HR issues that arise when natural disasters hit

August 29, 2017 - by: Robin Kallor 2 COMMENTS
Robin Kallor

Natural disasters, like Hurricane Harvey, raise a host of issues for employers, regardless of whether these employers have a direct presence in the affected areas or whether they have employees residing in or telecommuting from them. Sometimes employers are forced to close or are able to remain open in some capacity, but employees are not able to travel to work or need to attend to emergent matters during or in the aftermath of these types of events. Some of the more commonly asked questions are addressed below. Notepad with disaster plan on a wooden table.

1. If there is a forced closure of the workplace, must an employer pay its employees their wages during this shutdown period?

Under the Fair Labor Standards Act and applicable state laws, non-exempt employees must be paid for all hours worked. In the event non-exempt employees are not working during this shutdown period, they are not entitled to be paid wages for this period when they perform no work.  There are exceptions to this–for example, if the employer compensates employees under the fluctuating workweek model or if union contracts provide otherwise in unionized workforces. Additionally, some states have “reporting pay” minimums in the event the shutdown occurs after the employees report to work.

On the other hand, exempt employees must be paid their weekly salary for any week in which they perform some work for the employer. Therefore, for shutdown periods spanning less than one week, they must be paid their regular weekly salary for this week even though they were not working during a partial week in which the employer was shut down.

2. May an employer permit employees to work remotely?

Employees may be permitted to work from a remote location; however, employees must ensure that non-exempt employees are paid for all hours worked. Therefore, non-exempt employees must still clock in or provide some form of accounting of the hours that they worked, and the employer’s ability to monitor these work hours is limited.

As to exempt employees, if the shutdown period is a full week, exempt employees would not be entitled to their weekly salary for that full week. If the exempt employee works remotely, that remote work will constitute work performed in that week, thereby entitling the exempt employee for their full weekly salary for that period of time.

3. What happens if the employer’s business is open, but the employees are not able to travel?

Again, under the FLSA, non-exempt employees are entitled to be paid for only the time that they work, regardless of whether the employee do not work because the employer shuts down or the employee cannot travel to work.

Exempt employees are not entitled to be paid for full days in which they perform no work under these circumstances. Therefore, if they come to work late, they cannot be deducted a partial day’s absence; however, if they are absent for a full day, this time constitutes personal time and they are not entitled to their salary for these full days.

4. Can an employer permit an employee to use accrued but unused vacation for this period of shut down if they would not otherwise be entitled to their wages?

Yes. An employer may permit an employee to use their accrued but unused vacation time if they are not able to travel to a workplace which is open or unable to work due to a shutdown.

5. If an employer does pay an employee for the shutdown period, is that time counted toward the 40 hours for overtime purposes?

No. If an employer chooses to pay non-exempt employees for time that they do not work due to a shutdown, that time does not constitute “working time” and thus isn’t counted toward the 40 hours for overtime purposes.

6. What are the protections for employees who need to take time off during this time?

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. For example, if an employee is suffering from anxiety due to the hurricane that is corroborated by a medical certification and the employee is eligible for FMLA leave, then the employee is entitled to up to 12 weeks of leave under the FMLA leave.

Additionally, the FMLA entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for any “qualifying exigency” arising out of the fact that a covered military member is on active duty or has been notified of an impending call or order to activate duty, in support of a contingency operation. Also, the FMLA allows eligible employees to take up to 26 weeks of job-protected leave in a 12-month period to care for a covered servicemember with a serious injury or illness.

In addition to the FMLA, the Americans With Disabilities Act (ADA) and applicable state law mandates that employers provide reasonable accommodation to otherwise qualified individuals with disabilities. An extended leave of absence can constitute a reasonable accommodation. In the event an employee is suffering from some form of disability due to the hurricane (e.g., depression, anxiety, or PTSD) and requests a leave of absence, that must be considered even if the employee is not eligible for FMLA leave or requests a leave beyond the 12-week FMLA leave entitlement.

Moreover, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects employees who are part of an emergency services organization (such as the National Guard or a Reserve unit). USERRA prohibits discharging, denying initial employment, denying promotion, or denying any benefit of employment because of a person’s membership, performance of service, or obligation to perform service in uniformed service.

