ADA and Absence Management: A Guide for Producers


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Since becoming effective in January 2009, the ADA Amendments Act (ADAAA) has dramatically expanded the challenges employers face in complying with the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission’s (EEOC) Final Regulations implementing the ADAAA “Final Rule,” released in March 2011, are only beginning to be interpreted and applied by courts, further compounding the problems employers face.

Beginning with a brief history of the ADA, this guide describes employer ADA compliance obligations and options for managing ADA workplace issues. We spotlight key success factors in building ADA-compliant programs and provide checklists of questions you may ask clients to better understand their program needs and help them identify the appropriate partner and vendor to assist in those compliance efforts. FAQs and links to additional resources support this comprehensive review of employer ADA obligations.

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ADA and Absence Management: A Guide for Producers

  1. 1. ADA and Absence Management: LibertyMutualInsuranceGroupBenefits A Guide for Producers FOUNDATION for success
  2. 2. 1 Since becoming effective in January 2009, the ADA Amendments Act (ADAAA) has dramatically expanded the challenges employers face in complying with the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission’s (EEOC) Final Regulations implementing the ADAAA “Final Rule,” released in March 2011, are only beginning to be interpreted and applied by courts, further compounding the problems employers face. Beginning with a brief history of the ADA, this guide describes employer ADA compliance obligations and options for managing ADA workplace issues. We spotlight key success factors in building ADA-compliant programs and provide checklists of questions you may ask clients to better understand their program needs and help them identify the appropriate partner and vendor to assist in those compliance efforts. FAQs and links to additional resources support this comprehensive review of employer ADA obligations. Of course, your clients should consult with legal counsel about all regulatory and human resources issues. Liberty Mutual Insurance Group Benefits has published this producer guide so that you can work more effectively with employers in developing strategies for integrating ADA compliance into benefits programs. It distills what we have learned through more than 100 years of experience with absence management, workers compensation, and disability issues and applies it to the 21st-century workplace in which employers face new and evolving ADA compliance challenges.
  3. 3. 2 About the Americans with Disabilities Act (ADA) A Brief History The American with Disabilities Act (ADA) was signed into law in 1990 to afford protection against discrimination for the disabled similar to Title VII of the Civil Rights Act of 1964, which prohibited discrimination based on race, color, religion, sex, and national origin. Responsibility for enforcement of the ADA’s provisions was assigned to the U.S. Equal Employment Opportunity Commission (EEOC). After a series of U.S. Supreme Court decisions narrowed the ADA’s protections, in 2008 Congress passed the ADA Amendments Act (ADAAA). The ADAAA sought to clarify and broaden the way courts should interpret the ADA’s definition of the term “disability,” in effect giving additional protection to disabled workers. With passage of the ADAAA, the EEOC was instructed to revise its regulations regarding the definition of disability so that they would be consistent with the “rules of construction” adopted by Congress in the ADAAA. On March 25, 2011, the EEOC finalized its regulations implementing the changes made by the ADAAA. The ADAAA is not retroactive but applies only to cases and situations involving employment actions occurring after January 1, 2009. Disability Defined Before and after the ADAAA became effective, the ADA states the term disability means, with respect to an individual: ▪▪ Having a physical or mental impairment that substantially limits one or more major life activities ▪▪ Having a record of such an impairment ▪▪ Being regarded as having such an impairment While this definition of “disability” has not changed, in passing the ADAAA, Congress enacted rules of construction that direct courts (and implicitly the EEOC, employers, and employee representatives) to interpret the term very broadly. Given these new rules of construction, many individuals with temporarily disabling medical conditions or injuries, including many receiving disability benefits, will now have ADA covered disabilities. The ADAAA also added specificity to the term “major life activities” (first bullet above) in the following way: “Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The ADA—One Law;FiveTitles Title I—Employment: Requires covered employers to provide reasonable accommodations for applicants and employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment. Title I also regulates medical examinations and inquiries. Title II—Public Entities: Prohibits disability discrimination in the programs and services provided by state and local governments and requires accessible public transportation. Title III—Public Accommodations: Mandates removal of barriers to places of public accommodation such as restaurants, hotels, grocery stores, retail stores, etc., as well as privately owned transportation systems. Title IV—Telecommunications: Addresses the need to offer telephone relay service free of charge to individuals who use telecommunication devices for the deaf (TTYs) or similar devices. Title V—Miscellaneous: Covers a variety of issues including prohibiting various forms of retaliation or coercion against individuals with disabilities or those attempting to aid people with disabilities in asserting their rights under the ADA, addressing the rights of entities to prohibit smoking, excluding certain conduct from the definition of disability, and providing a “safe harbor” for certain insurance practices.
