Tuesday, January 31, 2012

LEAVE AS A REASONABLE ACCOMMODATION

One of the more vexing issues facing both employers and employees involves leave time related to a medical condition, especially when the period of leave exceeds an employer's permitted leave allowance or otherwise violates an established attendance policy. Although such situations might be challenging and confusing, employers must confront them directly because using leave necessitated by an employee's disability constitutes a "reasonable accommodation" under the ADA.

The U.S. Equal Employment Opportunity Commission's (EEOC) Reasonable Accommodation Guidance provides examples of some of the reasons an employee with a disability might require leave:

Obtaining medical treatment or rehabilitation services related to the disability.
Recuperating from an illness or an episodic manifestation of the disability.
Obtaining repairs on prosthetic device or other equipment such as a wheelchair.
Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis).
Training in the use of a service animal or assistive device.
Training in the use of Braille or sign language.

Here's a discussion of some frequent and confusing leave-related issues that employers and employee have presented to JAN.

How Much Leave Is Reasonable? The ADA does not set a specific amount of time relative to the use of leave as a reasonable accommodation. As with any accommodation situation, you should consider a period of leave for an employee with a disability on a case-by-case analysis. If an employee needs a leave of absence that exceeds his or her accrued paid leave, the employer should permit the employee to exhaust the paid leave and then allow the use of unpaid leave absent undue hardship.

Although there's no limit on the amount of leave used as a reasonable accommodation under the ADA, the EEOC has held that employers need not grant indefinite leave as a reasonable accommodation (see the EEOC Guidance on Applying Performance and Conduct Standards, Question 21). However, the employee need not provide a specific, fixed date of return. A request for leave is acceptable with an approximate date of return (e.g., around the end of August) or a range of dates for a return to work (e.g., sometime between August 24 and September 23).

ADA and the Family and Medical Leave Act (FMLA). An employee's rights under the ADA and the FMLA are separate and distinct. The EEOC has ruled that when an employee is entitled to leave under both laws, the employer should allow leave under the law providing the employee with the greater rights (see the EEOC Fact Sheet on the FMLA, ADA, and Title VII). Additionally, employers should note that the ADA might require them to grant leave beyond the 12 weeks allowed under the FMLA as a reasonable accommodation. In this case, an employer can consider the FMLA leave taken in determining whether the requested leave time poses an undue hardship.

Erratic or Unreliable Attendance. The ADA can require employers to modify attendance policies as a reasonable accommodation in the absence of undue hardship. This does not mean that employers must exempt an employee from time and attendance requirements completely or accept irregular and unreliable attendance unquestionably. Frequent occurrences of tardiness or absenteeism, particularly during an extended period and without adequate notice, could certainly impose an undue hardship in many situations. See the Commission's Guidance on Applying Performance and Conduct Standards for a detailed discussion with examples of specific scenarios.

Alternative Accommodations. Although it makes sense for employers to give an employee's choice of accommodation primary consideration when more than one reasonable accommodation is possible, they can ultimately choose the accommodation to be implemented, assuming that it's equally effective. Accordingly, under the ADA an employer can offer a reasonable accommodation that requires an employee to remain on the job, as long as it's effective and doesn't interfere with the employee's medical needs.

Holding the Employee's Position. The ADA requires an employer to consider returning the employee to his or her same position in the absence of undue hardship. If undue hardship applies, the employer must consider reassignment to a vacant, equivalent position for which the employee is qualified.

Undue Hardship. As with any other reasonable accommodations, whether an employer should allow the use of leave as an accommodation will sometimes come down to an undue hardship analysis. In the case of leave, undue hardship will generally relate to a possible disruption in operations of the entity. For instance, the absence of an employee who performs highly specialized duties might create legitimate undue hardship issues, as might leave that occurs in a frequent and unpredictable manner. Generalized assessments are not adequate, because undue hardship must be determined based on individual and specific circumstances. Additionally, the EEOC has ruled that an employer cannot base an undue hardship claim on the argument that a reasonable accommodation might affect the morale of other employees negatively or that other employees might have to cover for the employee who is on leave.

What to Remember. Ultimately, much of the confusion involving leave as an accommodation occurs when there are no clear and open lines of communication. Lack of communication is usually the major obstacle to executing an effective accommodation solution. All parties need to be aware of any relevant updates or concerns, and everyone should make an effort to keep the information flowing. If you need ideas on how to encourage ongoing communication during the accommodation process, contact JAN.

