2019 CORPORATE LABOR AND EMPLOYMENT COUNSEL EXCLUSIVE

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4-1

IF YOU “LEAVE” ME NOW

AUDITING ACCOMMODATION AND LEAVE

POLICIES AND PRACTICES

Tina M. Bengs – Ogletree Deakins (Chicago/Indianapolis/Valparaiso)

William E. Grob – Ogletree Deakins (Tampa)

Kim S. Magyar – McLane Company, Inc.

AUDIT STEPS

STEP 1: Gather the Team

Include in the audit process all departments/teams/supervisors that are

involved when an employee needs time off from work or an accommodation. The

group should include those that deal with addressing the leave and accommodation

requests, payment options for employees if leave is the accommodation, such as

work comp benefits if for a work injury or any PTO or short-term disability benefits

if a non-occupational condition, eligibility issues under benefit plans such as loss of

coverage or options to continue coverage or receive a COBRA notice, and payroll,

especially if the employee is exempt under the FLSA. The group also needs to

include someone responsible for maintaining company policies and anyone else that

may be involved, especially if numerous State mandated leaves that need to be

coordinated as part of the overall set of company policies.

HR

Benefits

WC

FMLA

ADA

Leaves under current policies

Mandated Federal, State, or Local leaves

Anyone else that has a role related to administering time away from

work, whether paid or unpaid, and accommodations, whether as part of a

work comp claim or not work comp

STEP 2: Understand the “Rules”

In order to ensure the written policies and the practices comply with all

applicable laws, policies, and benefits offered by the employer, the team needs to

understand the basics of each “rule” that could apply when an employee needs a

leave or an accommodation. It is important for the team to remember that the “rules”

do not simply apply in a vacuum, one at a time, nor do they apply only once and then

the employer’s obligations are completed. Instead, it is more common when dealing

with an employee that needs a leave or other accommodation that certain laws,

policies, and benefits apply in an overlapping fashion and that the employer’s

obligations under each start and stop at various times. As such, the policies and

practices that are put in place must be able to handle these overlapping and starting-

and-stopping circumstances, to ensure an issue does not fall through the cracks

causing the employer to fail to meet its obligations.

FMLA – exempt and non-exempt, continuous or intermittent, serious

health condition or maternity or military

USERRA

ADA

Worker’s compensation (State specific nuances)

State or Local leaves

Benefit Plans – eligibility based on active employment, conversion or

continuation options and notice requirements such as COBRA

STEP 3: Reject or Correct Policies

Once the team understands the rules, how they overlap, and how application

of the rules could start and stop, the team should evaluate whether the current

policies accurately cover all requirements and are written to cover all situations.

Outdated?

Too detailed?

Not detailed enough?

Overlapping policies that are cumbersome/not beneficial?

Evaluate overlap that has not been considered before

Ask: what has been a problem or confusing in the past?

Ask: what have claims, charges, or lawsuits revealed as problem areas?

STEP 4: Procedures that Work

One of the biggest missteps is having procedures or forms that hinder the process

more than help the process for the employer to ensure it has met its obligations. As

such, include during this part of the audit process, managers or supervisors that hear

the requests first hand and how that information can more effectively and efficiently

be passed on to others that need to be “in the loop” for the leave or accommodation

request to be handled in an effective manner. Each company is set up differently, so

one size does not fit all. However, the overall goal is the same, to make sure all

applicable rules are complied with, which requires a coordinated approach.

Pull in managers and supervisors for input

Do forms or a standard procedure help, or hinder?

What are best practices to ensure coordination with everyone that should

be part of the process?

STEP 5: Training

The training that supervisors or managers require is different from the training

that employees should receive, since the overall purpose of the training is different.

For supervisors and managers, they need to understand the rules enough to know

how to start the procedure, how to communicate with an employee that needs leave

or accommodation, and how to document those discussions. For employees, they

need to understand the benefits or rights that may apply to them so that if a need for

leave or accommodation arises, they know who to ask for more information.

Even with the best policies and procedures, compliance can only occur

with training.