  4. 4. 3 Significantly, the ADAAA expands the circumstances where individuals may be “regarded as” having a disability (third bullet above) by stating “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual is subjected to a prohibited employment action [e.g., demotion, discharge] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” This “regarded as” definition shall not apply to impairments that are transitory and minor. While neither the ADAAA nor the EEOC’s Final Rule defines what is “minor,” a transitory impairment is an impairment with an actual or expected duration of six months or less. Where It Applies The employment provisions of the ADA apply to employers with 15 or more employees on 20 or more calendar workweeks in the current or preceding year. Title II of the ADA covers state and local governments regardless of size. Other individuals who are protected in certain circumstances include: ▪▪ Those, such as parents of a disabled child, who have an association or relationship with an individual with a disability ▪▪ Those who are coerced or subjected to retaliation for assisting people with disabilities in asserting their rights under the ADA Employer Impact Title I of the ADA is the area that most affects employers. It has broadened the definition of disability so that more employees can seek accommodations under the law and employers must ensure their programs and processes are compliant. By understanding these requirements, you can better assist your clients in developing and maintaining compliant absence programs. Employer ADA Exposure—Numbers Tell a Tale The U.S. Equal Employment Opportunity Commission (EEOC) is charged with enforcement and litigation of ADA-related issues. In addition to federal actions, employees who feel that their disabil- ity has not been accommodated or they were subject to retaliation due to a disability may pursue redress through civil proceedings. The impact on an employer can be substantial. 1. EEOC Enforcement and Litigation Statistics. 2. Wolters Kluwer Employment Law Daily, 07/07/11: will-pay-20-million-to-settle-eeoc-nationwide-disability-bias-suit-over-inflexible-attendance-policy/ 26,379 20.5% $103M $20M the number of actions brought by EEOC in 2012 based on workplace ADA claims1 of cases resolved in favor of parties bringing charges (includes settlements)1 amount of monetary benefits and negotiated settlements in 20121 largest single disability bias settlement against a single employer (Verizon)2
  5. 5. 4 Given the ADAAA’s expanded concept of disability, employers generally spend less time today trying to determine whether the individual is disabled and much more time trying to determine whether the employer has complied with its obligations under the law. Among other things, this requires employers to assess each reasonable accommodation request on an individual basis and ensure that an interactive process is undertaken. (See page 6 for a discussion of the interactive process.) Managers, supervisors, HR, and benefits personnel have roles in ADA compliance. Manager and supervisor training is especially important because they are representatives of the organization, their actions, inaction, and knowledge can trigger liability for ADA violations. Employer Responsibilities to Remain ADA-Compliant Identify Employee Needs An employer’s ADA obligation to provide reasonable accommodations essentially is triggered whenever an employee identifies a need for a reasonable accommodation. The request or expression of need triggers the obligation of the employer to engage in an interactive process, or dialogue with the employee, to determine the appropriate reasonable accommodation or response. However, an employer should initiate the reasonable accommodation interactive process without being asked if the employer (or manager) knows or has reason to know that the employee is experiencing workplace problems because of a condition that is or may be a covered ADA disability. When employees are absent due to their own illness or injury, ADA compliance will be enhanced if employers work to facilitate frequent, ongoing, and interactive discussions between the employee, supervisors, treating physicians, and their carrier’s disability and vocational case managers to explore opportunities for a return to work (RTW) as quickly as is safe and appropriate. If employees are at work and having difficulty performing jobs due to a disabling illness or injury, employers need to explore potential ways to accommodate their disability-related work needs. Research shows that most reasonable accommodations can be provided with little financial cost to the employer. By providing reasonable accommodations, employers frequently increase employee