Bill McCollum, MPA, Consultant

Monday, January 30, 2012

MEDICAL DOCUMENTATION: THINK ABOUT WHAT'S NEEDED AND STOP THERE

In our experience at JAN, there seems to be a great deal of confusion about medical documentation under the ADA. Employers aren't sure what they can ask for, when they can ask for it, or whether the ADA Amendments Act has changed the rules for medical documentation. Employees aren't sure what medical information they have to provide or how much to disclose. Medical professionals aren't sure what documentation will be most helpful in getting their patients the workplace accommodations they need. Most of these questions come up when an employee requests an accommodation.

The good news: The medical inquiry rules that apply when an employee requests an accommodation are less complicated when they might seem. The general rule is that when the disability or need for accommodation is not obvious, an employer may require an employee to provide documentation that can substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but can't ask for unrelated documentation. So when thinking about what medical information to request or to provide, think about what is needed and stop there!

Let's start with the documentation needed to substantiate that the employee has a disability. The definition of disability for accommodation purposes is "a physical or mental impairment that substantially limits a major life activity or a record of such an impairment." To determine whether an employee has a disability, the employer can ask whether the employee has (or had) an impairment. If yes, you can ask whether the impairment affects (or affected) a major life activity. You can also ask whether the impairment substantially limits (or limited) the major life activity.

This is where the ADA Amendments Act has made some changes. Although the definition of "disability" remained unchanged, the threshold for showing substantial limitation is much lower than before. This means that the documentation needed to show that an employee has a disability should be far less extensive.

What about the documentation needed to substantiate the need for an accommodation? The ADA Amendments Act did not change the reasonable accommodation provisions of the ADA, so the rules for medical documentation likewise remained unchanged. An employer may verify that the accommodation is needed, ask questions about the employee's limitations that are causing the problem, and get other relevant information about the request to help determine effective accommodations.

For more information, see recently updated JAN publications related to medical documentation, including:

How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act Amendments Act (ADAAA)
Medical Inquiry in Response to an Accommodation Request
Sample Medical Inquiry Form
Practical Guidance for Medical Professionals: Providing Sufficient Medical Documentation in Support of a Patient's Accommodation Request and Sample Accommodation Support Letter

- Linda Carter Batiste, J.D., Principal Consultant

Thursday, January 26, 2012

'BAD HAIRCUT' AND UNEQUAL POLICY ENFORCEMENT LEAD TO TROUBLE FOR EMPLOYER

In NLRB v. White Oak Manor, the Fourth Circuit Court of Appeals enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act when it discharged an employee for allegedly photographing employees at work without permission. The Court agreed with the Board's findings that the employee was actually discharged because of protected concerted activity and that the employer had not enforced its photography and dress code policies consistently.

Nichole Wright-Gore worked as a supply clerk for White Oak Manor. White Oak's policies prohibited employees from wearing hats and taking photographs inside the long-term care facility. Wright-Gore was embarrassed about a bad haircut and started to wear a hat to work, without comment from any supervisor. After a week, however, when supervisors told her to remove the hat, she refused and was sent home. The next day, White Oak employees dressed up in costumes for Halloween. Wright-Gore's costume included a hat, but her supervisor made her remove the hat pursuant to company policy. Wright-Gore complained that White Oak was enforcing the hat policy unequally, but her supervisor told her to worry only about herself and gave her a written warning for insubordination because she had refused to remove her hat the day before.

During the next few weeks, Wright-Gore photographed several employees wearing hats to work and violating other White Oak dress policies, such as failing to cover up their tattoos. She photographed some employees with their consent, but also took photographs of employees without their consent. She also shared the photographs with other employees and discussed the unequal treatment with them in an attempt to build support for her argument. White Oak eventually discharged Wright-Gore for violating the photography policy.

She then filed an unfair labor practice charge alleging that White Oak interfered with her right to engage in protective concerted activity. The Administrative Law Judge (ALJ) found that Wright-Gore's complaints became protected concerted activity when they evolved into an effort to have White Oak enforce its dress code policies fairly. Another important issue was whether she lost protection of the Act by taking pictures of other employees without permission, in violation of White Oak policy. The ALJ held that she did not, in part, because there was evidence that other employees took pictures of each other without permission, and even displayed the pictures around the facility, without repercussion. The Board affirmed the ALJ findings.

