the impact of fmla and ada compliance on employers
DESCRIPTION
Presentation at DMEC 2013 Denise Fleury Sedgwick Barbara LaRocque Pepsico Letitia gallman Delta Airlines Ellen Shelnutt SunTrust Banks Inc. Deborah Jacobs Southern California EdisonTRANSCRIPT
The Impact of FMLA and ADA Compliance on
EmployersSession Speakers:
Barbara LaRocque, PepsiCoLetitia Gallman , Delta Air Lines, Inc.
Ellen Shelnutt, SunTrust Banks, Inc.Deborah Jacobs, Southern California Edison
Session Moderator:Denise Fleury, Sedgwick
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• Denise Fleury, Sedgwick• Barbara LaRocque, PepsiCo• Letitia Gallman, Delta Air Lines, Inc. • Ellen Shelnutt, SunTrust Banks, Inc.• Deborah Jacobs, Southern California Edison
Introductions
Denise FleurySVP, Disability and Absence
ManagementSedgwick
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FMLA (1993)• Employee job protection during a health related absence
• Own serious health condition, to care for family members with serious health conditions and for child birth, adoption or foster care
• Up to 12 weeks, unpaid• Some military provisions have variances in time off
• Continuing revisions, updates and interpretations (1998, 2009)• Complex regulations that favor employee needs and perspective• Continuing coverage extensions thru legislation, DOL rule
promulgation, and court interpretations• Low bar for medical certification• Limited ability for employer to manage time off
• Employees’ rising awareness of the extent of protection provided
Family Medical Leave Act
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• Many states have enacted their own FML statutes• Do not necessarily align with federal laws: definitions or interpretations
• Other types of protected leaves began to appear• Domestic violence leave• Education leave• California Kin Care• Paid family leave
• There are now an estimated 300+ leave laws in the US—many with overlapping impact in federal, state and local jurisdictions
• The impact on employer operations continues to rise• High administrative cost of compliance, due to volume of leaves and
documentation needs• Employer lost productivity and the costs of managing staffing needs
Other FML, LOA
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• ADA (1990)• Prohibits discriminating against employees and applicants who are “qualified
individuals with a disability”• Employer must provide reasonable accommodations if it does not cause undue
hardship or expense for the employer• ADAAA (2009)• Explicitly stated the courts were applying ADA too narrowly• Broadened the applicability of ADA• Extended ADA job protection beyond FMLA and other leave exhaustion• Expanded list of "major life activities” • Disability impairment can be episodic or in remission
• Employers should focus on interactive process• Ordered the EEOC to revise regulations• To make it easier for an employee to qualify for protection
ADA, ADAAA
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• Administrative processes have increased in complexity and frequency• Many more employees fall under FMLA/ADA protection, often qualifying
for the interactive process• There are more stakeholders• HR, legal, benefits, risk management, local operations managers and
supervisors, employee health services, safety• Courts continue to broaden application• There are no hard and fast guidelines
• Increased involvement by corporate legal • Unclear or confusing court decisions that create employer questions
• Employers need to ensure adequate administrative processes to comply/implement ADA • Interactive process: notification, evaluation and business decision• Training: compliance, resource material and ongoing communications
High complexityOverlapping leaves and laws
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What are the successful strategies and tactics employers are using to manage this corporate risk?
What can employers do to balance the long term risk to productivity of its work force with the real needs of
disabled employees, with compliance and with the employer’s business needs?
