Join us on March 7 in Chicago for our annual Benefits Emerging Leaders Working Group, which provides benefit professionals with tools to better serve employees in an ever-changing benefits landscape.

Our presentations will tackle the latest benefits hot topics and best practice solutions and will be supplemented with important networking opportunities aimed to connect tomorrow’s benefit leaders with a broad network of professionals.

Speakers from The Art Institute of Chicago, Alera Group Inc. and McDermott will lead interactive discussions around a range of topics, including:

  • Affordable Care Act (ACA) Penalties – Marketplace Letters
  • Investment Committee Meetings – Red Flags and Best Practices
  • Developments in Parental and Caregiver Leaves – A Case Study Approach
  • Legislative Rundown – What’s Happening in Washington
  • Around the Horn – A Group Discussion

Register Now.

https://www.employeebenefitsblog.com/2019/02/event-benefits-emerging-leaders-working-group/

New digital health regulations arose at the federal and state level in 2018, bolstering the existing legal framework to further support and encourage digital health adoption in the context of care coordination and the move to value-based payment. McDermott’s 2018 Digital Health Year in Review: Focus on Care Coordination and Reimbursement report – the second in a four-part series – highlighted these developments within the digital health landscape. These efforts brought changes to coverage of telehealth and other virtual care services, as well as information gathering for regulatory reform, and can help bridge the gap between research, funding and implementation as regulations build a framework within which companies can deploy their products, receive reimbursement and demonstrate value to patients. Here we outline digital health developments from the second half of 2018 and how they can help drive digital health forward in 2019. For a closer look at key care coordination and reimbursement developments that shaped digital health in 2018, along with planning considerations and predictions for the digital health frontier in the year ahead, download our full report.

To view the first report in the series, 2018 Digital Health Year in Review: Focus on Data, click here.

 

https://www.employeebenefitsblog.com/2019/02/digital-health-drives-forward-a-roadmap-of-regulations/

Several large employers are disputing how much money the New York Times owes a union multiemployer pension fund. Recently, six companies—including US Foods Inc. and United Natural Foods Inc.—filed an amicus brief supporting the New York Times in its case before the US Court of Appeals for the Second Circuit. Ruprecht Co., an Illinois meat processor, also filed its own brief in support of the New York Times.

Under the Employer Retirement Income Security Act of 1974 (ERISA), when determining an employer’s withdrawal liability, the actuarial assumptions and methods must “offer the actuary’s best estimate of the anticipated experience under the plan.” The underlying issue in this case involves an actuarial method called the “Segal Blend,” which often is used to value unfunded vested benefits and calculate withdrawal liability (an exit fee) from a union multiemployer pension plan. Under the Segal Blend, the actuary blends the multiemployer plan’s assumed interest rate on investments with a lower interest rate used by the Pension Benefit Guaranty Corporation for terminating plans. Many multiemployer pension plans commonly use the Segal Blend to calculate an employer’s unfunded liability and payment upon exiting the multiemployer plan (known as “withdrawal liability”). These large employers claim that using the Segal Blend results in an artificially lower interest rate, which in turn results in larger employer withdrawal liability and larger amounts an employer must pay to exit the multiemployer pension plan.

The suit claims that using the Segal Blend does not reflect the actuary’s best estimate of the anticipated experience under the multiemployer plan and violates of ERISA. The listed companies object to the use of the Segal Blend, arguing that the calculation fundamentally undermines ERISA and allows multiemployer pension funds to impose disproportionately large liability on employers leaving the fund (while avoiding strict judicial review). The legal briefs note that multiemployer plans have an incentive to inflate the amounts owed by withdrawing employers, and that this is easy to do by altering the calculation method with the Segal Blend. In this case, the employers allege that the artificially deflated interest rate under the Segal Blend does not reflect the multiemployer fund’s anticipated experience. Rather, the companies claim that the interest rate for the withdrawal liability calculation should be the same interest rate used by the actuaries to determine the multiemployer plan’s required minimum funding.

