Northwesterns Reasonable Accommodation and Medical Leave of Absence

Northwestern’s Reasonable Accommodation and Medical Leave of Absence Processes February 24, 2016 Sarah M. Brown, Associate Director & Interim Director, Office of Equal Opportunity and Access Victoria Sherb, Supervisor, Absence Management, Benefits Division Lindsay Greco, Health & Welfare/Absence Manager, Benefits Division 0

Objectives • Brief overview of the Americans with Disabilities Act (“ADA”) and Family Medical Leave Act (“FMLA”) • How do medical leaves and reasonable accommodations work? • Complicated questions regarding reasonable accommodations – Reassignment – Leave as a reasonable accommodation – Telecommuting – Employees with pre-existing/simultaneous performance issues • Practical tips to help navigate employee leaves and accommodations 1

Disabilities in Context • People with disabilities are the largest minority group in the United States, making up an estimated 18. 7% of the total population. (U. S. Census Bureau; 2012 Jul. ). • Just over 1 in 4 of today's 20 year-olds will become disabled before they retire. (Social Security Administration, 2013 Fact Sheet). • Between 2003 and 2013, EEOC Charges alleging disability discrimination rose 68%. 2

Laws to Consider • Americans with Disabilities Act (“ADA”): Focused on accommodating employees in the workplace and preventing discrimination/harassment/retaliation against individuals with disabilities. • Family Medical Leave Act (“FMLA”): Focused on job-protected leave for employees with serious medical conditions and ensuring that employees are not retaliated against for utilizing leave. 3

Americans with Disabilities Act

The Americans with Disabilities Act “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. ” 5

Who is a person with a disability? 1. A person who has a physical or mental impairment that substantially limits a major life activity, including: • • Breathing Seeing Hearing Sleeping Walking Bending Major bodily functions (including digestive, bowel, bladder, neurological, brain, endocrine, etc. ) • **Temporary conditions may be covered by ADA • • Standing Lifting Learning Reading Concentrating Thinking Communicating Working 2. A person who has a record of such an impairment, or; 3. A person who is regarded as having such an impairment. 6

What is a “reasonable accommodation? ” A reasonable accommodation is any modification or adjustment to a job, practice, policy, or the work environment that allows an individual with a disability to participate equally in an employment opportunity without creating an undue burden for the employer. 7

Examples of Reasonable Accommodations • • • Modifying a work schedule Acquiring or modifying equipment Time off for medical appointments Fresh air or anxiety breaks Telecommuting arrangements Use of a recorder to record directions Relocation of work area to a quieter space Extra training when necessary Creating scent-free policies 8

When is a reasonable accommodation an undue hardship? A determination of undue hardship should be based on several factors, including: – The nature and cost of the accommodation needed; – The overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; – The type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; – The impact of the accommodation on the operation of the facility. – This is an individualized analysis. See, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, http: //www. eeoc. gov/policy/docs/accommodation. html. 9

What does the ADA Prohibit? 1. Discrimination – Disparate Treatment and Disparate Impact 2. Failure to Accommodate 3. Harassment (Hostile Work Environment) 4. Retaliation 5. Divulging Confidential Information 10

Family Medical Leave Act

Family Medical Leave Act The FMLA entitles eligible employees of covered employers to take unpaid, jobprotected leave for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. 12

FMLA: Employee Eligibility • Employed by covered employer (50 + employees); • Worked at least 12 months (non-consecutive); • Have at least 1, 250 hours of work during the 12 months before leave begins (does not include previous leave time). 13

FMLA: Qualifying Leave Reasons • Employee’s own serious health condition; • For the birth or placement of a child for adoption or foster care; • To care for a spouse, son, daughter, or parent with a serious health condition; • A qualifying reason arising out of the covered active duty status of a military member who is the employee’s spouse, son, daughter, or parent; • To care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee. 14

FMLA: Amount of Leave • Eligible employees may take up to 12 weeks of leave for a serious health condition, to care for a spouse, son, daughter, or parent with a serious health condition, and for birth of a child. • FMLA military family leave provisions provide up to 12 weeks of FMLA to help families manage their affairs after deployment and up to 26 weeks to help care for a covered service member’s serious injury or illness. 15

FMLA: Intermittent Leave • An employee is entitled to take intermittent or reduced schedule leave: – If the employee’s or a qualifying family member’s serious health condition requires that intermittent leave is medically necessary – If the employee leaves to bond with a child after birth or placement of a child, the leave must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave. 16

