HR & the Law in the News
September 2016, Volume 15, Issue 9
Please enjoy this latest edition of FiveL Company's monthly e-newsletter, bringing you current news related to employment policies, practices and programs. 
Ignorance is Bliss?     
       This Week: EEOC's New Workplace Retaliation Guidance
On Monday, August 29th the US EEOC published its final Enforcement Guidance on workplace retaliation and related issues. Employers should review the Q & A   publication and Small Business Fact Sheet. The February edition of this newsletter covered some highlights of the proposed guidance that was published in January 2016.  Here are some key points from the final guidance.
  • Unlawful retaliation can occur even before an employee has engaged in a lawfully protected activity. How? Retaliation can include claims of interference. For example, having a policy that discourages employees from exercising protected rights, such as reporting unlawful harassment or discrimination could be unlawful.
  • Protected activity is not just about filing formal complaints. It can include Informal actions like simply asking a coworker about salary information to uncover potentially discriminatory pay practices.
  • The protection from retaliation applies to all employees, including those who are unauthorized to work in the U.S.  If you employ them that is a risk you take.
  • Acts of retaliation can also be informal and include actions directed at a person with whom an employee associates, such as terminating a contract for services that the employer has with the spouse of an employee who expressed a concern about harassment. 
  • Retaliation includes interference with an employee's efforts to seek reasonable accommodation under the Americans with Disabilities Act (ADA) as well as equal employment opportunity (EEO) laws enforced by the EEOC.
What proactive measures should employers do to reduce the chance of violating the law? Some tips provided by the Guidance include:
  • Train managers and supervisors how to identify and stop retaliation. Train employees on how to handle tough situations where retaliation or interference is likely to occur.
  • Have a "plain language" policy to educate your entire workforce
  • Require managers and supervisors to justify adverse employment actions in writing (HR's song, "Document, document, document!") and have that reviewed to ensure it is justified and consistent with policy and practice.
For related updates check out FiveL Company's archived  webcasts on " Workplace Harassment: Prevention, Correction & Current Trends", which aired August 24th and " Workplace Retaliation: The Employment Boomerang," which aired on March 23rd. Each still provides 1.25 HRCI and SHRM continuing education credits. ($25 pp)
Document binders with POLICIES and PROCEDURE words on labels place on blank process flow charts with pen
EEOC News #2: Employer Provided Leave
On May 9th the EEOC announced a new resource document addressing employers' obligations to provide reasonable accommodation under the Americans with Disabilities Act (ADA), which generally covers employers with 15 or more employees.  The law had not changed nor had the regulations.  So why did they publish this document? In the Commission's words, "The EEOC continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA."  

Several years ago (2007 perhaps) I was honored to receive an invitation from SHRM to join them and attend an informal, closed-door meeting with one of the EEOC Commissioners and a few members of the EEOC's legal staff.  The purpose of the meeting was to talk about employers' practices related to leave administration including "bright line" leave and "no light duty" policies.  Then in 2012, I was again honored with another invitation. This time it was to testify before the Senate Health, Education, Labor and Pension (HELP) committee, also on behalf of SHRM (I am so grateful for the opportunities SHRM has provided me). The focus of the Hearing was employers' Stay-at-Work and Return-to-Work (RTW) strategies.   I remember Chairman Harkin asked me, "Why don't employers do more?"  My answer was basically that sometimes we walk on eggshells, afraid to ask the wrong question or do the wrong thing so we do nothing.   

But I diverge.  Back to the present.  So what does the EEOC remind us about employer provided leave programs as they relate to the ADA and reasonable accommodation? 
  • Equal Access - Ensure that employees with disabilities have equal access to leave as any other employee.
  • Grant Leave as a Reasonable Accommodation - even if you don't offer leave as a benefit.  But isn't that contrary to the statement about equal access above? That's the rationale behind reasonable accommodation. The EEOC reminds us that covered employers are required to, "change the way things are customarily done to enable employees with disabilities to work."
  • Engage Your Employee in an Interactive Dialogue - As I heard one EEOC representative share at a public presentation, "The words, 'I can't' or 'I need,' are requests for reasonable accommodation." When an employee tells you s/he cannot perform an essential function of the job because of a physical or mental condition, ask for more information such as a medical certification. 
  • Be Cautious of Communications During Leave - the Guidance tells us it is fine to ask how an employee is doing. But where the employee has provided us with a RTW date you may not ask for an update on that status. 
  • Maximum leave policies - this addresses the topic I described above aka bright line leave policies, which read that if an employee cannot return to work after a leave of six months or even one year the employee "will" be terminated.  That's not a winning policy statement. It tells the reader that you are not going to engage in an interactive dialogue. What if you fire the employee and then find out all they needed was two more weeks to return to work? Oops!
  • Return to Work - Don't raise your hand but if you have a 100% healed policy reconsider it. Also be aware that if you have a vacant position for which the employee with a disability is qualified, the EEOC's position is that you are required to place the employee needing reasonable accommodation into that position even if you have a more qualified candidate. Now, not all courts agree with that position but, hey - I don't want to be the test case; do you?
  • Undue Hardship - Now, before you get too fired up about the preceding, remember that if offering leave would impose an undue hardship on your business operations, then it is not a reasonable accommodation and thus not required.
Next Steps? 
  1. Click here to read the guidance and more detail provided under each of these sections. 
  2. If you missed it, check out FiveL's June webcast, "ADA in the News" that covers more about this guidance, recent cases plus more information published by the EEOC on workplace wellness programs' compliance with the ADA as well as the Genetic Information Non-Discrimination Act (GINA). 
Upcoming Events!

Thursday, September 15th - " The Rising Cost of Wage and Hour" presented during the MD Chamber's Business Policy Conference, Cambridge, MD. 

Thursday, September 22nd - " Wage & Hour: Busting the Myths & Preparing for Reform" hosted by Carroll Community College, click here (keyword search "Wage & Hour"), 8:30 -11:30 a.m., Westminster, MD.  

Friday, September 23rd - " Earned Sick Leave & Exempt/Non-Exempt Regulatory Changes" presented for the members and guests of the Cecil County  Chamber, 8:30 - 10 a.m., North East, MD. 

Wednesday, September 28th - Next Webcast, " FMLA Update: What's Hot & What's Not," 10 - 11:15 a.m. 

For a full list of upcoming events click here
Here it is...the infamous and oh-so-important disclaimer...This publication does not constitute the rendering of legal advice.  You should consult your company's employment or legal counsel for guidance on any particular issue.