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Heather Grimshaw: Hi, we're glad you're with us, Heather. I'm Heather Grimshaw with DMEC, and today we're talking about what employers might be missing when it comes to state disability accommodation laws. Our conversation with three professionals from Reliance Matrix ties into an Outwork Magazine article titled Dangers Lurk in State Discrimination Laws.

We will unlock this article for listeners and include the URL in the Notes section of this episode. Our guests from Reliance Matrix include Lana, Stephen and AVP and Senior Product Compliance Council Eric Broutman, AVP and Senior Employment Law and Litigation Council and Armando Rodriguez, Esquire, Product Compliance Counsel. So I'm hoping to set the stage for our discussion today that Lana, you will provide one or two of the top takeaways from the article and why, and I'm using air quotes here, why dangers lurking in this area as noted in the headline.

Lana Steven: Sure. Thanks Heather. And thanks again for inviting us to be here today. I think employers rightfully so when they think about multi state laws. They think about laws such as paid family and medical leave laws, unpaid family medical leave laws at the state level, and they of course think about federal laws such as the FMLA and ADA. But they also need to think about and make sure that they have on their radar accommodation laws at the state level.

This is just so important because there are state accommodation laws that in some ways are more generous and different than the Americans with Disabilities Act. They have different requirements and just different definitions. Even so, employers need to be aware that these exist, especially when they have employees scattered all over the United States.

Heather Grimshaw: That's helpful. So what are some of the biggest dangers for employers in this realm as you outline in the article Lana?

Lana Steven: Yes, I'll go through in the same order that's outlined in the article, but the first one is there can be what is known as an exhaustion of remedies issue. What does that mean? Well, under the American with Disabilities Act, employees, if they want to bring a lawsuit under that statute, they cannot just go directly to court and claim employer, you violated the ADA. Instead, they have to go to the Equal Employment Opportunity Commission, which is the federal administrative agency that enforces the ADA and other types of federal anti-discrimination laws. And they have to file what's called a charge of discrimination. And there's an entire process that they have to go through and that needs to be done and complete before they can bring claim to court. So some of the state laws, specifically we discuss a case in Oregon, they do not necessarily require this exhaustion of remedies issue. So what does that mean for employers is they could have an employee that goes straight to court and doesn't go through the administrative agency and they can find themselves very quickly defending a lawsuit in court. So that that's one danger that employers need to be aware of. Another one is some state disability discrimination accommodation laws permit employees to bring claims for failure to engage in the interactive process as an independent cause of action. Generally. And it depends. This is not recognized as an independent cause of action under the ADA. Third, some federal courts that interpret the ADA have held that there must be an adverse employment action. What that means is someone experiences a termination of their employment, they're fired, they're not promoted, they're disciplined, they're not given a pay increase. Those are considered adverse employment actions. And in some jurisdictions, employees may have to show that they have an adverse employment action before they can even bring a claim. Now, there's a split and we can get into this more under federal law. But there are state laws that make it easier for an employee to successfully prove disability discrimination, and that is not required. They don't have to show there's an adverse employment action. And then finally, there are state anti-discrimination laws that are just broader in coverage than the ADA. For example, state laws often apply to smaller employers with less than 15 employees, because if you remember the ADA, you have to have 15 or more employees for it to apply. And then some states, such as California, have a broader definition of disability, what is considered a reasonable accommodation, definitions like that. So again, this is just a high level issue spotting items that employers need to be aware of.

Eric Broutman: Lana, to add on to that, I think another risk that employers really need to watch out for is just litigation risks, right? Different states have significantly different risks when it comes to litigation for potential employment issues. California obviously being the highest risk state there is. So an employment decision that you might make in South Carolina might be very different than you might make in California because of just the potential risk of that decision is way different.

Lana Steven: I 100% agree, Eric. Thank you. That's a really good point.

Heather Grimshaw: Yeah. Just adding some additional complexity here to an already really complex landscape. Lots to juggle. And so one of the things that I'm curious about is if these are newer dangers or something that you all are seeing more of today. Eric, would you kick us off and then see if the rest of the group wants to weigh in?

Eric Broutman: Sure, of course. So, I mean, the differences in accommodation laws between state and federal definitions are. That's not necessarily new. That's been around as long as there have been state and federal accommodation laws.

But what is slightly new is there are new leave laws that are out all the time. So for instance, some states are more generous when it comes to bereavement leave or leave for I know New York just recently passed a law that allows for leave for prenatal issues or domestic violence issues. So while it might not be the accommodation we're talking about, you know, different leave laws that employers need to be aware of when an employee is asking for leave. So even though it might not be applicable under the ADA or the state disability law, it might be applicable under some other state or local law that's in play. So that's always something that employers need to watch out for.

Heather Grimshaw: That's really helpful. And I'm wondering, since it does sound like it's a consistent issue, though there are newer leave laws, as you noted there, what are some of the bigger stumbling blocks here for employers?

