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I recently had the opportunity to speak at the Central Bucks Chamber of Commerce’s health and wellness event, “Well Employees = Well Business: Best practices and Legal Considerations” along with Megan Duelks, CoE Employee Health Innovations at Johnson & Johnson. Ms. Duelks’ discussion of wellness programs at Johnson & Johnson along with the excellent questions from the attendees highlighted that a workplace with good risk management is also a positive, professional and productive workplace. Good risk management should include three important features, no matter the size of the employer: professionalism, fairness, and a focus on employee performance.
Professionalism means that an employer has in place the important features that protect both employees and employers: a handbook, policies that prohibit discrimination, harassment and retaliation, and a good complaint procedure. Professionalism also requires that complaints are taken seriously, investigated properly and redressed in a meaningful way.
Fairness requires that those policies are followed consistently for each employee, and that exceptions are made for good business reasons.
A focus on employee performance helps to meet these goals. At the seminar, employers were concerned about how to communicate with an employee in crisis. The goal is to help the employee, but protect the employer from unnecessary liability. Having clear policies in place will help to meet these goals. Where the crisis is impacting the employee’s performance, this is where the discussion must start. A focus on performance, which includes anything from attendance to the quality of work, creates a platform for a professional conversation about how to address the issue. An employer is always free to end such a discussion by identifying the resources the employer offers for employees facing personal, family, or health issues.
In my practice at Antheil Maslow & MacMinn, I have assisted many employers to put a program in place that improves culture, manages risk, and creates a framework to address employee crises.
Under the Americans with Disabilities Act (ADA), an employer must provide reasonable accommodations to an employee who is disabled (as defined under the ADA) and who is otherwise qualified for the position.
An issue frequently faced by employers and addressed by the courts is what constitutes a “reasonable accommodation”?
A federal appeals court recently addressed this matter, where an employee confined to bed because of complications from her pregnancy, requested that she be permitted to work from home or a hospital (telecommuting) for a ten week period. Mosby-Meachem v. Memphis Light, Gas & Water Div. 2018 WL 988895 (6th Cir. February 21, 2018). The employee served as an in-house counsel for a corporation. Her request to telecommute for ten weeks was denied. The company did not at the time of the request have a formal written telecommuting policy-although it did permit telecommuting and permitted the employee on a prior occasion to telecommute. The employee filed suit under the ADA, and a jury awarded her $92,000 in compensatory damages. In affirming the jury’s award, the court held that a “rational jury [under the specific facts of the case,] could find that the employee was a qualified employee, [covered by the ADA] and that working remotely for ten weeks was a reasonable accommodation.” In reaching its conclusion, the court found that sufficient evidence had been presented to the jury to support the employee’s claim that she “could perform the essential functions of her job remotely for ten weeks…” The court rejected the employer’s claim that the written job description for this employee dictated the opposite result because the job description was outdated and did not reflect the employee’s actual work requirements. The court, in affirming the jury verdict, also relied on the fact that the employer did not engage in an “interactive process” with the employee to understand the limitations the employee faced, and what accommodations might be put in place to allow the employee to continue at her job. Instead the employer pre-determined what it intended to do without conversing with the employee. Several lessons can be drawn from this case: First, even if an employer has no telecommuting policy or a policy which does not permit telecommuting, the employer, under a particular set of facts, may be in violation of the ADA if telecommuting would be found to be a reasonable accommodation. Secondly, an employer must engage in an interactive process with an employee to determine what, if any, accommodation might be reasonable under the particular circumstances. This means direct communication between the employer and the employee. An inflexible policy of the employer may end up causing the employer to be in violation of the ADA. Finally, written job descriptions must be reviewed and updated as needed. An outdated or inaccurate job description cannot help an employer and in many instances will be detrimental to an employer seeking to defend against a claim of job discrimination.