Top 10 Strategies for Effective Absence, Leave and Disability Management by Healthcare Employers
DOL's FMLA study fails to recognize challenges faced by healthcare employers. In mid-February 2013, the U.S. Department of Labor celebrated the 20th anniversary of the FMLA by publishing the results of a survey that purported to measure the "impact of the FMLA on employers and employees." The DOL summarized the findings in a press release stating, "The study shows that employers generally find it easy to comply with the law and misuse of the FMLA by workers is rare."
The DOL's findings are questionable in general but are particularly inapposite to healthcare employers. Rather, Mercer's Absence, Leave and Disability Management Study released in 2010 more accurately reflects the real struggles faced by healthcare employers on a daily basis in administering the FMLA, particularly intermittent FMLA. In Mercer's study, 53 percent of the 58 healthcare respondents identified "improving FML leave administration" as one of their three top priorities. Sixty-two percent of healthcare respondents reported difficulty with administering and tracking intermittent leave under the FMLA, with intermittent leave being the key problem area for FMLA administration.
Recent developments under the ADA further complicate the leave of absence puzzleMoreover, FMLA is only one piece of the leave of absence puzzle. Indeed, compliance with the ADA is rapidly becoming more daunting to healthcare employers than FMLA compliance for several reasons, including the duty to provide leave and job protection under the ADA as an accommodation. In addition, several U.S. Equal Employment Opportunity Commission initiatives have resulted in litigation, including class-action claims against employers. Specifically, the EEOC has honed in on the following practices as violating the ADA: (1) no-fault attendance policies, (2) policies that provide that an employee will be terminated at the end of a pre-determined period if they are unable to work (typically six or 12 months) and (3) the failure to reassign a disabled employee to a vacant position as an accommodation if the employee is minimally qualified. These claims can be very costly to an organization.
For example, in 2011, Verizon settled a class action claim brought by the EEOC for $20 million in which the EEOC alleged that Verizon's rigid, no-fault attendance policy failed to make reasonable accommodations for individuals with disabilities. In 2011, Supervalu and Jewel grocery chain settled a class action suit brought by the EEOC for $3.2 million in which the EEOC alleged that its policy of terminating an employee's employment at the end of a one-year leave of absence period and limiting light duty to individuals with workers' compensation injuries violated the ADA. Likewise in 2012, Interstate Distributor Company settled a class action claim brought by the EEOC for $4.85 million alleging that its policy of terminating employment after 12 weeks of leave violated the ADA.
The top 10 strategies for effective absence, leave and disability managementSo what is a healthcare employer faced with the need to run a 24-hour operation and provide patient care to do in the face of these ever expanding leave laws? Below are 10 steps that healthcare employers can take to enable them to minimize the impact of absence on their organizations and put themselves in the best legal compliance position in the event they find their organization the subject of an individual or class-wide claim pertaining to absence and leave practices.
1. Replace no-fault absenteeism policies with discretionary attendance policies. Due to a desire to ensure uniform treatment, healthcare organizations have historically adopted "no-fault" or "occurrence-based" absenteeism policies. In addition to being targeted by the EEOC as violating the ADA, no-fault attendance policies promote FMLA abuse because as employees approach the number of occurrences that would trigger discipline under a no-fault policy, employees often apply for intermittent FMLA to excuse future absences. Accordingly, healthcare employers are well advised to replace no-fault attendance policies with discretionary attendance policies that focus on patterns of attendance and the impact on the healthcare organization as opposed to counting individual absences.
2. Require complete healthcare provider certifications for leave requests. The FMLA allows an employer to mandate a certification of healthcare provider at the outset of a leave and at least as often as every six months. Likewise, the ADA permits employers to require that an employee who is seeking accommodation submit information from a treating physician opining as to: (1) whether the employee has a physical or mental impairment, (2) the nature and anticipated duration of the impairment, (3) whether accommodations will enable the employee to perform the essential functions of the job (4) and the duration of the suggested accommodations.
3. Recertify when you have legitimate suspicions of abuse. The FMLA expressly permits recertification sooner than the time periods described above for several reasons. Included among them are: (1) if the employee requests an extension of leave beyond the date originally specified in the certification, (2) if circumstances have changed significantly or (3) if the employer receives information that casts doubt on the initial certification. Make sure that your leave of absence team carefully scrutinizes absences to ensure that they are consistent with the certification parameters. If they are not, recertify the leave.
4. Use forms to track use of intermittent FMLA. To avoid later disputes between a manager and associate about whether a particular absence was or was not related to an intermittent FMLA, require the associate to submit a form stating that a particular absence was related to his or her FMLA by midnight on the next scheduled work day following the absence.
5. Ensure that job descriptions and postings reflect essential job functions. Not all job functions are essential. Take the time to determine which job functions are essential. You are not required to reallocate essential job functions as an accommodation under the ADA. In healthcare, tasks such as regular attendance, the ability to work all or certain shifts, handling stressful situations, the ability to interact with the public and lifting requirements (for certain positions) are typically essential.
6. Consider whether additional leave with job protection would be a reasonable accommodation at end of leave periods, and document the undue hardship analysis. If your leave policies provide a maximum leave period, at the end of that period you must consider whether providing additional leave would be a reasonable accommodation for individuals who have a disability under the ADA. Remember that the definition of disability under the Americans with Disabilities Act Amendments Act is extremely broad. Conditions like pregnancy complications, migraine headaches, asthma and depression easily qualify. In considering whether holding an employee's job during an extended leave would be an undue hardship, consider the nature and cost of the accommodation, the number of persons employed by the company, the financial resources of the company and the impact of the accommodation upon the operation of the company. 29 C.F.R. § 1630.2(p). When analyzing the impact of the accommodation upon the operation, focus on the impact on patient care and the 24-hour operations, if applicable. Remember that the burden is on you, the employer, to prove undue hardship.
7. Consider reassignment to a vacant position as an accommodation. In 2012, the U.S. Court of Appeals for the Seventh Circuit ruled: "The ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions to which they are qualified, provided that such accommodation would normally be reasonable and would not present an undue hardship to that employer." The case, EEOC v. United Airlines, is significant because the Seventh Circuit had been the leading authority holding that an employer did not have to place a disabled person in a vacant position if another candidate was more qualified. Several federal courts have already reached the same finding as the Seventh Circuit's recent ruling, and the rest are likely to follow the Seventh Circuit's lead. Accordingly, if an employee has restrictions on the ability to perform his or her own position and has expressed an interest to remain employed with your organization, consider whether there are other positions within the organization which the employee would be qualified to perform, with or without accommodations.
8. Ensure that vacant positions are readily identifiable. In order to shift the burden to employees to identify vacant positions for which they are qualified, make sure that jobs are posted and that all employees know where jobs are available.
9. Train your HR team and managers. According to the EEOC, employees may stop short of specifically requesting "accommodation" and still may be requesting protection under the ADA. Train your HR team and managers to know where to direct potential requests for accommodations.
10. Ensure that your HR team considers each individual's circumstances. If there is one thing that the EEOC has made clear it is that an employer must consider the individual's circumstances and needs. A one-size fits all approach, while admittedly easier to administer, places your organization at great risk.
Amy L. Blaisdell is an officer and manager of the Labor and Employment Practice Group at Greensfelder, Hemker & Gale, P.C. in St. Louis. She focuses her practice in the defense of employment, employee benefits and ERISA litigation, as well as wage and hour litigation. Ms. Blaisdell can be reached at firstname.lastname@example.org or (314) 516-2642.
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