On the other side of the case, several groups have filed briefs supporting the multiemployer fund’s calculation, including the Segal Group, Inc. (creator of the Segal Blend), the federal pension insurance agency, and an interest group representing multiemployer pension and welfare plans. Given both the large liabilities at issue in this case and the general funding crisis for many multiemployer pension plans, the Second Circuit’s decision could have a wide-reaching impact on the financial health of all multiemployer plans.

We are watching the developments of this case, and employers with multiemployer plans should contact their regular McDermott lawyer or one of the authors for more information.

https://www.employeebenefitsblog.com/2019/02/piling-on-corporations-support-the-new-york-times-in-multiemployer-pension-calculation-dispute/

Most job seekers know that when interviewing for a job, asking intelligent and well-thought-out questions is an integral part of the applicant evaluation process. Approaching a job interview with a variety of questions on topics such as company and departmental goals, culture, mission and values, why the position is open and what is expected of… View Article

What Questions Should You Never Ask in a Job Interview? Undercover Recruiter – Recruiting & Talent Acquisition Blog

https://theundercoverrecruiter.com/never-ask-job-interview/

Data privacy and security legislation and enforcement saw significant activity in 2018 and early 2019. McDermott’s 2018 Digital Health Year in Review: Focus on Data report – the first in a four-part series – highlights notable developments and guidance that health care providers, digital health companies and other health care industry stakeholders should navigate in 2019. Here, we summarize four key issues that stakeholders should watch in the coming year. For more in-depth discussion of these and other notable issues, access the full report.

  1. EU General Data Protection Regulation (GDPR) enhances protections for certain personal data on an international scale. US-based digital health providers and vendors that either (a) offer health care or other services or monitor the behavior of individuals residing in the EU, or (b) process personal data on behalf of entities conducting such activities should be mindful of the GDPR’s potential applicability to their operations and take heed of any GDPR obligations, including, but not limited to, enhanced notice and consent requirements and data subject rights, as well as obligations to execute GDPR-compliant contracts with vendors processing personal data on their behalf.
  2. California passes groundbreaking data privacy law. The California Consumer Privacy Act (CCPA), which takes effect on January 1, 2020, will regulate the collection, use and disclosure of personal information pertaining to California residents by for-profit businesses – even those that are not based in California – that meet one or more revenue or volume thresholds. Similar in substance to the GDPR, the CCPA gives California consumers more visibility and control over their personal information. The CCPA will affect clinical and other scientific research activities of academic medical centers and other research organizations in the United States if the research involves information about California consumers.
  3. US Department of Health and Human Services (HHS) Office of Civil Rights (OCR) continues aggressive HIPAA enforcement. OCR announced 10 enforcement actions and collected approximately $25.68 million in settlements and civil money penalties from HIPAA-regulated entities in 2018. OCR also published two pieces of guidance and one tool for organizations navigating HIPAA compliance challenges in the digital health space.
  4. Interoperability and the flow of information in the health care ecosystem continues to be a priority. The Office of the National Coordinator for Health Information Technology (ONC) submitted its proposed rule to implement various provisions of the 21st Century Cures Act to the Office of Management and Budget (OMB) in September 2018; this is one of the final steps before a proposed rule is published in the Federal Register and public comment period opens. The Centers for Medicare & Medicaid Services (CMS) released its own interoperability proposed rule and finalized changes to the Promoting Interoperability (PI) programs to reduce burden and emphasize interoperability of inpatient prospective payment systems and long-term care hospital prospective payment systems.

https://www.employeebenefitsblog.com/2019/02/2018-digital-health-data-developments-navigating-change-in-2019/

When you write about topics as broad as benefits and wellness, it’s easy to have too many ideas and want to write about a million things at once.

But that’s impossible. So these are some topics in the health and benefits space that have intrigued me these past few weeks. They relate to employee wellbeing based on compensation; the employer mandate; days off; and a wellness conference.

What’s been on your mind recently? Any trends, debates or legislation that you find especially fascinating? Let me know!