FMLA: Employer Responsibilities • Provide notice of FMLA rights (this is done by HR); • Maintain group health insurance; • Restore the employee to the same or equivalent job and benefits; • Maintain records (this is done by The Hartford). 17

Intersection of FMLA and ADA

What would you do? Alan has worked at the University for 4 months when he approaches his supervisor and tells her that he has a serious heart conditions which requires surgery. He estimates he will be out for 4 -5 weeks. Alan is not covered by FMLA and the unit relies on Alan’s position heavily. Can the unit deny Alan’s request for leave? 19

ADA Leave – General Rule • Permitting use of unpaid leave is a form of reasonable accommodation; • ADA leave must be provided if the need for additional leave is supported by medical need and the leave will not pose an undue hardship on the employer; • Employers are not required to provide indefinite leave under the ADA. 20

FMLA vs. ADA Requests for ADA leave are typically triggered when the employee seeks leave not otherwise available. Examples: • Employee has exhausted FMLA leave • Employee is not eligible for FMLA leave because employed less than 12 months/1, 250 hours 21

Inflexible Leave Policies • Employer can not maintain “no fault” leave policies, under which an employee is automatically terminated after using a certain amount of leave. Additional leave must be considered as a reasonable accommodation. 22

Case Examples: No Fault Leave Policies The EEOC has brought a series of lawsuits against employers challenging inflexible leave policies resulting in large monetary settlements for groups of employees denied leave under such policies. • EEOC v. Princeton Health. Care System (Settled 2014): PHCS terminated employees who were not eligible for FMLA after a short leave period and terminated employees who were eligible for FMLA if employee required more than 12 weeks of leave. Under a consent decree PHCS paid $1, 350, 000. • EEOC v. Verizon Maryland, Inc. (Settled July 2011): Verizon paid $20 Million after the company unlawfully denied reasonable accommodations to hundreds of employees pursuant to the company’s “no fault” attendance policy. • EEOC v. UPS (Ongoing): EEOC alleges that UPS violated the ADA by allowing maximum of 12 months for leaves of absence, failing to provide disabled employees with further reasonable accommodations for their disabilities, and firing them if they exceeded those parameters. • THE KEY DETERMINATE in many cases appears to be the employer's willingness to consider the employee's requested accommodation, especially where the additional leave time requested is not indefinite and is fairly short in duration. 23

ADA Leave – Family Members ADA does NOT require an employer to provide time off as a reasonable accommodation for an employee to care for a family member or other individual. 24

Medical Leave Policies and Processes

What is Absence Management? • Incidental Sick Time (IST) – For your sick qualified family members • Extended Sick Time (EST) – For your approved illness/disability beyond 7 calendar days • Long Term Disability (LTD) – Serious illness/disability beyond 6 months 26

Incidental Sick Time • Employee sick days to be used for employee or the care for a sick qualified family member – FY 2016: 15 days (prorated if hired after September 1 st) • Refresh on fiscal year with no accumulation for future use or payout • Can be used to cover the EST waiting period 27

Extended Sick Time • University-paid extended sick time for all eligible staff after a 6 month waiting period for new hires • 100% salary paid for up to 6 months from date of disability (paid through payroll) – Benefit deductions and retirement plan contributions remain as is • 7 calendar day elimination (waiting) period – Use incidental sick time or other paid time 28

Recurring Leaves • The 1, 250 FMLA hours (12 weeks) are on a rolling calendar year. The count starts on the date of disability and resets 1 year from that date. • Employees who go out on a recurring leave: – Less than 90 days after return to work: It’s considered the same leave and there is no elimination period – More than 90 days after return to work: It’s considered a new leave and the 7 calendar day elimination period is required 29

Long Term Disability • 50% core benefit provided by Northwestern University up to $11, 500/month • Offer a 10% buy-up (employee paid, after-tax) to increase LTD coverage to 60% up to $13, 800/month • Provides a benefit for illnesses that extend beyond 6 months (EST) • Employees can qualify for part-time LTD in certain circumstances • Benefit is paid by The Hartford 30

Roles and Responsibilities Employee • • Inform your manager that you need to take a leave for yourself or for a family member Contact The Hartford when experiencing an illness greater than 5 business days Contact The Hartford to take a leave for the care of a family member If you need an extension, contact The Hartford as soon as possible Ensure that The Hartford receives all necessary forms and medical information Email the Benefits Division when returning from leave Kronos responsibilities: – – Employee and Manager manages for FMLA (unpaid) only claims Benefits Division manages for FMLA with EST beyond elimination period Manager • • • Enforce your normal call in policy Manage timecard for employees until a determination is made by The Hartford When the employee returns to work, please confirm with Benefits Division that they have returned 31

Roles and Responsibilities cont’d Benefits Division • • • Inform the Manager and Business Administrator of leave status Manage timecard for EST Coordinate with The Hartford, HRC, OEOA and/or OGC for complex case management Transition Employee from EST to LTD FASIS updates for staff leaves The Hartford • • • Ensure compliance with all applicable laws (FMLA, ERISA, FMLA, DOL etc. ) Nurse intake for all claims via telephone calls Designated customer service team members for Northwestern claims Coordination with carrier, employee, physician and NU Benefits to facilitate a healthier return to work Render determinations for FMLA and disability claims Coordinate with Benefits Division regarding complex leave cases 32

Extended Sick Time Salary Relief • Effective 9/1/15, the central HR Extended Sick Pool may be charged for an eligible employee on a Hartford approved self-medical leave following the 5 th work day • For biweekly employees, Kronos is coded EST by HR Benefits. This automatically charges the Extended Sick Pool • For monthly employees, the department must enter a Payroll journal in FASIS to recover the funding incurred during EST – Charge the extended sick pool 120 -1130001 – Journals must be entered within 90 days of the start of the leave 33

The Leave Process The employee calls The Hartford sends an eligibility letter* The employee completes & sends the necessary forms to The Hartford sends a determination letter The employee contacts The Hartford to request an extension, if necessary Benefits notifies the manager, HRC, and Department Administrator of any extension requests and determinations 34

The Leave Process: What Happens Next? Employee exhausts FMLA but needs additional leave Employee exhausts EST but needs additional leave 5+ years of service, the job will be held through duration of EST period The employee will be reviewed for LTD by the Hartford Less than 5 years of service, department needs are assessed OEOA may investigate if a reasonable accommodation for additional leave with job protection is needed In many instances, the job will be released Employee qualifies for LTD Becomes eligible to continue group health, dental, vision and life insurance for additional 18 months Note: The Department notifies Benefits, if the employee returns from leave 35

Reasonable Accommodation Processes and Procedures

Office of Equal Opportunity and Access (“OEOA”) Reasonable Accommodation Process • Employee requests accommodation or unit/school alerts OEOA that accommodation may be needed; • The focus of discussion is the employee’s current limitations/medical condition, the employee’s duties and how the limitations are impacting the employee’s ability to perform duties, the proposed accommodation(s), and the accommodation process. • Employee submits an accommodation request form and provides a medical release; • OEOA requests information from the employee’s medical provider regarding the medical condition and seeks recommendations from the provider for accommodations that will assist employee in performing the job duties. OEOA provides medical provider with a job description during this discussion. 37

Accommodation Process, Cont. • OEOA discusses the accommodation request with employee’s supervisor to determine if accommodation is undue burden or if alternative accommodation is preferable and equally effective; • OEOA continues discussion with employee, based on medical provider and supervisor’s feedback; • OEOA does NOT share information regarding the employee’s medical condition with the unit/department. • OEOA approves, denies, or proposes alternative accommodation; • When an accommodation is approved, OEOA provides employee and supervisor with a written accommodation agreement, which outlines the accommodation and expectations surrounding the accommodation. 38

Examples of Unreasonable Accommodations • Creating a new job that does not exist in the organization; • Removing essential job duties; • An indefinite leave of absence; • Providing personal use items such as eyeglasses or hearing aids; • Accommodations that pose a direct threat to the health or safety of others. 39

Complicated Accommodation Issues

Reassignment Rule: “The ADA mandates that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer. ” EEOC v. United Airlines, Inc. • Not required to bump employees • Not required to promote employees without a competitive process 41

Telecommuting • Highly fact-specific inquiry. Question is whether presence at work is truly essential to perform essential duties. • EEOC v. Ford Motor Co. (April 2014): “The law must respond to the advance of technology in the employment context. . . and recognize that the 'workplace' is anywhere that an employee can perform her job duties. " • See, www. EEOC. gov/facts/telework. html 42