satisfaction and improve productivity while enhancing ADA-compliance efforts. Develop and Communicate Consistent Policies throughout the Organization It is important for employers to have a clear process in place for employees to request an accommodation and to train managers on how to handle a request or to identify when an employee needs an accommodation. Organizations that have uniform absence management, disability, and leave policies that are prominently displayed and clearly communicated across all levels of the workforce have established a strong framework to demonstrate compliance with the requirements of the ADA as well as other state and federal regulations. Messaging regarding an organization’s commitment to meeting the needs of all its employees should begin at time of hire and be repeated on a regular basis as needed to keep all employees informed. Manager and Supervisor Responsibilities Managers and supervisors should be trained to: ▪▪ Identify when an employee may need an accommodation ▪▪ Know whom to contact within the organization to initiate the interactive process ▪▪ Understand issues of privacy and confidentiality ▪▪ Communicate and interact with employees who have accommodations ▪▪ Refrain from making negative or derogatory remarks in response to an accommodation request ▪▪ Ensure that an employee is able to perform his/her job with an accommodation where appropriate
  6. 6. 5 Initiate the Interactive Process Generally, an employee request for an accommodation triggers the interactive process in which the affected parties communicate with each other about the request, the precise nature of the work-related problem that is causing the request, how a disability is prompting a need for an accommodation, and alternative accommodations that may be effective in meeting the individual’s needs. An employee need not mention the ADA or use the phrase “reasonable accommodation.” Any time an employee indicates that s/he is having a problem related to a medical condition, the employer should consider whether the employee is implicitly making a request for accommodation under the ADA. Train Supervisors and Managers Supervisor and manager training about ADA compliance and recognizing the needs of disabled employees is more than good employee relations; it may help protect the employer in the event of litigation. Managers and supervisors should be trained: ▪▪ How to identify an accommodation need ▪▪ How to communicate appropriately with an employee in a manner that respects and protects privacy and confidentiality ▪▪ Where to go for guidance about accommodation requests Document and Track Accommodation Requests and Responses When an employee is ill, injured, out on leave, or returning to work, it is critical to keep accurate records of requests, actions, and decisions among all parties—employee, manager, HR, and external providers including carriers and caregivers. Whether an employer develops its own system or uses a third party, it is important that tracking and documentation be integrated across all leave and disabil- ity programs, both occupational and nonoccupational. This comprehensive approach to tracking and documentation affords employers the confidence to know that their employees’ needs are known and addressed, while providing a record of compliance efforts. Coordinate Disparate Leave Requirements Requirements to provide job-protected leave under the ADA, the Family and Medical Leave Act (FMLA), state regulations, and workers compensation (WC) can vary. For example: ▪▪ FMLA has specific requirements for eligibility and limits the time available in a 12-month period, but unlike the ADA, employers cannot deny leave because it creates an undue hardship. ▪▪ All disabled employees may be eligible for leave regardless of hours worked or length of service, and the ADA has no strict time limitations on the duration of leave to be provided. Eligibility for and the amount of leave to be provided under the ADA are determined on an individualized basis, and employers may deny leave requests if they can establish undue hardship. ▪▪ FMLA and ADA provide a right to unpaid, job-protected leave and do not alter employee rights under federal or state disability benefit programs or workers compensation laws. ▪▪ Because ADA rights to job-protected leave might still exist, employers cannot automatically terminate an employee with a serious health condition when they: • Exhaust FMLA • Are not eligible for FMLA • Are denied disability even because the employee fails to demonstrate incapacity ▪▪ The expanded definition of disability under ADA must be considered independently of disability and WC claims determinations in evaluating an employer’s ADA obligations.
