Workplace Strategies Watercooler 2026: Your Ultimate Checklist for Leaves, Accommodations, and Benefit Plan Compliance

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Joe Cartafalsa: Hello, everyone. This is Joe Cartafalsa. I’m a shareholder in the New York City office of Ogletree Deakins, and we’re coming to you today from Ogletree’s Workplace Strategies in Austin, Texas. We just finished up a great session with two of our gurus on leave, Tina Bengs from the Chicago, Illinois and Valparaiso, Indiana office, and Michael Riccobono from the Morristown, New Jersey office, both shareholders there. They’re both gurus in the field and active in our national leave and accommodations practice group. Tina also actively litigates employee or ERISA benefits cases, and Mike as well defends and litigates various leave and accommodation cases.

Our presentation today was on Leave Nothing to Chance: Your Ultimate Checklist for Leaves, Accommodations, and Benefit Plan Compliance. It’s a hot topic that employers are facing really on a daily, if not weekly basis. And I’m going to turn it over to Mike and Tina to give us some of the most important steps in the process.

Michael Riccobono: Excellent. Thanks very much, Joe. We started the discussion today with what we consider to be step one in the process here and that’s when the interactive process is triggered. It’s important to understand when the interactive process is triggered because that puts the obligation on the employer to affirmatively engage and respond to the employee to address their request or need for leave or accommodation. So, an employer receives notice that an employee has a physical or mental health condition impacting their ability to perform job duties, meet conduct standards, or enjoy the equal benefits and privileges of employment. And when that happens, that is when the interactive process is triggered and that is what causes the employer or requires the employer to then begin an engagement with the interactive process with the employee. What does step two look like, Tina?

Tina Bengs: Yeah. Step two is an important step in this process and that’s gathering information from the employee. We want to stress that the reason it’s so important is one of the key requirements under the ADA and the Pregnant Worker Fairness Act, the PWFA, is that the employer actively engage in a discussion with the employee when there’s a potential need for an accommodation to assist that employee in being able to do the essential functions of their job. So, having that discussion, having a form that gathers information from the employee. From that employee’s perspective, where are you struggling? What job duties do you need assistance with? And maybe even asking the employee, what do they recommend or what do they suggest might be a reasonable accommodation that would be helpful? Then what about step three?

Michael Riccobono: Sure. So, now you have information from the employee. The interactive process has been triggered. You’ve obtained information from the employee about what they need. Step three is requesting information about their medical restrictions. The framework here is pretty straightforward. If the employee is seeking FMLA or state law leave, go ahead and use the appropriate statutory forms to administer that leave request. If it’s FMLA, you can go on the USDOL website and obtain the forms directly from there. If your state DOL has relevant forms for any sort of state leave, we encourage you to use those as well.

If the employee’s restrictions are apparent, meaning they’re visible and obvious to the employer, what we recommend is foregoing requesting information from the employee’s doctor and instead proceeding directly to evaluate the accommodation request itself. If the restrictions are not apparent and perhaps FMLA or state leave does not apply, go ahead and provide the employee with a healthcare provider questionnaire, which is a document you provide to the employee with instructions for them to deliver that to their treating healthcare provider, to provide the information necessary about the employee’s restrictions so that the employer can then evaluate what is and what may not be a reasonable accommodation in that situation.

Some high-level tips for that healthcare provider questionnaire. We really encourage employers to focus on requesting information about the employee’s restrictions. We guard against asking the doctor or the employee to provide information about the type of disability or the name of the disability that they have because ultimately that’s actually not relevant to the reasonable accommodation process. What we want to know is how does the employee’s condition impact their ability to perform the essential functions of the job? So, the focus should really be on requesting information about what are the physical or mental limitations or restrictions as a result of the accommodation, or as a result of the medical condition. I’m sorry.