On appeal, White Oak argued that Wright-Gore could not have engaged in protected concerted activity because she initially acted out of pure self- interest, and did not intend to act on behalf of a broader group. The Fourth Circuit rejected this argument and enforced the Board's decision. As the court noted, "[t]hat an employee's self-interest catalyzed her decision to complain about working conditions does not inexorably bar a determination that her actions were protected and concerted." Thus, the fact that Wright initially acted out of her own self- interest did not remove her actions from the protections of the Act. Moreover, the court's decision emphasized the fact that White Oak had not enforced its photography or dress code policies consistently.

This case reinforces the importance of employers enforcing workplace policies consistently and the reality that seemingly individualized complaints can lead to employer decisions which conflict with the National Labor Relations Act.

Courtesy Franczek Radelet

Wednesday, January 25, 2012

INSURANCE FOR SMALL CONSTRUCTION BUSINESSES

Small construction businesses require several of the same types of insurance coverage that larger businesses need. In addition to this, there are types of coverage available that are specific to the construction industry.

Property Coverage
Property insurance might be needed to provide coverage for any real property owned by the company. This coverage might also be needed to cover any personal property that is used for the business. The largest amount of property loss could involve equipment that is taken to varying sites and valuable machinery. Standard property insurance doesn't provide coverage for such items. It's necessary to purchase floaters from contract insurers for such items. Speak with our agents to learn what types of floaters are available and to determine which ones are the best choice for an individual business. It's important to keep in mind that a building has a value that increases steadily as it's being constructed. In order to ensure that it is covered properly, it's best to purchase a special policy. This policy is called Builders Risk Insurance.

Liability Coverage
Every small business needs liability coverage. In today's litigious world, nearly anyone can file a claim stating that they were injured by or at a specific business. Since this is common, it's important to be prepared to face such a situation by purchasing a good liability policy. Some small construction businesses might want to have their subcontractors purchase Owners and Contractors Protective Liability Coverage, which is also called OCP. This type of insurance covers a business owner or business property owner from liability resulting from negligence of their independent contractors or subcontractors. The subcontractor or contractor is the actual purchaser of this policy. However, the benefits and protection are credited to the business owner or business property owner for whom the contractor agrees to work.

Business Vehicle Coverage
Personal car insurance policies often cover some business use of a vehicle. However, if the vehicle is used primarily for business, it's unlikely that a personal auto policy will provide the same coverage. The policy will never provide coverage for a vehicle that is owned by a business. It's important to have business vehicles insured with a policy that is specific for businesses. If a personal vehicle is involved in an accident resulting in injuries to others while being used for business, the injured parties can sue the insured individual personally. However, most policies don't provide enough coverage to compensate in such a situation. Contact us to determine what amounts should be purchased for an individual business.

Tuesday, January 24, 2012

DISABILITY EMPLOYMENT STATISTICS


The Institute on Disability at the University of New Hampshire has just issued its Annual Disability Statistics Compendium. Here are some of the stats related to employment in 2010. Click here to see the entire report.

Among the 19,048,426 individuals with disabilities ages 18 to 64 years living in the community, 6,368,644 were employed -- an employment rate of 33.4%. In contrast, among the 172,089,634 individuals without disabilities ages 18 to 64 years living in the community, 125,358,735 were employed - an employment rate of 72.8%. The employment rate for people with disabilities was highest in North Dakota (54%) and lowest in Kentucky (25.7%).

The employment rate for individuals with disabilities ages 18 to 64 years living in the community was 33.4% while the rate for individuals without disabilities ages 18 to 64 years living in the community was 72.8% -- an "employment gap" of 39.4%. The employment gap was greatest in Maine (48.9%) and smallest in Wyoming (27.7%).

The employment gap between individuals with and without disabilities ages 18 to 64 years living in the community was 39.4%, compared with 39.1% in 2009.

Among the 19,048,426 individuals with disabilities ages 16 to 64 years living in the community, 3,834,727 were employed fulltime, year-round - a full-time, year-round employment rate of 20.1%. In contrast, of the 172,089,634 individuals without disabilities ages 16 to 64 years living in the community, 88,683,091 were employed full-time, year-round - a full-time, year-round employment rate of 51.5%. The full-time, year-round employment rate for people with disabilities was highest in North Dakota (32.1%) and lowest in Maine (15.2%).

