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.

 

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.

The return of the quarterback evangelist

April 21, 2015 4 COMMENTS

With the NBA and the NHL heading into the playoffs and Major League Baseball’s 2015 season underway, one might think that the NFL would have a hard time breaking onto page 1 of the sports section these days. (For younger readers, that was a reference to something we used to call a “newspaper.”) Not so! Football fans in Philadelphia and the rest of the country were either thrilled or chagrined – because with this guy, there is no middle ground – to hear the news this week that the Eagles had signed quarterback Tim Tebow to a one-year contract. iStock_000004238126_Large

Tebow became a national hero in 2007 as the first college sophomore to win the Heisman Trophy, and he followed that feat by leading his Florida Gators to the BCS National Championship in 2008. His college success briefly translated to a modicum of NFL success with the Denver Broncos, but his style of play (and some would say, lack of skill) soon proved incompatible with the pros and he was released by the New England Patriots in 2013.

While Tebow became famous for his football exploits, he also received considerable media attention for his public displays of his Christian faith, both on the field and off. While still in college, his penchant for inscribing Bible verses in his “eye black” prompted the NCAA to enact the “Tebow Rule” prohibiting such displays. In the NFL, he popularized the act of “Tebowing” – kneeling on one knee in prayer, head bowed and arm resting on the other knee, which he often did on the football field. His public displays of religion made him very popular among fans and others who appreciated his willingness to use his public platform to “spread the word,” but led many others to criticize him for what they viewed as his over-the-top and self-aggrandizing mix of football with religion.

The fact that Tebow’s overt religious displays rankled some of his teammates and many football fans put his teams and the NFL in a position that many lower-profile employers often find themselves in: where to draw the line with employees who create disruption by bringing their religious beliefs and practices to the workplace. While the Hobby Lobby Supreme Court case and new state laws in Indiana and Arkansas have brought considerable recent attention to the issue of an employer’s right to bring “its” religion to the workplace, most employers are far more likely to deal with the issue of employees who, like Tim Tebow, want to bring their religion into the workplace.

Employers have a duty under Title VII and many state laws to provide reasonable accommodations to their employees’ religious beliefs, just as they must reasonably accommodate employees’ disabilities, as long as doing so does not create an undue hardship. Courts addressing the issue have held that irritating and inconveniencing co-workers does not make an accommodation unreasonable or create an undue hardship, but that at some point, the disruption to co-workers can become insurmountable and the employer is relieved of its obligation to accommodate.

In one well-known case, an office employee felt that her religious beliefs required her to wear a button at all times that depicted a graphic image of a fetus along with an anti-abortion message. The button was so distracting to the employee’s co-workers that it caused a 40% drop in productivity, led workers to threaten to walk off the job, and even resulted in two co-workers filing grievances with their union, claiming a hostile work environment. The employer attempted to accommodate the employee, while still respecting her co-workers’ concerns, by offering her several options, including wearing the button only in her own cubicle, covering the button while at work, or wearing a button with a similar message but no graphic picture. The employee refused, stating that these options would violate her promise to be a “living witness,” and eventually, she was discharged. In her ensuing lawsuit alleging religious discrimination, the court ruled in favor of the employer, holding that because of the employee’s unwillingness to compromise, accommodating her beliefs would have created an undue hardship for the company. As the court noted, “Title VII does not require an employer to allow an employee to impose his religious views on others.”

In a similar case, an employee felt that her religion required her to write critical letters to her co-workers for engaging in conduct she found immoral, such as swearing or committing adultery. The employer terminated her employment because of the negativity and disruption the letters caused in the workplace. When the employee sued for religious discrimination, the court ruled against her, holding that her conduct was not the type that an employer could reasonably accommodate because, among other things, allowing it to continue could expose the employer to legal claims by the other employees.

Of course, these two cases represent somewhat extreme examples of employees disrupting the workplace with their religion-based conduct. As noted above, in many cases, an employee’s workplace religious practices merely cause inconvenience to co-workers (e.g., having to cover for an employee during his prayer time) or create relatively minor morale issues (e.g., making exceptions to the dress code). In these less egregious and more common cases, the courts have generally ruled that the necessary accommodations are reasonable and do not create an undue hardship on the employer.

So what should you do, as an employer, when one of your employees begins to etch Bible verses in her mascara or kneel in prayer at the water cooler, like the newest member of the Philadelphia Eagles? Like most employment issues, the answer depends on the specific facts of your situation, and reasonableness and accommodation are the key words. Religion and work can and usually do co-exist, and a skilled employer can usually quarterback her team to success on this issue, which some would note is more than we can say of Tim Tebow in his NFL career thus far.