Finally, when an illness or injury results from the hurricane, applicable state law may mandate paid sick leave.

7.  How can we show concern?

Employers should engage in regular communication with employees where possible so that they are aware of the employer’s expectations. Moreover, safety concerns are paramount to all others. Finally, employees having difficulties coping with the aftermath should be encouraged to use the employer’s Employee Assistance Program (if one is offered) or take advantage of similar alternative services that may be covered under the company’s medical plan.

Howard Stern’s day off : the danger of digging for details when employees call in sick

May 23, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Shock Jock Howard Stern took an unexpected day off from his radio show last week which prompted a firestorm of speculation on social media as to the underlying reason for his absence.  Although Stern’s absence was initially attributed to a “personal day,” many fans speculated that Stern’s sick father was the real reason he missed work.  Sickness absence

To quell the speculation, workaholic Stern revealed to listeners that he took a rare day off because he was, in fact, sick and his voice was not strong enough to do his radio show.  Even after Stern’s announcement, however, some fans continued to sense a conspiracy and wanted more details, with one fan questioning, “If [Stern] taking a sick day is no big deal, why keep it a secret?”

Obviously irritated by the intrusion into his personal life, Stern asked, “Why was it such a big deal that I took a f**king day off?”

This incident brings up an important lesson for employers who may be speculating about the real reason an employee called in sick from work.  Generally, the Americans with Disabilities Act (ADA) prohibits employers from asking whether an employee is an individual with a disability or about the nature or severity of a disability, unless the questions are job-related and consistent with business necessity.

According to the Equal Employment Opportunity Commission and some courts, asking an employee to explain the underlying reason for a sick day may violate the ADA.  Thus, employers should refrain from asking intrusive questions that tend to reveal information regarding an actual or perceived disability.

Also, if your business has a sick leave policy that requires employees to provide a doctor’s note, you can steer clear of making an unlawful medical inquiry under the ADA by clarifying that the doctor’s note need only state:  (1) the date on which the employee was seen; (2) that the absence from work was medically necessary; and (3) the date on which the employee will be able to return to work.

Lastly, you should train supervisors and HR personnel not to pry into the underlying reason for an employee’s use of sick leave unless the questions are indeed job-related and consistent with business necessity.

 

 

 

ADA and Batman—by Robin

March 27, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

Recently, Ben Affleck stepped down from directing the new Batman movie to focus on his recovery following recent treatment for alcoholism. His reason for stepping down was due to his belief that he was unable to give the directing role the focus and passion it requires.  Alcohol in the workplace

Alcoholism and drug addiction present complicated issues under the Americans with Disabilities Act (ADA). The ADA protects “qualified individuals with disabilities” – individuals who can perform the essential functions of their position (or the position they are seeking) with or without reasonable accommodation. “Disability” is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment.

Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” (and therefore not protected by the ADA) when the employer takes action on the basis of their drug use. However, the ADA may protect a recovered addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability.” The ADA may protect an alcoholic who can meet the definition of “disability.”  Notwithstanding, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

In the event an employee engages in misconduct or poor performance due to alcohol or drug abuse, the employer is entitled to discipline the employee. If the employer determines that discipline is necessary, the nature of the discipline should be the same that it would be for any other employee for failing to meet the employer’s performance standards or who engages in similar misconduct.

An employee whose poor performance or misconduct is due to the current illegal use of drugs is not covered by the ADA. Therefore, an employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary action is appropriate, although the employer can offer the employee leave or other assistance so that the employer may receive treatment. On the other hand, an employee whose performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation to obtain some form of treatment, separate and apart from any disciplinary action the employer may choose to implement, assuming the discipline is not termination.

Like Ben Affleck, if the employee self-discloses their alcohol addiction before any performance related issues or misconduct surfaces, then the employer would be required to offer a reasonable accommodation; perhaps time off or a modified work schedule in order to attend treatments. The Family and Medical Leave Act also applies to eligible employees who seek treatment for drug and alcohol related conditions.

While Ben Affleck decided to go public with his addiction, most employees do not. Employers must be mindful of confidentiality requirements to ensure that information relating to employees’ disabilities or accommodations are kept confidential. It is human nature for employees to be curious or perceive that certain employees are given preferential treatment. Regardless of any morale issue, employers must respond to such inquiries that they do not discuss one employee’s situation with another in order to protect the privacy rights of all employees.