Eric Broutman: I think some of the biggest stumbling blocks is having one size fits all policies. Right. Employers will utilize the ADA and just determine whether or not someone is entitled to, entitled to an accommodation under that federal Americans with Disabilities act. And if not, they deny whatever the accommodation request is instead of really digging into the state that the employee is from, where the employer is, which state laws apply. I think those are the biggest stumbling blocks that employers have difficulty with.

Heather Grimshaw: That makes sense. Always a vulnerability, I would think there. So the article includes information about some of those variations across the country, some of which Lana mentioned earlier, which certainly adds to the complexity here. I'm hoping that you'll flesh some of those issues out for listeners who may not yet have read the article. As a reminder, we will unlock the article, so please check the notes section for that URL. And Eric, would you kick us off here in Terms of some of those variations, and then we'll ask others to weigh in.

Eric Broutman: Yeah, of course. So let me start with some of the ones that Lana mentioned before. So one of the things that you mentioned was that just the definition of the word disability. Are you eligible for an accommodation? Do you have a disability? As we know, under federal law, you need a limitation that affects, you know, that substantially limits a major life activity. Under a lot of state laws, there's no need for that substantially affecting a major life activity. The fact that you have some sort of impairment alone allows you access to a potential accommodation. So that. That part is really important. The adverse job action that Lana mentioned, which. Whether or not you need an adverse job action sort of depends not only from state to state, but circuit to circuit. Different circuits interpret the ADA in different ways. So you need to know, am I in the second Circuit in New York, or maybe I'm in Texas, where the law is potentially where the courts interpret the law differently. That interactive process as a separate claim can be extremely important because a lot of the times employees will come in and they won't specifically say, I need an accommodation. Here's the medical condition I have.

They'll sort of talk around it and they'll say, well, I went to the doctor the other day,

you know, because I'm having a really hard time getting to work on time. But they won't explicitly say they need an accommodation of a changed schedule. And in those states where an interactive process is a separate claim, it may be incumbent upon the employer to start that conversation, you know, to train your managers to say, if you hear anybody talking about work problems related to a medical condition, you need to affirmatively step in and let them know about the accommodation process and how they can ask for that. Otherwise you might be violating the law by not engaging in an interactive process. Another, I think very large difference that employers need to be aware of is when employees ask for leave as an accommodation,

the amount of time for that leave can differ very greatly from state to state. And that's because of the way that juries and courts interpret what is a reasonable accommodation. A reasonable leave in, you know, Arkansas might be completely different than a reasonable leave in San Francisco. You know, in California, leaves of a year or more could potentially be reasonable, whereas in other parts of the country, you know, it's only a couple of months. So really knowing where you are, speaking to outside counsel before making any adverse job action is really, really important because you can run into those state specific risks.

Lana Steven: I also just want to jump into Eric brought up a really good point about the interactive process and how in the states where that's a separate claim and employers should be aware of that and inquire further. But as a, as a best practice I think we would advise that regardless of whether that's a separate claim in your state or not, employers should, if an employee is talking around it and it seems like they may need an accommodation, it's best for to refer them to HR or to engage in the interactive process and you know, just ask the employee how can I help you? That's what they, that that's what the commentators always recommend that, that you say. So it's an open ended question. And so if there is anything the employee needs, the employer fulfilling any obligations.

Eric Broutman: Yeah, it's a great point. I totally agree.

Heather Grimshaw: I think that training. Lana, I'm glad you mentioned that because it does seem increasingly like managers really have to be able to identify some of these things and of course that is not their main role yet it is so important for them to be able to acknowledge or identify and then refer and ask. I like what you said, that open ended question of how can I help.

Lana Steven: Right. And we like to tell managers you don't have to be an expert in the area of the law and you don't have to engage necessarily in the entire process, but you should be able to issue spot get just the key information so you can refer that employee to either human resources or to the lead management team at your company or whoever is responsible at the organization that does that.

Heather Grimshaw: I like that terminology. The issue spot that's helpful. So what is the best way for employers to avoid some of these dangers and, and ensure compliance? Armando, will you kick us off here with this one and then we'll see if the group wants to weigh in?

Eric Brautman: Sure.

Armando Rodriguez: So first off, be familiar with the law in those states where you have employees. And sometimes it's not just about knowing the law, it's also confer with hr, confer with your employment law attorney. If you are going to accommodate an employee under the ADA, you're likely going to be in compliance with state law, but always check because you never know. Conversely, before you deny somebody under the ada, you should go back and check those state laws because there are are situations where you're going to have additional obligations or risks that you have to address before you deny them under the state law as well.

And then finally I would say err on the side of accommodating an employee quickly, even if that's on an interim basis. Like Lana, just Said, you know, don't necessarily dispute that the employee has a disability or assume that they're trying to take advantage of you.