STEP 6: Repeat

The team should keep in mind that even though an exhaustive leave and

accommodation audit does not need to be completed each year, policies and

procedures may need to be updated as frequently as new leave or accommodation

laws are passed, as the employer adopts new policies, or the employer offers new

benefits. In addition, if situations arise that do not fit well in the current process or

if a charge or lawsuit occurs that identifies a shortfall in the process, the team should

ensure that lessons are learned from those issues and make any appropriate revisions

to the policies and procedures.

New laws are passed and old laws change, review and revise as needed

As situations arise that just don’t work/fit with current policies or

procedures, review and revise as needed

If a charge, claim, or complaint is filed, learn from it and review and

revise as needed

Leave and Accommodation Sample Resources

A. Sample Interactive Process Checklist and Tracking Form for Managers

B. Sample ADA Policy with Interactive Process Procedure

C. Sample ADA Template Letters and Forms

D. State Leave Law Map

REQUEST FOR ACCOMMODATION INTERACTIVE PROCESS CHECKLIST

FORM TO BE COMPLETED BY MANAGER

Company is committed to creating a rewarding place for our employees to work. From time to time, an

employee may not be able to perform all of the duties of his or her job without a reasonable

accommodation. We engage in an interactive process with employees to explore accommodations that

allow them to continue to work without creating an undue hardship on Company. This form is designed to

assist you in that process and in documenting your conversations with the employee and your Human

Resources representative and the assessment of possible accommodations.

Employee Name:

Job Title:

Work Location:

Request Date: _______________

Name of Manager Completing Checklist: _______________________

STEP 1 -- The Interactive Conversation. The manager should have a meeting or series of meetings with

the employee to discuss the request for accommodation, the work restrictions and identify reasonable

accommodations, if any, to permit the employee to perform all of the essential job functions. This should

be a two-way conversation with the objective of finding an effective accommodation that would permit the

employee to perform the essential functions of a job. The manager should take notes on the

“Interactive Process Checklist” any time they talk to the employee regarding these issues. The

checklist and any notes should be maintained in a separate confidential medical file for that employee.

Before meeting with the employee, review the employee’s current job description and any available

physical job analysis for the position in question. Identify the essential and non-essential functions of the

job duties and purpose(s) for which the job exists.

The manager should ask the following questions during the interactive conversations. (NOTE: You may

need to ask follow-up questions based on the information provided by the employee.)

Check once complete:

________ Review the job description with the employee and identify the essential functions of

the employee’s position. (NOTE: Essential functions should be determined prior to the

meeting).

Summarize your discussion here:

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_________ Please describe your work restrictions or limitations in light of these essential

functions. What can you do? What can you not do? What do you find challenging?

Summarize your discussion here:

_________ How long do you think you will have each of these restrictions?

Summarize your discussion here:

_________ Do you see any barriers or difficulties in performing the essential functions of your job

with these restrictions or limitations? What difficulties?

Summarize your discussion here:

_________ What type of accommodations are you requesting?

Summarize your discussion here:

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_________ Are there other accommodations which would effectively enable you to perform the

essential functions of your job? (NOTE: Either the employee or the manager may

suggest such additional accommodation. The following is a list of possible

accommodations (the list is not exhaustive): redesign of essential job function; modified

work duties; part-time or modified work schedule; shift change; leave of absence; transfer

to vacant position if qualified; create light duty; special equipment or other resource.)

Summarize your discussion here (and list the possible accommodations):

_________ Are any of the above-identified, possible accommodations reasonable? List the

accommodation, assess if reasonable, and, if not, explain why not. For example,

explain if the accommodation is not reasonable because it would eliminate the reason

for the position or essential functions of the job, or because it would impact on

operations or the ability of other employees to perform their duties and/or Company’s

ability to conduct business.

Summarize your discussion here:

_________ Do you have any documentation from a health care provider identifying your work

restrictions? [If YES, please obtain a copy of such documentation. If NO, consider

whether it is appropriate to require employee to obtain such documentation or to send

employee to Company-selected doctor to obtain documentation.]

____ YES ___ NO

At the end of the interview, advise the employee that you must consider the possibilities and talk with

others, including Human Resources. Provide the employee with a reasonable turnaround for the discussion.

A good rule of thumb is three (3) business days.

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STEP 2 -- Review of Initial Interview. Use the questions and your answers to help you create a possible

solution or explain why you cannot accommodate a request.