Twins for Clooneys! How to manage pregnant employees who aren’t gazillionaire celebs

February 13, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

A-list celebrity George Clooney, long considered Hollywood’s most eligible bachelor, surprised the world when he married international human rights lawyer Amal Alamuddin back in 2014 after decades of assuring journalists, adoring fans, and a slew of ex-girlfriends that he would never, ever tie the knot a second time. Apparently, George also had a change of heart about becoming a father (which he also swore he would never, ever do) because he and his wife announced last week that they are expecting twins.   Tired Parents Cuddling Twin Baby Daughters In Nursery

Among the rarified ranks of the world’s rich and famous, news of impending parenthood may prompt a full-time nanny search or, in the case of actresses who are expecting, some creative camera angles to conceal a growing baby bump. In the real world, however, the happy news that an employee is pregnant (or about to become a parent) can breed numerous HR challenges. To help you labor through this issue, here are a few tips for managing an employee’s burgeoning brood.

#1 – Do not discriminate 

Pregnant applicants or employees must be treated fairly and cannot be subjected to special scrutiny because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Under the Pregnancy Discrimination Act (PDA), the protection against pregnancy discrimination covers all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and fringe benefits. As a result, an employer may not single out pregnant employees for special requirements when determining whether a pregnancy will impede the employee’s ability to do her job.

If an employee is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, you should treat her in the same way as you would treat any other temporarily disabled employee. For example, you may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if you do so for other temporarily disabled employees.

#2 – Accommodate pregnancy-related disabilities

Although most pregnancies do not implicate the Americans with Disabilities Act (ADA), some impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia) may qualify as disabilities under the ADA. An employer must provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, unless the employer can show that providing the accommodation would pose an undue hardship (i.e., significant difficulty or expense). Keep in mind that the 2008 amendments to the ADA greatly expanded the definition of disability, making it much easier for an employee to show that a medical condition is a covered disability. Therefore, you should carefully evaluate requests to accommodate a pregnant employee and engage in the interactive process under the ADA to determine what, if any, accommodations will enable the employee to perform her essential job duties.

#3 – Provide parental leave to eligible employees

Under the Family and Medical Leave Act (FMLA), a new parent (including foster and adoptive parents) may be eligible for 12 weeks of unpaid leave that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave; worked at least 1,250 hours during the year prior to the start of the FMLA leave; and work at a location where at least 50 employees are employed at the location or within a 75-mile radius. Importantly, the FMLA provides leave for new fathers, as well as new mothers. Further, with few exceptions, upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions. In addition, an employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before taking FMLA leave.

Whether you are a Clooney or a mere mortal who lives outside the glitterati bubble, expecting a bundle of joy is great news. As HR professionals, before you attend that baby shower or hedge your bets in the office baby pool, make sure to follow these tips to ensure you treat your employees fairly and don’t run afoul of the PDA, ADA, and FMLA.

 

Baseball purists

December 13, 2016 - by: Matt Gilley 0 COMMENTS
Matt Gilley

“Puritanism: The haunting fear that someone, somewhere, may be happy.”

-H.L. Mencken

This post may not be the usual finger-wagging scold you may have come to expect from an employment lawyer. I’m confident, though, that this blog’s audience of fellow practitioners and human resource professionals will take a little solace in it. After all, it’s no fun to be a killjoy and we are thrust into that role more often than we’d like.  Young male baseball referee blowing a whistle

Why? Because potential liability under the employment laws too often compels us to manage to the lowest common denominator.

That frustrating fact claims its share of fun as casualties because you never know when some yahoo is going to take the fun well beyond harmless. Witness the latest casualty, as reported by the Washington Post: Major League Baseball’s new collective bargaining agreement will prohibit (well, curtail) the time-honored practice of rookie hazing.

