March 2022 Newsletter

Is part-time work a reasonable accommodation under the ADA (Americans with Disabilities Act)?

According to a recent ruling made in the 10th U.S. Circuit Court of Appeals, part-time work was not a reasonable accommodation for an employee who requested to work half days after being excessively absent due to anxiety.

As a case manager at a law firm, the plaintiff was expected to work 40 hours per week and received 120 hours, annually, of paid time off (PTO). The firm’s PTO policy provided that, in the event an employee exceeded 120 hours, she would experience consequences up to and including termination.

In 2015, the plaintiff did not use more than 120 hours of PTO, but she was warned about her attendance. From January through June 2016, the plaintiff missed 133.5 hours of work. She exceeded the 120-hour allotment in a span of 30 workdays.

In May 2016, the plaintiff provided a letter from her counselor recommending that the plaintiff work half days when she experienced intense anxiety, because she had been diagnosed with generalized anxiety disorder and panic attacks. The firm denied the plaintiff’s request.

On June 3, 2016, the firm advised the plaintiff that she was expected to work 40 hours per week, informed her that she was falling behind on work assignments, and offered her one unpaid week off. The plaintiff declined the week off and was subsequently absent for reasons unrelated to anxiety. On June 23, 2016, the firm terminated the plaintiff’s employment.

She sued the firm, alleging it had discriminated and retaliated against her in violation of the Americans with Disabilities Act (ADA). The firm’s motion for summary judgment was granted as to the plaintiff’s claims that the firm failed to accommodate her disability and retaliated against her for requesting an accommodation and prior anxiety-related absences. On appeal, the plaintiff argued the motion was granted in error.

The court affirmed the finding that, under the burden-shifting framework for evaluating a failure-to-accommodate claim, the plaintiff failed to show she was qualified for her job. The district court applied a two-part analysis to determine whether the plaintiff was qualified: (1) whether the plaintiff could perform the essential job functions and (2) whether any reasonable accommodation would enable the plaintiff to perform those functions.

The court found that the plaintiff’s excessive absences prevented her from performing the essential functions, which required regular and predictable attendance and completing administrative and client-facing tasks. The plaintiff was absent without advance notice and could not inform the firm how often or how long she needed to be absent. The plaintiff’s request for reasonable accommodation was found unreasonable, because working half days would not permit her to fulfill the essential functions of her job. Accordingly, the plaintiff was not qualified for her job under the two-part analysis.

Since the plaintiff was not qualified for her job, the plaintiff’s argument that the firm was required to look for alternative accommodations failed. The court emphasized that an employer need not engage in the interactive process with an unqualified individual.

Regarding the plaintiff’s retaliation claim, the court affirmed the application of the McDonnell Douglas framework in finding that the plaintiff’s excessive and unscheduled absences, even after receiving a warning and being offered a week of unpaid leave, articulated a legitimate, nondiscriminatory reason for termination.

Key Takeaway: If the essential functions of the job require full-time work, the employer need not reduce the functions to create a part-time job. However, if an accommodation request is unreasonable, ordinarily an employer should consider alternatives.

Lamm v. Devaughn James LLC, 10th Cir., No. 19-3167 (Feb. 7, 2022).
Agencies Issue FAQs on No Surprises Act Dispute Resolution

In February 2022, the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury (Departments) issued FAQs to provide more guidance on the Federal Independent Dispute Resolution (IDR) Process under the No Surprises Act (NSA), enacted as part of the Consolidated Appropriations Act, 2021 (CAA).

These FAQs address:

– IDR entity qualifications and the application process;

– Fees; and

– The Federal IDR Process.

The NSA prohibits “surprise billing,” or instances in which an individual receives an unexpected bill after obtaining items and services from an out-of-network provider or facility, when the individual did not have the opportunity to select a facility or provider covered by their health insurance network (such as during a medical emergency). The NSA provides for a Federal IDR Process to resolve payment disputes after unsuccessful negotiation, where a certified IDR entity will review the specifics of the case and services received and determine the final payment amount.

The Departments previously issued guidance on the Federal IDR Process in the form of a Process Guide. This guide provides information for certified IDR entities on various aspects of the Federal IDR Process. It includes information on how the parties to a payment dispute may initiate the Federal IDR Process, as well as the requirements of the Federal IDR Process, including the requirements that certified IDR entities must follow in making a payment determination.

Benefits Offerings to Avoid the Great Resignation

Employees are walking away from their employers in record numbers; some are calling it the “Great Resignation.” A Prudential survey conducted toward the end of 2021 found that 46% of workers were actively seeking or considering finding a new job, and labor statistics backed those findings. According to the U.S. Labor Department, approximately 4.5 million workers quit their jobs in November 2021, setting a new record.

This might appear like welcome news for employers looking to hire—greater unemployment means more potential job candidates. However, confoundingly, there were still around 1.5 available jobs for each unemployed person near the end of 2021, according to USA Today. And, for the last six months of the year, job openings posted by employers topped 10 million, according to the U.S. Labor Department.

This information helps illustrate the key problem employers face right now: Workers are willing to quit jobs—and turn down open positions—that don’t satisfy their needs. Expanding employee benefits offerings is one of the best ways employers can show they provide workers with more than just a paycheck. The following are some of the most attractive perks employers are using to strengthen their attraction and retention efforts:

– Affordable health plan options

– Retirement benefits

– Flexible working conditions

– Personalized well-being resources

Understanding the Value of a Learning Culture
As employers evaluate how to combat today’s attraction and retention challenges, learning and development (L&D) efforts are a great way for organizations to find and keep employees. Research found that the majority of employees would stay at an organization longer if they felt the employer was invested in their careers.

An authentic learning culture supports a growth mindset, an independent pursuit of knowledge and open sharing of that knowledge with others. This type of culture supports employees’ desires to continually learn and build their careers. And in addition to being a powerful recruitment and retention tool for organizations, a learning culture has the potential to impact workplaces by closing skill gaps, increasing innovation and boosting productivity.

Creating a Culture of Learning
Developing a learning and positive company culture takes time and dedication. Consider the following ways employers can build or reinforce a workplace culture of learning:

– Personalize learning plans to help guide employees on their learning journeys to make learning efforts relevant, and design these plans to support employees’ long-term career goals.

– Appreciate the value of learning regularly by focusing on how employees apply their newfound knowledge versus simply what was accomplished.

– Conduct assessments and behavioral interviews to gauge if candidates are lifelong learners and likely to contribute to a learning culture.

A culture of learning requires ongoing attention and effort from organizational leaders and managers, but can be an investment in employees—and the organization.

Managing the Excuse-Makers
Some employees always seem to have an excuse for failing to meet expectations. Luckily, there are strategies managers can use to turn repeat excuse-makers into productive team members. Learn about these strategies in the video below.

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