Leave Experts’ Advice to Employers: Communicate and Be Reasonable

Nancy Grover

Sarasota, FL (WorkersCompensation.com) – If an employee indicates he needs an accommodation to be able to do his work, talk to him. While that may seem simple, failure to do so is a mistake many employers make and end up paying for dearly.

“The Equal Employment Opportunity Commission has taken a great deal of interest over the years when it comes to leave and accommodation issues,” said Jeff Nowak, a shareholder with Littler. “In litigating cases with the EEOC and in conversations I’ve had over the years, the EEOC hones in on is the idea that what they’re looking for is the employer making every reasonable effort to keep the employee at the workplace, as opposed to shutting them off on leave or terminating their employment after minimal leave. What they’re looking for is the interactive process, communication between employer and employee as to what can reasonably be done to keep the employee on the job. In cases where the employee has been forced out, or it’s clear the employer has not at least taken steps to offer accommodation, that’s where we run into trouble.”

During a session on the evolution of accommodation & leave laws as part of the Out Front Ideas with Kimberly and Mark virtual conference this week, speakers discussed the complex interaction of leave laws and workers’ compensation and what employers need to do to avoid litigation and potentially hefty settlements. Adhering to the appropriate leave laws can be even trickier during the current pandemic.

Leave Laws

Employers that don’t properly engage in the interactive process or take steps toward reasonable accommodation may find themselves in the EEOC’s crosshairs for years.

“If we lose or resolve the case, which most often happens, it almost always comes with a consent decree – a burdensome process,” Nowak explained. “That allows the EEOC to review your workplace for three or even a five year period of time; providing the EEOC regular reports about accommodations, leaves of absence. It’s an open book as to what you are putting into place. These are highly contentious and will cost you money while you otherwise could put in reasonable and modest accommodations to help the person stay on the job.”

Interactive Process, Reasonable Accommodation

Engaging in the interactive process is paramount to staying on the right path, the experts said. In the work environment that can be done in a variety of ways.

“At the heart of it it’s responding to what the employee is asking for,” said Adrienne Paler, director of Integrated Disability and Absence Management at Sutter Health. “It can come in a variety of ways, orally, in writing … As an employer you need to respond to that ask. That’s often times what is missed. Or managers hear it but don’t take the action.”

The onus is not entirely on the employer; the employee is a major part of the process as well. The worker herself may know best what she needs in order to get her work done. Talking with her can lead to some simple accommodations. Working with the employee and being flexible can go a long way to solving barriers to the work.

Nowak related a recent case involving a retailer that had a worker with connective tissue issues and found it difficult to walk around the store. After taking a short leave of absence she offered suggestions about potential accommodations, including the use of a cane while walking around the store.

“The store, a national retailer did not allow her to use her cane at work and as a result kept her out on leave,” Nowak said. “She remained on short term disability and at the end was terminated. The EEOC was clearly opposed…” The case settled for upwards of $100,000.

The term, ‘reasonable accommodation’ is somewhat subjective, Nowak explained. The change being requested or put in place has to be ‘reasonable,’ although there is no clear definition of that. But the courts have said the accommodation must be one that is effective in helping the worker perform the essential functions of his job.

“The employee doesn’t necessarily get to choose [the accommodation],” Nowak said. “They don’t get to change supervisors, or bump others out of position; but it’s modifications to their job or work environment that is effective to help them perform their job.”

Schedule changes, such as allowing an employee to work earlier in the mornings or later in the evenings than usual are examples of reasonable accommodations. As long as it doesn’t create an undue hardship to the business operations, employers should consider such a change – such as allowing a retail worker to use a cane.

Complications of COVID-19

As if navigating the world of federal, state and local leave mandates hasn’t been difficult enough, employers now face a barrage of new directives due to the pandemic.

“They cover return to work issues, business closures, they now cover issues related to mask use, whether you can require your employees to provide documentation to return to the workplace, some prohibit that,” Nowak said. “There is a whole history of executive orders on the use of masks and what you can and can’t do; what kind of questions you can ask, what documentation you can require – if any.”

Another issue to consider is the Americans with Disabilities Act, and how and whether it applies. Many employees have fears about returning to the workplace; some with conditions that put them at higher risk for complications from COVID-19 but many others with no underlying issues other than a generalized fear. The ADA doesn’t require accommodation for that fear.

“Engage with your employee,” Nowak said. “What can be done, short of putting the person on leave until the end of the pandemic, or putting somebody else in. What can we, as employers do?”

An important thing employers can do is constantly communicate and be transparent with their employees about what the company is doing to protect them and keep them safe at work. That alone can help allay many of the fears workers have.

Nevertheless, some employers have been faced with litigation related to the pandemic. Nowak said his firm has seen nearly 750 lawsuits filed so far, mostly from California, New Jersey, Florida and New York.

“They fall into several categories,” he said, “unsafe work environments, people say they are subject to work in an unsafe environment. Failure to accommodate – I see a lot of those, not so much at the federal level but state laws being used to advance these lawsuits in state courts where workers claim they have not been provided accommodations … and failure to provide leave, whether under federal or state laws. Those are the most common areas we’ve seen.”

Key to preventing such litigation is speaking with and actively listening to employees.

“When we start to engage with a worker, whether they will be off work or have an accommodation, a lot of times when they land with me they are frustrated, they don’t feel they have been heard. Or they’ve met with people who planted ideas like ‘don’t go to her, you’ll be fired.’ They hear this,” Paler said. “Take a look at how to smooth that friction, establish a level of trust in the beginning. ‘Let me hear your situation, I don’t know if I can meet every expectation, but we are in this together. Let’s figure out a plan that’ll work for you.’ I may not be telling them they’ve used up all their leave .. it will add to the friction. Work with them to solve [the issues].”

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