ADA

What Time is it? EMPLOYMENT HANDBOOK UPDATE TIME!

It's the end of February which makes it practically Spring and therefore time to so some "Spring Cleaning."  What is one thing all companies should do annually but few actually do ever?  Answer:  Review, revise, or even just read their Employment Handbooks.  If you fall into the latter category, here are some handbook provisions you should definitely not ignore, regardless of your size.

#1:  Social Media & Data Privacy

People have a lot of devices (e.g. iPhones, iPad, Macbook, laptop, desktop, etc) which means people are super connected to the world.  A major consequence of cool technology?  We are so connected that our personal life often blends into our professional life.  Because of this intersection, handbooks should have a policy stating employees have no right to privacy while accessing social media at work or on company-owned equipment.  This policy should also address cyber security and set parameters for downloading apps and programs onto company-owned devices and state that proprietary information should not be shared online (with the exception of certain protected communications). 

#2:  Overtime & Wage Deductions

Every company should have a policy prohibiting unauthorized overtime AND a method in place for submitting and approving overtime work.  

[NOTE:  Just because you prohibit unauthorized overtime doesn't mean you don't have to pay overtime that has actually been completed. The policy, however, gives you grounds to terminate an employee for not having the overtime work approved. Get it, got it, good.]

In addition to overtime, if you make any deductions from paychecks (other than standard IRS/tax deductions), you should include details in your handbook.  For example, if you loan tools to employees and take out the amount of the loan from their paychecks, this needs to be in writing.  Also, the North Carolina Wage and Hour Act has some additional rules regarding wage withholdings that may also come into play.  

#3:   LGBT Rights

A lot of companies have already revised their anti-discrimination or EEO policies to include sexual orientation.  If you have 15 or more employees, I would strongly recommend doing the same since more and more courts are recognizing LGBT protections under Title VII.  Of particular protected status: transgender employees

If you offer group benefits to employees, you should also revise any handbook policies regarding benefit eligibility.  Recall the 2015 Supreme Court case that legalized gay marriage nationwide which in turn makes gay marriage included in a lot of group benefits offered to employee spouses and children (e.g. healthcare). 

#4:  Smoking

Many companies have anti-smoking policies in place but does your policy address e-cigs?  If not, you may want to think this one over.  If your company has banned smoking on the job, your employees may have the expectation this would include e-cigs too.  

What about (legal) marijuana use?  Marijuana is still illegal in North Carolina and most other states and even where it is legally obtained and used, courts have held that companies can still ban the use of all drugs including marijuana.  This means a failed drug test is a failed drug test and can still be grounds for termination.  Alert your employees who have taken a liking to Colorado and Washington.   

Speaking of drug testing, did you know North Carolina has a Controlled Substance Examination Regulation Act?  We do and its ignored a lot so you may want a review. 

#5:  Retaliation 

Retaliation claims are on the rise according to the EEOC which means it is worth talking about retaliation in your handbook.  Employers, particularly those with 15 or more employees, should have an anti-retaliation policy for employees who report issues.  Supervisors and managers should also be well-trained on retaliation so that they know how to deal with employees who report bad things in the workplace.  You also want to make sure there is a good reporting procedure in place for employees to use when they need to report discrimination or similar complaints.

#6:  Reasonable Accommodation

Another hot topic with the EEOC and pertinent to employers covered under the ADA and Title VII.  Employers need to know how to deal with reasonable accommodations requests in the proper/lawful way.  The best way to do this is to put it all in a written policy that is available to employees and supervisors alike.  Once again, training supervising employees on how to identify reasonable accommodation issues is key.  

Luckily for all the NC employers out there, our state did not enact any new employment laws in 2015.  However, the federal courts and certain federal agencies have been all over the place with new interpretations of federal employment laws.  Employment handbooks should be treated as living documents that are subject to annual review (at a minimum).  If you want some help on this task, you know where to find us!

Don't be dumb: Lessons learned with ADA Reasonable Accommodation & the Interactive Process

Its time for a POP QUIZ!

Pretend you are a construction company (if you are not already).  You need to hire a field engineer so you put out a job listing on Indeed.com that says, among other things, that an essential part of this job is the ability to climb a ladder.   A day goes by and suddenly you have a good candidate for this position (hooray!).  During your required medical examination for all new hires, it comes out that this candidate suffered a rotator cuff injury about a year ago and he can not drive a vehicle, lift more than 10 pounds, or work with his hands above shoulder level. What do you do?

(a)    Get rid of him! Kid can't even drive. 

(b)    Ask for additional information about the injury & his ability to do essential job functions.

(c)    Engage in an interactive conversation about reasonable accommodation since the new hire may be "disabled."

(d)    Do (b) & (c).

Answer: (d)           Yes, I know it comes as a surprise but it looks like your new hire may have a disability covered under the ADA that has been brought to your attention during the pre-employment medical exam.  This means as an employer covered under the ADA you must engage in an interactive conversation with the employee about reasonable accommodation that may allow the employee to do the essential functions of the job.  This interactive process may include that described in (b). Hence, (d) is the best answer.

Since when is a "rotator cuff injury" a disability?

Since 2009.  Back in '09, the Americans with Disabilities Act was amended and it made the definition of "disability" reallllllllly broad.  Pretty much anything that effects one or more major life activities is a disability.  Also, even if a rotator cuff injury was denied coverage as a true "disability" under the ADA, an employee who is "regarded as" disabled is still covered under the Act.  This means if you assume or treat an employee or applicant as disabled, they can still sue for discrimination under the ADA.

What is an interactive process and how do I get one?

The ADA requires employers to engage disabled employees in an "interactive process" to determine whether or not a reasonable accommodation exists.  This doesn't mean the employer has to volunteer a ton of ideas; it means they have to (1) listen, (2) contemplate, and (3) respond (ideally with more than a simple "yes" or "no").  As you may have guessed, the "Pop Quiz" above is based on an actual Fifth Circuit Court of Appeals case.  In this case, the employer (an actual construction company) withdrew its offer of employment once the new hire's injury surfaced during his medical exam... even though the new hire submitted supporting documents stating he could climb a ladder (the essential job function at issue in this case) and was off all the good (read: bad) medications.  In other words, the employer made zero attempt to engage in an interactive conversation about reasonable accommodation.  As a result, this company got slapped with first an EEOC charge, then a federal district court lawsuit, and now a trip to the Fifth Circuit Court of Appeals.  But I'm sure they learned their lesson. 

Side note about Reasonable Accommodation:

Employers are not obligated to provide a reasonable accommodation if the requested accommodation would create an "undue hardship."  Determining what is an "undue hardship" is determined by the courts on a case-by-case basis but it often comes down to (1) the safety of the workplace/ other employees and (2) $$$$$$$$$$.  Even if the employer in the above case can show an undue hardship exists, they can still get dinged for not engaging in the interactive process. So follow the rules, keep good records, and consult a professional if you want another set of eyes.