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Anne Ahlman

Cancer: The Common Thread

World Cancer Day may fall on February 4th this year, but with a lifetime risk of cancer affecting 1 in 5 men and 1 in 6 women, cancer is a daily experience for many.1 Cancer is the second most common cause of mortality in the world,2 and it seems to be everywhere: Who...

read more
Lori Barrett

Find Your Way through the Maze of PTSD

Approximately 75% of Americans have been exposed to a life-threatening trauma at some point during their lives.1 Responses to such trauma vary widely but may include withdrawal, anxiety, and the phenomenon known as posttraumatic stress disorder (PTSD), which is...

read more
Anne Ahlman

Take a Holiday from Stress

Feeling stressed out lately? I know exactly what you mean. The holiday season is here, traffic is worsening, and serious health issues abound. Stress, a term we associate with a state of negative emotional disruption, is linked to all sorts of physical and...

read more
Sheri Pullen

How to Calculate FMLA During the Holidays

Are you up to speed on how to calculate Family and Medical Leave Act (FMLA) entitlement during the holiday season? FMLA usage and holiday pay are determined based on several factors, including: U.S. Department of Labor (DOL) FMLA regulations and provisions; your...

read more
The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the 12-month period immediately preceding the start of the leave). Not so fast, said the 11th Circuit in Pereda v. Brookdale Senior Living Cmtys., Inc., which opened the eligibility door a crack back in 2012. And more recently, on April 13, 2017, a federal district court in Oregon nudged that door open just a bit wider when it issued the decision in Johnson v. Jondy Chemicals, Inc., 2017 WL 1371271 (D. Or. 4/13/2017).

For those of you who don’t have the Pereda case at your fingertips, a quick refresher: In Pereda, the employee notified her employer she would be taking FMLA leave for the birth of her child on or about Nov. 30, 2009. At the time of her request, she had not yet met the eligibility requirements to take FMLA leave, but she would have become eligible by her due date. The court held that “because the FMLA requires notice in advance of future leave, employees are protected from interference prior to the occurrence of a triggering event, such as the birth of a child.” Thus, an employee can maintain an FMLA interference claim even though at the time of the termination, she was not an “eligible employee” with respect to the 12-month employment requirement.

The Johnson case present us with the intersection of another wrinkle. Recall that if an employee becomes FMLA-eligible during a leave (by meeting the 12-month requirement), the beginning of the leave must be designated as non-FMLA leave while the portion of the leave after the employee meets FMLA eligibility requirements would be designated as FMLA. 29 C.F.R. § 825.110(d). The Johnson case combines the prescience of the Pereda case with the hindsight of this provision to create a new animal: in some circumstances–despite the fact that the employee is not eligible for FMLA at the time of the request or at the time the leave is to begin–an employee’s request for leave could trigger FMLA protections if, at some point in time during the leave, the employee will meet the 12 months of employment eligibility requirement. The Court considered this hypothetical and concluded “the fact that an employee’s treatment commences pre-eligibility…does not, in and of itself, bar the employee’s rights in subsequent FMLA leave for the same treatment during the same contiguous absence…” The court held that an employee who notifies the employer of the need for treatment that will extend into a period of time in which the employee will be FMLA-eligible is entitled to FMLA-protected leave for that period. Therefore, any adverse treatment based on the leave request could be grounds for the employee to claim the employer interfered with his right to FMLA leave.

In the case at hand, the Court was not so sure that the employee had demonstrated that FMLA would have applied to a portion of the leave, because the claim did not specify whether the leave would have extended beyond the employee’s FMLA-eligibility date. As a result, the Court dismissed the claim; leaving open the possibility the employee could refile with more facts to support the claim.

Concerned about navigating your way through complex leave administration issues? Reed Group has options. We offer both outsourced and software solutions for clients with complex and/or multi-state employee populations. To learn more about ReedGroup’s products and services visit reedgroup.com.

Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether the requested accommodations were reasonable. The third focuses on overcoming the hurdle of establishing that an employee is, in fact, disabled under the ADA. All three cases resulted favorably for employers.

