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Beware of Legal and Management Pitfalls

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Hilary Mitchell BSN, MS, MBA, Pitney Bowes Bryon Bass Senior Vice President, Sedgwick Frank Alvarez Attorney at Law, Jackson Lewis LLP

Hilary Mitchell BSN, MS, MBA, Pitney Bowes Bryon Bass Senior Vice President, Sedgwick Frank Alvarez Attorney at Law, Jackson Lewis LLP

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  • 1. Sedgwick © 2013 Confidential – Do not disclose or distribute.Beware of Legal andManagement PitfallsMarch 28, 2013
  • 2. Sedgwick © 2012 Confidential– Do not disclose or distribute.Presented by:Hilary MitchellBSN, MS, MBA, Pitney BowesBryon BassSenior Vice President, SedgwickFrank AlvarezAttorney at Law, Jackson Lewis LLP
  • 3. Sedgwick © 2012 Confidential– Do not disclose or distribute.INTRODUCTION
  • 4. 4Most Difficult Activities Persist61%58%48%47%40%26%24%56%60%51%59%48%37%28%Tracking intermittent time previously takenTracking intermittent time during leaveInteracting with ADA and ADAAATransferring employees to alternative positionsObtaining second and third medical opinionsFacilitating return to workTracking continuous time previously takenFMLA Activities Ranked as Difficult/Extremely Difficult20122011Source: DMEC & Spring Consulting Group 2012 Employer Leave Management Survey
  • 5. Sedgwick © 2012 Confidential– Do not disclose or distribute.TPA Perspective
  • 6. 6Clients need Assistance with ADA process• Increased interest in understanding how TPA can assist withRTW/ADA Typically, STD Management programs incorporate transitional returnto work into practices On the other hand, LOA Management does not incorporate astructured transitional RTW• What about those situations when a STD or LOA claim hasnot been initiated?
  • 7. 7How clients are respondingImplement structured transitionalreturn to work/stay at workprograms for both occupationaland non-occupational programs• Provide opportunity fordisabled employees to ask foraccommodation in their jobsbefore having to go out ona leave• For those on leave, determine iftransitional duty would allowthe employee to return to workearlier through minormodificationsIncorporate pathways to ADAassessment into leave, short-term disability and workers’compensation programs• Build pathways to transitionalreturn to work programs• Prior to exhaustion of job-protected leave underFMLA, determine if disabledemployee can beaccommodated in workenvironment or if additionalunpaid, protected leave underADA is appropriate
  • 8. 8Two Primary Models• Medical Substantiation Obtain medical information form health care providerSedgwick will interfacedirectly with health careprovider and employeeto obtain medicalinformationSedgwick providesdetailed medicalinformation to Client –typically a centralizedADA team responsiblefor the analysis and nextstepsClient responsible fornext steps (limitationassessment, interactiveprocess, accommodationdecision)
  • 9. 9Two Primary Models• ADA Assessment Provide full service ADA Assessment service for employers upthrough final accommodation decision• Sedgwick will interface directly with health care provider and employee toobtain medical information• Client provides essential job functions of position• A vocational rehabilitation specialist will determine limitations and offeraccommodation recommendations• Vocational rehabilitation specialist lead interactive process• Client responsible for final decision on accommodation
  • 10. Sedgwick © 2012 Confidential– Do not disclose or distribute.Client Perspective
  • 11. 11Pitney Bowes90-plus year legacyFortune 500 company$5 billion leading mail stream technology solutions providerGlobal team of more than 30,000 employeesUS 21,000 employees – over 50% hourly workers, callcenters, mail sorters (physical work)Presence in more than 130 countriesMore than 2 million customers
  • 12. 12Evolution of In house Disability Departmentfully integrated claims management• 20+ years ago was outsourced• Concerns about claim duration and communication• STD and LTD first moved in house – RNs, CE and MD consultantDurations dramatically dropped/ Communication improved• FMLA implemented in house• ADA implemented in house• WC claim oversight - added two years ago (Sedgwick)Current – Department must prove financial value by cost saving– annual external benchmarks on duration
  • 13. 13PB Integrated Healthcare Model
  • 14. 14ADA/FMLA Volume Growth While EmployeePopulation Declined: FMLA also runs concurrently with STD/WCADAMonth 2009 2010 2011Jan 2 0 4Feb 1 3 4Mar 1 1 6April 0 4 2May 2 2 3Jun 0 0 5July 2 1 2Aug 1 4 6Sep 3 2 4Oct 2 1 7Nov 2 4 11Dec 0 5 4Total 16 27 58FMLAMonth 2009 2010 2011 2012Jan 136 90 113 128Feb 102 100 79 82Mar 86 77 91 75Apr 87 62 109 57May 66 61 76 66Jun 80 59 82 74Jul 104 86 53 89Aug 97 92 89 99Sep 92 38 58 59Oct 68 70 71 85Nov 69 67 65 52Dec 104 96 106 68Total 1091 898 992 934
  • 15. 15FMLA vs. ADA – FMLA easier to administerFMLAHad to developHad to developAll employeesNo clear lengthExtremely liberalADAForms providedTimeline for response providedEligibility requirementsFMLA maximum length rulesMedical qualifications fairly clear