Unpaid Internships and the Government Shutdown

I had many reactions to the government shutdown, which doubtless made a lot of employees’ lives difficult, having to work in some cases while not getting paid while benefits were compromised and many people had to deal with things like not being able to afford basic necessities like food and rent. I recognize that the struggle this put on federal workers was very rough.

It made me think of unpaid internships. These interns must go through these exact same struggles (unless they’re wealthy, or their family is) of needing to work their asses off while not getting paid. A lot of students can’t take internships that would be good experience and look good on their resume because they need to make money and pay basic expenses. Proponents of the unpaid internship argue that they are a valuable learning experience or that students can get class credit.

But in my opinion as a millennial in the beginning of my career, most of us in college needed to take out loans to afford an education. Couple that with unpaid internships and entry-level jobs that for many fields pay minimally. The financial burden put on young people through education costs and unpaid work can be significant.

All I’m saying is, at least pay your interns minimum wage. It’s the least you can do. People should get compensated for the work they perform.

Some Employer Mandate News

I came across a couple of BenefitsPRO articles recently that highlight two opposing ideas of the same debate. In late 2018 the U.S. Department of Labor, Department of Health and Human Services and Treasury Department proposed a rule that employers could circumvent employer-mandate penalties by setting up a health reimbursement account that employees could use to purchase health care in the individual market.

The 2018 tax reform legislation struck down the individual mandate. But the employer mandate, an Affordable Care Act provision that states employers must provide affordable health insurance to employees or else face a fine, is still in place.

On the pro side: Large employees would realistically continue to offer group health plans to attract and keep talent. Meanwhile, it could potentially help smaller employers in the 50- to 100-employee range. Also, to avoid penalties, employers would have to make an HRA contribution such that “any remaining premiums the employee would have to pay wouldn’t exceed a percentage of his or her income to be considered affordable under the employer mandate.”

On the opposing side: Employers and employees may not fully understand the differences between employer-sponsored health care and the individual health insurance marketplace, and the limitations that exist between them. Also, the new rules could potentially incentivize employers to switch sicker, more expensive enrollees to the individual market.

“If employers could move sicker patients toward individual and short-term plans — some of which have more restricted coverage — the employer could save money. In addition, short-term plans often are more restrictive about pre-existing conditions,” the article states.

If these rules are finalized, they wouldn’t take effect until Jan. 1, 2020 at the earliest, according to BenefitsPRO.

What do you think?

Should the Super Bowl Be a National Holiday?

I want to give a shout out to a Twitter user and lawyer @SonyaOldsSom who responded to a Workforce tweet with something obvious but important. Also, it speaks to an even broader idea than what she was specifically talking about.

We posted a podcast in February 2018 in which hosts Rick Bell and Frank Kalman briefly discussed if the Monday after the Super Bowl should be a national holiday. That idea, simply, came from organizations’ frustrations that people often aren’t as productive as usual that day.

This was @SonyaOldsSom’s response:

Amen! Sure, National Super Bowl Monday is a cute idea to debate, but employers (and whoever decides what national holidays are) should consider the thing that’s been right under their noses for a long time. In general, for any organization, it can be easy to get swept up in trendy sounding ideas — whether that’s open office spaces, yoga classes or some other buzzword — but what’s more valuable to people are these straight-up practical ideas, like having voting day as an official holiday.

The MBGH Wellness Forum

I recently attended an employer-only wellness forum hosted by the Midwest Business Group on Health, and although I’ve already written about some of the major takeways, there were a few other ideas that came up that are worth exploring:

  • I spoke to a man who expressed to me one of his greatest frustrations in the workplace wellness space: when companies go gaga over wellness programs without addressing cultural concerns like an abusive or toxic work environment. I agree!
  • One of my unlikely tablemates was Bruce Sherman, medical director for the National Alliance of Healthcare Purchaser Coalitions. I’ve coincidentally already interviewed him for a story coming up in our March issue! At this conference, he gave a talk about addressing employees with multiple chronic conditions [note: “multimorbidity” is the coexistence of multiple chronic conditions] in your wellness programs. One of his ideas: disease management programs that specifically address one chronic condition oftentimes do not sufficiently help employees with multimorbidity!
  • Sherman also mentioned that while people in the health care industry tend to have a narrow, clinical mindset with patient health, patients have many more focuses and stresses in their life. Personal health is just one of them — and, according to one survey, it’s not even the highest priority. Ranking factors that stress people out, “personal health” is No. 8, below other factors like finances, family health and work schedule. Personal health is not something that exists in a vacuum for employees!

The post Benefits Roundup: The Employer Mandate and Fair Compensation appeared first on Workforce.

https://www.workforce.com/2019/02/13/benefits-roundup-the-employer-mandate-and-fair-compensation/

Benefits play a pivotal role these days, and pros know how tough it is to keep good people, so many employers are upping their game when it comes to offering their employees a comprehensive benefits package. 

They’re being strategic about designing a robust package tailored to their employees’ unique needs and one that can convince upper management that this is what the company needs to retain – and attract – the right people moving forward.

The workplace is becoming more multi-generational, as millennials start to dominate and older workers delay retirement. More than a third (37%) of employers say they’re making changes to their benefits package, or plan to do so in the near future, according to Aon’s Benefits and Trends Survey 2019.

No longer a one-size-fits-all package

There’s no such thing as a basic benefits package (healthcare, dental, vision, pension, etc.) or a one-size-fits-all package anymore. Companies are now asking employees what perks or benefits they want. And employers are listening.

Most employees at small and medium-size companies (91%) view nontraditional benefits (flexible work schedules, expanded paid time off and working remotely) as important to job satisfaction.

Offering the right employee benefits is one of the “Top 10 HR challenges of 2019,” according to a recent report from HR compliance firm XpertHR.  

To help employers effectively create a competitive package, XpertHR suggests that benefits pros take certain steps:

  • Measure benefits against competitors and assess what the marketplace is offering
  • Identify benefits that have the lowest employee participation levels and redesign or eliminate them
  • Tailor benefits according to the needs and interest of multiple generations

Now let’s take a look at three key developments shaping the world of employee benefits – and how you can decide from a myriad of offerings what’s right for your employees.

Trend No. 1: Millennials are disrupting the benefits game

Now that more than a third of the workforce are millennials and nearly half will be by 2020, have you rethought your benefits strategy to cater more to this group?

Healthcare is the most important benefit to millennials, according to a recent Fit Small Business survey. But, at the same time, debt-ridden millennials are worried about the cost of going to the doctor. That’s why many employers are taking a proactive approach to offset costs.

The health savings account (HSA) is “the most millennial-friendly benefit,” wrote Amino digital health company CEO David Vivero in Forbes. “It’s an excellent way to save money while you’re in your young, healthy years.”

“Your millennial employees will also appreciate the flexibility of an HSA, which can be used to pay for anything from acupuncture to contact lenses to medical supplies,” says Vivero, a millennial himself.

And employers are buying into the concept, since employee participation in HSAs grew from 50% in 2017 to 81% in 2018, according to a Benefitfocus report.

Best benefits strategy: Make it easier to “doctor shop” for services, get online appointments and visit providers via telemedicine.

Student loan repayment ranks high with millennials. Companies that offer relief in this area will have a big leg up on the competition and likely be able to bolster dwindling retention rates.

More than a third of employees said student debt repayment was a must-have benefit, according to Unum survey, but that percentage leaps to 55% for millennials.

A growing number of employers, including Estée Lauder, Pure Insurance and Carhartt, have added student loan assistance to their benefits packages in 2018.

There’s also an emerging group of third-party administrators offering student loan programs, such as Fidelity’s Student Debt Employer Contribution program and CommonBond, which also offer benefits for parents to help plan for their child’s education.