  7. 7. 6 Spotlight:The Interactive Process The Job Accommodation Network (JAN), a free service for employers funded by the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP), recommends a six-step interactive process. Step 1: Recognizing an accommodation request ▪▪ Err on the side of caution—ask the employee to clarify what is being requested and why, and begin the documentation process with the response to this question. ▪▪ Act quickly—respond immediately. Unnecessary delays in processing an accommodation request may violate the ADA. ▪▪ Assign responsibility—at least one person should be responsible to follow the accommodation process. Step 2: Gathering information ▪▪ Find out the limitation and problem. ▪▪ Get the information from the employee when possible—employees with disabilities often know what accommodations will work best for them. ▪▪ If the employee is out on disability, consultation with the disability carrier may be very useful. ▪▪ Understand ADA rules for medical inquiries— ask only for what is absolutely necessary. Step 3: Exploring accommodation options ▪▪ Keep an open mind—accommodations are about doing things differently to help overcome a limitation. ▪▪ Invite employee input on accommodations—the employee may have some good ideas but may be hesitant to bring them up without being asked. ▪▪ Ask the employee’s medical provider—some medical professionals will brainstorm accommodation ideas. ▪▪ An organization’s disability carrier may have vocational resources and certified ADA administrators who can be useful sources of information or counsel. ▪▪ Use JAN when needed—JAN is a free, national resource for employers. Step 4: Choosing an accommodation ▪▪ Consider the employee’s preference—although not required by the ADA, the EEOC suggests “The accommodation preference of the individual with a disability should be given primary consideration.” ▪▪ Consider a trial period—try out an accommodation out. See if it works. Step 5: Implementing the accommodation ▪▪ Make sure all necessary steps are taken to implement the accommodation. ▪▪ Communicate only with essential personnel about the accommodation—keep ADA confidentiality rules in mind and let managers and supervisors know about the accommodation only if necessary. Step 6: Monitoring the accommodation ▪▪ Check on effectiveness—as things change in the workplace or for the employee, accommodation needs may change. ▪▪ Maintain the accommodation—when equipment is part of the accommodation, make sure it is properly maintained. ▪▪ Encourage ongoing communication—ongoing communication is the key to success. Check in with employees about any issues they may have with their accommodations. ▪▪ Maintain contact with the disability carrier, because RTW options may affect disability payments. Successful Accommodation Recognizing an Accommodation Request Gathering Information Exploring Accommodation Options Choosing an Accommodation Implementing the Accommodation Monitoring the Accommodation
  8. 8. 7 Notes: Employer Options for Managing ADA Issues As employers consider accommodation requests, there is some flexibility built into accommodation obligations under the ADA. Employers: ▪▪ Can choose among effective accommodation options. While the EEOC states that the preference of the employee should receive “primary consideration,” employers can and should consider costs, disruptions to the workplace or production, and other issues and do not always have to provide the requested accommodation. ▪▪ Do not have to provide accommodation that will pose an undue hardship to the organization (see callout page 8). ▪▪ Do not have to provide personal use items needed in accomplishing daily activities both on and off the job such as glasses and hearing aids. ▪▪ Do not have to make an accommodation for an individual who is not otherwise qualified for a position. ▪▪ Do not have to remove essential functions, create new jobs, or lower uniformly enforced production standards as an accommodation. When analyzing options for an employee returning to work, employers need to review the employee’s ability to perform his/her former job with an accommodation. If return to the former job is not possible, employers should review equivalent roles within the company to see whether the disabled employee could perform another job with an accommodation. If an equivalent role is not available, then employers should conduct a review of all open positions the returning employee might be qualified to perform with or without an accommodation. Roles considered do not need to be at the same level or position. In some jurisdictions, disabled employees are entitled to be reassigned to vacant positions on a preferential basis over equally qualified nondisabled candidates. Not All Accommodation Requests Are Equal  An employee tells her supervisor, “I’m having trouble getting to work on time because of medical treatments I’m undergoing.” This should be treated as a request for a reasonable accommodation.  An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.” This should be treated as a request for a reasonable accommodation.  A new employee who uses a wheelchair tells the employer that her wheelchair cannot fit under the desk in her office. This should be treated as a request for a reasonable accommodation.  An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. He does not link his need for the new chair with a medical condition. His statement is insufficient to put the employer on notice that he is requesting reasonable accommodation and need not be treated as a request for a reasonable accommodation.
  9. 9. 8 What is a “reasonable” accommodation? The EEOC offers specific guidance for defining reasonable in accommodating employee needs. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. With regard to employees, reasonable accommodations include: ▪▪ Modifications or adjustments to the work environment or to the manner or circumstances under which the position held is customarily performed that enable a qualified individual with a disability to perform the essential functions of that position. ▪▪ Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. Reasonable accommodations must be provided to qualified employees regardless of whether they work part time or full time or are considered probationary. Generally, the individual with a disability must inform the employer that an accommodation is needed. (See next section.) There are a number of possible accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include: • Making existing facilities accessible • Part-time or modified work schedules • Changing tests, training materials, or policies • Reassignment to a vacant position • Job restructuring • Acquiring or modifying equipment • Providing qualified readers or interpreters In the context of job performance, a reasonable accommodation enables the individual to perform the essential functions of the position. This means that employers need not eliminate responsibility to perform essential job functions (as is the case in many RTW or transitional work programs) as an ADA reasonable accommodation. Employers also do not need to ex- cuse misconduct or poor job performance as a reasonable accommodation. What is an “undue hardship”? The only statutory limitation on an employer’s obligation to provide reasonable accommodation is that no such change or modification is required if it would cause undue hardship to the employer. Undue hardship means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relation to the cost or difficulty of providing a spe- cific accommodation. Undue hardship refers not only to financial difficulty but also to reasonable accommodations that are unduly extensive, substantial, or disruptive or those that would fundamentally alter the nature or operation of the business. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship.