(1) Based on what you now know from the employee, what accommodations/changes could you make

in work duties?

(2) What equipment could we offer to provide?

(3) Was the employee open to a job change?

(4) Would a change in schedule solve the problem?

(5) If an accommodation was a leave of absence, how long could you hold the employee’s position

open?

(6) What is the impact on operations if you approved this accommodation?

(7) Have you made or denied similar accommodations with other employees in the past?

(8) If other employees with similar needs asked for this accommodation, what impact would that have

on your operations?

(9) If you feel that you cannot accommodate this request, be prepared to explain your reasoning.

Check the box that best describes your proposed solution:

Modified Work Duties

Special Equipment or other Resource

Schedule Change

Job Change

Leave of Absence

Cannot Accommodate Request

Need Further Guidance from HR

STEP 3 – Human Resources Review and Approval. Send this completed form to your Human

Resources representative. Your Human Resources representative will contact you to discuss and determine

next steps. If Human Resources approves, your representative will contact you to discuss how to discuss

with the employee and move forward with the accommodation, or if you determined you cannot

accommodate, to help share that information with the employee. Human Resources may contact you for

more information. Be prepared to meet with the employee in a second discussion or to provide a second

solution. Where we cannot find a reasonable accommodation, your Human Resources representative will

help you share this news with the employee.

Describe the proposed accommodation, if applicable, here:

Disability Accommodation1

Company is committed to diversity and nondiscrimination and supports the employment of qualified individuals with disabilities in its workforce in accordance with federal laws, including the Americans with Disabilities Act of 1990 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, as well as state and local laws.

In furtherance of this commitment, Company provides qualified individuals with disabilities, as defined by the ADA, with meaningful employment opportunities, including equal pay, benefits, and all other privileges of employment. Upon request, job applications are available in alternative, accessible formats, as is assistance in completing the application. Pre-employment inquiries are made only regarding an applicant’s ability to perform the duties of a position. Post-offer medical inquiries and examinations are required only for those positions in which there is a bona fide job-related physical requirement. They are given to all persons entering the position and only after conditional job offers have been made.

Consistent with its policy of nondiscrimination, Company also provides reasonable accommodations to qualified individuals with disabilities provided that such accommodation does not constitute an undue hardship on Company or subject the employee or other individuals to a direct threat of harm. Company will explore reasonable accommodation options when an employee requests accommodation or there is evidence that an employee may need accommodation due to a qualified disability.

Company has established the following Interactive Process to assist individuals with disabilities in requesting a reasonable accommodation:

The Interactive Process can begin in a number of ways. However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform his/her supervisor that an accommodation is needed to perform the essential job functions or to receive equal benefits and privileges of employment. The employee does not have to formally notify the supervisor in writing, but is strongly encouraged to do so. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance.

Upon receipt of a request for accommodation, the supervisor will immediately notify his/her Human Resources representative.

The supervisor and the Human Resources representative will then jointly meet with the employee to acknowledge and discuss the employee’s request for accommodation and explain Company’s accommodation process. More specifically,

1 Nothing in this policy shall be construed to waive Company’s right to contest whether an employee or applicant is

disabled or is entitled to an accommodation.

2

during this conversation, the supervisor, the Human Resources representative, and the employee requesting accommodation will:

1. Review the employee’s job description;

2. Discuss the employee’s specific physical or mental abilities and limitations as they relate to the employee’s essential job functions;

3. Discuss the specific accommodation that the employee is requesting and how the employee believes the requested accommodation will alleviate existing workplace impediments;

4. Discuss what, if any, other workplace accommodations might be responsive to the employee’s request (accommodation options that can be explored, include, but are not limited to: restructuring the job; modifying work schedules; acquiring or modifying equipment or devices; providing qualified readers or interpreters; and reviewing current vacancies to determine if transfer is possible);

5. Discuss whether the need for the accommodation is time sensitive and how long the employee anticipates the need for the accommodation; and

6. Determine whether it is necessary for the employee to provide written documentation from a licensed medical practitioner specifying the employee’s functional limitations as they pertain to the job, without providing diagnostic information (this documentation may also include the medical practitioner’s suggestions about potential accommodations). All information submitted to or developed by Company related to the diagnosis, documentation, or accommodation of a disability is considered confidential and will not become part of the employee’s personnel file. This information will be placed in a separate employee medical file.

