Risk Insider: Terri Rhodes

7th Circuit’s ADA Ruling: Important, but Limited

By: | November 27, 2017 • 4 min read
Terri L. Rhodes is CEO of the Disability Management Employer Coalition. Terri was an Absence and Disability Management Consultant for Mercer, and also served as Director of Absence and Disability for Health Net and Corporate IDM Program Manager for Abbott Laboratories.

There’s been a lot of excitement about the 7th Circuit’s recent ruling on granting additional leave as an accommodation under the Americans with Disabilities Act (ADA).  Some observers have gone so far as to claim the ruling “changes everything we know about the ADA.”

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There’s no doubt the 7th Circuit’s ruling is a significant thing.  But to avoid trouble, it’s important to keep it in perspective.

Here’s a quick recap of how we got here.

In 1997, the Equal Employment Opportunity Commission (EEOC) filed suit against Sears Roebuck & Co.  The EEOC alleged the retail company discriminated against a salesperson by refusing to provide her with additional leave as a reasonable accommodation under the ADA. The EEOC said that Sears “maintained an inflexible worker’s compensation one-year leave policy which does not provide for reasonable accommodation of employees with disabilities.”

The U.S. District Court for the Northern District of Illinois ruled in favor of Sears. The EEOC appealed. The 7th Circuit Court of Appeals decided there was enough evidence for a jury trial and sent the case back to the District Court. In 2010, the case settled for $6.2 million.

And then there is perhaps the decision’s most quoted line: “The ADA is an antidiscrimination statute, not a medical-leave entitlement.”

Several other circuit courts followed suit. However, 20 years later, along comes Severson v. Heartland Woodcraft, Inc.

The 7th Circuit seemed to reverse itself when it affirmed a district court’s ruling that an employer did not violate the ADA by failing to provide an employee with a long-term medical leave of absence because a multi-month leave of absence was beyond the scope of a reasonable accommodation under the ADA.

The ruling itself rightly caught peoples’ attention. So did some of its language. For example, the 7th Circuit stated that “a long-term leave of absence cannot be a reasonable accommodation” under the ADA.  It went on to say such a leave would transform the ADA “into a medical-leave statute — in effect, an open-ended extension of the FMLA.” And then there is perhaps the decision’s most quoted line: “The ADA is an antidiscrimination statute, not a medical-leave entitlement.”

But before employers get too excited, it’s important to note some very important caveats.

The 7th Circuit is one court. Circuit courts in other jurisdictions have reached differing conclusions on this issue. Further, the EEOC continues to take the position that leaves of absence may constitute reasonable accommodation in certain circumstances. “Inflexible” leave policies could still be in the EEOC’s sights.

Most importantly, the 7th Circuit offers no statutory citation for its conclusion about a multi-month leave — opening it up to potential challenge. Nor does the ruling offer any real guidance for employers on what length of leave is reasonable.

So what can employers do to reduce the risk of an employee or EEOC action on an “inflexible” leave law?

First, employers should focus on individual employees. The ADA requires a case-by-case assessment to determine which particular form of accommodation is reasonable for a particular employee. A blanket refusal to grant multi-month leaves is not the kind of case-by-case assessment required by the ADA. The key to reducing potential liability is an interactive, individualized, and well-documented process.

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Next, learn what other employers are doing. Leave laws are increasingly complicated, especially the interaction among them. Risk managers, HR professionals and others can take advantage of the workshops, webinars, training videos and other resources on the ADA; many are available at low or even no cost.

Finally, employers should think about going beyond ADA requirements. The immediate and reasonable question is, “why wouldn’t you try to accommodate an individual with a qualified disability?”

That question is best answered with other questions:

  • Why would you want skilled, experienced employees to leave your organization?
  • Why would you want to increase ADA litigation risks for your organization?

Rather than seeing the ADA as a problem to mitigate, employers should see it as an opportunity to maximize and retain valuable talent. Many employers have made that shift in regard to workers’ compensation (WC) claims. WC costs can be so significant that some organizations successfully adopt an “above and beyond” attitude toward helping claimants stay at work or return to work. Doing so requires investment in proactive policies, processes and procedures to reduce claims. It requires work, but the return on investment can be substantial. The same applies to the ADA. That investment can pay big dividends in today’s tight — and litigious — labor market.