  • 16. 16DefinitionsRestriction:A request to be excused from performing one or more ofthe essential functions of a job.Accommodation:A request for a modification or accommodation so that allessential functions of a job can be completed.
  • 17. 17Early Challenges ADAUnlikeFMLA, formsand timelineshad to bedevelopedInteractiveCommitteeDeveloped:Attorney, Manager, HR, RN, andDepartmentDirectorTraining:Staff, HR, ManagersWhat is an ADA request vs. a restrictions request?
  • 18. 18ADA Summary Form – Important informationIs this a permanent restriction?If unsure, explainIs the accommodation a current essentialfunction of his/her job?Job description available?If yes, please attachIf a leave, what is the end date?
  • 19. 19Challenging requests – Interactive Team• Leave requests after exhausting STD/FMLA – now ADA no clear end date• Work at home requests (for nonexempt employees) anxiety/stress• Shift change off nights due to sleep disorder• Requests to “call out” as needed no timeframe PTSD• Requests to avoid certain buildings aggravates asthma, no air quality issues found
  • 20. 20Recent case law on ADA: duration of leave10th Circuit:Robert v. Board of County Commissioner of Brown County2012 U.S. App. LEXIS 18365(10th Cir. Aug. 29, 2012)• 10th Circuit’s analysis started with whether employee was qualified(able to do the essential functions with or without a reasonableaccommodation
  • 21. 21Recent Court Ruling ADA:12In considering whether the employee’s leave request wasreasonable, the court identified two limits on the bounds ofreasonableness for leave as an accommodation:First, has the employee provided an estimated date when theessential job duties can be resumed? Without an end date, theemployer cannot assess whether a temporary exemption fromessential functions is reasonable.Second, does the leave request assure the employer that theemployee can perform the essential functions of her position “in thenear future”?
  • 22. 22SummaryWe have come alongway in developing therequestforms, procedures, anda interactive team.Our volume of requestscontinue to increase.It is still an evolvingprocess.
  • 23. Sedgwick © 2012 Confidential– Do not disclose or distribute.Legal Perspective
  • 24. 24Employers in FMLA DenialStill don’t accept that FMLA is an entitlementStill don’t accept that ER rights stem fromadequate general notice to EES of their FMLArights and obligationsStill don’t accept time it takes to administerFMLAStill don’t accept the need to conform withstate leave
  • 25. 25My Experience• ERS who think FMLA is easy: Have very low utilization FMLA; Waive their rights, providing greater leave rights and lesser leaveobligations than FMLA permits; or Unwittingly violate the FMLA at a systemic level (i.e., the ticking timebomb scenario)• ERS frequently violate FMLA medical examination rules• Any meaningful FMLA audit would reveal significant complianceexposures• Effective FMLA compliance requires help outside leave administrators or technology
  • 26. 26Employers in ADAAA Denial• Virtually every employee who exhausts FMLA leave has aviable ADA claim under the ADAAA• Employers think outsourcing FMLA removes them fromleave administration• Employers are ill-equipped to communicate with EE onleave to determine whether: additional leave is a reasonable accommodation accommodations might reduce or eliminate the need for leave
  • 27. 27My ExperienceERS replace EEs on leave without sufficient ADAaccommodation analysisERS shun communicating with doctorsERS don’t know what they can or cannot say to, orrequire of, EE’s and their doctors
  • 28. 28My ExperienceSTD benefit administration is given most of the attentionfrom ERS and vendorsMost ERS don’t want to even know what is happening inworkers’ compensation programsERS don’t want to deal with the silos because they aretoo politically sensitive
  • 29. 29Specific FMLA ChallengesDecentralizedAdministration• Inadequate resourcesto collect and respondto informationregarding absencesCentralizedAdministration• Inadequate local knowledge ofwhen FMLA applies• Untimely responses• Inadequate tracking tools• Uneven leave administration(drives internal inequities)• Inadequate group healthbenefit administration
  • 30. 30Conduct an FMLA/ADA Audit• Audit your FMLA policy• Audit your FMLA forms• Pick 50 absences or medical leaves -- how well are you doing?• Review instances when company contacted EE’s healthcareprovider• Review a percentage of medical certifications supportingintermittent leave• Review all terminations or suspensions for excessiveabsenteeism• Review performance reviews for individuals with knownattendance problems
  • 31. 31Conduct an FMLA/ADA Audit• Are EES on medical leave granted job-protected leave?• Are EES on medical leave invited to discuss reasonableaccommodations to reduce or eliminate the need for leave?• Once job-protected leave is exhausted, who engages EES onpotential need for more leave?• Are EES evaluated based on ability to perform essential jobfunctions, with or without reasonable accommodations?• Are EES required to provide releases to “full duty”?
  • 32. 32www.disabilityleavelaw.comCheck out our FMLA/ADAAA Law Blog
  • 33. Sedgwick © 2012 Confidential– Do not disclose or distribute.QUESTIONS