In Whitaker v. Wisconsin Dep’t of Health Servs., No. 16-1807, 2017 WL 745600 (7th Cir. Feb. 27, 2017), Whitaker worked as a corrections officer for the Wisconsin Department of Health Services, eventually transitioning into other positions due to a back injury. Her most recent position relevant to her case was that of an economic support specialist in the Department’s Income Maintenance Program. In this role, Whitaker’s job duties included processing applications for benefits, answering phone calls, and general case management, all requiring regular attendance.

Whitaker exhausted her available FMLA leave for her medical condition as well as a 30-day unpaid leave to care for her father and due to her own personal illness. Whitaker was informed by the Department that if she failed to return to work upon the conclusion of the 30-day leave, the termination process would begin. Whitaker did not return to work on her expected date but did submit notes from her doctor requesting additional time off for a medical leave. The notes did not provide any detail on her condition, course of treatment, or estimated recovery. Whitaker continued to assert she was unable to return to work and the Department terminated her employment. Whitaker sued, claiming the Department should have considered her request for an accommodation of unpaid leave rather than terminate her.

The court found that Whitaker was unable to establish that she was an “otherwise qualified” employee as required by the ADA as she provided no proof that she could fulfil the requirement of regular attendance, even with an accommodation. Whitaker argued that if she had been given additional leave as an accommodation, she could return to work on a regular basis. Consistent with other cases we have seen, the Seventh Circuit did not find this argument persuasive. Rather, the court found this accommodation to amount to an open-ended leave request, which was not reasonable and would have imposed an undue burden on the department.

Like Whitaker, Bagwell v. Morgan Cty. Comm’n, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017), analyzes an employee’s essential job functions and whether an employee’s request to accommodate those essential job functions is reasonable.

Bagwell was a County groundskeeper whose essential job functions included tasks necessary to maintain and upkeep city parks, such as traversing uneven and wet surfaces, standing, and walking. Due to stamina and endurance issues caused by a leg injury, she was unable to safely perform these functions consistently, even with the assistance of an accommodation. It was established that Bagwell could only tolerate walking and standing for one-third of her shift. Although some equipment accommodations would reduce related difficulties, Bagwell was unable to perform the essential job functions of the position, with or without accommodations; thus, the court found that Bagwell was not an “otherwise qualified” employee. Additionally, the court found that if the County were to consider an accommodation, it would be a significant one, requiring a co-groundskeeper or hiring a third-party service to complete the work. Finding in favor of the employer, the court held that this type of accommodation would be unreasonable as it was the duty of the groundskeeper to perform such work.

Two employer tips stand out in these cases:

  1. Be sure to keep your job descriptions up to date and accurate. Regular attendance is often an essential job function and the courts rely heavily on employers’ job descriptions to establish the essential functions of a job.
  2. The courts continue to side with employers when an employee is requesting indefinite leave under the ADA, which is considered unreasonable and burdensome to the employer.

The third notable ADA case of 2017 brings us to Alston v. Park Pleasant, Inc., No. 16-1464, 2017 WL 627381 (3d Cir. Feb. 15, 2017). In 2011, Park Pleasant hired Alston to be the Director of Nursing at an adult care facility; one year later, Alston was having significant performance issues. Shortly after meeting with her HR director to discuss these issues, Alston missed work to have a biopsy and was diagnosed with early-stage DCIS (a form of breast cancer). Alston’s performance continued to be in question and she was terminated in early August 2012. Upon termination, Alston sued, claiming employment discrimination under the ADA.

To establish a claim for discrimination under the ADA, Alston was required to demonstrate that she was a disabled person within the meaning of the ADA. The court relied on 29 C.F.R. § 1630.2(j)(1)(iv) in concluding that the determination of whether an employee is disabled under the ADA requires an individualized assessment to analyze whether the employee’s impairment ‘substantially limits a major life activity.’ Throughout the case, Alston failed to provide enough evidence to prove she had a disability. The court did note that cancer generally would qualify as a disability; however, based on the individualized assessment for Alston, there was no argument or proof that this condition limited any of her major life activities. Therefore, the court found that Alston failed to establish she was disabled under the ADA and dismissed her discrimination claim.

This case goes back to the basics, but it reminds employers that an individualized assessment of each employee and his or her ailment(s) or condition(s) is required to establish whether the employee is considered disabled under the ADA and thus entitled to the protections afforded by the act.