The 7th Circuit’s recent ADA ruling isn’t the last word on reasonable accommodations. Employers should continue to take steps that minimize liability and maximize the ability to attract good talent to compete and grow.

More from Risk & Insurance

More from Risk & Insurance

2017 Teddy Awards

The Era of Engagement

The very best workers’ compensation programs are the ones where workers aren’t just the subject of the program, they’re a part of it.
By: | November 1, 2017 • 5 min read

Employee engagement, employee advocacy, employee participation — these are common threads running through the programs we honor this year in the 2017 Theodore Roosevelt Workers’ Compensation and Disability Management Awards, sponsored by PMA Companies.

A panel of judges — including workers’ comp executives who actively engage their own employees — selected this year’s winners on the basis of performance, sustainability, innovation and teamwork. The winners hail from different industries and regions, but all make people part of the solution to unique challenges.

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Valley Health System is all-too keenly aware of the risk of violence in health care settings, running the gamut from disruptive patients to grieving, overwrought family members to mentally unstable active shooters.

Valley Health employs a proactive and comprehensive plan to respond to violent scenarios, involving its Code Atlas Team — 50 members of the clinical staff and security departments who undergo specialized training. Valley Health drills regularly, including intense annual active shooter drills that involve participation from local law enforcement.

The drills are unnerving for many, but the program is making a difference — the health system cut its workplace violence injuries in half in the course of just one year.

“We’re looking at patient safety and employee safety like never before,” said Barbara Schultz, director of employee health and wellness.

At Rochester Regional Health’s five hospitals and six long-term care facilities, a key loss driver was slips and falls. The system’s mandatory safety shoe program saw only moderate take-up, but the reason wasn’t clear.

Rather than force managers to write up non-compliant employees, senior manager of workers’ compensation and employee safety Monica Manske got proactive, using a survey as well as one-on-one communication to suss out the obstacles. After making changes based on the feedback, shoe compliance shot up from 35 percent to 85 percent, contributing to a 42 percent reduction in lost-time claims and a 46 percent reduction in injuries.

For the shoe program, as well as every RRH safety initiative, Manske’s team takes the same approach: engaging employees to teach and encourage safe behaviors rather than punishing them for lapses.

For some of this year’s Teddy winners, success was born of the company’s willingness to make dramatic program changes.

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Delta Air Lines made two ambitious program changes since 2013. First it adopted an employee advocacy model for its disability and leave of absence programs. After tasting success, the company transitioned all lines including workers’ compensation to an integrated absence management program bundled under a single TPA.

While skeptics assume “employee advocacy” means more claims and higher costs, Delta answers with a reality that’s quite the opposite. A year after the transition, Delta reduced open claims from 3,479 to 1,367, with its total incurred amount decreased by $50.1 million — head and shoulders above its projected goals.

For the Massachusetts Port Authority, change meant ending the era of having a self-administered program and partnering with a TPA. It also meant switching from a guaranteed cost program to a self-insured program for a significant segment of its workforce.

Massport’s results make a great argument for embracing change: The organization saved $21 million over the past six years. Freeing up resources allowed Massport to increase focus on safety as well as medical management and chopped its medical costs per claim in half — even while allowing employees to choose their own health care providers.

Risk & Insurance® congratulates the 2017 Teddy Award winners and holds them in high esteem for their tireless commitment to a safe workforce that’s fully engaged in its own care. &

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More coverage of the 2017 Teddy Award Winners and Honorable Mentions:

Advocacy Takes Off: At Delta Air Lines, putting employees first is the right thing to do, for employees and employer alike.

 

Proactive Approach to Employee SafetyThe Valley Health System shifted its philosophy on workers’ compensation, putting employee and patient safety at the forefront.

 

Getting It Right: Better coordination of workers’ compensation risk management spelled success for the Massachusetts Port Authority.

 

Carrots: Not SticksAt Rochester Regional Health, the workers’ comp and safety team champion employee engagement and positive reinforcement.

 

Fit for Duty: Recognizing parallels between athletes and public safety officials, the city of Denver made tailored fitness training part of its safety plan.

 

Triage, Transparency and TeamworkWhen the City of Surprise, Ariz. got proactive about reining in its claims, it also took steps to get employees engaged in making things better for everyone.

A Lesson in Leadership: Shared responsibility, data analysis and a commitment to employees are the hallmarks of Benco Dental’s workers’ comp program.

 

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]