ADA and Batman—by Robin

March 27, 2017 0 COMMENTS

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 0 COMMENTS

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.

 

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

November 07, 2016 0 COMMENTS

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…

 

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

August 24, 2015 1 COMMENTS

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.