It’s evident that ADA discrimination cases continue to be brought by disgruntled employees. To avoid potential risks in litigation:

  • make sure your job descriptions are specific and in writing;
  • follow the interactive process; and
  • evaluate employees on an individual basis.

Outsourcing to a third-party administrator that specializes in ADA management, such as ReedGroup, will keep you ahead of the curve and compliant on all ADA matters. For more information, check out our solutions here.

Cancer: The Common Thread
Anne Ahlman

Cancer: The Common Thread

World Cancer Day may fall on February 4th this year, but with a lifetime risk of cancer affecting 1 in 5 men and 1 in 6 women, cancer is a daily experience for many.1 Cancer is the second most common cause of mortality in the world,2 and it seems to be everywhere: Who among us hasn’t been touched by cancer in our friends, families, neighbors, coworkers, or even ourselves? It’s a disease that affects us all.

Last year, more than 1.7 million people were diagnosed with cancer in the United States (that’s more than 4,750 Americans per day).3,4 Lung cancer tops the list of global incidence, followed by breast and colorectal cancers; this oncological trio is responsible for one-third of all new cancer diagnoses, which exceeded a total of 18.1 million new cases worldwide in 2018.1 However, it’s not all bad news — amazingly, U.S. cancer mortality plummeted 26% between 1991 and 2015,5 which means that more people are prevailing over cancer than ever before. Increasingly, what was once considered a death sentence is becoming a survivable chronic condition.

Active survival

When cancer is diagnosed —hopefully in its earliest stage — start helping those affected by reading up on MDGuidelines topics specific to the type of cancer. During active cancer treatment, most individuals are physically and emotionally overwhelmed, yet they want to feel as normal as they can despite grappling with adverse treatment-related effects.6 In the workplace, providing accommodations to help individuals stay as active and independent as possible by reducing physically-demanding tasks, enabling periodic rest breaks, and allowing time off as needed to attend the myriad medical appointments that cancer care dictates is valuable support.

When active treatment ends, quality of life is associated with engagement on social and occupational levels.6 However, it’s not easy for many patients: Multimodal therapies that include the trifecta of surgery, chemotherapy, and radiation therapy are linked to increased disability durations and indefinite work absences despite patients’ desire to remain independent and productive.7,8 Symptoms such as pain, emotional distress, depression, and fatigue may present across cancer types and influence an individual’s ability to participate in activities at work and home.7 And it’s not just ordinary fatigue —multidimensional cancer-related fatigue impacts physical, emotional, and cognitive domains and is inversely associated with return to work, but fortunately responds to physical exercise.6,9,10 Because the psychological aspects of cancer related to visible signs of active treatment (e.g., surgery scars, chemotherapy-induced hair loss, radiation burns) and hidden feelings (e.g., sadness, anxiety, depression) may linger long after the end of treatment, strategies that include counseling, cognitive behavioral therapy, and stress-reduction techniques can help boost productivity and quality of life.12

Thriving together

What else can be done to improve cancer outcomes? Families, providers, and employers can facilitate conversations about healthy lifestyle changes to help people address modifiable risk factors such as smoking, excessive alcohol consumption, obesity, and sedentary lifestyles, all of which may cut the risk of dying from cancer by 30% to 50%.2 Companies and insurers can incentivize wellness programs in the workplace to motivate employees to take positive steps and mitigate potential downtime. And early detection helps prevent disease progression and improve survival by following screening recommendations as appropriate for age, family history, and environmental or occupational risk factors.

There are currently more than 15.5 million cancer survivors in the United States,3 and nearly 44 million people around the world are estimated to survive their cancer diagnosis by at least five years.1 There are more people living with, struggling against, and triumphing over cancer around you than you could ever imagine … and by recognizing the commonality of the cancer experience, we can remove its stigma and empower patients to reach out for, and receive, support when they need it the most.12 The war against cancer is both personal and global, and at MDGuidelines we are proud to be a part of it.

Information provided on this blog is intended for general educational use. It is not intended to provide medical advice. ReedGroup does not provide medical services. Consult a physician for medical advice on this or any other topic.