Reasonable accommodations are determined on a case-by-cases basis. Company will evaluate the reasonableness of the requested accommodation using legal guidelines which take into account factors, including but not limited to: the employee’s expressed preferences; whether the employee can perform the job safely; the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job; the impact of the accommodation on operational needs of the office and the company; and the overall financial resources of the company. Whenever possible, Company will attempt to provide the accommodation requested. However, federal and state laws do not require Company to do so. Federal and state laws also do not require Company to provide the best possible accommodation, reallocate essential job functions, or provide personal use items (hearing aides, eyeglasses, wheel chairs, etc.).

Company will provide the employee with written notification of the company’s determination as soon as possible. Written notifications indicating that an accommodation will be provided will also include an expected implementation date for the accommodation. If a requested accommodation is deemed reasonable, Company

3

will provide the accommodation at no cost to the employee. If it is decided that a proposed accommodation is unreasonable or presents an undue hardship, corporate Human Resources will re-initiate the Interactive Process with the employee to try and arrive at a mutually agreeable alternative to the originally proposed accommodation.

If on account of disability an employee continues not to perform the essential functions of the job, either because he/she refuses to utilize offered accommodations or because even reasonable accommodations do not enable him/her to perform the essential functions of the job, the employee may be eligible for medical separation. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance.

Any employee (or applicant) who has questions about this policy or believes that he/she has been discriminated against based on a disability should contact corporate Human Resources at (___) ___-______.

DATE EMPLOYEE ADDRESS ZIP CODE Re: Request for Accommodation Dear EMPLOYEE:

On ______________ you informed _______________, of a medical condition and requested that COMPANY provide you an accommodation to be able to perform your essential job functions. To determine whether COMPANY may grant your job accommodation request, please complete the attached Accommodation Request/Assessment Form. Additionally, we will need you to provide the following to us within 15 business days.

1. A statement from your medical provider. Please take your job description and ADA Accommodation Request Medical Provider Certification (both enclosed) to your medical provider to obtain information on your condition, the expected duration of your condition, as well as how your medical condition may affect your job functions. Your medical provider must complete this form.

2. Additionally, we are requesting that you sign the enclosed medical release form. Please be assured your medical information will remain confidential and shared with only those with a need to know.

After we have received this information, we will review your accommodation request and respond to you. A failure to provide the information requested herein within the time requested may result in the rejection of your request for an accommodation and may impact your leave status.

We look forward to hearing from you. Please feel free to contact me should you have any questions.

Sincerely,

ATTACHMENTS: Accommodation Request/Assessment Form Authorization to Release and Discuss Medical Information ADA Accommodation Request Medical Provider Certification

Accommodation Request/Assessment Form

Employee Request

To be completed by employee requesting accommodation.

Employee Name:

Date of Request:

Job Title:

Telephone Number:

Location:

Supervisor:

Please answer the following questions to assist COMPANY in understanding the basis and nature of any accommodations that may be necessary. The information will be treated confidentially and only shared with those who have a need to know.

Identify what physical and/or mental impairment(s) for which you believe may require an accommodation at work. Please also include the expected duration of the impairment(s).

Explain how any impairment(s) listed above affect(s) your ability to perform the essential functions of your position. Be as specific as possible regarding the job duties you are having difficulty performing or believe you will have difficulty performing.

Describe what ideas, if any, you have for an accommodation that would permit you to perform all of the essential functions of your position. Please describe how this accommodation will enable you to perform the functions of the position.

By signing below, I certify that the information provided is true and accurate to the best of my knowledge. ___________________________ ____________________ Employee Signature Date

AUTHORIZATION TO RELEASE AND DISCUSS MEDICAL INFORMATION

I, ______________________, hereby request and authorize you to provide to my employer written answers to the attached questions concerning my current medical condition, and further authorize you to discuss your answers with the individual named below.

COMPANY HUMAN RESOURCES/EMPLOYEE BENEFITS

[ADDRESS/PHONE/FAX] _______________________________ Employee Signature Name: _________________________ Date: __________________________

ADA Accommodation Request Medical Provider Certification

To be completed by treating healthcare provider: 1. Does the employee have a physical or mental impairment? Yes No 2. What is the impairment?

