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Our Social Media Posts This Week – Jan. 26 - Feb. 1, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 1/26/14 was about 5 things to keep in mind when formulating your BYOD policy. First, if you don’t know what BYOD is, then you definitely need to read the article! The 5 areas mentioned are scope of the policy, requiring passwords, who owns what, acceptable use, and parting ways. Each is important and together they form the bedrock of the policy (and keep the employer within legal confines as to protecting its information but not going too far relative to the employee’s privacy).

TAKEAWAY: If your company doesn’t have a policy on BYOD, it should. If it does have such a policy, it should be reviewed frequently given the constantly-changing legal front in this area.

Then, Monday 1/27/14 the post was about things for employers to remember under the “new” ADAAA rules.  Six tips headlined, with specifics under each. The tips are: Update an inflexible leave policy; the law is broadly interpreted to shift the focus away from “disability” and to “reasonable accommodation”; while more employees may be considered “disabled” under the ADAAA, they still must be qualified; the new law did not affect the employer’s right to continue to hire or retain the most qualified person to do the job and to discipline employees for performance issues; remember all the other leave laws that may impact your day-to-day operations; and voluntary wellness programs are still allowed.

TAKEAWAY: with enactment of the ADAAA, more employers move from determining if an employee is disabled to instead determining what and how to accommodate. However, the eligibility threshold still remains for the employee. Handbooks and policy manuals should also be updated to comply with the ADAAA.

Next, on Tuesday 1/28/14 the post was about defending against a discrimination charge or suit. Upon the filing of a charge of discrimination or a lawsuit alleging discrimination, the employer has the opportunity to defend. The article listed some of the bases of defense that might be available to an employer, depending on the type of discrimination that is alleged.  The defenses include: there was a legitimate and nondiscriminatory reason for the (in)action, the accommodation would impose an undue hardship on the employer, a policy is work-related and has a legitimate business purpose; and allowing an employee to work as proposed would pose a direct threat to the employee or others.

TAKEAWAY: Document document document. When changing policies, implementing policies, or (not) taking action against an employee, make sure there is a legitimate nondiscriminatory reason for the (in)action. That way, if and when a charge or suit is filed, the defense will already be in place. Further, it might even forestall the charge or suit in the first place.

Wednesday 1/29/14 brought a post about veganism being entitled to Title VII protection.  Is veganism a religion? Whether or not you believe it is, it has gained some traction as a basis for religious discrimina-tion. The article mentions several cases that were settled prior to trial so there is no court decision, but they prove instructive. One was about a vegan employee’s refusal to distribute hamburger coupons and another on an employee’s refusal to get a flu shot due to her religious beliefs. The issue in those and other cases is not about the religion itself, but if the employee holds and acts upon his/her beliefs, whether or not the religion is widespread or widely accepted.

TAKEAWAY: Employers cannot just brush off statements by employees about why they won’t take a requested action; there might be legal protection for the employee and any adverse action by the employer could land it in hot water.

Thursday 1/30/14’s post took a slightly different tack - it was about 10 household items a smartphone can replace.  Just as remote controls for TVs, stereos and cable/satellite became consolidated, so too it makes sense to know what else the smartphone you have can do for you around the house.  So what are some of the things? A scanner, personal trainer, universal remote control, and baby monitor. For the list, read the article.

TAKEAWAY: You spent a lot of money buying that smartphone and probably spend additional money each month for your data plan. Get the most from them by thinking outside the box for ways to use them other than email and music.

The post on Friday 1/31/14 was about common items missing from many Handbooks or Policy Manuals. A handful of attorneys practicing in the area were asked to list things they often notice missing from handbooks. Those items are a non-solicitation policy; a “termination when unable to work” provision; a social media policy; a focus on employer benefits; a summary of the most important policies; confidentiality provisions; and an accommodation of religion and disability.

TAKEAWAY: Your handbook or policy manual may or may not need all of these items. You and your employment law counsel should periodically review the handbook/manual to make sure it is up to date with your current operations and legally compliant.

Finally, yesterday 2/1/14 brought a post about a recent federal court decision saying the duty of an employer to accommodate extends beyond the essential functions of the job. Why is this important? As every employer should know, an employee is generally eligible for protection under the ADA if s/he can perform the essential functions of the job with or without reasonable accommodation. So it becomes important to define the essential functions. Here, the court went beyond that, saying that the ADA has no limitation of its accommodation requirement to essential job functions, but rather that the obligation extends to employers making their facilities accessible and useable to disabled persons.

TAKEAWAY: While that decision is not binding on employers in PA, you don’t want to be on the wrong side of the test case that extends the rationale to this state. Employers must not only fulfill their duty to accommodate for essential job functions, but look at accommodating other things related (but not essential) to the employee performing the job.  


     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

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