Finally, the full-time, year-round employment rate for individuals with disabilities ages 18 to 64 years living in the community was 20.1%, while the full-time, year-round employment rate for individuals without disabilities ages 18 to 64 years living in the community was 51.5% - a full-time, year-round employment gap of 31.4. The full-time, year-round employment gap was greatest in Maine (38.8%) and smallest in Utah (24.1%).

What can an employer take away from this?

Obtaining gainful employment can be a real struggle for people with disabilities.
Some communities are more "open" to employing the disabled. Some of this difference has to do with the types of jobs available, employment programs, and incentives.
As "good people" we can rise above any perceived limitations and employ those with disabilities based on the results they are capable of producing.

To help with accommodation ideas go to http://askjan.org/.

Monday, January 23, 2012

ARTISAN CONTRACTORS INSURANCE

Plumbers, electricians, carpenters, tree surgeons and roofers who perform skilled work on a customer's premises are just a few examples of artisan contractors. These workers are also called casual contractors. Piano tuners, interior decorators, exterminators and other skilled service providers are also considered artisan contractors. These contractors require special insurance for their tools and equipment, which are commonly moved from one site to another until each job is finished. The most affordable and efficient way for an artisan contractor to get liability and property coverage is to obtain a Business Owners Policy that is tailored to fit individual needs. Although they might be marketed under varying names, such policies usually have similar terms.

Property owned by the business and real property are covered by the BOP. The property must be located at the address of the business described in the policy. Businesses that lease or rent their locations have coverage from the BOP for tenants' betterments and improvements. These include any installations, additions or alterations that cannot legally be taken away from the premises. Equipment that moves from one site to another and valuable machinery are items that pose the greatest risk for a significant loss. Such items are not covered under a standard property insurance policy. These items are classified as movable property, which means special contracts are required to obtain insurance. These special contracts are called floaters.

Various types of equipment and machinery are covered during transit with an installer's floater. They're also covered during testing. In some cases, building materials might also be covered. Policies may be written to include coverage on a reporting form or for a single job. This means that the contractor provides information to the insurer regarding each new contract. Tools and equipment floaters provide coverage for the property that is insured. Coverage is extended to any location where the movable property is used.

Liability coverage is essential for all contractors. If a customer files a lawsuit, this type of coverage will certainly be required to protect the contractor. Subcontractors' customers might require individuals who work for them to have Owners and Contractors Protective Liability insurance. This type of coverage provides protection for business owners from liabilities resulting from negligent acts committed by contractors or subcontractors. It's best to speak with one of our agents to learn how this type of coverage works. There might also be coverage for certain vehicles. Speak with us to learn what types of coverage are available for vehicles that are used primarily for business.

Sunday, January 22, 2012

SOCIAL SECURITY SPIRALING TOWARD INSOLVENCY

Social Security's disability program is expected to become insolvent in less than a decade. If Congress fails to solve the issues leading to this problem, Social Security will run out of money, which means they won't be able to pay full benefits. Due to economic difficulties, people of the baby boomer generation are applying for Social Security disability benefits. Unfortunately, many disabled workers of this generation held jobs that were eliminated due to economic decline. These individuals can't find new jobs, so disability income is the only option they know is available.

The deluge of applications flooding the Social Security office has created a backlog. The program has already been in the red financially for several years. The new influx of applications has created a load that threatens to collapse the structure entirely. Unfortunately, nearly two-thirds of initial applications are rejected. This brings the need for a lengthy appeal process, which might consume up to two years. Of the nearly 14 million people who receive federal disability benefits, more than 4 million receive SSI, more than 7.5 million receive Social Security, and more than 1.5 million receive both types of benefits.

In an attempt to save Social Security from collapsing, Congress is targeting overpaid balances from the various programs. In addition, they're implementing enhanced enforcement. A deficit-reduction package they allowed is expected to bring at least a $4 billion boost over the next decade for the Social Security budget. This amount will help to invest in programs used for identification of people who no longer meet the qualification criteria. Those who don't meet the criteria won't be able to receive benefits. This process aims to limit the sparse funds only to those who truly need them. Although not everyone abuses disability benefits, studies have shown that there are some individuals receiving aid who aren't truly disabled.

If the plan works, it could save approximately $12 billion over the span of a decade. Funds will be distributed to the backlogged applicants who need disability income. In addition to this, there will be measures in place to prevent those who don't need benefits from getting them. There have also been recommendations made to boost the benefits for the elderly and individuals who have a long-term disability. In addition to this, suggestions have been made to slow the benefit growth for high earners. Raising full and early retirement ages has also been suggested.

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