As reported by the Post (quoting the Associated Press), the new CBA “bans players from ‘requiring, coercing or encouraging’ other players to engage in ‘dressing up as women or wearing costumes that may be offensive to individuals based on their race, sex, nationality, age, sexual orientation, gender identify or other characteristic.’” Gone are the days, the Post mentions, when the Washington Nationals dressed their rookies as gymnasts and ballerinas, or when the Dodgers outfitted Yasiel Puig as Gumby. In other words, grizzled MLB veterans can’t poke some good-natured fun at rookies by putting them in a Marilyn Monroe wig because there’s probably some perverted vet out there who’s going to torment a rookie until he streaks the field wearing who-knows-what.

Now, I don’t blame you a bit if you read that last paragraph and decided that Major League Baseball and the players’ union have done us all a very big favor. On the other hand, friendly ribbing and joking can go a long way to develop chemistry and camaraderie among a teamwhether it’s a baseball team or a business unit. The trick, of course, is knowing when it’s crossed the line, and that’s a terribly difficult line to draw (“good-natured” and “fun” being in the eye of the beholder and all). Unfortunately for us, the easiest way to navigate safely among Title VII of the Civil Rights Act of 1964, the National Labor Relations Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and all of the other employment statutes is to put the kibosh on as much of it as you can.

I wish I had some more cheering news. No one enjoys telling a good employee that they can’t pull a harmless prank because a real-world Bluto Blutarsky may stalk among us, primed and ready to take that inch and go 100 miles more. Until we all grow up, though, we may just have to accept the unwanted mantle of the Puritan crusading against fun. And there’s one thing we know about adult humans: we don’t always act like adults.

Peter Dinklage takes on Elf

December 05, 2016 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

It’s December, which means that those of us holiday fanatics can decorate and watch Christmas movies to our hearts’ content without shame.  Of course, I won’t tell anyone if you already had your tree up in November (like me) or if you never took it down from last year.  One of my favorite Christmas movies is Elf, starring Will Ferrell.  It is surprisingly packed with various employment law issues, such as employee substance abuse at work, sexual harassment, and workplace violence.  In one of the more memorable scenes, Peter Dinklage’s character, Miles Finch, demonstrates how good intentions can still lead to a harassment complaint.  Facepalm, retro disappointed man slapping forehead, d'oh!

As background, Will Ferrell’s character, Buddy, has been raised as one of Santa’s elves and only recently learned that he is actually human. He has tracked down his biological father, who works for a children’s book publisher in New York City. Unaccustomed to the human world and innocent to its realities, Buddy has difficulty adjusting to life in the Big Apple and working in his father’s office.

Cue Peter Dinklage, who steals the scene wherever he goes.  His character, Finch, is a best-selling children’s author ready get down to the business of pitching his latest book ideas. Finch, like Dinklage, is a busy, high-powered professional who also happens to have a form dwarfism. Tensions flare when Buddy barges into the room and innocently mistakes Finch for one of Santa’s elves. Unaware that Buddy was actually adopted and raised by Santa’s elves, Finch is understandably insulted and upset by Buddy’s elf comments. Finch tries to remain professional but quickly reaches his breaking point when Buddy calls him an “angry elf.” Finch then initiates his own trial by combat and attacks Buddy before storming out.

This is a great example of how even the most well-meaning employee can unknowingly engage in conduct giving rise to a harassment complaint. As the Equal Employment Opportunity Commission (EEOC) has explained, harassment is unwelcome conduct that is based on a protected status such as disability, race, color, religion, sex (including pregnancy), etc. It becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Had an employee complained about conduct like Buddy’s, the employer’s best practice would be to investigate immediately,  interview potential witnesses, provide the accused employee with an opportunity to tell his/her side of the story, and take prompt remedial action reasonably designed to end any harassment. Other best practices include regular employee and supervisor training as well as having a strong harassment policy clearly stating that harassment will not be tolerated, the various avenues for reporting such issues, and that retaliation will not be tolerated. I’ll leave the workplace violence issue for another post.

Thankfully for Buddy, his tale ends on a cheerful note and teaches us that the best way to spread Christmas cheer is singing loud for all to hear. In the meantime, what’s your favorite color?

 

Yes, Cher, you can ‘Turn Back Time’—you’ll just have to pay for it

November 07, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

By the way, if you haven’t heard, the Cubs won something called “the World Series.” Our long, national nightmarearrogant Cubs fanshas now officially begun. Now, onto things that actually matter.  Turn Back Time!