We also encourage employers to set a deadline for the employee to provide that questionnaire. Many employers use the FMLA’s 15-day requirement as a guide, although the ADA does not have a specific or mandate a specific timeframe, but 15 days is I think a reasonable amount of time for the employee to obtain that information from their doctor and return it to you. And that happens, Joe. We see that frequently. The employee comes forward and makes a request or provides notice to the employer that they need accommodation and then they simply don’t complete the form or the doctor doesn’t complete the form. So, it’s important at the outset, when you’re providing the healthcare questionnaire to the employee, that in a cover letter of sorts, you make clear to the employee that they have an equal obligation to participate in this interactive process and that by failing to provide the information that the employer needs to evaluate their request will frustrate the interactive process, and may lead to the employer denying their request for accommodation. What does step four look like, Tina?

Tina Bengs: Well, now that you’ve gathered any needed medical information and like Michael indicated, if it’s apparent, what the restrictions are. A good example that we had discussed during our session was somebody who’s in a wheelchair or has mobility issues utilizes a cane or a walker, those restrictions are apparent and it wouldn’t be…there’s no business need to ask for more medical information to understand what type of accommodations might be needed, but in most situations there is a need to gather the medical restrictions from the healthcare provider, and then the employer’s job responsibility at this point for step four is mentioned in the EEOC guidance where the employer is tasked with comparing those restrictions with the requirements of the job because the employer, and even the EEOC acknowledges, is in the best position to truly understand what the requirements of that job is, how that job is performed, even the work environment that that job is performed within. And that employer can then evaluate, do these restrictions actually impact or prevent the employee from safely and effectively performing the job duties?
If they’re not impacted, if they can still perform their job duties even with those restrictions, then no accommodation may be needed and they should document that and provide that information to the employee. But if in comparing restrictions with job duties, it is determined by the employer that, yes, this employee would be impacted and could benefit from some reasonable accommodations that the employer could offer, then that’s what the employer should start that documentation process to note what could be provided. So, going on to step five then?

Michael Riccobono: Sure. So, now you’ve gathered information from the employee, from his or her healthcare provider, and you’ve evaluated the restrictions and compared them to the job duties in question. Now you have to determine what accommodations you can reasonably provide. This is perhaps the most difficult step in the process. Few guidelines for determining what is reasonable and what is not. You have to look at the scope of the accommodation. Is it proportional to the employee’s limitations and is it tailored to address the specific barriers that the employee faces? The example that we discussed during our presentation was an employee who has chronic migraines may need to avoid fluorescent lighting, which I think is present in almost every workplace. It would be reasonable in this situation to relocate that employee to a workspace that has natural light or provide them with a desk lamp. It would be unreasonable. It would be not in scope to make all employees work by candlelight to avoid the fluorescent lighting. That would not be reasonable in scope.

It also needs to be reasonable in duration and whether or not it’s reasonable in duration is going to depend on a few things. It’s going to depend on the nature of the condition, the type of accommodation that is being discussed, and the nature of the job itself. And when we talk about the duration of an accommodation, this is really where I think monitoring comes into play and we’ll discuss that a little bit later. But if we’re not monitoring the accommodation along the way, it’s difficult for us to determine that it was in fact reasonable or not in both scope and duration. The other guideline here is that the accommodation has to be effective, right? An accommodation is not effective if it does not allow the employee to perform the essential functions of the job.
So effective accommodations are ones that remove or reduce the barrier that the employee’s disability creates between them and the successful job performance of their job. It does not need to be the employee’s preferred accommodation. It does not even need to be the best possible solution, nor does it need to eliminate every single difficulty the employee faces. It simply needs to work, and again, monitoring the accommodation is key. I’m sure you’re all familiar with periods of leaves of absence as reasonable accommodation. Those are absolutely considered reasonable accommodations, but again, it needs to enable the employee to be able to perform the essential functions of the job. So, focus on that whenever you’re evaluating a period of leave as a reasonable accommodation.

I’ll talk about for a minute just what’s the hierarchy or the priority of workplace accommodations? What’s a flow chart here for considering possible accommodations? We always suggest to employers that they start with trying to identify an accommodation to the workplace, to the employee’s current role, a temporary modification of job duties or to the work environment to allow the employee to continue working in that role. That should always be consideration number one and step number one in that hierarchy.

