Distracted worker may be entitled to ‘disability’ accommodation

by Robert P. Tinnin, Jr.

Q One of our workers has been with the company for about three years. From the outset, he has been an outstanding performer. About four months ago, however, he went through a divorce, which appears to have had a major impact on him, and he seems distracted. Both the quantity and the quality of his work have suffered demonstrably. I have given him two written warnings that he must improve both the quantity and quality of his work or face discharge. The last warning was about a month ago, and I have seen no improvement. Can I terminate him now for poor performance?  Group of multi-tasking creative people working in the office.

A Before doing so, make every effort to determine whether he might be “disabled” within the meaning of the Americans with Disabilities Act (ADA) and explore accommodations for his condition.

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Questions and answers on accommodating employees with mental disabilities

by Jonathan R. Mook

The following article answers some common questions about the Equal Employment Opportunity Commission’s (EEOC) recently promulgated guidance on the Americans with Disabilities Act (ADA) and mental health conditions.

Q Why should employers review the EEOC’s mental health guidance?  Head with gears

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May we fire employee who doesn’t fit in?

ADA interactive process: When does your obligation to engage begin?

by Susan Hartmus Hiser

Q We have an employee whose work performance has been slipping lately. We have reason to believe that she is suffering from depression because she was diagnosed as bipolar and had a bout of depression a few years ago that led to a similar decline in her work performance. We allowed her to work a modified schedule for a brief period while she was being treated by her therapist. She hasn’t requested another accommodation recently. Can we discipline her, up to and including termination, based on her performance, or do we need to take steps to address her depression under the Americans with Disabilities Act (ADA)?   depressed businessman at office working on computer asking for help

A Both the ADA and many state laws place the initial burden on the employee to inform her employer of a need for an accommodation. However, in the situation you describe, given the employee’s history of depression and her attendant performance issues, a court could find that your company was on notice of her need for an accommodation, even though she didn’t request one. That’s particularly true since she required an accommodation to address her performance issues the last time she had a bout with depression. When an employer has knowledge of an employee’s disability, she need not use the word “accommodation” to trigger the ADA obligation of engaging in the interactive process.

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Identifying accommodations for employee who can’t use the stairs

by Michael J. Spooner

Q What is considered a reasonable accommodation for an employee who can’t take the stairs during emergencies or because of maintenance issues with the elevator?  Inspecting an Evacuation Plan

A While the Americans with Disabilities Act (ADA) doesn’t provide guidance regarding reasonable accommodations for an employee who is unable to use the stairs during an emergency, there are several pieces of information that can help you determine which accommodations are reasonable. Reasonable accommodations must be just that—reasonable. That means they take into account the specific building or workplace in which they will be implemented. Costs, building dimensions, and feasibility of implementation all must be taken into account when determining whether a particular accommodation is reasonable.

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Referral bonuses, diversity, and disparate impact liability

by Andy Rodman

Q My company is having difficulty attracting qualified candidates for high-tech positions. We’re considering implementing a referral bonus policy, under which a current employee would be paid $500 for referring a candidate who is hired. Is this type of policy legal?  Many People Hands Holding Red Word Bonus Blue Sky

A There is nothing inherently illegal about a referral bonus policy. In fact, many companies have successfully implemented such policies to attract and retain qualified employees. Some studies have shown that employees hired through word of mouth are less likely (perhaps up to 15 percent less likely) to quit.

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How to respond to an employee who mentions suicide

by Kaitlin L. Hillenbrand

Q One of our employees recently told the HR director that she “prays for death every night.” Is there anything we are legally required to do in response?  golden gate emergency phone

A A condition that causes an employee to become suicidal may be covered under the Americans with Disabilities Act (ADA). In that case, it would be an unlawful discriminatory practice to take adverse employment actions based on her condition, and she may be entitled to a reasonable accommodation. If an employee states that she “prays for death every night,” it might be best to initially address the situation under the assumption that she has a condition covered under the ADA.

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Are you obligated to notify employees of coworker out on leave with contagious illness?

by H. Mark Adams

Q An employee recently came to HR and said she has meningitis. She is now out on leave. What is our obligationif anyto notify other employees?  Woman with flu

A As someone who has survived meningitis during my professional career, I have more than passing knowledge about this subject. It’s highly unlikely that any employee diagnosed with meningitis would have the capacity to “come to HR” to tell you she has meningitis and ask for a leave of absence. Given the seriousness and potentially life-threatening nature of the illness, it’s more likely the employee would have been sent straight to a hospital without having the time to tell you anything. So the first thing you should do is send your employee or her healthcare provider the Family and Medical Leave Act (FMLA) medical certification form to be completed and returned within the time allowed to confirm whether she does in fact have meningitis.

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Avoiding reverse disability discrimination claims

by Andy Rodman

Q As part of my company’s diversity efforts, I would like to reach out to some disability advocate groups to try to fill a few vacant positions. I’m afraid that by doing so, I may be opening up the company to reverse discrimination claims under the Americans with Disabilities Act (ADA). Are my fears justified?  Able to Work

A First off, I applaud your company’s diversity efforts, particularly with respect to the disabled — a group that sometimes is forgotten when it comes to outreach efforts. As for your fears, they are justified only to the extent that there is little (or nothing) you can do to stop a rejected nondisabled applicant from filing a failure-to-hire claim based on perceived reverse disability discrimination. Unfortunately, as many companies see from time to time, some disgruntled applicants and employees will sue for almost anything — even if the claims have no legal basis.

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Alcoholism, alcohol abuse, and the workplace―navigating legal risks

December 14, 2014 - by: Diversity Insight 0 COMMENTS

By Holly K. Jones

Q We administer a voluntary leave program through which workers can donate paid leave to their colleagues to obtain necessary medical treatment. Recently an employee asked to use the program to seek substance abuse treatment for alcoholism. This isn’t the type of treatment we had in mind when we established the program. Are we required to allow this?

Q We have an employee in a high-risk, safety-sensitive position who recently admitted to extreme alcohol abuse. We are now concerned that he, his colleagues, and our company are at risk because we can’t depend on his work. We’d like to discharge him, but we’re unsure of the legal risks.  Alcoholic

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