This past weekend, we rolled the clocks back. And though we got an extra hour of sleep (well, you may haveI have two children under four who didn’t realize it wasn’t time to get up yet), the cold, harsh reality is that the days are much shorter and the nights much longer, at least until March.

This annual power to “Turn Back Time” always reminds me of Cher. Everyone remembers Cher, right? I mean, she’s been (or she was, depending upon your age) a pop star since the days of the Johnson administration (the second one, not the first.) Who could forget “I got you babe” sung with her late husband Sonny Bono? (I mean this literally. Who on this earth, who has seen Bill Murray’s Groundhog Day, can forget this song? It’s physically impossible.) And, of course, she made her fans’ kids think she was cool again with “Believe.

The Cher that I remember, however, was something in between the young, blossoming starlet and the aged musical diva. It’s the big-haired, modern-day Cleopatra in fishnet stockings telling a crowd of sailors how badly she wanted to alter the space-time continuum for their love. You know, the music video you couldn’t watch because your momma didn’t approve. Or maybe that was just me.

Anyway, Cher’s tribute to all things 80s aside, the end of daylight savings time brings with it a couple of employment law problems many employers may simply overlook. The first is how to pay nonexempt employees working the graveyard shift when the clock strikes 2:00 a.m. twice. The Department of Labor has issued specific guidance on its website to answer the question. According to the DOL:

  • On the Sunday that Daylight Savings Time ends at 2:00 a.m., the employee works the hour from 1:00 a.m. to 2:00 a.m. twice because at 2:00 a.m. all of the clocks are turned back to 1:00 a.m. Thus, on this day the employee worked 9 hours, even though the schedule only reflected 8 hours.

The Fair Labor Standards Act (FLSA) requires that employees must be credited with all of the hours actually worked. Therefore, if the employee works the scheduled shift, employers must compensate the employee for all hours worked. If this extra hour kicks the employee over 40 hours for the workweek, the employer must pay the employee the overtime premium1.5x the employee’s “regular rate”for all hours worked over 40. Employers must be careful to check automatic payroll calculation software or applications to make sure they account for the extra hour. In large operations, failure to pay for the extra time may cause the employer to incur significant liability in the aggregate.

In addition to payroll challenges, the time change can also bring about changes in employee mood due to lack of sunlight. Known more commonly as “seasonal affective disorder,” this extreme form of common seasonal mood cycles is actually considered a type of depression. According to the Mayo Clinic’s website, employees suffering from seasonal affective disorder may exhibit symptoms of major depression, such as:

  • Feeling depressed most of the day, nearly every day
  • Feeling hopeless or worthless
  • Having low energy
  • Losing interest in activities you once enjoyed
  • Having problems with sleeping
  • Experiencing changes in your appetite or weight
  • Feeling sluggish or agitated
  • Having difficulty concentrating
  • Having frequent thoughts of death or suicide

In light of these symptoms, employers presented with an employee claiming to suffer from seasonal affective disorder should begin the interactive process with their employees to determine what, if any, reasonable accommodation(s) may be available. Failing to pay attention to employee requests can lead to liability. For example, in 2012, the Seventh Circuit Court to Appeals upheld a jury verdict in favor of a school teacher who claimed under the Americans with Disabilities Act (ADA) that her employer failed to accommodate her seasonal affective disorder by refusing to transfer her to a classroom with natural light. (Yes, folks, this is real life.)

On the other hand, if you don’t have a window available, the Job Accommodation Network suggests four basic light products that may reasonably accommodate workers with this disorder, including: “Light Boxes,” “Light Visors,” “Flourescent Desk Lamps” or “Dawn Simulators.” Each of these is meant to mimic the natural sunlight employees are typically exposed to during other times of the year.

Employers also should not rule out the possibility of leave for an employee suffering from symptoms of the disorder. Leave may be covered under the Family and Medical Leave Act (FMLA) or state leave laws depending on the employee’s tenure with the company and state law requirements. Lastly, employers are reminded that, under the ADA, as amended, they cannot take into account the mitigating effects medication may have in improving the employee’s mood or condition, but must instead treat the employee as disabled at all times. At the same time, any negative side effects caused by such medication may also require accommodation.