Family benefits is a crucial benefit that millennials want. “Having comprehensive family benefits – fertility, infertility, pregnancy, maternity and parenting benefits – can make one company stand out from the rest,” said Paris Wallace, CEO, Ovia Health in Forbes.

Paid leave benefits are becoming a must-have for employers that want to have any shot at attracting and retaining top-performing employees. A SHRM study says 29% of employers offered paid paternity leave in 2018, up from 8% in 2016.

Flexible schedules “can also be a make-or-break benefit for young millennials,” adds Wallace. And it’s a close second to paid family leave as the most popular benefit overall, according to a recent benefits provider Unum survey.

Trend No. 2: Employers get innovative to rein in high healthcare costs

Savvy benefits managers need to know what’s in the pipeline for health care in 2019 and beyond so they can stay competitive:

Chronic-condition management should be at the very top of employers’ healthcare strategies. Reason: Annual healthcare costs for workers with a chronic condition (diabetes, high cholesterol, heart disease, etc.) are five times higher than for workers without such a condition.

Employers are providing disease management programs and health screenings to combat chronic conditions and keep employees healthy. More than half (55%) of employers have made telehealth a part of their health plan, according to the Medical Trends and Observation Report.

By providing access to a healthcare provider on the phone or online, employers are hoping employees will avoid more costly visits to the doctor or the emergency room. For 2019, nearly all large employers said telehealth was one of their top healthcare initiatives, according to the 2019 National Business Group on Health study.

On-site clinics: As many as 65% of large companies are expected to offer on-site or near-site health centers to bolster their benefits by 2020, reports the National Business Group on Health. And many smaller companies are banding together to share the costs of healthcare clinics. Companies have seen major ROI in reduced absenteeism when this option’s added, according to the National Alliance of Healthcare Purchaser Coalitions. Also providing a health clinic can offer same or next-day appointments, which can help solve a concern of millennial workers, who expect shorter wait times.

Wellness tech: With fitness-tracker Fitbit leading the way, firms are investing in the new wave of apps and wearable devices to help employees lose weight, quit smoking or manage diabetes. The remote monitoring technology, where biometric data is transmitted to a provider via scales, glucose meters and heart-rate monitors, is used by 56% of plans.

Trend No. 3: Voluntary benefits are driving retention

More than two-thirds (72%) of organizations increased their benefits offerings to retain employees in the last 12 months, according SHRM’s The Evolution of Benefits report. More and more employers are looking to benefits to attract/retain employers in a tight job market, so there’s a host of more trendy benefits being offered.

Employees want flexibility, choice and non-traditional options, according to a 2018 MetLife survey.

Gym class reimbursement, mental health services and discounted entertainment are now more common than ever.

Companies are using a new breed of work perks to lure employees, according to FitSmallBusiness.com, which explains why the following perks are growing in popularity:

Paw-ternity leave: Pet owners have lower stress levels, creating a more productive workplace. Currently, only about 5% of companies offer this pet perk, with an average leave time of one week.

Egg freezing/fertility: These benefits are on the rise, thanks to big companies like Apple, Facebook and Google at the forefront. With this perk, workers are 62% more likely to stay put, says a new study.

Free life coaching: Mental health and happiness go hand in hand. That’s why companies’ offerings include counseling, healthy living programs and work-life coaching to help employees with both personal and professional goals.

Free beer: Having a beer fridge can lead to a happier staff that’s more committed to the job. About 11% of employees currently enjoy this perk.

Pet bereavement: Even though only a few employers offer this perk, but it is one that 35% of workers want and companies are starting to recognize the upheaval that their employees go through after the death of a pet. Kimpton Hotels in San Francisco offers three days, while Mars Inc. gives workers one day and the option to work remotely thereafter.

Customization is key to the future of benefits and technology can make the process even easier. There are a host of different types of apps and debit cards that can help enhance the employee benefit experience, including:

Free lunch: Ritual for Business, an order-ahead food app, is a brand-new benefit that Chicago Trading Company, Spotify and Verizon Media are offering to their employees.