  10. 10. 9 Employee Responsibilities Generally Must Make Employer Aware of Challenge, Need, or Issue While it is the employer’s responsibility to provide reasonable accommodations for employees, the request for accommodations is subject to certain requirements on the part of the employee (or his/her representative—see below). When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.” Must Participate in Dialogue to Find Appropriate Response While an individual with a disability may request a change due to a medical condition, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine whether the individual’s medical condition meets the ADA definition of disability, a prerequisite for the individual to be entitled to a reasonable accommodation. Must Provide Documentation Describing Disability and Functional Limitations When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability and/or that the disability necessitates a reasonable accommodation. In most situations an employer cannot request a person’s complete medical records, because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation. An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. Appropriate professionals include but are not limited to doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals. Employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. An employer cannot ask for documentation when: ▪▪ Both the disability and the need for reasonable accommodation are obvious. ▪▪ The individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested. If an individual’s disability or need for reasonable accommodation is not obvious and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable accommodation. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation.
  11. 11. 10 Key Success Factors in ADA Compliance ADA compliance mandates caring about disability issues for all of an organization’s employees. An ADA-compliant workplace is also about mitigating risk and maintaining a productive workforce. These are formidable challenges for employers. Elements to consider: ▪▪ Employee focus—Employee disability and absence are complex and can be stressful for both the employee and employer. An effective partner will provide support to employees out on disability and work with an employer to ensure employees get back to work as soon as appropriate and with whatever accommodation is needed. ▪▪ Consistency—As regulations change at the federal level and states review their own regulations, it is important to ensure requests are handled consistently. At the same time, the need for accommodation is an individual need, and approaching each case as unique will foster a supportive environment and ADA compliance. ▪▪ Documentation and descriptions—Employers need to have the tools at hand to consider RTW and accommodation issues in a transparent manner. One vital element is a comprehensive library of job descriptions with functional requirements that can be cross-checked against other positions within the organization. ▪▪ Data and reporting—A provider should be able to provide a comprehensive suite of reports covering all aspects of a client’s program—including accommodation requests and RTW. Access to actionable information will help your client spot trends and areas of opportunity. ▪▪ Robust technology—Systems should be scalable and able to accommodate regulatory changes. Automated systems also help ensure correspondence is populated with accurate information and sent to employees and the employer in a timely manner. ▪▪ Integration—Employers can mitigate risk by consolidating disparate absence management and return to work programs. It’s important for a carrier to offer systems that integrate programs and can consolidate reporting and tracking on a single platform. Don’t Forget the Role of Legal Counsel An employer’s benefits carrier or other third- party administrator can be a valuable resource in helping support ADA compliance. Because responsibility and liability ultimately rest with the employer, there are limits on what can be expected of an outside vendor. Legal counsel should be consulted at every stage of developing or administering programs and particularly in resolving individual employee issues.