_____________________________________________________________________________________

_____________________________________________________________________________________ 3. What is the expected duration of the impairment?

Permanent Temporary (please explain)

__________________________________________________________________________________

__________________________________________________________________________________ Chronic (please explain)

__________________________________________________________________________________

__________________________________________________________________________________ Episodic (please explain)

__________________________________________________________________________________

__________________________________________________________________________________

____________________, who is an employee of COMPANY, has requested a reasonable accommodation

under the Americans with Disabilities Act (ADA). In response to that request, we are seeking specific

information as detailed below. Please provide the requested information only – please do not send copies

of medical records.

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Note: A "disability" is a physical or mental impairment that limits one or more major life activities.

4. Does the impairment affect a major life activity?

(Examples of major life activities include working, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and the operation of a major bodily function such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems).

Yes No

5. Does the impairment limit one or more major life activity? Yes No 6. Does the employee have any functional limitations resulting from the impairment? Please describe:

_____________________________________________________________________________________

_____________________________________________________________________________________ 7. Please refer to the attached description of the employee’s job that contains a list of essential job functions

and physical demands. How does the functional limitation impact the employee’s ability to perform the essential functions or meet the physical demands necessary to perform the essential functions?

_____________________________________________________________________________________

_____________________________________________________________________________________ 8. Do you have any suggestions for possible accommodations that will enable the employee to perform the

essential functions and meet the physical demands? Please describe:

_____________________________________________________________________________________

_____________________________________________________________________________________ 9. How would your suggested accommodation enable the employee to perform the essential functions and

meet the physical demands?

_____________________________________________________________________________________

_____________________________________________________________________________________

Healthcare Provider’s Name (please print): ___________________________________________________ ____________________________________ __________________________ Healthcare Provider’s Signature Date

Please return this form to: COMPANY Attn: FAX – Phone –

DATE EMPLOYEE ADDRESS ZIP CODE Re: Request for Accommodation (Approval) Dear EMPLOYEE:

This letter is in response to your request for an accommodation to perform the essential functions of your position. The health care provider’s note that you provided to us on _________ stated that you have the following work restriction(s): _________________________________ [List Restrictions].

On _____, we met with you to discuss possible accommodations needed because of

these restrictions. Accordingly, we have approved the following accommodation(s): ___________________________________________________ [List Accommodation(s) and Duration].

These accommodations are considered the most effective, given your essential job

functions and our operational necessities. These accommodations will be implemented and effective on _____. Please review the attached Acknowledgement of Accommodation Process and return to me within three days.

Please feel free to contact me should you have any questions.

Sincerely,

COMPANY ATTACHMENTS: Acknowledgement of Accommodation Process

ACKNOWLEDGMENT OF ACCOMMODATION PROCESS

I do hereby acknowledge that I have made a request for reasonable accommodation based upon my medical condition, and that I have participated in an interactive process with representatives of ___________ concerning my request, including ____________________________________________________________

____________________________________________________________________________

[Describe process]

At the conclusion of this interactive process, and based upon the Company’s current needs, the information I provided from my doctor, and the information I provided in our meetings, the Company has agreed to offer me the following accommodation:

________________________________________________________________________________________________________________________________________________________ ____________________________________________________________________________

[Describe accommodation offered]

I believe my medical condition and restrictions will allow me to fully meet the essential functions of the job with this accommodation. I have also agreed to immediately inform the Company if there are any changes (negative or positive) to my medical condition that affect my ability to meet any of the work expectations (including those contained in this form) or would allow me to perform the essential functions without an accommodation.

I do hereby:

____ accept the accommodation offered by COMPANY as a reasonable and good faith

effort to accommodate my medical condition; or _____ reject the accommodation offered by COMPANY for the following reasons:

________________________________________________________________________________________________________________________________________________________ ____________________________________________________________________________

Employee Signature: ______________________________________________

Date: __________

DATE EMPLOYEE ADDRESS ZIP CODE Re: Request for Accommodation (Denial) Dear EMPLOYEE:

This letter is in response to your request for an accommodation to perform the essential functions of your position. The health care provider’s note that you provided to us on _________ stated that you have the following work restriction(s): _________________________________ [List Restrictions].