We then move on, if we can’t identify a working accommodation in the current role, we can then look at job-protected leave, a reasonable period of job-protected leave that again is intended to assist the employee in being able to return to work and perform the essential duties of the current role. If that proves to be ineffective or that that option would create an undue burden, you can always consider transferring the employee to an available open position. So, if the restrictions that the employee has prevent them from safely or effectively performing the essential job functions, either indefinitely or permanently, you can of course consider a permanent transfer to another position, one for which the employee is qualified and that they can perform with or without a reasonable accommodation.

A last and final ditch option could be the possibility of non-job-protected leave. So, this is to be distinguished from job-protected leave that may be required in some circumstances. If you’ve exhausted all other forms of accommodation or if you have determined along with the employee that there are no other accommodations available, consider the possibility of non-job-protected leave. This may be a period of time that allows the employee to more fully recover from their illness or injury, and allow time for an alternative job to become available for them or for their restrictions to improve to allow the employee to perform a different job as well.

So, don’t forget those items and now we’re going to move on to step B, an interim step before we get to step C and talk about some benefit impacts here, Tina.

Tina Bengs: Yeah. This was a little kind of a misnomer, I guess. We said six steps, but we broke apart step five into two subparts. First, figuring out what the accommodation is going to be, whether it’s a leave and what type of leave, whether it’s going to be a working accommodation. But another aspect of that is, especially if the job, if the accommodation results in a leave, whether continuous, intermittent leave, a reduced leave schedule, something that impacts the employee’s actual working hours. When that is the accommodation, an employer needs to take into mind or consider what is the impact on that employee’s benefit plan eligibility coverage issues. A lot of employers miss that. They misunderstand it in part because everybody knows FMLA, if FMLA is approved, that requires that the employee be allowed to remain covered under the health plan. So, I think because of that concept that comes from FMLA, a lot of employers believe that if the leave, reduced schedule, intermittent leave, is an accommodation required under the ADA that the same applies, that their coverage under your benefit plan still applies.

Unfortunately, right or wrong, good or bad, the ADA does not mandate an employer’s benefit plan. Take that into consideration. So, here’s the key with dealing with your benefit plans. First and foremost rule with every benefit plan, whether health plan, life, STD, LTD, any of those, you have to follow the plan terms exactly. An employer is the plan sponsor and because of that, the employer has a fiduciary duty to make sure they’re following the plan terms, and one of the fiduciary duties stated in every benefit plan, as soon as the employer’s on notice that that employee loses coverage, is no longer eligible for coverage, that employer has two key responsibilities. One, notify the employee that they lost coverage and, two, if there is any continuation option such as COBRA for a health plan, conversion rights in a life plan, the employer has a limited time period to get those notices of continuation options to those employees. And if either of those obligations are violated, the employer can face significant liability.

So, the key to understanding this is think about your benefit plans. They always start with you are eligible for coverage if you’re working a certain number of hours, whatever it is stated in your plan. Some plans say 32 hours per week, some have 30 hours per week. It doesn’t matter what it says, it’s just you need to know what it is so that way if the employee’s accommodation results in them not meeting that work hour requirement, you have to find, is there an exception to that requirement in the plan? And if there is an exception, does that employee meet that exception so they can continue coverage or have they already lost coverage? For example, health plans, if it says, “You must be either working 32 hours or more per week or on an approved FMLA leave,” then as long as one of those two items applies, then the employee is still eligible for coverage.
If that employee is not yet eligible for FMLA or has already exhausted FMLA and you’re offering an accommodation of reduced work hours or a additional leave, that person lost coverage under the benefit plan and the employer needs to immediately inform that employee coverage was lost, and give any continuation option such as COBRA for the health plan, conversion for the life plan. And unfortunately what we see in the courts in litigation, when an employer makes that misstep, approving an accommodation but not thinking about the impact on benefits for that employee, if that employee then has a claim that is denied by the insurance company, the claims administrator, the employee will rightfully pursue course of action, a cause of action against that insurance company. However, the judge will have to look at the benefit plan and congratulate the insurance company for following the plan terms and say, “Good job insurance company. You properly determined the person lost coverage and therefore denied the claim under that benefit plan.”