Questions to ask
Barbara LaRocqueBenefits Director
PepsiCo
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• World leader in convenient snacks, foods and beverages
• $65 billion+ in annual revenue
• 300,000 employees (120,000 in the US)
• 22 billion-dollar brands
• 200+ countries
• HQ - Purchase, NY
• Fortune 100 & “most admired” company
About PepsiCo
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Our brands
$250MM - $1B brands22 $1B+ brands
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Our employees
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• ADA requests from PepsiCo employees have increased significantly
Handling ADA requests
Reasons for this increase include:• Expanded definition of disability• More proactive approach by HR• EEOC has made this a priority resulting in more individual inquiries• Additional HR and Manager training• Sending ADA paperwork more proactively, more consistently and
more timely to employees on leave since we integrated our leave of absence program in 2011 (PepsiCo Leave and Claim Center – PLCC)
• Most ADA requests start with HR and are routed to our employment law department for review
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• HR gives the employee the ADA accommodation packet• Confidential request for accommodation form• Cover letter to employee’s physician• Physician’s medical review form• Job description for employee’s current job• Functional abilities report (if considering other positions as an
accommodation)
• If the employee is requesting a permanent 8-hour or “no overtime” restriction, HR Manager completes the additional information form – hours accommodation
• HR sends completed paperwork to ADA team
HR process for handling ADA requests
Step 1:
Step 2:
Step 3:
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• Consults with ADA Team regarding the requested accommodation to ensure legal compliance
• Discusses request for accommodation with employee (preferably in person)
• Documents all interactions with employee, including sending letter or memo to employee confirming and summarizing key points of all verbal discussions
• If an accommodation is made, HR follows up with employee periodically to ensure the accommodation is working as intended, and revisits as necessary thereafter
HR process for handling ADA requests
Step 4:
Step 5:
Step 6:
Step 7:
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ADA notification process for employees on leave
• A copy of PepsiCo’s employment rights policy is included in the initial packet mailed to all employees on medical leaves
• 30 days before employment rights will exhaust, the leave specialist:
• Calls employees to:
– Remind them employment rights will exhaust in 30 days
– Notify them that a letter with ADA paperwork will arrive in mail
– Explain the impact on disability benefits and health care benefits, if applicable
• Mails letter to employee which includes information from PepsiCo regarding:
– Potential return to work process and/or
– How to request a reasonable accommodation including
– The 15-day deadline to return the ADA paperwork to HR
Sedgwick manages all leaves for PepsiCo
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• All requests are sent (by HR) to a dedicated email box
• Requests are reviewed by a specialized legal team (1 employment law attorney + 3 legal professionals)• Requests are printed and divided among the legal team• Initially reviewed; if reasonable, immediately approved• Others may require additional review with HR to confirm EE’s actual job duties• Sometimes HR has to contact the doctor for clarification• After a decision is made, a letter is drafted by HR and reviewed by legal (using letter
templates created by legal)
• Benefits of new centralized process• Quicker response time due to more efficient process• More consistent approach while maintaining individualized review• Better record-keeping – all requests are now copied and housed in legal in addition to
being copied in EE’s personnel file
Recent process changes
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• Legal is conducting additional ADA training for frontline managers and HR and moving the training online• Training will be “home grown” (higher quality & less expensive)
• We are working with Sedgwick to explore ways to:• Set up a single intake process • Go paperless (image system)• Track the history and status of all requests so that this information can be more
easily shared within the legal team• Improve the iterative process between the law dept. and HR to help track
questions and next steps
• At the same time, HR will remain at the center of this process• HR knows the employee and understands the specific demands of his/her job
Additional process improvementsunderway and under consideration
Letitia GallmanManager, Disability Management
Delta Air Lines, Inc.
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Delta’s disability/leave process
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• Flight Attendant was unable to buckle the jump seats in any of our domestic aircraft currently in use
• She was able to fit into the jump seat on international aircraft
• Her physician stated that his patient was obese, however, she had no underlying impairments and no restrictions were reported to the accommodations specialist
Case study #1
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• Customer Service Agent who stated she was unable to perform any of the job functions at the terminal gates due to “stress”
• Rotating at least 1 day a week to a gate position is required in the position
• The restrictions provided were not permanent
Case study #2
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We concentrate on whether the employee has a medical condition not whether they have a “disability” under ADA guidelines
Get to the heart of what the employee is requesting as an accommodation
Look for the win-win scenario
As much as possible, get creative
Find ways to be flexible
Working hand in hand with your legal department is essential
Identify the legal risk for the company
Be consistent in the administration of your policy
Our keys to success
Ellen ShelnuttVP, HR Support Services
Vendor ManagementSunTrust Banks, Inc.
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• SunTrust Banks, Inc., with total assets of $172.4 billion on March 31, 2013, is one of the nation's leading financial services holding companies.
• SunTrust has more than 1,574 retail branches and 2,882 ATMs located primarily in states along the East Coast.
• We have 28,554 teammates with an average age of 44, and an average of 10 years of service.
SunTrust Banks, Inc.
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• SunTrust decided to outsource its leave administration function in 2009.
• At that time, a small internal Leave Management team within HR administered requests. • Loose process and procedures• Plan design issues• Insufficient training• HR risk officers and SunTrust’s employment lawyers wanted tighter controls and better
compliance with the FMLA, ADA, USERRA, and state leave laws. • HR also wanted to eliminate inexplicable high teammate absenteeism within pockets of
our teammate population.
• First outsourced TPA resulted in unnecessary litigation. • In 2011, we went back into the market and found the right
partner.
SunTrust’s History with Leave Administration
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• SunTrust’s Teammate Relations Consultants (TRCs) work with managers to respond to teammates’ requests for workplace accommodations.
• If the request is for an accommodation that is unrelated to a leave of absence (e.g., reconfigure a work station, adjust work hours to allow for additional breaks, etc.), then the interactive process is handled by HR, with guidance from SunTrust’s employment lawyers.
