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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Employee flatulence is no laughing matter

by Mark M. Schorr

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.  flatulence

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.

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The perils of firing an older, long-tenured worker

by Jonathan C. Sterling

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.FiredOlderWorker 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.

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Alcohol abuser creates dilemma for employer

by Caren W. Stanley

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.  DrinkingAtWork

A Unfortunately, this is a common dilemma faced by many employers. The initial question you must ask yourself is whether you are required to provide the employee leave for treatment. Recall that the Americans with Disabilities Act (ADA) prohibits employment discrimination against “qualified individuals with disabilities.” An individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

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Wiccan what? Religious accommodations and sincerely held beliefs

by Steve Jones

Q If an employee asks for time off for her religious beliefs, can I legally question her about her religion (e.g., what her religion is and why she needs off)?  Wiccan

A Most likely, yes. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion. The Act requires employers with 15 or more employees to make reasonable accommodations for a worker’s sincerely held religious beliefs unless doing so would impose an undue hardship on business operations. Under Title VII, the “undue hardship” defense requires an employer to show that under the particular circumstances, the proposed accommodation poses more than a minimal cost to or burden on the employer.

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Are generic antigay comments considered harassment?

by Steve Jones

Q I have an employee who is outwardly gay. He is a great employee and says he loves working at my business. However, he recently mentioned that he doesn’t like when a specific coworker uses antigay slurs. The slurs are not directed toward the gay employee. Instead, the slurs are generic comments such as “That’s so gay.” Are the comments a form of harassment under the law? 

A It depends. Sexual orientation―specifically, lesbian, gay, bisexual, and transgender (LGBT) status―is not a federally protected category. Therefore, we must look to state law for guidance. Currently, 21 states and the District of Columbia have laws that prohibit sexual orientation discrimination in employment. Twenty-nine states do not prohibit sexual orientation discrimination.

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Lessons from an office ‘kick me’ prank

by Robert P. Tinnin, Jr.

Q I recently read a newspaper article concerning a lawsuit filed in federal court in Albuquerque by an Intel employee who is suing his employer for race-based harassment and intentional infliction of emotional distress. Coworkers secretly taped a “kick me” sign to his back and then kicked him as others laughed hysterically. What are we coming to? Can employees sue their employer for anything these days?

A The lawsuit has garnered quite a bit of attention in both the local and national press. The primary allegation involves a grade-school prank that many of us participated in as children. Indeed, at the very least, it was a juvenile prank. Few of us would think it would be the basis for a lawsuit in federal court, but it is. read more…

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