slightly different views on this topic.

The EEOC generally takes the position that regular attendance is not in and of itself an essential job function as defined by the ADA. Citing to 29 C.F.R. 1630.2(n)(1), the EEOC states that attendance is not one of the "fundamental job duties of the employment position." However, attendance is relevant to job performance and employers need not grant all requests for a modified or work from home schedule.

To the contrary, if the time during which an essential function is performed is integral to its successful completion, then an employer may deny a request to modify an employee's schedule as an undue hardship.

The EEOC recognizes that for some jobs, essential duties can only be performed in the workplace. "For example, food servers, cashiers, and truck drivers cannot perform their essential duties from home. But, in many other jobs some or all of the duties can be performed at home."

The EEOC also noted at the DMEC conference that:

Even if they receive questions, employers may not discuss medical information or medical facts with other employees who inquire about why an employee is working from home.
An employer should not reject a request for an exception to a return-to-work policy (as an ADA accommodation) on the sole basis that they believe this will open the door to other employees making similar requests in the future.
Undue hardship, as a reason to deny an accommodation, must be based upon an actual disruption of operations based on facts, not based upon fear or speculation as to how an accommodation might work out in the future.

Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Work at Home/Telework as a Reasonable Accommodation | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Question:

Once an employee exhausts all available federal and/or state leave options, or they do not qualify for job protections under these laws, is it enough to say in the employer's communications that go out to the employee, "If you believe that your condition may qualify as a disability under the ADA, please reach out to Human Resources (HR) as soon as possible to discuss your options"? Or, should the employer pro-actively reach out to those employees?

Answer:

As a best practice, an employer should do both, state in writing that the employee should reach out to HR but also, especially if the employer knows that an employee may need additional leave or an accommodation due to a known disability, proactively reach out to the employee. Courts and the EEOC are more sympathetic to employers who go out of their way to communicate with an employee and attempt to engage in the interactive process. And of course, document all of your efforts!

Question:

How would you analyze an employee's request for complex and expensive hearing assistance equipment as well as training for that equipment?

Answer:

Each request for an accommodation must be analyzed on an individual basis. Whether the complexity or expense of the equipment poses an undue hardship will depend on the resources of the employer.

The EEOC guidelines instruct us to take the following factors into consideration when judging undue hardship:

cost;
the financial resources of the employer;
the type of operation the employer is engaged in; and
the impact of the accommodation on the employer.

Like many determinations in the ADA space, there is no clear-cut right or wrong answer. What is most important, is that each decision is based on the particular situation and facts presented. One size fits all policies are not compatible with the ADA.

Question:

Can employers rescind an accommodation after it has already been granted?

Answer:

Yes, assuming there is a change of circumstance. Accommodations are not granted forever, and if circumstances change, an accommodation may be rescinded or modified. For instance, if after granting an accommodation, an employer realizes that it poses an undue hardship not originally appreciated, the accommodation may be withdrawn. Similarly, if the employee's disability improves or is cured, the accommodation may be modified or rescinded. As in all things ADA related, employers must make individualized decisions based upon the circumstances before them as opposed to formalistic judgments backed by policy.

Reliance Matrix can help!

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services including accommodation solutions and disability leave accommodations under the ADA. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager.