By Angie Brown, Business Development Manager & Absence Specialist
August 4th, 2019
Technology does not eliminate human error, but it can erect barriers to our impulses to jump to the first “right thing.”
Let’s see how that happens in the trenches of integrated disability and absence management (IDAM). And let’s have a little fun because most of us have encountered case scenarios that were almost too funny to be true.
Leave as Accommodation
Meet Billy Joe and Bobby Sue, two young lovers with nothing better to do than sit around the house, and watch the tube. Billy Joe wanted some time off work. He had heard of the Family and Medical Leave Act (FMLA) before and decided that it was likely his best route. He grabs his trusted employee handbook and calls his leave administrator, Mary, who advises Billy Joe that he must have worked 1,250 hours and 12 months to be eligible. His 3.5 weeks of employment had left him rather short for FMLA eligibility.
“But wait!” Billy cries, “What can I do? I absolutely cannot work. I feel debilitated!” Mary knows what this means because she has read about the Americans with Disabilities Act Amendments Act (ADAAA). She knows she needs to engage in the interactive process. “Billy, please don’t fret,” she assures him. “Why don’t you tell me what is ailing you, and how we can help you to be your best person here at work?”
A software system would guide her through the interactive process, identifying the steps, the stakeholders, the resources, and the decisions. Much more than a spreadsheet checklist, the system should include updated protocols based on recent legislation and litigation. It should help her manage notifications and medical certifications. As it is, Mary believes that her conversation with Billy Joe constitutes the interactive process. She wants to resolve this in one call and return to her other work; she has a lot on her plate.
Mary is in a hurry, but Billy Joe is not. He frowns into his phone, “Well, I’m tired a lot. I lack motivation and often feel that I must suppress these feelings with food. My hunger often feels insatiable. It’s very distracting.”
Mary churns through her knowledge base, remembering all that she’s read from blogs about the interactive process. She knows the Equal Employment Opportunity Commission (EEOC) actively monitors employer compliance with the ADAAA, but she doesn’t feel she has the tools to navigate this murky scenario.
“Billy Joe, what if we were to move your desk closer to the cafeteria? Perhaps we could even procure a snack cart that makes rounds to your desk several times a day. This would surely alleviate your hunger and allow you to stay at work to be a productive employee.” Mary is pleased with herself.
Billy Joe sighs as if the exhaustion is just too much to bear. “Mary, I’m sorry. My motivation is simply gone. Perhaps I’m severely depressed. In fact, I’m sure that’s probably it. I could have a mental illness, and I need this time to heal!”
On her end of the phone, Mary sits and frowns. What has happened here? Billy Joe has advised her of a disability, and she has (to her knowledge) engaged in the interactive process by suggesting a resolution that Billy Joe just rejected. For fear of litigation or offending Billy Joe, Mary nods her head emphatically, certain that she understands the right thing to do.
“Billy Joe,” she says, “I will grant you leave of absence under the ADA Amendments Act. I will provide you with this notification in writing so that you can be sure we’ve done the right thing by you. Please call me when you feel that you can return to work. We wish you well, Billy Joe.”
Billy Joe and Bobby Sue are happy. Mary is happy too. Except now she’ll have to figure out how to replace Billy for an undetermined amount of time. Before moving on to the next item, Mary wonders if perhaps she should have brought Billy Joe’s supervisor into this process.
Mary most certainly did not engage in the interactive process but faced no repercussions for her actions. Why? Because Billy was happy, and his supervisor was glad to get someone else in his place. Mary’s inexperience generated a needless, expensive leave, but it didn’t generate a much more costly litigation event.
However, had Mary done a little research, she might have come across the Neely vs. Benchmark Family Services case.¹ Like Billy Joe, Mr. Neely had a few issues, but his supervisor did the work and found that the only documentation from a physician stated that Neely was “poorly disciplined in both his sleep hygiene and his taking of medication, as well as in his food consumption.” Neely was “usually in bed around 3 am and he sleeps through until 1 pm.” The employer won a summary judgment against Neely. By asking for medical documentation, Mary might have reached a similar determination about Billy Joe’s employment.
Honest Belief of ADA Fraud
Meanwhile, in another part of the country, Amy finds herself in the same situation as Mary; they both work for the same company but in different divisions. Amy has attended numerous webinars, and she knows the components of the interactive process.
Steve comes to see Amy about the back pain he’s been experiencing since returning to work from his back surgery. He advises her that it is a real challenge to sit at his desk all day. Amy immediately takes matters into her own capable hands and begins researching potential accommodations for Steve. She finds that a sit-stand desk is probably the best solution for Steve.
Two weeks later, it’s apparent that Steve is not happy with the solution of the desk. His back is still very much hurting. Amy inquires if walking breaks would be helpful to him. Steve says yes, indeed it would be very helpful to him to leave his desk for walking breaks.
One week later, it is apparent that walking, sitting, and standing are still not helpful to Steve. He thinks he must take time off work. However, he hasn’t any time available as he exhausted all of his FMLA time recovering from his surgery at the beginning of the year.
Amy consults with her manager, who advises her to do “whatever she needs to do,” and Amy tells Steve that he can go home, and she will evaluate him for “leave as an accommodation”. Amy uses her flowcharts to stay on-track with the interactive process, and she’s confident. She has not documented anything because she is going by the book and what better defense could a person have?
During Steve’s absence, Amy hears from a fellow employee who said she saw Steve on the golf course over the previous weekend. Amy is quite disappointed in Steve but understands that she has rights as an employer, and his designation does not allow him to take advantage of the system. Amy calls Steve and enquires about his golfing days. He admits that he did go golfing and declines to come back to work even part-time when Amy suggests it.
Amy requests updated medical information to support Steve’s absence, which is never provided. Steve is given three days to return to work, which he does not do, and his employment is terminated. This is the first fully interactive process Amy has ever led; she doesn’t have enough hours in the day to invent new processes to document everything. She has heard about technology that can simplify documentation, but her company has other priorities.
Steve files a suit over violation of his rights under the ADAAA, and he wins.
This was a clear case of “honest belief,” and Amy was right on point with her suspicions and her conversations with him. In a similar recent court case, Sharrow v. S.C. Johnson & Son, Inc., the employer realized a very different outcome when the court ruled in its favor.²
Unlike Mary, Amy did engage in the interactive process yet still lost when Steve filed suit. Why? She didn’t document anything. She failed to even start the process of proving her honest belief that this employee may be capable of work.
While the cases presented may seem extreme, they highlight how complex the interactive process and its outcomes can be in various work settings. The ADAAA field is changing quickly due to the influence of state laws and federal litigation; even experienced IDAM professionals may need assistance to stay current. It’s easier than ever to access leave management technology through providers, third-party administrators, or carriers.
What can technology do for us in the ADAAA interactive process? It can prompt us to engage in it, for one. It can prompt us to document conversations at specific points in the process. It can provide us with accommodations for specific conditions and provide a centralized place for all case information, date and time-stamped, easily exported in the event of an EEOC investigation. However, it can’t force you to make the right decisions; you have to have the right people using it for that to happen.
An IDAM professional in California who had just lost a $300,000 suit told me, “I KNOW I made the right decision. I just couldn’t prove it.”
Technology has its limitations. It is not self-evolving when new court cases raise new compliance issues. However your organization accesses technology, it will have to invest substantial time in monitoring its performance, updating it, and fine-tuning it to address special conditions in your worksites and workforce. But my friend in California believes it could have given her a different outcome in her lawsuit.
- To view the Circuit Court’s opinion in Neeley, click here.
- To view the District Court’s opinion in Sharrow, click here.