Hilary MitchellBSN, MS, MBA, Pitney BowesBryon BassSenior Vice President, SedgwickFrank AlvarezAttorney at Law, Jackson Lewis LLP

1. Sedgwick © 2013 Confidential – Do not disclose or distribute.
Beware of Legal and
Management Pitfalls
March 28, 2013

2. Sedgwick © 2012 Confidential– Do not disclose or distribute.
Presented by:
Hilary Mitchell
BSN, MS, MBA, Pitney Bowes
Bryon Bass
Senior Vice President, Sedgwick
Frank Alvarez
Attorney at Law, Jackson Lewis LLP

3. Sedgwick © 2012 Confidential– Do not disclose or distribute.
INTRODUCTION

4. 4
Most Difficult Activities Persist
61%
58%
48%
47%
40%
26%
24%
56%
60%
51%
59%
48%
37%
28%
Tracking intermittent time previously taken
Tracking intermittent time during leave
Interacting with ADA and ADAAA
Transferring employees to alternative positions
Obtaining second and third medical opinions
Facilitating return to work
Tracking continuous time previously taken
FMLA Activities Ranked as Difficult/Extremely Difficult
2012
2011
Source: DMEC & Spring Consulting Group 2012 Employer Leave Management Survey

5. Sedgwick © 2012 Confidential– Do not disclose or distribute.
TPA Perspective

6. 6
Clients need Assistance with ADA process
• Increased interest in understanding how TPA can assist with
RTW/ADA
 Typically, STD Management programs incorporate transitional return
to work into practices
 On the other hand, LOA Management does not incorporate a
structured transitional RTW
• What about those situations when a STD or LOA claim has
not been initiated?

7. 7
How clients are responding
Implement structured transitional
return to work/stay at work
programs for both occupational
and non-occupational programs
• Provide opportunity for
disabled employees to ask for
accommodation in their jobs
before having to go out on
a leave
• For those on leave, determine if
transitional duty would allow
the employee to return to work
earlier through minor
modifications
Incorporate pathways to ADA
assessment into leave, short-
term disability and workers’
compensation programs
• Build pathways to transitional
return to work programs
• Prior to exhaustion of job-
protected leave under
FMLA, determine if disabled
employee can be
accommodated in work
environment or if additional
unpaid, protected leave under
ADA is appropriate

8. 8
Two Primary Models
• Medical Substantiation
 Obtain medical information form health care provider
Sedgwick will interface
directly with health care
provider and employee
to obtain medical
information
Sedgwick provides
detailed medical
information to Client –
typically a centralized
ADA team responsible
for the analysis and next
steps
Client responsible for
next steps (limitation
assessment, interactive
process, accommodation
decision)

9. 9
Two Primary Models
• ADA Assessment
 Provide full service ADA Assessment service for employers up
through final accommodation decision
• Sedgwick will interface directly with health care provider and employee to
obtain medical information
• Client provides essential job functions of position
• A vocational rehabilitation specialist will determine limitations and offer
accommodation recommendations
• Vocational rehabilitation specialist lead interactive process
• Client responsible for final decision on accommodation

10. Sedgwick © 2012 Confidential– Do not disclose or distribute.
Client Perspective

11. 11
Pitney Bowes
90-plus year legacy
Fortune 500 company
$5 billion leading mail stream technology solutions provider
Global team of more than 30,000 employees
US 21,000 employees – over 50% hourly workers, call
centers, mail sorters (physical work)
Presence in more than 130 countries
More than 2 million customers

12. 12
Evolution of In house Disability Department
fully integrated claims management
• 20+ years ago was outsourced
• Concerns about claim duration and communication
• STD and LTD first moved in house – RNs, CE and MD consultant
Durations dramatically dropped/ Communication improved
• FMLA implemented in house
• ADA implemented in house
• WC claim oversight - added two years ago (Sedgwick)
Current – Department must prove financial value by cost saving
– annual external benchmarks on duration

13. 13
PB Integrated Healthcare Model

14. 14
ADA/FMLA Volume Growth While Employee
Population Declined: FMLA also runs concurrently with STD/WC
ADA
Month 2009 2010 2011
Jan 2 0 4
Feb 1 3 4
Mar 1 1 6
April 0 4 2
May 2 2 3
Jun 0 0 5
July 2 1 2
Aug 1 4 6
Sep 3 2 4
Oct 2 1 7
Nov 2 4 11
Dec 0 5 4
Total 16 27 58
FMLA
Month 2009 2010 2011 2012
Jan 136 90 113 128
Feb 102 100 79 82
Mar 86 77 91 75
Apr 87 62 109 57
May 66 61 76 66
Jun 80 59 82 74
Jul 104 86 53 89
Aug 97 92 89 99
Sep 92 38 58 59
Oct 68 70 71 85
Nov 69 67 65 52
Dec 104 96 106 68
Total 1091 898 992 934

15. 15
FMLA vs. ADA – FMLA easier to administer
FMLA
Had to develop
Had to develop
All employees
No clear length
Extremely liberal
ADA
Forms provided
Timeline for response provided
Eligibility requirements
FMLA maximum length rules
Medical qualifications fairly clear

16. 16
Definitions
Restriction:
A request to be excused from performing one or more of
the essential functions of a job.
Accommodation:
A request for a modification or accommodation so that all
essential functions of a job can be completed.