Then the employer is sued and unfortunately the judge will have to look at the employer and say, “Employer, that was your benefit plan. You had a legal obligation to tell your employee they lost coverage when they were on a reduced schedule or extended leave as an ADA accommodation. You failed to do so. You’re going to pay those benefits out of your pocket, not out of the plan.” And there could be additional penalties such as COBRA that if you fail to timely give COBRA notice, there’s a penalty of $110 for every day late in issuing COBRA notice. So those are the missteps that can occur. The key is, it’s a simple way to not make the misstep is by understanding what your benefit plans say.

Michael Riccobono: Thanks, Tina. So, step six, our final step here is monitoring the accommodation. I had a counseling call with a client the other day where they called and said, “This employee has been out on a leave for a year and a half now and we don’t know when he’s going to return to work.” And the first question I asked was, “Well, did you ever notify him when this accommodation, when the leave was going to end?” And they said, “No.” So, the first piece of advice here is let’s make sure we’re setting parameters for each approved accommodation. Those parameters should include the scope of the accommodation like we discussed before, and the duration of the accommodation, and also include a note that the employer, a disclaimer of sorts, that the employer retains the right and the ability to stop the accommodation if it’s proving to not be effective in assisting the employee to be able to perform safely their job duties, or if it becomes unreasonable to continue to provide that accommodation based on business needs.
In terms of setting a timeline or a set period of time, each accommodation should be approved for a set period of time. That could be one month, that could be three months, that could be six months. That’s going to depend on the specific facts, but the takeaway here is that the accommodation should be approved through a date certain, with a commitment to revisit with the employee at the end of that period of time to determine is there a need for the accommodation to continue beyond that period of time.

So, making sure that we lay those things out at the outset and that someone is actually tracking that, right? If you set an accommodation for three months, set a calendar reminder for yourself, in three months to check back in with the manager and/or the employee to see how is this accommodation working? Is it effective? Any issues? Can we continue it? Do we need to continue it? That’s all part of the monitoring accommodations process that I think is sometimes overlooked because there is a tendency once we approve an accommodation to sometimes set it and forget it, so to speak. So, make sure you’re monitoring along the way and following up as necessary with the relevant stakeholders.
Tina, do you want to take us away with what are the key takeaways from our presentation and our quick podcast here today?

Tina Bengs: Yeah. I think the takeaways really follow these steps that just understand when you’re on notice because notice is the trigger that you now must act as the employer under all these leave and accommodation laws. Make sure you’re gathering the information that’s needed. Get information input from the employee, from the medical provider, get what the restrictions are, and then you get to drive the bus from there by comparing what the requirements of the job is and comparing those with the restrictions to know is there an accommodation needed and if so, what can the employer reasonably offer? Try to follow that process of we’re going to try to keep the person in their current role, whether it’s with a working accommodation or a job-protected leave.

If it becomes apparent that we can’t reasonably accommodate so they can’t effectively do their current role, don’t forget look at any alternative open and available roles. If there is one, immediately offer that once you get to that part of the process of that hierarchy of accommodations. If there isn’t currently an alternative open and available role, consider a reasonable period of non-job-protected leave where you’re allowed to backfill the employee’s prior role because you’ve determined there’s no effective accommodation to help them return to that job, but you then look to see, is there an alternative open position coming available soon or maybe the employee’s restrictions will lessen within a reasonable period of time. Make sure you’re documenting everything and as Michael said, monitor to make sure this is effective, and once it becomes no longer reasonable or effective in helping the person work, make sure and stop that process. That might be the time when unfortunately, you might have to move on from the employee.

Joe Cartafalsa: Okay, guys, thanks very much. That was really great, and the session earlier today was fabulous. We had a lot of questions afterward because so many employers are dealing with these issues. I really would, with the key takeaways, I’d really love to point out our tip 5B, which is the most often overlooked is confirming with your own benefit plans if somebody could be placed on a leave because the failure to do that, and we’ll use the expression, no good deed goes unpunished, can be really, really significant and you’re essentially self-insured for the employee. So, really wonderful, wonderful advice, and thank you guys for taking the time to speak today.

Tina Bengs: Thank you.

Michael Riccobono: Thank you.

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