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ICYMI: Our Social Media Posts This Week – Dec. 6 - 12, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the post on Sunday 12/06/15 asked how far an employer need go to offer a reasonable accommodation under the ADA? The answer is not far if the person can’t perform the essential functions of the job even with accommodation. Here we had a medical center chief psychologist with signs of memory loss. An IME was conducted; after the results came in, the employer analyzed what it could or could not reasonably offer by way of accommodation. Details about that are in the post. The employer determined he was not qualified to perform the essential functions of the job, with or without reasonable accommodation, and so discharged him. He sued in federal court under the ADA. On appeal, the court found that the employer need not remove most or all of the position’s duties as an accommodation and so dismissed the case.

TAKEAWAY: If the accommodation(s) needed are so many, that may translate into the employee not being qualified under the ADA and thus having no entitlement to accommodation or the job going forward).

The post on Monday 12/07/15 wished our Jewish friends a Happy Hanukkah and year filled with light!

TAKEAWAY: Different faiths celebrate religious days at different times of the year – all should be respected and honored.

In the post on Tuesday 12/08/15, we talked about what an employer should do with an incomplete FMLA request form. We also noted that “deny the request outright” is NOT the correct answer. The post covered a case from the federal circuit governing Pennsylvania. The employee requested intermittent FMLA leave. The request specified 2 days a week for about a month; it did not mention her condition or its duration. A few weeks later, after she took several days off, she was discharged for excess absences (and told that her FMLA leave request was denied). She sued for FMLA interference and retaliation. More background details are in the post. Based on the regulations, the appellate court found that she was entitled to an opportunity to cure the incomplete or insufficient leave request.

TAKEAWAY: If an employee presents with an incomplete or insufficient FMLA leave request form, don’t deny it out of hand – instead give the employee time to get it completed properly.

The post on Wednesday 12/09/15 told us to make sure any policy on transfer or reassignment does not violate the ADA. So who was the luck employer who got to make headlines and pay a lot of money to settle this case? United Airlines. It had a competitive transfer policy that did not allow a transfer (or reassignment) to be a reasonable accommodation for disabled employees under the ADA. The post has more details. Rather, they had to compete for vacant positions for which they were qualified and which were needed to enable them to continue working. Absent a showing of undue hardship, the need for reasonable accommodation trumped the policy.

TAKEAWAY: Employers need not create a new position to accommodate under the ADA, but they should consider a position transfer or reassignment as a reasonable accommodation if there is no undue hardship.

The post on Thursday 12/10/15 blared that the EEOC sued for Walmart disability discrimination and harassment for denying accommodations to a disabled cancer survivor. Ugh. Nancy initially requested that Walmart provide her a chair in her fitting room and limit her scheduled work hours to accommodate her bone cancer treatment. They did so for months, then, without reason, revoked the accommodation. Walmart did, however, tell her she could get a chair from the furniture department every day if she wanted one (which was hard due to the disability) and then transferred her to a greeter position (which was contrary to her standing restrictions). Was that all? Nope.  A co-worker called her names (see the post), imitated her limp, and hid the chair; Walmart did nothing. The EEOC ended up suing in federal court.

TAKEAWAY:  If a qualified employee requires an accommodation to perform the essential functions of the job, try to figure out a way to provide an accommodation. And certainly don’t provide one and then take it away without reason.

On Friday 12/11/15, the post was about 5 HR challenges for growing businesses. So what are they? (1) Compliance and contracts. Both have to do with laws applicable to employment. To save time and money (in a lawsuit) later, contact an employment law attorney about them today. (2) Holiday calculations. Not just this time of year but all year for any holiday. Make sure employees are properly compensated (according to statute or policy). The other 3 challenges are in the post along with a bit about each.

TAKEAWAY: All businesses face the challenge of complying with laws impacting the workplace. It’s hard to stay on top of all of them, such that owners or senior staff should keep an employment law attorney’s contact information handy.

Finally, in the post yesterday 12/12/15, we learned that a city settled an overtime pay suit for $750,000. That’s a lot of tax dollars! The settlement came in a case filed by employees about a year after the filing and contained a confidentiality provision. The suit was filed by 2 lead plaintiffs who claimed they often worked over 40 hours per week but were not paid overtime. They also allege that they did not come within the overtime exemption for social workers (saying they were misclassified or permitted to work overtime “off the clock”. The City denied any violation.

TAKEAWAY: Especially with the crackdown on enforcement, it is more important than ever to ensure correct classification and pay of employees. Do it right the first time to avoid paying more later.

References (3)

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