References

  1. “Latest Global Cancer Data: Cancer Burden Rises to 18.1 Million New Cases and 9.6 Million Cancer Deaths in 2018.” International Agency for Research on Cancer: Press Release No. 263. 12 Sep. 2018. World Health Organization. 4 Feb. 2019. https://www.who.int/cancer/PRGlobocanFinal.pdf
  2. “Cancer.” World Health Organization. 2019. WHO. 4 Feb. 2019. https://www.who.int/cancer/en/
  3. “Cancer Statistics.” National Cancer Institute. 2019. National Institutes of Health. 4 Feb. 2019. https://www.cancer.gov/about-cancer/understanding/statistics
  4. “Cancer Facts & Figures 2018.” American Cancer Society. 2019. American Cancer Society, Inc. 4 Feb. 2019. https://www.cancer.org/research/cancer-facts-statistics/all-cancer-facts-figures/cancer-facts-figures-2018.html
  5. Siegel, R.L., K.D. Miller, and A. Jemal. “Cancer Statistics, 2018.” CA Cancer J Clin. 68 7 (2018): 7-30.
  6. Leensen, M.C.J., et al. “Return to Work of Cancer Patients After a Multidisciplinary Intervention Including Occupational Counselling and Physical Exercise in Cancer Patients: A Prospective Study in the Netherlands.” BMJ Open. 2017. 4 Feb. 2019. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5623345/
  7. Mbengi, R.K., et al. “Barriers and Opportunities for Return-to-work of Cancer Survivors: Time for Action—Rapid Review and Expert Consultation.” Syst Rev. 5 (2016): 35.
  8. Kamal, K.M., et al. “A Systematic Review of the Effect of Cancer Treatment on Work Productivity of Patients and Caregivers.” JMCP. 23 2 (2017): 136-162.
  9. Wolvers, M.D.J., et al. “Longitudinal Associations Between Fatigue and Perceived Work Ability in Cancer Survivors.” J Occup Rehabil. 4 Feb. 2019. https://www.researchgate.net/publication/328792962
  10. Kessels, E., O. Husson, and C.M. van der Feltz-Cornelis. “The Effect of Exercise on Cancer-related Fatigue in Cancer Survivors: A Systematic Review and Meta-analysis.” Neuropsychiatr Dis Treat. 14 (2018): 479-494.
  11. Grassi, L., D. Spiegel, and M. Riba. “Advancing Psychosocial Care in Cancer Patients.” F1000Res. 6 (2017): 2083. 4 Feb. 2019. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5717468/
  12. Knapp, S., A. Marziliano, and A. Moyer. “Identity Threat and Stigma in Cancer Patients.” Health Psychol Open. 1 1 (2014): 2055102914552281. 4 Feb. 2019. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5193175/
The Twists and Turns of FMLA Eligibility
Lori Welty

The Twists and Turns of FMLA Eligibility

Parts of the FMLA can be fairly complicated, but if there’s one thing we can all agree on, it’s that an employee isn’t eligible for FMLA protections until he or she has met the eligibility requirements (e.g., having been employed for at least 1,250 hours during the...

read more
Top 3 Notable ADA Cases in 2017, So Far
Compliance Team

Top 3 Notable ADA Cases in 2017, So Far

Only three months in to the new year and we have already witnessed a handful of cases where an employee has asserted discrimination under the Americans with Disabilities Act (ADA). Two of these cases focus heavily on an employee’s essential job functions and whether...

read more
Find Your Way through the Maze of PTSD
Lori Barrett

Find Your Way through the Maze of PTSD

Approximately 75% of Americans have been exposed to a life-threatening trauma at some point during their lives.1 Responses to such trauma vary widely but may include withdrawal, anxiety, and the phenomenon known as posttraumatic stress disorder (PTSD), which is...

read more
Take a Holiday from Stress
Anne Ahlman

Take a Holiday from Stress

Feeling stressed out lately? I know exactly what you mean. The holiday season is here, traffic is worsening, and serious health issues abound. Stress, a term we associate with a state of negative emotional disruption, is linked to all sorts of physical and...

read more
How to Calculate FMLA During the Holidays
Sheri Pullen

How to Calculate FMLA During the Holidays

Are you up to speed on how to calculate Family and Medical Leave Act (FMLA) entitlement during the holiday season? FMLA usage and holiday pay are determined based on several factors, including: U.S. Department of Labor (DOL) FMLA regulations and provisions; your...

read more