  12. 12. 11 SupportingYour Client’s Understanding of ADA Understanding Your Client’s Program Asking questions is the first step to better understanding your client’s current level of awareness about the importance of compliance with the ADA and its potential impact on the organization. As a producer, reviewing a client’s policies and approach helps you to understand potential issues and to research options in the marketplace. Having answers to the questions in the checklist below will help provide you with the information you need to find the right solution to meet your client’s and its employees’ needs. …… Does your client want to work with a single vendor to integrate absence management and manage ADA compliance issues? …… Does your client understand the level of risk the organization and even individual managers face for noncompliance with ADA regulations? …… Has counsel reviewed your client’s absence policy and processes for compliance with all federal and state regulations? …… Has your client inventoried existing disability, absence, and RTW policies and programs to identify gaps, overlaps, and inconsistencies? …… Does your client have a formal return to work program in place for both occupational and nonoccupational disabling events? …… Do policies for absence and return to work address the role of ADA compliance and accommodations? …… Does the employer communicate disability, absence, and return to work policies and procedures across all levels of the organization so they are clearly understood and universally applied? …… Is there a library of functional job descriptions that identify essential job functions and physical demands ordinarily associated with safe and successful performance of the essential job functions? …… Is there a designated return to work point of contact and training for supervisors and managers to be proactive supporters of employee needs? …… Does your client track accommodation requests? How many accommodation requests were made in the past year, two years, four years? …… Are supervisors and managers trained in identifying the need for accommodations, how to recognize a request, and whom to contact internally to initiate the interactive process? …… Is there a centralized team that handles absence and RTW issues? Do they also handle accommodation requests? …… Are accommodation requests an interactive process among the employee, HR, and supervisors, with documentation and tracking? …… Does your client’s current absence management provider support ADA compliance through tracking, documentation management, training, or clinical assistance on requests? Stay atWork Accommodation requests don’t always arise from disability-related claims. An organization may have employees who are at work and need an accommodation to “stay at work.” Requests can be for something as simple as a wrist support for a keyboard or mouse or a modified work schedule due to treatments or medications they are taking.These issues can be complex for employers who manage their absence programs in-house. It’s important that your clients have access to resources that will support them in making an accommodation decision.
  13. 13. 12 Finding the Right Partners Understanding your client’s needs and comparing those needs with a potential vendor’s capabilities will help you determine the best match. Asking some of these questions as part of your client’s Request for Proposal (RFP) will help clarify which provider will best meet your client’s needs: ▪▪ What assistance does your organization provide in reviewing ADA accommodation requests? What types of resources are used? ▪▪ Do you use in-house clinical and vocational professionals or are they outsourced? ▪▪ Can you provide warm transfers to external resources, such as the Job Accommodations Network (JAN) or others for consultation and guidance? ▪▪ Do you have the ability to include accommodation language in claim and leave letters? ▪▪ Do you have the ability to include accommodation documentation (e.g., treating physician’s completion of medical forms with accommodation options) with claim and leave letters? ▪▪ What technologies do you have to support requests? What intake methods are available? IVR, online, telephonic, paper, mobile? ▪▪ Can you provide status updates on requests? How? ▪▪ What type of reporting do you provide on RTW and accommodation requests? ▪▪ What education can you offer managers on the interactive process? ▪▪ What type of resources do you have to assist employers in the interactive process (e.g., best practices, job description templates)? ▪▪ Can you assist in reviewing/modifying an employer’s program for ADA compliance? ▪▪ Please describe how your organization implements and communicates changes in ADA and other relevant federal or state regulations. ▪▪ Do your intake, tracking, and reporting systems address overlap and points of demarcation between ADA and the Family and Medical Leave Act (FMLA)? Working with your clients to identify a carrier able to assist in developing strategies for leave and absence administration in an ADA-compliant manner enables employees to use these programs as intended while helping organizations maintain productivity and control costs. Warm Transfer Protocol A warm transfer takes place when a case manager has an employer representative on the phone with a complex accommodation question. At Liberty Mutual Insurance, we will place the caller on hold, contact our colleague at the Job Accommodation Network, conference the JAN expert into the call, and remain on the line until the question has been answered or the issue addressed.
