October 2009

PHYSICIAN RETURN-TO-WORK RELEASE FOR OCCUPATIONAL INJURY/ILLNESS (PDF)

Use this form to make sure that anyone returning to work in a light duty position is fit for duty. (HR That Works Users can access this form in Word format by logging on to the site).

The Equal Employment Opportunity Commission has voted to approve a Notice of Proposed Rulemaking (NPRM) to conform its ADA regulations to the Amendments Act of 2008. The NPRM was just published in the Federal Register on September 23, 2009. Relevant documents are available on the JAN Web site and the EEOC Web site.

There is nothing nobler than being of service to someone who needs help. Many employers will proactively seek out disabled job candidates, knowing that they tend to be loyal and dedicated workers – and that there are federal, state, and other funds available to help hire them. As the saying goes, “no good deed gets left unpunished.” Employers who hire disabled employees must make sure that:

1. They don’t create some form of unique hiring process which actually discriminates against those who are not disabled.
2. They understand the “risk” associated with hiring people with disabilities, including any propensities to be violent, injury prone, safety or security factors, and the source of discrimination or ridicule. As Worklaw® Network attorney Ken Stettner from Denver wrote, “I applaud these employers, but must also admonish that they must be 180% ready to handle all aspects of this challenge.”

As always, if you have any questions in this area, feel free to contact a member of the Worklaw® Network (www.worklaw.com) or the Job Accommodation Network (www.jan.wvu.edu). To see an excellent resource on the myths and facts of hiring disabled workers, click here.

Few HR professionals realize that they can access the EEOC Compliance Manual. California employers have access to two similar manuals, one on Wage and Hour Law, and the other on Fair Employment and Housing.

This summer’s protests in Tehran have made it clear to both political and business leaders the reality that there is no hiding in the Internet age. Like it or not, transparency is a growing fact of life; you and your company can be discussed on Facebook, MySpace, Twitter, YouTube, blogs, and thousands of other places – whether you know about it or not. What’s an employer to do? Here are some suggestions:

1. Go to Google Alerts http://www.google.com/alerts and enter in your company info and perhaps that of officers as well. Schedule a weekly alert for any time your company is mentioned on the Web.
2. Make it clear that employees should not engage in non-business activities during working hours. Of course, they may use their own communication devices during breaks and lunch periods or in true emergencies – but that’s it!
3. Help educate employees on sensible guidelines when using electronic media. Remind them that anything posted can live forever and can be communicated to thousands, if not millions, of users in seconds. There’s no “undoing” a regrettable message. See the HR That Works Internet Usage policy.
4. When employees discuss the company on any public Web sites, they should indicate that they’re giving their personal opinion, and not that of the company.
5. Employees should not use company logos, trademarks, or other branding in their messages without company permission.

Employers often get confused when it comes to “light duty” work comp assignments and ADA accommodation requirements. An accommodation is a “modification or adjustment to the workplace” necessary to enable an employee to complete the essential job functions of their position. An employee may request an assignment from a position that they can’t manage to one that they can handle as a temporary accommodation. A light duty position may be a reasonable accommodation under the ADA. However, an employer is not required to create a new position by making a temporary position permanent. As a result, once an employer learns that an employee’s disability is permanent, they do not have to continue to offer a light duty position as an ADA accommodation.

Remember, the accommodation process is a two-way dialogue. Although an employee must identify an accommodation that might be available, they’re not expected to identify all possible accommodations because they don’t have at their disposal the extensive information that employers have concerning possible alternative positions, or possible accommodation. So, an employer can’t just sit back and wait for the employee to have all the answers; the employer has to make an affirmative effort to find reasonable accommodations as well. In a sense, there can be no “hiding the ball,” but rather an investigation or inquiry must be made.

Based on recent changes to the ADA, the EEOC has issued revisions to EEOC Enforcement Guidance: Workers’ Compensation and the ADA.

In almost every employment lawsuit, especially those involving terminations and non-promotions, an employee claims that the employer’s decision was either wholly or partially motivated by discriminatory intentions. Of course, the employer will inevitably respond that its action had nothing to do with discrimination and everything to do with the employee’s poor performance, the company’s finances, or some other legitimate business reason. Employers shouldn’t be surprised that juries believe employees in roughly 70% of the cases that go to trial.

Employers face difficulty in cases where:

• The employee’s termination comes as a surprise, since there was little performance management or documentation regarding poor performance.
• The employee is injured, on leave, complained about something, or has otherwise made themselves less than perfect. Management now views them as damaged goods and looks for reasons to fire them.
• Someone in management says something stupid, such as, “When is that old man going to retire?” or “Those people are always lazy” or “If she doesn’t sleep with me, she’ll never get that promotion.” Those quotes have come from real cases. Remember, once under oath, very little will be hidden from plaintiff’s counsel.
• Finally, there should be some checks and balances in termination decisions. A single person should never terminate an employee. If the termination involves a worker who has ever made a complaint, is on leave, has a disability, etc., the human relations department needs to get involved. If HR thinks things aren’t right, they should speak up, instead of kowtowing to the desires of a strong manager – an act that doesn’t serve the company well.

Bear in mind that under the “mixed motive” theory, the employer must show that it would have made the termination decision absent discrimination – a rough argument to make in front of twelve jurors. For example, the courts have approved this jury instruction: “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the General Principle of Evidence Law that the fact finder (jury) is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt.’”

More ADA “association discrimination” cases are being filed. The association provision of the ADA is based on an employee’s relationship with a person who has a disability. For example, a company may not refuse to hire a job applicant based on their concern for the applicant’s caring for a disabled person. Likewise, companies may not reject applicants because family members with a disability might produce increased health costs.

To learn more about the association provision, please click here.

A recent white paper by the Society for Human Resource Management discussed a number of subjects related to managing in a challenging economy. In the report, the SHRM discussed the importance of analyzing behavioral competencies in organizations and encouraged HR manager to focus on four tasks:

1. Identifying behaviors needed for knowledge-based competition
2. Ensuring that the workforce has the required competencies
3. Making sure that the workforce is motivated to engage in these competencies
4. Providing opportunities for these behaviors in the workforce

We’ve been preaching this approach for years, both in the hiring and post-hire processes. As mentioned in the report, skill tests, character assessments, and other tools help companies to hire more effectively, improve job satisfaction, reduce turnover, and increase productivity, as well as other factors. We encourage you to use Brainbench.com for skill tests and ZeroRiskHR.com for character assessments. Tell them that HR That Works sent you and they’ll provide you with a free test or assessment.

In Dotson vs. Pfizer, decided by the Fourth Circuit Court of Appeals, a company was found to have violated the FMLA when they fired an employee who was, at the time, on intermittent leave for an adoption. The court acknowledged that under the FMLA an employee cannot take intermittent leave for adoption unless the employer agrees. However, if the employer, as in this case, allowed the employee to take intermittent leave without objection, this is all the agreement that’s needed. Pfizer claimed that the employee was fired for malfeasance discovered while he was on leave.

This case offers two valuable lessons:

1. If you don’t follow FMLA procedures, you can’t argue that FMLA leave is unwarranted. We encourage you to get proper medical certifications and other documentation before granting any leave. The courts have made it difficult for employers to change their minds afterward – a legal doctrine that’s known as “estoppel.”
2. Many employers only “discover” just how bad an employee is during their leave. This presents a dangerous trap. Sound management practices should identify employee shortcomings without the person having to go on leave for them to surface. The company would have done better to warn Dotson about his malfeasance, put him on a performance plan, and allowed him to finish his leave.

Click here to read the case.