On ______, we met with you to discuss possible accommodations needed because of the limitations.

The essential functions of a [employee’s job title] require the employee to [list relevant

essential job functions]. After a careful review of your request, we have determined that we are unable to provide you with a reasonable accommodation at this time because of _______.

Since we are unable to accommodate you reasonably in your current job, we will notify

you of position vacancies. We will attempt to accommodate you by transferring you to a vacant position for which you are qualified, if one can be found.

Please feel free to contact me should you have any questions.

Sincerely,

COMPANY

State-wide sick leave law (no local law)

Local sick leave laws only

Local and state-wide sick leave laws

States that prohibit local sick leave laws

States with state-wide sick leave laws and laws that preempt/prohibit local sick leave laws

States with local and state-wide sick leave laws and laws that preempt/prohibit future local sick leave laws

State-wide paid leave laws, including but not limited to sick leave

Alaska

Ariz.Ark.

Calif. Colo.

Conn.

Del.

D.C.

Fla.

Ga.

Hawaii

Idaho

Ill.* Ind.

Iowa

Kans.Ky.

La.

Maine***

Md.

Mass.

Mich.

Minn.

Miss.

Mo.

Mont.

Nebr.Nev.**

N.H.

N.J.

N.M.

N.Y.

N.C.

N.D.

Ohio

Okla.

Ore.

Pa.

R.I.

S.C.

S.D.

Tenn.

Texas

Utah

Vt.

Va.

Wash.

W.Va.

Wis.

Wyo.

Ala.

State and Local Sick Leave Laws

Updated 7-2019

*Note that the Illinois Employee Sick Leave Act requires that Illinois employers with paid sick leave policies permit a limited amount of employee use for a family member’s illness.

**Nevada law effective January 1, 2020

***Maine law effective January 1, 2021This map is intended as a visual aid andshould not be relied upon or construed

as a substitute for legal advice.

U.S. Virgin Islands

1

If You “Leave” Me Now: Auditing Accommodation and Leave Policies and PracticesPresented by

Tina M. Bengs (Chicago/Indianapolis/Valparaiso)William E. Grob (Tampa)Kim S. Magyar, Associate General Counsel-Labor and Employment,

McLane Company, Inc.

AUDIT STEPS FOR LEAVES AND ACCOMMODATIONS

2

Step 1: Gather the Team

HR

Benefits

Work Comp

FMLA/ADA

State and Local Leaves

Policies/Handbook

Payroll

Step 2: Understand the Rules

ADA

FMLA

State/Local Leave Laws

Benefit Plan Terms

PTO, Vacation

Attendance and Other Policies

Past Practices

3

What is a Reasonable Accommodation?

Workplace modification

(raising a desk)

An act by the employer that helps an

employee overcome physical barriers or

problems in the workplace that would otherwise prevent the

employee from performing the essential

functions of the job.

Reallocating marginal,

non-essential tasks

Leave of absence

Flexible/ modified schedule

Reassign to a vacant

position

Purchasing equipment

FMLA – Types of Leaves

Entitled to 12 or 26 weeks leave in 12-month period

Job and health benefits protected

Employee unable to work due to birth, adoption, serious health condition, or need to care for certain family members with serious health condition, or for certain military reasons

Leave may be intermittent, uninterrupted, or reduced schedule

4

Benefits and Policies

PTO, vacation, sick pay

STD, LTD

Work comp disability benefits

Attendance policies

Benefit plan eligibility when on a leave

FMLA, ADA, state and local leave laws

5

Step 3: Reject or Correct Policies

Eliminate policies not followed

Ensure coordination of policies

Avoid excessive details

Define terms if needed

Consider prior problems

Step 4: Procedures That Work

Keep everyone in the loop

Coordination is key

Forms that help, not hinder

Input from supervisors on what works

Leave or Accommodation

Request to Supervisor

HR – FMLA, ADA,

Title VII

Benefits –Vacation, PTO

STD, LTD

Work CompManagement-

Discipline, Attendance

Policies orPractices –RTW, Light

duty, Flex time

6

Step 5: Training

Supervisors –understand policies and procedures, know how to document and report

Employees –understand rights and benefits, know who to contact

Step 6: Repeat

New laws

Changed policies

New benefits

Learn/improve from issues that arise

7

If You “Leave” Me Now: Auditing Accommodation and Leave Policies and PracticesPresented by

Tina M. Bengs (Chicago/Indianapolis/Valparaiso)William E. Grob (Tampa)Kim S. Magyar, Associate General Counsel-Labor and Employment,

McLane Company, Inc.