And the beat goes on…

 

Alcoholism and how USC may have violated ADA by firing Steve Sarkisian

October 19, 2015 - by: David Kim 8 COMMENTS
David Kim

On October 12, 2015, Steve Sarkisian was fired as  head coach of the University of Southern California (USC) football team. While USC contends Sarkisian was fired for “cause,” there is no question that his alcohol-related behavior led to his termination. Whether the termination was or was not properly for “cause” is relevant, in part, because it would likely determine whether USC would have to pay the remaining three years of his five-year contract. Whether the termination was lawful under the Americans with Disabilities Act (ADA), or analogous state law statutes alcoholismprohibiting discrimination on the basis of disability, is another question. And due to the high public profiles of the institution and the individual involved, this may be a question that is never entirely answered.

Back in August, video emerged of a clearly intoxicated Sarkisian at a USC pep rally, slurring during his speech and using profanity. The coach publicly apologized, contending that his behavior was the result of mixing alcohol and certain undisclosed medication. While Sarkisian denied having a drinking problem, he contended he would go to “treatment” to seek help. It appears Sarkisian neither sought help nor ceased his alcohol consumption. Reports last week emerged from sources that the coach “showed up lit to meetings again” and was told to leave the premises on Sunday. That same day, it was announced by USC Athletic Director Pat Haden that Sarkisian was asked and had agreed to take an indefinite leave of absence for his condition. On the next day, he was officially fired.

Well, that leave of absence turned into a termination real quick, huh?

Since Sarkisian’s termination, further reports have leaked suggesting that this has been an ongoing issue with Sarkisian, not only at USC, but that there was evidence of alcohol-related abuse during his prior head-coaching stint at the University of Washington. Therefore, it’s possible that the coach has had a prolonged alcohol abuse problem and one that has been known by USC officials for some time.

Alcoholism is considered a disability under the federal ADA and analogous state disability laws. Therefore, employers cannot discriminate on the basis of someone’s alcohol-related disability and must engage in the interactive process and provide a reasonable accommodation if necessary. Obviously, employees cannot simply come to work drunk and avoid disciplinary action by claiming reliance upon alcohol. And employers are permitted to have policies expressly prohibiting alcohol in the workplace or else employees will face harsh disciplinary action up to and including termination.

In addition, an individual who suffers from alcohol dependency still must be able to perform the essential job functions, and those include but are not limited to adhering to the company’s attendance policy and work performance standards. The hardest part really comes down to what type of accommodation the employer can offer that is reasonable, which is based in great part on the situation at hand, particularly the employee’s position and applicable duties. One common form of accommodation with respect to alcohol dependency is an unpaid leave of absence while the employee seeks treatment or other counseling. Frankly, it would be a red flag if an employer that grants an individual a leave of absence (for any reason, let alone a disability) then decides to terminate that same individual shortly after the leave was given. But that’s exactly what USC did.

Therefore, it will be interesting to see what Sarkisian does going forward, either during or once he has completed his rehabilitation treatment. He could choose to fight and contend that his termination while on a leave of absence for a disability was unlawful. Of course, he would have to address every single detail regarding his alcoholism in a public lawsuit, potentially scare off colleges who may wish to hire him for a coaching job in the future, and risk the fact that a lawsuit could take years and he recovers nothing. He could simply move on with his life, which would be forfeiting potentially large sums of money either in the form of damages (or pursuant to what may be owed under him by contract), seek treatment, and hope that another coaching opportunity presents itself at some point. Of course, he also could reach a private settlement with USC as well. It’s a tough decision for Sarkisian, particularly because of his high-profile occupation, and I would surmise some sort of private agreement will be achieved to spare both parties further public embarrassment.

Most employees, however, don’t have the public concerns that someone in Sarkisian’s position has, and would likely file a lawsuit if terminated in the same manner as the coach. Therefore, employers should tread carefully with respect to issues related to alcohol dependency and understand that while inappropriate behavior or failure to perform the essential job functions isn’t excused by an employee’s alcoholism, the employer still must evaluate whether a reasonable accommodation is appropriate and can be provided.