• If the request for an accommodation is related to a leave of absence—either an extended leave beyond FML or some form of accommodation to permit a return to work—then Sedgwick is involved by directing the teammate to the appropriate people and processes within SunTrust to engage in the interactive process.
How It Works Today
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• Challenging to keep the insurance-based benefit eligibility and requirements separate from the analysis and process for handling accommodation requests.
• SunTrust offered extensive training, hosted by its employment lawyers, first to the HR population who would be responsible for any part of leave management or related benefits (e.g., TRCs, benefits team) and then to all managers in a series of sessions so that we would be sure all managers had an opportunity to understand their basic obligations and the fundamental processes.
• SunTrust created a series of tools, such as a set of “if . . . then” scenarios and FAQs, to help employees and managers understand the differences in benefits and the new processes.
• Today, the leave administration process is much smoother, and we have much better insight into our employees’ use of leave. We also feel much more confident in our compliance with relevant laws.
Particular Challenges
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• Occasional discrimination charges brought by teammates who claim we failed to provide a reasonable accommodation for their “disability,” but we’re usually successful in defeating the charges. • Parking space ‘discrimination’ charge.• Termination of two employees related to fighting over parking spot.
• Thankfully, most of our teammates are adults, professionals, and decent people, so this is a rare occurrence.
Anecdotes
Deborah JacobsManager, Disability Management
Southern California Edison
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• One of the largest investor-owned electric utilities • Providing electricity to over 14M people over 50K square
miles of territory• Over 16,000 employees, primarily in California • Strong union presence - three active unions• Self-insured, third-party administered (TPA), voluntary
disability plan and long term disability (LTD)• Self-insured/self-administered workers’ compensation• TPA administered FMLA and Tier 1 accommodations• Self-administered return to work program/Tier 2
accommodations
Southern California Edison (SCE)
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Being primarily in California with FEHA laws, SCE had to apply:
• Transitional RTW
• Formalized accommodations process
• Absence management express
• Return to work program (RTWP)
• Formalized leave protection beyond FMLA process
SCE’s programs and tools
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Three business
days
Two business
days
One business
day
One business day
TPA notifies DM
TPA determines
LTD ends in 30 calendar days
DM loads data and sends survey to mgr/sup
Mgr/Sup submits survey
DM creates minutes and
actionitems and distributes
Note: Process will proceed if an appeal occurs; DM will inform participants there is an appeal pending which may effect the action plan and move return to work date.
Meeting is held – in person and
conf call welcome
DM assesses and schedules
meeting
Three business days
Absence management express - the process
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• The purpose of the survey is to determine a suitable scenario which applies to a specific extended absence return to work situation• Supervisor’s responses to the survey questions will help to clarify other
organizations who may have supporting roles in the extended absence return to work process• The initial email contact is to
the supervisor of record in the system• The appropriate people
are invited to attend the absence management express meeting• Critical question has been on whether job is available
Survey tool
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Absence management express outcomes
Outcomes %
Litigated 0%
In process of returning to work 7%
Returned to work 7%
In the return to work program 39%
Appeal in process 3%
LTD reinstated/extended 7%
Workers’ compensation claim on CDP while TTD 3%
Awaiting work location response 7%
Involuntary separation 14%
Voluntary separation 3%
Retired 10%
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Employee on disability with no FMLA job protection• Single Point of Contact (SPOC) notified that employee is off beyond FMLA• SPOC contacts supervisor/managers with 3 options:
• Hold position - short term (less than 6 months)
• Hold position - long term (more than 6 months, less than 2 years)
• Backfill now (requires meeting usually with law, ER/LR)
• (Note: informational meeting can be held if supervisor/manager undecided)
• SPOC tracks and follows up on short term and long term holds including any agreed upon extensions
• SPOC letter process (warning and notification that position no longer held)• Result: When employee is released, employee and company know whether or
not the position was held
Future process changes
Proc
ess
one
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Employee beyond FMLA now able to RTW• SPOC responsible for oversight on entire process
• SPOC notified that employee released to return to work
• If position was held, normal absence management express
• If position backfilled, start interactive process for alternate job search
• Discuss options with employee (interactive process)
• Open comparable positions in same Work Group? Organization? Business Unit?
• If no open positions, start company wide search including using org/partner teams
• Lessor positions also considered after comparable search ends
• If no open comparable or lesser positions, declare business case for surplus and possible severance package
• If employee refuses a reasonable alternate job offer, potential termination without severance
Beyond FMLA
Proc
ess
two
Thank you.Questions?
Contact InformationBarbara LaRocque, PepsiCo
Letitia Gallman , Delta Air Lines, Inc.
Ellen Shelnutt, SunTrust Banks, Inc.
Deborah Jacobs, Southern California Edison
Denise Fleury, Sedgwick