Tina M. BengsShareholder  ||  Chicago, Indianapolis, Valparaiso

* Currently licensed in Indiana only.

Ms. Bengs counsels business clients on various employment and labor

issues relating to the ADA, ADEA, FMLA, worker’s compensation, Title

VII, unemployment, termination and discipline, labor issues and

collective bargaining agreements, FLSA, NLRA, employment policies

and handbooks, and other Indiana and Federal employment laws.  She

strives to assist her clients in determining best practices that conform

with the law and with the business’ directives.  She also represents

clients in employment litigation ma�ers at the local, State, and Federal

agency level and in State and Federal court.  Finally, she represents

clients in ERISA and bad faith litigation including the litigation of

pension, life, health, disabili�, and employee benefits issues.  Ms. Bengs

speaks on a varie� of employment and labor topics for several business

associations and also conducts internal training for clients.

William E. GrobShareholder  ||  Tampa

Bill Grob focuses his practice exclusively on labor and employment law

representing management. He has served as lead trial counsel in cases in

federal and state courts, and has extensive experience as lead counsel in

a varie� of labor and employment ma�ers, including numerous

collective actions, involving wage/hour and overtime litigation, race

discrimination, disabili� discrimination, leave issues and harassment.

Much of Bill’s practice involves representing professional sports teams

and organizations, theme parks, entertainment venues and

organizations, metropolitan transit organizations, sta�ng companies,

manufacturers, healthcare companies, restaurants, and employee leasing

companies. Bill also regularly enforces and defends non-compete

covenants, litigates trade secret ma�ers, including obtaining injunctions

and TROs, and handles employment issues across the country. Bill

serves as the Co-Chair of the firm’s Sports and Entertainment Practice

Group, coordinating e�orts and resources with a�orneys across the

country to serve clients more e�ectively and e�ciently. Bill has also

been a featured speaker at numerous employment and education law-

related seminars for managers and organizations throughout Florida

and the Southeast.

Bill currently serves as Legislative Chair for HR Tampa. Bill formerly

served as a member of the Board of Trustees for the Polk �eatre in

Lakeland, has been President and Government A�airs Chair of the

Suncoast HR Management Association for over seven years, and is the

former Co-Chair of the Labor & Employment Section of the

Hillsborough Coun� Bar Association.

On August ��, ����, at the CareerSource Polk Annual Meeting and Best

Places to Work Breakfast, Bill Grob received the Workforce Champion

Award for improving the quali� of workforce services. Bill was

recognized for multiple workshops he and his team have presented to

communi� business leaders on topics including wage and hour and

overtime litigation, race and disabili� discrimination, leave issues,

harassment issues and more.

Before graduating from high school, Bill worked with his father in the

family business involving the sales and reconditioning of athletic

equipment. A�er college, Bill worked in human resource management

and operations for approximately five years. During law school he

served as a law clerk for the Georgia Supreme Court and Georgia Court

of Appeals, and he worked in the labor and employment section of the

United States Department of Health and Human Services Regional

O�ce of General Counsel in Atlanta.

Kim Magyar is Associate General Counsel, handling labor & employment law and litigation for McLane Company, Inc., one of the largest grocery, foodservice and alcoholic beverage supply chain leaders for thousands of convenience stores, mass merchants, drug stores and restaurants. Employing more than 20,000 teammates, McLane is a supply chain services leader, delivering more than 50,000 different consumer products to nearly 110,000 locations across the United States. Headquartered in Temple, Texas, McLane and its subsidiaries operate more than 80 distribution centers and one of the nation’s largest private fleets. Since 2003, McLane has operated as a wholly owned subsidiary of Berkshire Hathaway, Inc. Kim is responsible for the labor and employment matters for McLane, including class actions, nationwide litigation management, and policy advice & counseling.