Disability

Hunting ADA Violations

Heightened scrutiny by the EEOC and DOL fuels litigation and shows a need for greater employer awareness.
By: | August 31, 2016 • 6 min read

Litigation brought by the Equal Employment Opportunity Commission in connection with violations of the Americans with Disabilities Act has risen since 2014, and outcomes show that juries usually sympathize with the worker.

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Rulings favorable to the employee in these cases jumped from 4,981 in 2014 to 6,069 in 2015.

Since 2011, the EEOC filed more than 200 lawsuits involving claims of disability discrimination, through which it has recovered approximately $52 million, according to statistics compiled by the commission.

The primary driver of this activity, said Terri Rhodes, executive director of the Disability Management Employer Coalition, is increased strategic enforcement of the ADA by the Department of Labor and the EEOC.

“They have intensified an initiative to do more employer site visits, so litigation can come out of that,” she said.

Regulators aren’t just focusing on high-risk industries either. EEOC stats show that every sector is vulnerable to this sort of lawsuit, from manufacturing and construction to retail and hospitality.

Justin Eller, principal, Miles & Stockbridge PC

Justin Eller, principal, Miles & Stockbridge PC

“There’s also increased public awareness around disability discrimination, which lends itself to more lawsuits,” Rhodes said.

“The rise in claims is also due in part to the amendments to the ADA which went into effect in 2009,” said Justin Eller, a principal in the labor, employment, benefits and immigration practice group at Miles & Stockbridge PC.

“It broadened the definition of disability, thus making it easier to make a claim because more people are covered.”

The increased frequency of claims could also be the result of more people staying in the workforce longer. With older workers, there is an increased likelihood of medical conditions that necessitate disability leave or accommodations, Eller said.

Employer Vulnerabilities

Whatever the impetus for a discrimination claim, companies often find themselves susceptible to a lawsuit for one of two reasons: not engaging in the interactive process, or not applying processes consistently across workers’ compensation and disability management programs.

Employers’ shortcomings in these two areas may be so slight that they don’t realize they’ve fallen afoul of the ADA until a claim is filed.

For example, if an employer waits for an employee to come forward with a request for an accommodation, the EEOC may deem that as a failure on the part of the employer because it is incumbent upon the employer to reach out proactively when it recognizes a potential need for an accommodation.

“Once you’re on notice that an employee may need an accommodation, there’s an affirmative duty to start the process,” Eller said.

Even if an initial request for accommodation presents an undue hardship on the employer, there remains an obligation to continue the discussion to find a reasonable compromise.

“You can’t just deny it and move on,” he said.

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Lack of consistent processes also creates vulnerable targets for injured employees who feel they were not treated fairly.

If, for example, a light duty position is offered to a worker injured on the job as part of a transitional program, a similar option must also be offered to employees with a non-occupational injury.

“Workers’ comp folk tend to forget that there are employment practices around engaging in the interactive process, as far as initiating that and making sure reasonable accommodations are made when possible,” Rhodes said.

“They also should be connecting with their HR counterparts to make sure treatment of workers’ comp claimants does not differ from treatment of those with non-occupational illness or injury.”

The DOL and EEOC don’t recognize organizational silos between workers’ comp and HR functions when it comes to disability management.

During on-site visits, the EEOC looks to see how leave policies are communicated to employees, checking for consistency in the timing and language of communication.

If workers’ comp, HR, and risk management aren’t on the same page, it raises a red flag. Discrepancies among policies mean there is a higher likelihood of noncompliant treatment of an injured or disabled employee.

Damage Done

Fines levied for ADA violations are “significant,” Rhodes said, “usually commensurate with the size of the company.”

If an allegation of discrimination turns into a lawsuit, employers could be looking at a price tag of “several hundred thousand dollars,” Eller said.

“[The amendments to the ADA] broadened the definition of disability, thus making it easier to make a claim because more people are covered.” — Justin Eller, principal, labor, employment, benefits and immigration practice group, Miles & Stockbridge PC

“It’s not cheap to take a case to trial. Depending on the nature and scope of the allegation, number of witnesses and other factors, there can be a very significant cost involved,” he said.

“There are hidden costs as well. From a time standpoint, litigation takes up an inordinate amount of time for the individuals involved.”

Reputation typically takes a hit, too. Some employers who believe they are in the right opt to take a case to trial in order to defend their name, but drawing attention to the allegations against them may undermine those efforts in the long run.

Staying Ahead of the Risk

Complying with the ADA can be challenging given its intersection with other employee laws such as the Family and Medical Leave Act, Genetic Information Nondiscrimination Act and state workers’ compensation statutes — especially since those regulations are always evolving.

