Five Months, Two Weeks, Three Days: New Risks and Issues for Disability and Leave Management

1. Five Months, Two Weeks, Three Days: New Risks and Issues for Disability and Leave Management Presented by: Magdalen Blessey Bickford, Esq.

2. About the Firm • Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation • Over 50 years of experience; founded in 1958 in New York City • More than 600 attorneys in 45 offices nationwide • National perspective and sensitivity to the nuances of regional business environments • Represents over 13,000clients in every state in the U.S. • In the last five years, the firm has litigated more than 9,000employment law cases

3. The “Rule of Unintended Consequences • With the best of intentions, Congress passes laws that end up regulating the workplace in ways few anticipated • Legislation often is uncoordinated and creates conflicting legal workplace obligations • Regulations, and agency enforcement positions, reshape and redirect vague statutes • In Disability & Leave Management, we can see this through Title VII, ADA and FMLA • Result: Employers must fashion policies and practices, and make employment decisions, with considerable legal uncertainty

4. Key Disability & Leave Issues • Is it lawful to require: • Regular and predictable attendance? • Regular work schedules? • Physical presence in the workplace? • Mandatory overtime? • Employees to do jobs a specific way? • Employees to work the way a supervisor instructed? • Proof employees can work safely? • Periodic medical examinations? • Second medical opinions when employer doubts employee’s ability to return to work safely? • Light duty be limited to work-related injuries?

5. Title VII … Then and Now • Title VII …initially: • Banned intentional discrimination (presumably intentional discrimination) based on race and color • Gender, national origin, religion were generally unintended beneficiaries of this civil rights movement • Pregnancy not even included • Title VII … today: • Prohibits disparate impact as well as disparate treatment • Prohibits pregnancy discrimination through the PDA • Theory of unconscious bias based on stereotyping is extending coverage to “un-protected” group • Disparate impact is giving rise to novel theories of “family responsibilities discrimination”

6. Emerging Title VII Issues • Efforts to combat the “maternal wall” • Title VII/PDA and FMLA are vehicles to accomplish this goal • Disparate treatment claims driven by “stray remarks” • Novartis class action • Untapped potential for disparate impact claims • “Light duty” cases

7. The ADA … Then and Now • The ADA … initially: • Banned “disability” discrimination • Covered 43 million Americans • Eliminated patchwork of protections at state level • Emphasized need for individuals to be “qualified” and potential “reasonable” accommodations to facilitate performance of essential job functions without posing “undue hardship” • Adopted medical examination rules to prevent intentional disability discrimination • Adopted “direct threat” standard to prevent paternalistic treatment of people with disabilities

8. The ADA … Then and Now • The ADA … today: • Essentially bans “medical condition” discrimination • Covers an almost unlimited number of Americans • Anyone subjected to an adverse employment action due to an actual or perceived impairment is arguably “regarded as” disabled • Regulates leave policies which overlap and arguably conflict with FMLA and state leave laws • Multi-state employers must comply with wide array of leave obligations • EEOC brings class actions against employers with rigid leave policies even though they are even more generous than the FMLA

9. The ADA … Then and Now • The ADA … today: • Forces employers to defend their judgment about any safety concern arising from an individual’s impairments (direct threat) in jury trials • Theory behind individualized assessment obligations now undermined or complicated by HIPAA and FMLA rules governing medical exams and inquiries • Requires benefit programs (e.g., short and long term disability, workers’ compensation, and FMLA leave) to be integrated with reasonable accommodation processes • Untapped potential for “disparate impact” claims • Shifting burden of proof to show policies are “job-related and consistent with business necessity”

10. ADA Issues To Watch … • Still awaiting final ADAAA Regulations • Workplace safety and injury prevention policies • EEOC v. Rockwell Int'l Corp., 243 F.3d 1012 (7th Cir. 2001) • EEOC v. Schneider Nat'l, Inc., 481 F.3d 507 (7th Cir. 2007) • Proof required to establish direct threat • Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82 (2002) • EEOC v. Hussey Copper, Ltd., 2010 U.S. Dist. LEXIS 22920 (W.D. Pa. Mar. 12, 2010) • Inflexible leave policies • Pushing back on the EEOC’s position • Return to work practices • 100% healed policies • Reasonable accommodations during leaves • Voluntary wellness programs