 

Need to learn more about hot to implement a legally sound and enforceable workplace drug and alcohol policy? Drugs and alcohol are an ongoing and serious concern for safety managers and HR, as substance use and abuse can impair safe work performance and descrease productivity. Prescription pain killers present serious challenges, even when used according to a doctor’s direction.  And in places where marijuana use has been legalized, employers must figure out how to balance workplace safety against workers’ rights. Do your supervisors know how to evaluate employees who may be under the influence? Do your policies and programs take into account laws like the ADA and FMLA? Join us on November 9 for the 90-minute BLR webinar Drugs and Alcohol in the Workplace: Effective and Legal Ways to Reduce Workplace Safety Risks for an in-depth look at how to develop and implement a fair and effective program to reduce the impact and associated costs of prescription and illegal drugs and alcohol in the workplace. For more information or to sign up for the webinar, go to http://store.hrhero.com/drug-alcohol-110915.

Human Resources lessons from NFL preseason football: employees returning to work after cancer treatment

August 24, 2015 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

For fans of Southeastern Conference football (and, I mean, who isn’t, right?), the name “Eric Berry” is one you don’t easily forget. Berry made his presence known as a defensive back for the Tennessee Volunteers from 2007-2009. Even though he played only three seasons in college, he was twice named a Defensive All American by unanimous vote. Berry was drafted in 2010 by the Kansas City Chiefs and was selected to the Pro Bowl as a rookie. He suffered a torn ACL in 2011 but returned the following year and earned another Pro Bowl selection in 2012 and again in 2013. Quite simplywater covers 71 percent of the Earth, Eric Berry covers the rest.  Back At Work

Berry’s career took a surprising and unfortunate turn in 2014, however, after he complained of chest pain during a game against the Oakland Raiders. He was soon diagnosed with Hodgkin’s lymphoma, ending his season, and threatening his life. Thankfully, after several months of chemotherapy treatment at Emory Hospital in Atlanta, Georgia, Berry is now cancer free. In June of this year, doctors cleared Berry to return to football activities. So far, he has played in both of the Chief’s preseason games.

The decision to put Berry back on the field shows Chief’s Head Coach Andy Reid can teach employers about more than just how to grow the perfect mustache (bask in its glory!!!). While bringing an all-star like Berry back into the fold seems like a no-brainer, dealing with returning cancer survivors in the regular workplace can be far more complicated.

To start, employers should understand that cancer survivors are considered “disabled” under the Americans with Disabilities Act (ADA) because they have a “record of disability.” Such a designation can prove complicated for employers where the employee, after returning from treatment, continues to amass absences.

Take the experience of one hospital employer in handling the return of an employee who had undergone successful treatment of skin cancer. After receiving a clean bill of health, the employee returned to work. Within a month of returning, however, the employee was frequently absent. After a string of three absences in a row, the employer placed the employee on a leave of absence and informed her she must bring a work release without restrictions in order to return. The hospital later terminated the employee for no call/no show on three consecutive days.

The Equal Employment Opportunity Commission (EEOC) filed suit on behalf of the employee claiming disability discrimination and moved for summary judgment. The court held the employee’s former skin cancer qualified as a “record of disability” under the ADA. The court also found the closeness in time between when she was placed on a leave of absence and her termination could support an inference of discriminatory intent, and thus, allowed the case to proceed to trial.

But employers should note that an employee’s cancer diagnosis doesn’t make them untouchable when they violate legitimate business policies or cannot perform the essential functions of the position. In a recent case from the Eleventh Circuit Court of Appeals, a woman who was undergoing cancer treatment accepted a position as a detention deputy in the corrections department of a jail. The position required lengthy shifts. When the employee’s medical condition prevented her from making it all the way through her shifts, her employment was terminated. The employee sued claiming her employer violated the ADA by failing to provide her with temporary light duty or extend her leave. The Eleventh Circuit rejected her argument noting completing full shifts and maintaining a regular schedule were essential functions of her position. Further, the Court noted the employee failed to show that she ever actually requested a leave of absence. Therefore, although a leave could have been a reasonable accommodation, the Court held the employer’s duty to engage in the interactive process had not been triggered.

These cases highlight the difficult considerations employers must take into account when dealing with an employee who is actively fighting cancer or returning to work after treatment. While employers should never make decisions based solely on the employee’s condition, they should not be gun-shy if the employee is rendered unable to perform his or her essential functions. In any situation in which you are uncomfortable making a decision regarding a potentially disabled employee, it is best to contact a trusted professional to discuss the situation before taking action.