“Staying up-to-date and modifying practices is an ongoing process that requires a lot of resources and attention, which is especially difficult for small companies,” Eller said, “but there are certainly steps everyone can take to protect their organization.”

Those steps include implementing a written policy regarding accommodation of disabilities and communicating it to all employees.

All supervisors should also be trained to identify issues and notify decision-makers in HR so that the interactive process can be kicked off proactively.

“I would make sure that when we had a situation, whether it’s a workers’ comp claim or disability, that we were all talking about what the process looks like and who needs to be engaged,” Rhodes said.

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For smaller companies that lack a legal or risk management department, health insurance providers or disability carriers should be able to field questions about regulatory changes and what an employer should do to stay compliant.

Of course, sometimes an employer truly cannot meet an employee’s demands, despite its best efforts. In this case, documentation of the whole conversation from start to finish serves as the employer’s best defense should the employee file a discrimination claim.

“Document your process along the way and make sure you do that for every person,” Rhodes said.

“Not every situation is the same, but your process should be the same in every case.

“It’s not difficult to comply when you understand what actions need to be taken; the problem is that employers are caught off-guard, and it’s hard to recover once you’ve been spotlighted,” Rhodes said. &

Katie Siegel is an associate editor at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

2017 Risk All Stars

Immeasurable Value

The 2017 Risk All Stars strengthened their organizations by taking ownership of improved risk management processes and not quitting until they were in place.
By: | September 12, 2017 • 3 min read

Being the only person to hold a particular opinion or point of view within an organization cannot be easy. Do the following sound like familiar stories? Can you picture yourself or one of your risk management colleagues as the hero or heroine? Or better yet, as a Risk & Insurance® Risk All Star?

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One risk manager took a job with a company that was being spun off, and the risk management program, which was built for a much larger company, was not a good fit for the spun-off company.
Rather than sink into inertia, this risk manager took the bull by the horns and began an aggressive company intranet campaign to instill better safety and other risk management practices throughout the organization.

The risk manager, 2017 Risk All Star Michelle Bennett of Cable One, also changed some long-standing brokerage relationships that weren’t a good fit for the risk management and insurance program. In her first year on the job she produced premium savings and in her second year is in the process of introducing ERM company-wide.

Or perhaps this one rings a bell. The news is trickling out that a company is poised to dramatically expand, increasing the workforce three- or four-fold. Having this knowledge with certainty would be a great benefit to a risk manager, who could begin girding safety, workers’ comp and related programs accordingly. But things sometimes don’t work that way, do they? Sometimes the risk manager is one of the last people to know.

The Risk All Star Award recognizes at its core, creativity, perseverance and passion. The 13 winners of this year’s award all displayed those traits in abundance.

In the case of 2017 Risk All Star winner Steve Richards of the Coca-Cola Bottling Company, the news of an expansion spurred him to action. He completely overhauled the company’s workers’ compensation program and streamlined its claim management system. The results, even with a much higher headcount, were reduced legal costs, better return-to-work experiences for injured workers and a host of other improvements and savings.

The Risk All Star Award recognizes at its core, creativity, perseverance and passion. The 13 winners of this year’s award all displayed those traits in abundance. Sometimes it took years for a particular risk solution, as promoted by a risk manager, to find acceptance.

In other cases a risk manager got so excited about a solution, they never even considered getting turned down. They just kept pushing until they carried the day.

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Butler University’s Zach Finn became obsessive about what he felt was a lackluster effort on the part of the insurance industry to bring in new talent. The former risk manager for the J.M. Smucker Co. settled on the creation of a student-run captive to give his risk management students the experience they would need to get hired right out of college.

The result was a better risk management program for the university’s College of Liberal Arts and Sciences, and immediate traction in the job market for Finn’s students.

A few of our Risk All Stars told us that the results they are achieving were decades in the making. Only by year-in, year-out dedication to gaining transparency about her co-op’s risks and learning more and more about her various insurance carriers, did Growmark Inc.’s Faith Cring create a stalwart risk management and insurance program that is the envy of the agricultural sector. Now she’s been with some of her insurance carriers more than 20 years — some more than 30 years.

Having the right idea and not having a home for it can be a lonely, frustrating experience. Having the creativity, the passion and perhaps, most importantly, the perseverance to see it through and get great results makes you a Risk All Star. &

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Risk All Stars stand out from their peers by overcoming challenges through exceptional problem solving, creativity, perseverance and passion.

See the complete list of 2017 Risk All Stars.

Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]