  14. 14. 13 Frequently Asked Questions 1. Am I subject to ADA compliance? Employers with 15 or more employees on 20 or more calendar workweeks in the current or preceding year are subject to Title I, the employment provisions of the ADA. Title III, the public accommodations provisions of the ADA, applies to businesses without regard to their size or number of employees. State and local governments similarly are covered under Title II of the ADA regardless of size. 2. When should an individual with a disability request a reasonable accommodation? An individual with a disability may request a reasonable accommodation at any time. An individual should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her from effectively applying for or performing a job or gaining equal access to a benefit of employment due to a disability. 3. Must an employer ask whether a reasonable accommodation is needed when an employee has not asked for one? Generally, no. The individual with a disability—who has the most knowledge about the need for reasonable accommodation—usually must inform the employer that an accommodation is needed. However, we say “usually” because employer ADA obligations are triggered if the employer knows or should know that individuals are having difficulty performing jobs because of medical conditions or injuries that may be ADA-covered disabilities. If the individual with a disability states that s/he does not need a reasonable accommodation, the employer will have fulfilled its obligation, but it is important to maintain documentation in these instances as well. 4. Must I modify the job expectations as an accommodation? No. The ADA does not require employers to remove, change, or transfer essential job functions as an accommodation. Nor do employers need to lower performance standards or waive job-related disciplinary policies for individuals with disabilities. However, an employer should consider other roles within the organization an employee can perform with or without accommodations. (Note: a comprehensive job description can be extremely helpful in identifying essential functions for employees.) Jorge, a forklift operator at ABC Tool & Die, had a terrible accident in the warehouse that shattered his arm. Following surgery, his doctor sent a note stating that he was able to return to work, but because of his injuries, he would be unable to drive a forklift. In assessing his skills, HR determined that an opening existed for a dispatcher—work that Jorge could perform. ABC offered him the position as a modification of his former position at the same grade and pay. He cheerfully accepted the lateral assignment and returned to productive employment in a very short time. This approach represents an acceptable modification of Jorge’s employment. 5. Do accommodation requests have to be in writing? If an employee states in “plain English” (or the language spoken in the workplace) that s/he is having difficulty performing the essential functions of his/her role due to a medical condition the employer is required to initiate a discussion to determine whether a reasonable accommodation can be made. No special forms are required for an accommodation or modification. It is critical, however, that the employer maintains documentation of the request and all ongoing actions taken to address the request. Larry tells his supervisor that he is having trouble getting to work at his scheduled time because of medical treatments he is receiving. His manager believes this might be considered a verbal request for a reasonable accommodation and contacts his HR manager for assistance. The request does not mean that the individual has an ADA disability; however, it has shifted the burden to the employer to begin the interactive process to determine whether there is an accommodation that is reasonable.
  15. 15. 14 Frequently Asked Questions (continued) 6. What medical information may I request to confirm the need for an accommodation? You may request a doctor’s note outlining specific restrictions/limitations and modification or accommodation needs. Be sure to limit the documentation request to the functional limitations caused by the employee’s disability. In addition, any medical information must be kept apart from general personnel files as a separate confidential medical record. Andrew, an employee of World Wide Widgets (WWW), informs his supervisor, Emily, that he is having trouble reaching tools because of a shoulder injury. Emily asks how long his injury has been bothering him, and Andrew informs her it is a long-term condition. WWW’s HR representative asks Andrew to sign a release to obtain medical documentation describing the impairment; the nature, severity, and duration of the impairment; activities that the impairment limits; and the extent to which the impairment limits Andrew’s ability to perform associated activities. Have well-written job descriptions to share with treating physicians so that they can provide information on what activities are limited and where accommodations can be made. Make sure to limit documentation requests to the functional limitations caused by an employee’s disability, and be sure to keep any medical information separate from general personnel files. 7. How do I implement an accommodation? After it’s in place, is there anything else I need to do? The accommodation process begins with a discussion with your employee about his/her specific needs. Keep in mind that this is an interactive process and there should be continuous communication among all parties, with associated documentation. ▪▪ Regular checkpoints should be established with the employee for whom the accommodation is made. Each case is unique, so having an internal process that gives guidance is important. ▪▪ Prior to the employee’s returning to work, ensure that the accommodation is in place and properly installed. ▪▪ Ensure that the accommodation is working as expected when the employee does return to work and that he/she is are able to perform duties as expected with the accommodation. ▪▪ Check in regularly with the employee, as the situation may change and the accommodation may need to be changed or no longer be needed. Kathy suffered a severe concussion as a result of a fall at work. During an extended recovery, Kathy exhausted her employer’s paid sick time as well as both workers’ compensation total disability and FMLA. Her doctor submitted a note stating she needed three additional weeks of recovery. AllTECH, her employer, granted Kathy an additional three weeks as a reasonable disability accommodation. As her recovery period was coming to an end, her doctor cleared her to return to work but imposed some restrictions (limited lifting and walking and limited work hours for two months). AllTECH worked with its carrier’s vocational case manager to modify her workstation to accommodate her restrictions as well as a modified work schedule for the two months after her return to work. At the end of the two-month period, Kathy’s doctor cleared her to go back to work without any restrictions or modifications. In this example, the employer’s absence policy complies with all federal and state requirements for leave, ADA, and workers compensation. The employer communicated to the employee the amount of time to which she was entitled. The employer worked with its carrier, the employee, the treating physician, and the manager to put an accommodation in place. The employer checked in regularly while the accommodation was in place to ensure that it was appropriate.