Employees with Performance Issues Performance is NOT a consideration when determining whether an employee can be accommodated. Employees with disabilities are expected to perform satisfactorily. • An employee with a disability must meet the same standards that are applied to similarly situated colleagues; however, a reasonable accommodation may be required to assist the employee in meeting these standards. • An assessment of the employee’s performance may alert the employee that his disability is contributing to performance issues. • Employer may not withdraw accommodations because the employee is performing poorly. Ex: Telecommuting arrangement. See EEOC Guidance, Applying Performance and Conduct Standards to Employees with Disabilities, www. eeoc. gov. /facts/performanceconduct. html. 43

Practical Tips – Medical Leaves

Leave of Absence “Don’ts” for Managers • DON’T share personal health information (PHI) or provide information to parties who do not need to know the information • DON’T assume individuals are just trying to get out of work • DON’T accept medical documentation from employees (employees should be directed to The Hartford) • DON’T put medical information in personnel files • DON’T contact the employee to obtain prognosis information or a return to work date (contact The Benefits Division with questions) 45

Leave of Absence “Dos” for Faculty & Staff • DO contact The Hartford as soon as you are aware that you need to take a leave • DO notify your manager when you will be out of the office • DO submit all the required documentation to The Hartford • DO stay compliant with The Hartford’s requests • DO check USPS mail and email regularly for new/updated information from The Harford and the Northwestern Benefits Division • DO have someone assist you with navigating the process with The Hartford if need be 46

Practical Tips – Reasonable Accommodations

Accommodation “Don’ts” • DON’T lower performance and production standards because an employee has a disability; • DON’T assume individuals with the same disability have the same limitations and need the same accommodation; • DON’T accept medical documentation from employees (employee should be directed to OEOA); • DON’T accommodate an employee without utilizing OEOA process; • DON’T put medical information in personnel files. 48

Accommodation “Dos” • DO recognize that reasonable accommodations may require providing a workplace modification that was denied to another employee who made a similar request for non-medical reasons (working from home); • DO contact OEOA if you believe a medical issue is causing an employee’s performance or conduct issue; • DO update job descriptions to ensure accuracy of essential functions of the job; • DO refer supervisors and employees with questions about the reasonable accommodation process to OEOA. 49

Appendix

Work/Life Resources

Resources for Employees Faculty and Staff Assistance Program • Confidential, professional short term counseling (up to 10 sessions) at no cost. • Also available to members of the employee’s family or household. • Call 855 -547 -1851 (24/7) or go to: http: //www. northwestern. edu/hr/work-life/faculty-staff-assistanceprogram. html Senior Care Connections • Professional consultation with a senior care advisor who can provide support and guidance for eldercare concerns. • Call 855 -772 -2730 (8 a. m. to 5 p. m. CDT) or go to: http: //www. northwestern. edu/hr/work-life/elder-care/index. html 52

Resources for Employees(con’t) NU Cares • Emergency relief fund for eligible employees. Applications can be found on-line at http: //www. northwestern. edu/nusac/nucares/index. html. Questions can be directed to the Office of Work/Life Resources at 847 -467 -1460. Flexibility Consultation (non-disability related) • Information and individual consultation for employees considering a potential flexible work arrangement. http: //www. northwestern. edu/hr/work-life/flexiblework/index. html 53

Resources for Managers Faculty and Staff Assistance Program • Consultation for managers addressing disruptive behaviors in the workplace. • Call 855 -547 -1851, ask to speak to the management consultation team. Flexibility Consultation • Consultation with managers who are considering a flex work arrangement for an employee. Tips and tools are available to inform the process. • Call the Office of Work/Life Resources at 847 - 491 -3612 or go to: http: //www. northwestern. edu/hr/work-life/flexiblework/index. html. 54

Contact Information Reasonable Accommodations • Office of Equal Opportunity and Access: – eeo@northwestern. edu or 847 -491 -7458 Leaves of Absence • The Hartford: 888 -541 -7283 or www. thehartfordatwork. com • Robert Ellis, Absence Management Specialist: – Robert. ellis 1@northwestern. edu or 847 -491 -7513 • Victoria Sherb, Supervisor, Absence Management: – Victoria. sherb@northwestern. edu or 312 -503 -0494 • Lindsay Greco, Health & Welfare/Absence Manager: – l-Greco@northwestern. edu or 847 -467 -0673 Work/Life Resources • 847 -467 -3631 or http: //www. northwestern. edu/hr/work-life/index. html 55