11. Other ADA Considerations • New EEOC Leadership • Jacqueline Berrien • Chai Feldblum • Victoria Lipnic • Increased focus on systemic discrimination • Expanded use of EEOC subpoena power • EEOC v. UPS, 587 F.3d 136 (2nd Cir. 2009) • EEOC v. Kronos Inc., 2009 U.S. Dist. LEXIS 45449 (W.D. Pa. June 1, 2009) • Developing standards to maintain class actions • Hohider v. UPS, 2009 U.S. App. LEXIS 17309 (3d Cir. Pa. Aug. 4, 2009) • Impact of new “regarded as” standard

12. The Genesis of Unintended ADA Consequences • Little thought or attention, initially given to: • Impact on workers’ compensation or injury prevention • Impact on leave policies and other benefit programs (e.g., STD, LTD, WC, neutral attendance policies) • Integration with other federal laws such as the FMLA and HIPAA (they did not even exist) • Implications if people with temporarily disabling and/or treatable conditions were suddenly protected • Health promotion and disease management initiatives (e.g., incentive-based wellness programs) • Health insurance practices after healthcare reform • Ban against pre-existing conditions or lifetime benefit caps is contrary to ADA’s “equal access” to benefits rule

13. The FMLA … Then and Now • The FMLA … initially: • Intended to further protect against gender discrimination by providing job-protected leave if employees gave birth or started or cared for families • Focused on 12 weeks of leave • The FMLA … today: • Unplanned, unscheduled absences are the single greatest source of FMLA tension between employers and employees • FMLA paperwork has become nearly unmanageable • FMLA medical exam rules conflict with the ADA • “Unqualified” works – at least in the ADA sense -- are provided lifetime employment through intermittent FMLA leave

14. Disability and Leave Management Where Public policy is heading

15. Calls for a “21st Century Workplace” • “21st Century Workplaces” are different: • Dual earner couples are the norm • Older workers need to work longer • Men and women share care-giving responsibilities • There are many more single-parent families • More people with disabilities are working • Legislative initiatives focus on: • Flexible work arrangements • Time off • Career flexibility • Georgetown Law: Workplace Flexibility 2010 • Hastings Law: Center for WorkLife Law

16. White House Workplace Flexibility Forum • Held on March 31, 2010 • Hosted by President Obama, First Lady Michelle Obama and the White House Council on Women and Girls • Discussed the importance of creating workplace practices that allow America’s working men and women to meet the demands of their jobs without sacrificing the needs of their families.

17. EEOC Guidance on Disparate Treatment Against Caregivers • Using Title VI, PDA, ADA, FMLA, and state common law to achieve workplace “flexibility” • Highlights emerging theories of legal liability: • Gender stereotyping • Benign discrimination • Association discrimination • “Unconscious” bias • Cognitive science recommends training in: • “group think” • Motivational control

18. Legislative Initiatives • Healthy Families Act • The President’s Budget for FY2011 includes a series of investments to: • support caregivers for elderly relatives or family members with disabilities, • help families afford the cost of quality child care, • aid states wishing to establish paid leave funds, and • build the knowledge base about work-family policies • State Paid Leave Laws • Paid leave bills under consideration in 23 states in 2009

19. Conclusions • Employers must: • Manage their businesses recognizing the law is unclear, uncoordinated, and still developing. • Adopt a “risk management” approach to disability and leave management • Compare risk to acting and risk to not acting • Ensure policies, practices and/or employment decisions at least arguably comply with applicable law • Be ready to turn to the courts for help! • Prepare to argue that plaintiff’s (or agency’s) interpretation of the law clashes with other important issues of public policy and/or law • E.g. SCOTUS decision in Chevron USA, Inc. v. Echazabal

20. Conclusions • In this legal environment, employers must have a “good story to tell” … good facts make good law • Preventive action is critical • Make sure policies are facially valid • No bright line rules • Flexibility is critical • Processes followed must meet ADA standards for “individualized assessment” • Fight over “judgment” not process • Leverage “business judgment rule” in litigation

21. Conclusions • Don’t pick fights unnecessarily • Narrowly tailor policies to fit business objectives (ex. No need to have a “100% healed” policy) • Don’t defend the indefensible • Defend only those policies employers believe go to the heart of their business goals and processes • Be active!! • Advocate for legislation that “harmonizes” federal public policy affecting the workplace • Employers should not be forced into “catch-22’s” • Compliance with one federal law should not result in a violation of another federal law

22. THANK YOU!