  16. 16. 15 Useful Links and Resources For More Help, Try These Producers, employers, and employees have access to a number of sources for useful information and resources to better manage their benefits programs. Their group benefits carrier should be the first point of consultation and advice. Legal counsel, whether in-house or outside, should be consulted at every step. Other sources of free guidance and suggestions include: ▪▪ Job Accommodation Network (JAN)——receives funding from the EEOC and DOL to provide resources, consultation, and guidance to employers. Liberty Mutual Insurance partners with JAN to provide warm transfers to their experts for additional consultation or guidance. ▪▪ U.S. Equal Employment Opportunity Commission (EEOC)——in addition to its responsibilities for enforcing compliance with ADA regulations, EEOC is also a source of valuable guidance for remaining compliant and handling requests. ▪▪ U.S. Department of Labor Office of Disability Employment Policy (ODEP)— odep—provides abundant guidance in managing disability and leave in the context of both the ADA and the Family and Medical Leave Act (FMLA), especially in areas of overlap and helping employers understand which takes precedence at any given stage of an absence or disability. ▪▪ U.S. Department of Justice ADA——offers guidance on compliance. ▪▪ Council for Disability Awareness——is a nonprofit organization committed to informing and educating the American public about the widespread frequency of disability and the financial impact it can have. ▪▪ Disability Management Employer Coalition (DMEC)——is a nonprofit dedicated to advancing strategies and resources that improve workforce productivity by minimizing the impact of absence and disability.
  17. 17. This document contains general information, which may change. Products and services discussed in this guide may not be available from all carriers. Liberty Mutual Insurance does not provide legal advice or services and makes no representations or warranties as to the quality of the information contained in this brochure or the services described herein. Information contained herein should not be considered a substitute for the advice of an attorney. Some information has been used and adapted from materials created by the Job Accommodation Network and the U.S. Equal Employment Opportunity Commission. No copyright protection is claimed for works created by the U.S. government. Group products and services are offered by Liberty Life Assurance Company of Boston, a Liberty Mutual company. Home Office: Boston, MA. © 2013 Liberty Mutual Insurance. GRP120. 05/13. Contact your Liberty Mutual Insurance Group Benefits sales representative for more information. Resources ADA Assist—ADA- compliant absence management spans three areas: Prepare, Manage, Inform. Our consultative approach with customers is showcased. Liberty Mutual Insurance has an extensive library of useful resource guides to support group life and disability customers. The Missing Piece of Absence Management: Turning Data into Dollars—A white paper highlighting an organizational disconnect between data collected for compliance and using that data to better understand absence. ADAAA Final Rule Fact Sheet—This paper discusses the ADAAA Final Rule issued by EEOC with a grid showing major changes to the original Americans with Disabilities Act. DidYou Know? Liberty Mutual Insurance understands the challenges employers face in managing employee disability, absence, and leave in a complex regulatory environment. Liberty Mutual Insurance Group Benefits consults with our customers to develop tailored solutions that foster ADA compliance across the entire spectrum of absence management—from before a disabling event through successful return to work. In addition, Liberty Mutual Insurance: ▪▪ Has certified ADA administrators in every claim office ▪▪ Leverages a proprietary, integrated system to track claims and leaves with ADA documentation ▪▪ Employs cross-trained disability case managers and leave specialists focused on returning employees to work as quickly as is safe and appropriate ▪▪ Has more than 1,100 dedicated group benefits professionals serving more than 2 million employees ▪▪ Offers an extensive library of resources and training for supervisors and managers on issues surrounding leave, disability, absence management, and regulatory issues ▪▪ Employs a clinical model with physicians, vocational specialists, and certified ADA administrators focused on accommodations and return to work ▪▪ Offers an extensive suite of tools for employers, employees, and producers to manage absence and maintain compliance ▪▪ Provides a toll-free ADA/RTW hotline to answer specific employer questions ▪▪ Offers warm transfers to Job Accommodation Network (JAN) consultants when needed ▪▪ Features dedicated account management and custom reporting tools to support program effectiveness ▪▪ Offers clients online or on-site counseling on developing or managing ADA-compliant absence management programs Instilling disability awareness and developing a collaborative approach to absence management support the retention of valuable employees and increased productivity in the workplace. Liberty Mutual Insurance Group Benefits wants to partner with you to help realize the tangible benefits that arise from those efforts.