Start off with, how can I help you? What is it that you need? How can I help you? Because usually it's, you know, the, the ideas of somebody trying to take advantage of you. The, the employee that doesn't actually have a disability, that's more the exception rather than the rule. When it comes to this realm.

Eric Broutman: Can just jump in. Add one thing I think that is also very helpful in, you know, just as a litigation attorney myself, is document, document, document. I mean, when I used to represent physicians in med mal type cases, and I think the same applies here. If it's not in the record, it didn't happen. Right. So in these types of cases, there's always disagreements over whether or not a manager said something to an employee, whether or not they offered an accommodation, whether or not they provided a medical certification or other information.

And courts will invariably come down on the side of the employee if there isn't documentation refuting that or making it clear what actually happened. So documenting what's going on is, is of the utmost importance.

Armando Rodriguez: That's a, that's a great point, Eric. And let me say there's, I don't want to say there's a formula, but when we're reviewing these cases that you see them, you know,

there, there's somewhat of a formula of an employee goes to a supervisor and gets an informal accommodation. They get something where the supervisor just kind of, it's like, oh, yeah, no, I understand. And don't worry, you can come in 15 minutes late, you can, you know, take time as you need, whatever it may be, except it's never documented, it's never taken care of, it's never truly addressed on the file. And now the, you know, the supervisor retires, they're reassigned to another person. And now all of a sudden there is no, you know, there's no record, there's nothing else, you know, to show this. And now all of a sudden you do have this file, you know, that's, that's ripe for litigation. So that, that's a very good point to document everything.

Eric Broutman: No, I totally agree, Armando. Sometimes employers, they think they're being helpful, they think they're, they're being a good guy by granting some accommodation informally. But like you said down the road, that can cause huge problems. So if the accommodation is warranted, you know, go through the process and grant it as you otherwise would, but that at least gives you a record of what was and what wasn't granted and what the circumstances were.

Lana Steven: I agree with both of you, and I agree that that is more common than we realize is just that. I don't even know if the supervisors realize it's an accommodation. You know, they might just think I'm just helping this employee out, not even realizing it's due to a disability or for any other reason.

Heather Grimshaw: That's really helpful context. Thank you all for chiming in there. I think it is always interesting to hear some of these landmines, really, that folks step in, usually, as you've noted, trying to be helpful. And so I think it is always important to call those out. And one of the issues that's addressed in the article is whether an employee has to request an accommodation in order for that employee to be covered under the Americans with Disabilities Act. Lana, you talked a little bit about this. In fact, I think you all have shared some insights here, and I'm hoping that we can talk a little bit more about the education that employers should be providing to ensure everyone has the right information at hand so that they can act appropriately to both support that employee as well as protect the employer. Armando, it would be great to start with you on this one.

Armando Rodriguez: Absolutely. So I'm going to say this is one of these situations where having clear policies and training can proactively address issues. You want to make sure that all the relevant parties, so we're talking managers, we're talking supervisors, are trained. And Lana gave a great point. You know, it's one of these where it's all about the issue spotting.

Eric Broutman: Right.

Armando Rodriguez: It's being able to identify that there's something there. So obviously, in some cases, it's very. You know, it's very easy when you have the employee coming over and saying, hey, I need to request an accommodation. But nine times out of 10, it's not going to be that clear. You're going to have to go out and find the issues. You're going to have to find that there's a situation going on. And in those situations, you know, it's basically just recognizing, okay, wait a second, this is an accommodation situation. This is something where I need to get the relevant parties involved.I need to move this on. And then obviously, having those policies, you know, clearly delineated so that the supervisors know and the employees know that this is something that I need to go to my supervisor for, and my supervisor is going to address to be at HR, be it the accommodation specialist, so we can Move forward and get this addressed.

Heather Grimshaw: That's great. I like the reference to the clearly delineated policies. It seems like those are the guideposts and can really help people all the way along the process. I'm kind of going backward a little bit here to something that Lana mentioned in the beginning of our conversation, which is a point about an adverse employment action being required for failure to accommodate claims. This was something that really interested me in the article. And Lana, I'm hoping that you will share some more information about that and how or why that kind of escalates issues for employers.

Lana Steven: Sure. And Eric also touched on this as well. But, you know, it depends on where you live as an employee. Some federal courts require employees when they're bringing claim, a failure to accommodate claim. They have to show what we refer to as, like you said, adverse employment action in order to bring a claim and adverse employment action. I think it can get confusing because I think if I were an employee, and this often is the argument in some jurisdictions and it's successful, is, well, I don't need to show I lost my job. I asked for an accommodation, it wasn't granted. That's the adverse action. There is a split, I think Eric referred to in the circuits. And by the circuits, we mean the federal courts that where the ADA is involved because it's federal law, and some federal courts say an employee has to show that an adverse action happened, such as because they asked, after they asked for an accommodation and it wasn't granted. They, you know, they received a negative performance review because of that. And then they, they lost a promotion or they were demoted or they were moved to a different type of position where they didn't have as many benefits or they were fired.

