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)?
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.
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.
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?
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.
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.
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.
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?
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.
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.
Q Have you ever dealt with an extreme case of employee flatulence disrupting the workplace and causing coworkers to get sick and vomit? We have a situation right now in which a disabled employee is on a mix of medications that causes extreme flatulence. There have been numerous employee complaints, and more than one coworker has become very ill. There is no way to restructure the work assignments or job duties, as all of our employees in the area must work in close proximity on a packaging line.
We have had some constructive meetings with the employee, but he just doesn’t understand the seriousness of the situation, and his treating physicians indicate there is no other medication mix that can accommodate his medical issues without this unfortunate side effect and no reasonably affordable medication to reduce the extreme flatulence. Just wondering if you have any advice for us in dealing with this issue.
Q We have an employee over age 65 who has been a manager for over 40 years and has excellent evaluations in his file. Recently we have learned that his department is possibly committing fraud in their documentation of paperwork. He doesn’t abide by company policy, doesn’t meet deadlines, and has been written up one time for sexual harassment. Can we terminate him without fearing a wrongful termination lawsuit?
A The fact is, there is often nothing you can do to avoid a wrongful termination claim. The real question is whether the termination is defensible in a legal proceeding. It sounds like you have legitimate nondiscriminatory reasons that justify the employee’s termination. Make sure you have meaningfully investigated each of his transgressions and the results are well documented. It is equally important that you treat the employee the same way you treat other workers who engage in similar misconduct. If other employees in the department engaged in the same conduct, they should be subject to the same punishment. If you have done those things, you should have a solid defense to a lawsuit.