17. 17
Early Challenges ADA
Unlike
FMLA, forms
and timelines
had to be
developed
Interactive
Committee
Developed:
Attorney, Manage
r, HR, RN, and
Department
Director
Training:
Staff, HR, Man
agers
What is an ADA request vs. a restrictions request?

18. 18
ADA Summary Form – Important information
Is this a permanent restriction?
If unsure, explain
Is the accommodation a current essential
function of his/her job?
Job description available?
If yes, please attach
If a leave, what is the end date?

19. 19
Challenging requests – Interactive Team
• Leave requests after exhausting STD/FMLA – now ADA
 no clear end date
• Work at home requests (for nonexempt employees)
 anxiety/stress
• Shift change
 off nights due to sleep disorder
• Requests to “call out” as needed
 no timeframe PTSD
• Requests to avoid certain buildings
 aggravates asthma, no air quality issues found

20. 20
Recent case law on ADA: duration of leave
10th Circuit:
Robert v. Board of County Commissioner of Brown County
2012 U.S. App. LEXIS 18365
(10th Cir. Aug. 29, 2012)
• 10th Circuit’s analysis started with whether employee was qualified
(able to do the essential functions with or without a reasonable
accommodation

21. 21
Recent Court Ruling ADA:
1
2
In considering whether the employee’s leave request was
reasonable, the court identified two limits on the bounds of
reasonableness for leave as an accommodation:
First, has the employee provided an estimated date when the
essential job duties can be resumed? Without an end date, the
employer cannot assess whether a temporary exemption from
essential functions is reasonable.
Second, does the leave request assure the employer that the
employee can perform the essential functions of her position “in the
near future”?

22. 22
Summary
We have come along
way in developing the
request
forms, procedures, and
a interactive team.
Our volume of requests
continue to increase.
It is still an evolving
process.

23. Sedgwick © 2012 Confidential– Do not disclose or distribute.
Legal Perspective

24. 24
Employers in FMLA Denial
Still don’t accept that FMLA is an entitlement
Still don’t accept that ER rights stem from
adequate general notice to EES of their FMLA
rights and obligations
Still don’t accept time it takes to administer
FMLA
Still don’t accept the need to conform with
state leave

25. 25
My Experience
• ERS who think FMLA is easy:
 Have very low utilization FMLA;
 Waive their rights, providing greater leave rights and lesser leave
obligations than FMLA permits; or
 Unwittingly violate the FMLA at a systemic level (i.e., the ticking time
bomb scenario)
• ERS frequently violate FMLA medical examination rules
• Any meaningful FMLA audit would reveal significant compliance
exposures
• Effective FMLA compliance requires help
 outside leave administrators or technology

26. 26
Employers in ADAAA Denial
• Virtually every employee who exhausts FMLA leave has a
viable ADA claim under the ADAAA
• Employers think outsourcing FMLA removes them from
leave administration
• Employers are ill-equipped to communicate with EE on
leave to determine whether:
 additional leave is a reasonable accommodation
 accommodations might reduce or eliminate the need for leave

27. 27
My Experience
ERS replace EEs on leave without sufficient ADA
accommodation analysis
ERS shun communicating with doctors
ERS don’t know what they can or cannot say to, or
require of, EE’s and their doctors

28. 28
My Experience
STD benefit administration is given most of the attention
from ERS and vendors
Most ERS don’t want to even know what is happening in
workers’ compensation programs
ERS don’t want to deal with the silos because they are
too politically sensitive

29. 29
Specific FMLA Challenges
Decentralized
Administration
• Inadequate resources
to collect and respond
to information
regarding absences
Centralized
Administration
• Inadequate local knowledge of
when FMLA applies
• Untimely responses
• Inadequate tracking tools
• Uneven leave administration
(drives internal inequities)
• Inadequate group health
benefit administration

30. 30
Conduct an FMLA/ADA Audit
• Audit your FMLA policy
• Audit your FMLA forms
• Pick 50 absences or medical leaves -- how well are you doing?
• Review instances when company contacted EE’s healthcare
provider
• Review a percentage of medical certifications supporting
intermittent leave
• Review all terminations or suspensions for excessive
absenteeism
• Review performance reviews for individuals with known
attendance problems

31. 31
Conduct an FMLA/ADA Audit
• Are EES on medical leave granted job-protected leave?
• Are EES on medical leave invited to discuss reasonable
accommodations to reduce or eliminate the need for leave?
• Once job-protected leave is exhausted, who engages EES on
potential need for more leave?
• Are EES evaluated based on ability to perform essential job
functions, with or without reasonable accommodations?
• Are EES required to provide releases to “full duty”?

32. 32
www.disabilityleavelaw.com
Check out our FMLA/ADAAA Law Blog

33. Sedgwick © 2012 Confidential– Do not disclose or distribute.
QUESTIONS