Pick your own perk: Employers can set a monthly allowance on a reimbursement-free Zestful Perk Card for pre-approved health and fitness, travel, food, etc. services (Netflix, Uber, Airbnb, Southwest Airlines, to name a few).

Mobile-friendly benefits: With the first-of-its-kind Aon app, employees can access benefits all in one place, using facial recognition to log on. It includes push notifications for benefit announcements.  

Celebrate your staffers: With the employee recognition Recognize app, you can create your own employee rewards catalog of automatic gift cards (or non-monetary rewards) employees redeem with points.

Employees’ desires for benefits tailored to their own needs is changing the mix of offerings. And this trend will be the key to keeping top talent.

http://www.hrmorning.com/benefits-package-future/

A recent Eighth Circuit decision regarding “cross-plan offsetting” serves as an important reminder of how ERISA’s fiduciary duties impact both employers and fiduciaries who handle claims.

The case involved the common practice of cross-plan offsetting, which occurs when a claims administrator resolves an overpayment to a provider by refusing to pay that provider for a future claim (or reducing the amount paid for that future claim)—even if the latter claim was made by a participant in an unrelated plan. Cross-plan offsetting allows claims administrators to quickly recover overpaid benefits without the time and expense associated with one-off recovery actions against providers. Defendant UnitedHealth Group (UnitedHealth) initially applied this practice among its in-network providers, but then expanded cross-plan offsetting to non-network providers beginning in 2007. This practice was challenged by two out-of-network doctors in the case at issue, Peterson v. UnitedHealth Group, Inc.

Access the full article.

https://www.employeebenefitsblog.com/2019/02/eighth-circuit-rejects-cross-plan-offsetting/

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, “Of course.” The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA’s interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Gary Brunckhorst worked as an accountant for the city of Oak Park Heights, Minnesota, for over 15 years. In April 2014, he contracted Fournier’s gangrenous necrotizing fasciitis — a rare, life-threatening disease otherwise known as “flesh-eating” bacteria. He had three life-saving surgeries, spent five months in a hospital and nursing care facility and suffered long-term injuries. 

At the outset of his hospitalization, Brunckhorst requested, and the city granted, FMLA leave. When that leave expired, the city granted an additional 60 days of unpaid medical leave and told Brunckhorst that he could qualify for an additional 30 more days thereafter. On Sept. 14, 2014, (the end of the initial 60-day unpaid leave), the city sent Brunckhorst his job description and asked him whether he could perform all of its essential functions of his position. Brunckhorst’s doctor responded that he was not able to return to work and that he needed additional unpaid leaves of absence, which was extended in serial through April 1.

In December 2014, however, the City Council had voted to eliminate Brunckhorst’s position as unnecessary. In an effort to soften the blow to Brunckhorst, is offered him the choice of a severance package or a return to work when he was able to do so in a new position, albeit with a 30 percent reduction in salary. Brunckhorst refused both, stating that he wanted to return to his original position. The city kept him on his unpaid leave in the interim, since he was not yet ready to return to work anyway.

Ultimately, the city gave Brunckhorst a hard April 1 deadline to return to work in the new position or be fired. Brunckhorst, through his attorney, refused and instead requested that the city permit him to work from home. The city refused, stating that remote work was not possible for the new position. It instead offered Brunckhorst a limited schedule as an accommodation — four hours per day four days per week in the office. When Brunckhorst declined the offer, the city terminated his employment.

The 8th Circuit Court of Appeals concluded that the city had not violated the ADA by eliminating his position, refusing to offer remote work as an accommodation, or otherwise failing to engage in the interactive process.

No reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempts to narrow the window of the interactive process to the last few days prior to his termination and claims that the City offered him only one, take-it-or-leave-it accommodation. To the contrary, the record shows that the City engaged in an interactive dialogue with Brunckhorst for months regarding his return to work. During that time, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions. There is no genuine issue of material fact that the City engaged in anything but a good-faith interactive dialogue.

