Check out this month's issue for news and updates including: Win Some, Lose Some - ADA News: DOL Updates FMLA Forms (again); Question of the Month; & Upcoming Events!
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You Win Some & You Lose Some: ADA in the News
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Here are the nutshell versions of two recent cases alleging violations of the Americans with Disabilities Act (ADA). They caught my attention as the plaintiff in both cases is an HR professional.
Employer Loses
- The employer hires a new HR Generalist knowing she is pregnant. They provide 12 weeks of maternity leave even to employees who are not yet eligible for Family and Medical Leave (FMLA). After exhausting her 12 weeks of maternity leave, the employee requested some more time off due to severe postpartum depression and separation anxiety. The employer granted the request. A few weeks later the employee provided a doctor's note releasing her to work on a part-time basis for a month or two and likely not more than six months. The employer granted this request, too. Two months later, the employee produced another doctor's note recommending she continue part-time employment for another two to three months. The next day, the employee was fired. The employee sued under the FMLA, Title VII of the Civil Rights Act of 1964, as well as under state law. The employer won in district court but lost on appeal. Why? Regarding the ADA claim, the employer's position was that providing the part-time work schedule was putting a burden on the HR Department. But they could not provide any examples of how business operations were being adversely impacted. They also said that her job required full-time attendance and her work performance was suffering. Again, they could give no examples. In this
case
, the court noted the employee, "...never received a performance improvement plan, discipline, written criticism or even a single complaint about her work...full-time presence at work is not an essential function of a job simply because an employer says that it is."
Employer Wins
. An employee has physical and mental disabilities. She takes 12 weeks for FMLA leave. She requests, and the employer grants another 12 weeks of non-FMLA leave. The employer asks to return to her job (as an HRIS coordinator) on a part-time, rather than full-time basis. The employer agrees. But when the parties review the proposed work schedule, the employee demands to work under a different supervisor and declines the offer. The employer terminates her employment and she sues. The employer wins. In this
case
, the court ruled, "Reasonable accommodation does not entitle an employee to a supervisor ideally suited to her needs."
Lessons learned:
- Don't rely too heavily on the "winning" case above. If you read the employee's descriptions of the supervisor's conduct, which is not disputed by the employer this decision might surprise you (it did me)!
- Let business needs drive your employment decisions. If your business operations are being adversely impacted by an employee's absence or poor performance, be able to show how.
- And...document, document, document!
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DOL Publishes New FMLA Forms (Again)
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For the third time in three months, the U.S. Department of Labor (DOL) has again published FMLA
forms
with a revised expiration date. Once again, the new forms are good for only one month; they will expire August 31st.
How's this for irony? The DOL is required to submit the forms to the Office of Management and budget every three years. Why? As described in a recent
SHRM article
, to ensure the processes are not too bureaucratic! It seems to me this process of republishing them on a monthly basis runs quite contrary to that intent, eh?
Save a tree or two. Rather than printing multiple copies of all seven (7) forms in advance, you might just download them or use the DOL's
webpage
and print them as needed. Then bookmark that page and check it out on September 1st.
Those who are more "in the know" than I predict the DOL will make few, if any changes to the forms once they are finalized. Until then, stay tuned!
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Many of you reading this know my favorite answer to many questions is, "It depends." Some of you know my second favorite answer, "I don't know; I have to look it up." So, I appreciated a client recently asking me this question, "Can we engage the services of an undocumented worker as an independent contractor or volunteer instead of an employee?" Now my gut immediately told me the answer would be, "No." That would be contrary to the intent of the law; it would take away an employment opportunity for a worker who was able, available, actively seeking
and
authorized to work in the U.S. But I could not cite a definitive source. And, as
Doug Heffernan
would say, "Thinking isn't knowing." (quick shout-out to fellow King of Queens fans). So, here's the answer. "No." Now, see below and please check with your company's legal counsel should you have the same or a similar question.
Any person or entity who uses a contract, subcontract, or exchange entered into, renegotiated, or extended after November 6, 1986...to obtain the labor or services of an alien in the United States knowing that the alien is an unauthorized alien with respect to performing such labor or services, shall be considered to have hired the alien for employment in the United States in violation of [federal law]. (8 CFR § 274a.5)
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A SHRMStore
Great 8 Best-Seller
7 Years in a Row
!
Thank YOU!
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Upcoming Events, Seminars & Presentations
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- Tuesday, August 14th, "Marijuana in the Workplace," a webcast hosted by NAMIC 10:30 - 11:30 a.m. EDT Join 1 or the 4-part HR series!
- Wednesday, August 22nd, "Age Discrimination: Looks Can Be Deceiving," FiveL's monthly webcast.
- Tuesday, August 28th, "Workplace Harassment, Incivility & Bullying" a webcast hosted by NAMIC.
- For the full list of all upcoming events, click here
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any matter.
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