And never throw over the middle on Eric Berry.

 

Need to learn more? Last year, there were 1.6 million new cancer cases in the United States, plus an additional 2 million nonmelanoma skin cancer diagnoses. And with these numbers set to rise, it’s safe to say you will have an employee, or an employee’s family member, fighting this dreaded disease. If the situation weren’t difficult enough on a personal level, HR also has to comply with the ADA and FMLAnot to mention GINA and a whole host of state and federal privacy laws. And productivity issues come into play when absences become protracted. Listen to Employees with Cancer: Commonsense Answers for ADA, FMLA, and Privacy Compliance – on CD.

All you need is employment law

August 04, 2014 - by: Andy Tanick 1 COMMENTS
Andy Tanick

Our blog seems to have focused quite a bit recently on stories from the world of sports, and given the number of professional athletes behaving badly lately, that comes as no surprise. So for this week, we’ll take a break from litigious punters, abusive running backs, and egotistical power forwards to focus on another area of entertainment. Our diversion is well-timed, because I was fortunate enough to attend Paul McCartney’s concert last weekend at Target Field in Minneapolis, where the hapless Minnesota Twins are usually the athletes playing badly, if not behaving badly.  Beatles

What do Paul McCartney and the Beatles have to do with employment law? Well, plenty as it turns out. In fact, with a little creativity, we can conjure up an employment-law subtext to many of the top hits by Sir Paul and his bandmates.

Let’s start with some obvious ones. What HR manager hasn’t had the nightmare of dealing with a lecherous employee who is fond of telling his coworkers, “I Want To Hold Your Hand”? On those seemingly rare occasions when such advances are welcome, the resulting workplace relationship almost always ends badly, and on those more frequent occasions when the proposition is declined, a sexual harassment complaint may not be far behind.

Many popular Beatles’ songs take on a whole new meaning when we view them through the prism of the reasonable accommodation provisions of the Americans with Disabilities Act. According to the Equal Employment Opportunity Commission (EEOC), it seems that an employer should begin engaging in the interactive process any time an employee says, “Help! I need somebody!” That’s when a top-notch HR manager will tell the employee, “We Can Work It Out,” if it can be done reasonably, without undue hardship. And once that employee has been accommodated and can resume happy and productive employment, he or she is sure to respond to any inquiries about work by saying, “I Get By With A Little Help From My Friends.” Or if the employee is Joe Cocker, something unintelligible that sounds sort of like that. (Too obscure a reference? Prove me wrong, readers!)

Of course, physical disabilities are not the only ones that employers are required to accommodate. So if one of your employees announces one day, “I Am The Walrus,” or even “I am the egg man,” for that matter, a whole different type of accommodation may be required. Unless of course, the employee does not suffer from a disability at all, but simply reported to work while Hi Hi Hi. (Yeah, I know, that’s the Wings not the Beatles; it’s called artistic license, and it’s a method well known to any Paperback Writer.) If that’s the case, you may need to look at your state’s drug and alcohol testing laws, rather than considering an accommodation.

While we’re on the subject of different protected classes, with today’s aging workforce, many senior employees may be asking their employer, “Will you still need me? Will you still feed me? When I’m 64.” An employer who gives the wrong answer to that question may find itself on The Long And Winding Road of an age discrimination lawsuit.

Switching to a different area of employment law, we’ve all seen a lot more wage and hour claims over the past few years. Having said that, however, I have yet to see an overtime claim arising from an employee being forced to work Eight Days A Week. Of course, we know that claim is false. Why? Because that employee may have been working a lot lately, but our time records show that she didn’t work Yesterday.

When viewed through the eyes of an HR manager, an employee’s plea to stay here and not go to work Back In The USSR turns into a somewhat outdated request for help with an H1-B visa. And in the event of a workplace injury, you’d better hope that the shop foreperson’s motto was not “Live And Let Die.”

Sometimes, despite the superhuman efforts of the HR Department and the company’s employment counsel, the employee may still have a valid claim. No employer is perfect. But even in that unlikely scenario, all is not lost; while money Can’t Buy Me Love, it can usually buy a reasonable settlement.

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