ADA: A Case Study of Practical Effect on the Trucking Industry

Transcription

1 ADA: A Case Study of Practical Effect on the Trucking Industry Rebecca Davies Attorney, Butzel Long Craig Holmes Legal Department, UPS Tony Longinotti VP of Risk Management, PAM Transport

2 Rebecca Davies, Butzel Long From the billing department to legal counsel, Ms. Davies has virtually spent her entire career working on behalf of trucking and logistic companies. She has obtained no cause verdicts in the defense of employment and commercial federal jury trials and achieved countless dismissals and favorable settlements in a wide range of employment disputes in state and federal court and before administrative agencies. Craig Holmes, UPS Craig Holmes has been a member of UPS Legal Department since He is considered an expert on the ADA, and has managed the company s ADA class actions for the past twenty years. In addition to his ADA practice, Craig is also UPS lead attorney on matters involving Labor Relations, OSHA, and Affirmative Action. Tony Longinotti, PAM Transport Tony Longinotti has over 36 years experience directly involved in claims administration and investigation, including 24 years of involvement with commercial transportation companies. Tony is also a current member of TIDA (Transporation Industry Defense Association) and holds or have claims in 14 states.

3 Is going beyond DOT medical examinations needed? EEOC concerns?

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7 Current Practices Proposed Regulations

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13 Legally Permissible? Issues for Employers?

14 Your Employment Status Except as limited below, if you are absent from your regular occupation for 12 months, you will be administratively separated from employment, regardless of your status on STD or LTD. You must return to your regular occupation or any position provided as a reasonable accommodation under the Americans With Disabilities Act (ADA) (or state equivalent) for at least 30 calendar days before a new 12-month period will begin. Time spent performing modified work under the Residual Disability Program is not provided as a reasonable accommodation under the ADA (or state equivalent); thus such time is considered an absence and does not extend this 12-month period.

15 Reasonable Accommodation Assessment If, during your 12-month absence, you have requested an accommodation (or UPS has enough information to already know that an accommodation may be necessary) under the ADA (or state equivalent), you will be referred to a Human Resources representative responsible for ADA (or state equivalent) compliance to determine whether you are eligible for an accommodation under applicable law and, if so, whether a reasonable accommodation is available (refer to the UPS Equal Opportunity Statement, available at

16 If an accommodation request is being processed at the 12-month date, an administrative termination will not occur, and health care coverage under The Flexible Benefits Plan will continue, until a decision has been made regarding the accommodation request. Once the 12-month date has passed, you will be administratively separated if you fail to participate in the interactive process or at such time as UPS has determined that no reasonable accommodation is available or that providing an accommodation would be an undue burden.

17 Who should be trained? How do you train employees that are situated throughout the country? Ensuring consistency realistic objective or unobtainable goal?

18 Ostrowski v. Con-way Freight, Inc., 3d Cir. (10/30/13) Freight transportation company's no-alcohol agreement with driver was valid justification for discharge, not pretext for disability bias. Return-to-work or last chance agreement with employee who has substance abuse problem not per se violation of the previous hitadanext hit.

19 Jarvela v Crete Carrier Corp, 30 AD Cases 39 (11 th Cir. 6/18/14) Eleventh Circuit found that current alcoholism rendered employee unfit for certification under DOT regulations governing commercial motor vehicle drivers. The court stated that because DOT certification was an essential requirement of position, his diagnosis meant he couldn't show that he was a qualified individual with a disability, a necessary element of an ADA claim. Because the regulations place the burden on employers to ensure that their drivers satisfy all DOT qualification standards, it is the employer that must decide whether a driver's condition meets that definition, the appeals court ruled.

20 Interstate Distributor Company to Pay Nearly $5 Million to Settle EEOC Disability Suit According to the EEOC's suit, under the challenged leave policy, if an employee needed more than 12 weeks of leave, Interstate automatically terminated them rather than determining if it would be reasonable to provide additional leave as an accommodation. The EEOC also charged that Interstate violated federal law by refusing to make exceptions to its "no restrictions" policy. Under this policy, if an employee had restrictions, Interstate refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions.

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22 ADA: A Case Study of Practical Effect on the Trucking Industry Rebecca Davies Attorney, Butzel Long Craig Holmes Legal Department, UPS Tony Longinotti VP of Risk Management, PAM Transport