And so it's that, that's what we're talking about with an adverse employment action. It's like a tangible type of employment action that will ha that happens to an employee. So like I said, the federal courts are split on that. And then, then there's the state, which we're talking about today, the state accommodation laws and some even if you are in a jurisdiction or a circuit that requires an employee to bring an adverse action or show adverse action. Some states don't require that. So the good news for employers is if that's required, it just makes it more difficult for an employee to bring a claim. But practically, as a good employer, you want to just be accommodating, following the law, engaging in the interactive process. So you don't even get to that point. And of course, if you're going to take any kind of adverse action against an employee where you know that they have been requesting an accommodation or that's an issue. You really want to get your employment law attorney involved and working with you very closely to avoid litigation or to avoid any problems.

Heather Grimshaw: I appreciate that reference to both the federal landscape as well as that state. I think that's really helpful there. Thank you, Lana. So I was also intrigued by the references to broader coverage through state anti-discrimination and accommodation laws. And we did talk a little bit about this at the beginning of the conversation. I'm hoping we can just come full circle here. And Eric, hoping that you will share an example for listeners and the best way really, for employers of all sizes to ensure they are tracking on all fronts to ensure, again, that they're supporting their employees and protecting themselves.

Eric Broutman: Yeah, absolutely, Heather. So, I mean, I started my career, I grew up in New York. I started my career in New York. I'm still in New York, even though, you know, we represent employers all over the country. So. But I thought New York would be a great example just because there's differences between city, state and federal law that shows how you need to really know what jurisdiction your employees are in. So under the federal law, you know, the definition of disability is fairly somewhat restricted in that you need those substantial limitations on a major life activity. The state law is more generous. There is no need for substantial limitation of a major life activity. And the city law is even more generous than that. Really, any condition, no matter how intermittent or how short in duration it may be, will count as a disability. So really knowing where you are and what law applies is important. There's also differences between the federal, state and city laws in New York in terms of, like, how long of a leave you can take for that to be reasonable. Under New York City law, it's the only jurisdiction I know of that allows for indefinite leaves if an employee says, I have no idea when I'm going to be able to come back to work. Everywhere else in the country that I know of says that's not a reasonable accommodation request, but in New York City it is. And then finally, another difference is I know in New York City you need to provide written notification to employees when you make a decision on their accommodation where that's not really necessary anywhere else. And failure to provide that written notification can be, you know, cause, risk, reliability in and of itself. That could be a separate claim of action. So, so I think that's, that's an extreme example. But in other places, like in California, where San Francisco, Louisiana, they have their own anti-discrimination laws. Illinois, I think Chicago has its own anti-discrimination law. Where you're in big cities, you need to be aware of not just those state and federal differences, but those city differences and potentially county differences as well. So I think that the biggest way, the biggest tracking thing that you could do, the biggest way to ensure that you are following all necessary laws is really knowing where is this employee and what laws are going to apply to this employee. And not having that one size fits all type of process is really going to be the most beneficial for employers.

Lana Steven: And just jumping in. I agree with everything Eric said, but you know, I think this probably sounds overwhelming to employers, but I think a really good baseline is if there's a claim, you know, if there's, if there's a, if the ADA applies, which it does for to most employers that we're talking about and they're going to accommodate under the AD, most likely they're also going to be complying with the state law. Right. It. That's often in the instance where you're thinking about denying an accommodation or offering an accommodation different from what the employee is requesting or the employee also has performance issues and you're going to discipline the employee, but they ask for an accommodation. That's where you really need to look at the state level laws and get an attorney involved and really be careful. I mean, you need to look at them regardless. But I think just practically, if you're going to grant the accommodation what the employee is asking for and you're complying with federal law, you're most likely also complying with state law.

Eric Broutman: Yeah, that's. No one's going to sue you if you're giving them what they want. Right. It's when you are denying them something, you're terminating them. That's, that's when the risk and litigation possibilities come into play.

Heather Grimshaw: I think that's a great caveat. I like the way you said that, Eric. And I think, Lana, the point that you just made in terms of sounding overwhelming is a great point because I'm sitting here thinking, oh my gosh. So I really appreciate you all joining the conversation and sharing your expertise here. And again, encourage listeners to check out the Notes section and read this article which was published in @Work magazine. So thank you all again for your time today.

Eric Broutman: Thank you, Heather.

Lana Steve: Thank you.

Armando Rodriguez: Thank you.

Heather Grimshaw: So to wrap us up here, please check the Notes section for a link to the article Dangers Lurk in State Discrimination Laws that was published in @Work magazine.

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