Tuesday, October 4, 2011

Failed Risk Transfer Policy

If there is a single lesson I would focus employers on in todays regulatory environment it is your disabilty benefit plan design actually does matter and needs to be integrated with your overall human resources practices to assure ADA exposure is mitigated via a fundamentally sound and well understood claim process that transfers risk.

It is common in this era to see self-funded and ASO Short Term Disability and salary continuance. The risk lends itself to self funding it is wholly predictable and high frequency, low indemnity in nature. But just because you choose to self fund the claim risk does not mean you have adequeately transferred all your exposure.

Consider Maxim Healthcare Services, Inc. who is now under a three year consent decree from the EEOC for enforcing a policy that requires employees to be unrestricted before returning to work. Many employers still take an all or nothing view of restrictions. In other words an employee must have no restrictions before returning to work. Such a policy clearly violates the Federal Law under ADA.

Lets look at the press release from the EEOC emphasis mine;


Maxim Healthcare Services Settles EEOC Disability Discrimination Suit

Maxim to Pay $160,000 to Estate of Former Employee
MINNEAPOLIS – The Equal Employment Opportunity Commission (EEOC) announced today that a federal court has approved a consent decree between the EEOC and Maxim Healthcare Services, Inc., which resolves the EEOC’s disability discrimination lawsuit against the company. The lawsuit, filed in U.S. District Court for the District of Minnesota, alleged that Maxim had failed to provide reasonable accommodations and ultimately discharged Anne Whitledge, director of clinical services, because she had brain cancer. The lawsuit is captioned, Equal Employment Opportunity Commission and Larry Williams as Trustee and Personal Representative of the Estate of Anne Marie Alderson Whitledge, decedent, v. Maxim Healthcare Services, Inc., Civil No. 10-03998 (JNE/JSM).
Under the decree, Maxim will pay $160,000 to Whitledge’s estate. In addition, Maxim agrees to conduct anti-discrimination training and monitor complaints in the Minneapolis facility, where Whitledge worked, as well as in the five other Maxim facilities that were under some of the same management. Specifically, the three-year decree provides that in those locations:
•Maxim is enjoined from discriminating based upon disability in violation of the ADA by not providing reasonable accommodations to persons desiring to return to work from disability leave.

•Maxim shall not engage in any form of retaliation against any person because such person has opposed any practice made unlawful under ADA, filed a discrimination charge under ADA, testified or participated in any manner in any investigation, proceeding, or hearing under that statute, or asserted any rights under this decree.

•Maxim is enjoined from failing or refusing to engage in the interactive process with applicants or employees who Maxim knows or should know, may require reasonable accommodation to perform the essential functions of the jobs for which they seek to return after medical leave.

Maxim is enjoined from maintaining any policy that requires an employee with a disability to be free from restrictions before returning to work after a medical leave of absence.

Maxim shall evaluate whether individuals seeking to return to work after a medical leave pose a direct threat to themselves or others based on objective evidence and information.

•Maxim will train all of its management personnel on the law against disability discrimination and will post a webinar training module on its online training system to train its external employees on their rights as employees to be free from discrimination and retaliation under the ADA. At the beginning of each training session held under this decree, Maxim’s highest-ranking executive-level employee at the facility shall introduce the outside trainer and state that Maxim takes its obligations under all EEO laws and prohibitions seriously. Also at this time, such official shall also state Maxim’s policy of non-retaliation for people who oppose acts made unlawful by federal EEO laws and people who participate in protected activity under federal EEO laws.

Maxim will maintain a record of its attempts to accommodate all employees with a disability who have been on a disability or medical leave who have notified Maxim that they are released to work with restrictions and will provide the EEOC with a copy of its accommodation reports on a semi-annual basis.

•Maxim shall send a letter of condolences to the children of Anne Whitledge.

“This was a heartbreaking case,” said John Hendrickson, regional attorney for the EEOC’s Chicago District. “Anne Whitledge battled cancer and lost the job she loved because of it. Ultimately, Anne lost her battle to cancer. The EEOC is proud that it helped her wage the battle against the fears and stereotypes that some employers maintain about the ability of people with cancer to perform their job.”
The EEOC’s litigation efforts were led by trial attorneys Laurie Vasichek, Nick Pladson, and Jessica Palmer-Denig of the EEOC’s Minneapolis Area Office, and supervised by Associate Regional Attorney Jean Kamp of the EEOC’s Chicago District Office. The EEOC’s Chicago District office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in North Dakota, Minnesota, South Dakota, Wisconsin, Illinois and Iowa, with Area Offices in Milwaukee and Minneapolis.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.


Billy Brite said...

Many employers still take an all or nothing view of restrictions.

hampton roads accident attorney said...

Your blog has a good PR. Aside from having a good content.

The Group Guy said...


So true many do take an all or nothing view.Unfortunately, life is rarely so cut and dried. Imagine if companies approached their work related disabilities in such a matter what their workers compensation modifiers and premiums would look like? EEOC is aggressively pursuing money and employers are an ATM machine. Employers need a process for assuring they are protected. Its ceheaper to cover the exposure with a well thought out policy integrated into the overall communication process for employees on leave. Vendors can be a component but just remember no good deed goes unpunished.