This case provides a textbook roadmap for employers to follow when handling an employee on an extended medical leave. An employer can eliminate a position if the bona fides of its business and economic needs support that decision. It is not required to keep a position, or create a position, as a reasonable accommodation. It may have to offer an existing, vacant position, however. It also does not have to offer remote work if the essential functions of the position dictate otherwise.

If you are considering terminating an employee out on a non-FMLA unpaid medical leave, consider this question — will it appear to a reasonable jury that you tried to work with the employee to return him or her to work. If the answer is an objective “yes,” then you are likely on solid footing terminating the employee who refuses your offers to return to work (understanding that you may have to justify your actions and decisions in litigation).

The post A Textbook Lesson the ADA’s Interactive Process appeared first on Workforce.

https://www.workforce.com/2019/02/12/a-textbook-lesson-the-adas-interactive-process/

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, “Of course.” The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA’s interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Gary Brunckhorst worked as an accountant for the city of Oak Park Heights, Minnesota, for over 15 years. In April 2014, he contracted Fournier’s gangrenous necrotizing fasciitis — a rare, life-threatening disease otherwise known as “flesh-eating” bacteria. He had three life-saving surgeries, spent five months in a hospital and nursing care facility and suffered long-term injuries. 

At the outset of his hospitalization, Brunckhorst requested, and the city granted, FMLA leave. When that leave expired, the city granted an additional 60 days of unpaid medical leave and told Brunckhorst that he could qualify for an additional 30 more days thereafter. On Sept. 14, 2014, (the end of the initial 60-day unpaid leave), the city sent Brunckhorst his job description and asked him whether he could perform all of its essential functions of his position. Brunckhorst’s doctor responded that he was not able to return to work and that he needed additional unpaid leaves of absence, which was extended in serial through April 1.

In December 2014, however, the City Council had voted to eliminate Brunckhorst’s position as unnecessary. In an effort to soften the blow to Brunckhorst, is offered him the choice of a severance package or a return to work when he was able to do so in a new position, albeit with a 30 percent reduction in salary. Brunckhorst refused both, stating that he wanted to return to his original position. The city kept him on his unpaid leave in the interim, since he was not yet ready to return to work anyway.

Ultimately, the city gave Brunckhorst a hard April 1 deadline to return to work in the new position or be fired. Brunckhorst, through his attorney, refused and instead requested that the city permit him to work from home. The city refused, stating that remote work was not possible for the new position. It instead offered Brunckhorst a limited schedule as an accommodation — four hours per day four days per week in the office. When Brunckhorst declined the offer, the city terminated his employment.

The 8th Circuit Court of Appeals concluded that the city had not violated the ADA by eliminating his position, refusing to offer remote work as an accommodation, or otherwise failing to engage in the interactive process.

No reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempts to narrow the window of the interactive process to the last few days prior to his termination and claims that the City offered him only one, take-it-or-leave-it accommodation. To the contrary, the record shows that the City engaged in an interactive dialogue with Brunckhorst for months regarding his return to work. During that time, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions. There is no genuine issue of material fact that the City engaged in anything but a good-faith interactive dialogue.

This case provides a textbook roadmap for employers to follow when handling an employee on an extended medical leave. An employer can eliminate a position if the bona fides of its business and economic needs support that decision. It is not required to keep a position, or create a position, as a reasonable accommodation. It may have to offer an existing, vacant position, however. It also does not have to offer remote work if the essential functions of the position dictate otherwise.

If you are considering terminating an employee out on a non-FMLA unpaid medical leave, consider this question — will it appear to a reasonable jury that you tried to work with the employee to return him or her to work. If the answer is an objective “yes,” then you are likely on solid footing terminating the employee who refuses your offers to return to work (understanding that you may have to justify your actions and decisions in litigation).

The post A Textbook Lesson the ADA’s Interactive Process appeared first on Workforce.

https://www.workforce.com/2019/02/12/a-textbook-lesson-the-adas-interactive-process/