All posts tagged lawsuit

Court Decision Shows Extent of Employer Liability for Traveling Employees

Frying Egg Roll

The employer of a worker who causes damage during their off hours on a business trip may be held liable for them acting “in the scope of their employment,” according to a federal court decision.

The ruling will allow the case to go forward after the court declined to uphold the employer’s motion to dismiss it as a defendant in the lawsuit after its employee had caused $147,000 in damage to a hotel room while on a business trip. The employee fell asleep while frying egg rolls on the stovetop in his room, after which a fire broke out.

The case illustrates the importance of having policies in place for traveling workers in order to reduce your company’s liability when they are on a trip on your behalf.

Lloyd’s of London paid for the original damage but later sued the worker and his employer, FlightSafety International Inc., to collect the damages. Lloyd’s says that by virtue of the fact that he was on a business trip, the man was acting within the scope of his employment when he started the fire.

Hence, FlightSafety is also liable for the damages to the Residence Inn in Wichita, Kansas.

In making its case, Lloyd’s said that FlightSafety had a contract for its employees to stay with the hotel chain. “The entire purpose of defendant Foster’s trip was business on behalf of defendant FlightSafety,” Lloyd’s wrote in its complaint.

The court said that it was not yet clear if the worker was acting outside the scope of his employment and that that fact needs to be tried at the trial court level.

The decision sends the case back to the trial court for hearing.

 

<B>The takeaway</b>

It’s quite common for employees to engage in risky behavior when on business trips. On Call International in a 2015 survey of 1,000 business travelers found that:

  • 27% of respondents admitted to binge drinking while on work-related trips, and
  • 11% said they had picked up a stranger at a bar while traveling for their jobs.

 

With these findings in mind and in light of this decision, employers should keep in mind that other courts have also found them liable when their workers are driving during their off hours while on a business trip, say going out to dinner on their own.

While responsibility ultimately falls on the business traveler to act in a responsible and safe manner, employers should establish appropriate parameters and rules and be clear about the expectations it has of its employees while they are out representing the organization.

Employee Texting Blows Holes in Your Company Communications Policy

Mature businessman with his younger team using smart phones and digital tablet inside modern office building.

If you are not aware, your employees are most likely communicating with each other and clients using texting or instant messaging.

While the immediacy of texting and instant messaging is great for business as it allows faster communications, better collaboration and more responsiveness, the downside is that your organization likely can’t track and retrieve those communications.

It becomes even harder if the communications are via instant messaging apps like Whatsapp! and Facebook’s Messenger.

As an employer, it’s important that you understand the issue and that you have clear rules for communications among employees in order to protect your company’s interests.

You’ll need a policy in place when something goes wrong and you need to track the thread of communications to see what was said or promised by whom, and when. These details can be crucial to resolving problems with clients, or if you are ever sued and your communications are subpoenaed for discovery.

Plaintiff-side lawyers in employment cases are already started demanding the production of text messages and e-mails during discovery. And if litigation ensues on an issue, you may have a duty to preserve text messages.

 

Roadblocks

There are a few issues that you need to consider, especially in light of the fact that many companies are allowing staff to use their own devices for company communications, including giving them access to the business’s e-mail system on their phone.

If your employees are exchanging texts and instant messages on company phones, the history of communications would be preserved and you would be able to access the content by asking for the phone.

But, if your employees are sending and receiving work texts and instant messages on their personal devices, the issue gets murkier, particularly if you don’t have a bring-your-own-device (BYOD) policy. Accessing messages about company business on an employee’s smartphone may raise privacy issues.

The problem especially arises in the case of wrongdoing by an employee. If they are using their phones for communications that could provide insight into their behavior, they can erase those messages before you ask to see them.

In other words, you cannot rifle through their phone without first obtaining it, meaning you can’t look at it without them knowing as you could if you looked at their e-mail on your company server.

There are also privacy issues that arise if you are trying to access an employee’s personal phone to view texts and messages.

The big issue is: how do you capture those communications? After all, it will not be done over your network, unlike your company’s e-mail system that preserves all communications which are available to you. The messages reside on the phone instead.

 

What you should do

Obviously texting and instant messaging are a potential minefield for employers who want to be able to access all company communications among employees and between your staff and clients, vendors or partner organizations.

To ensure you have a handle on it, you should set rules outlining what method of communication employees may use for business purposes.

If you don’t want texting or instant messaging of any kind for company business, that needs to be spelled out – including ramifications for breaking the rule.

If you decide to allow texting and instant messaging, your policy should be clear on what kind of communications are okay.

You will need to amend your policy related to employee communications and record retention to make sure texts and instant messages are included.

If you have a BYOD policy, at a minimum it should include allowing you to take custody of the employee’s phone for legitimate purposes like a dispute with a client, or discovery for litigation.

As you can see, it’s important that you initiate a policy on employee communications that takes into account texting and messaging.

If you haven’t done so, you should do it now as this faster method of communication is becoming the new normal, particular as Generation Y continues filtering into the workforce.

 

Why You Can’t Afford to Not Have Professional Liability Insurance

At some point, most businesses are involved in some type of legal dispute, be it over an alleged physical or property damage to a third party or financial injury to a competitor, client or vendor.

And you’d surely want an insurance backstop in case you are targeted, to help pay for legal costs and any settlements or judgments. The type of liability that your business is going to face will depend on the type of work that you do.

If you’re in a service trade, the chances of your work causing someone physical damage or harm are remote, but you could still be sued for not living up to your part of a contract or if your services caused a client to lose money.

The costs of defending against a lawsuit of that type could quickly mount, even if you come out victorious in the end. Those costs would have to be borne out of pocket if you didn’t have the appropriate insurance.

The costs of not carrying professional liability insurance in many services trades can be a disaster to your finances as a lawsuit can catch you by surprise, even for work that you may have done years ago.

 

The unfunded lawsuit

Here’s a scenario that could leave you scrambling for funds. You run an engineering firm and a manufacturer sues your business after one of the machine parts that you designed failed, causing one of the client’s machines to seize up, resulting in $58,000 in damage to the machine and production downtime.

The lawsuit accuses your firm of negligence. Your business could be facing serious financial hardship as the suit asks for the cost of repairs and the lost production.

Here’s what you’re looking at:

  • Attorneys’ fees – Depending on where you live, these can range from $150 to $400 an hour, or more if you go with a topflight law firm.
  • Court expenses – Fees for copying, filing and other miscellaneous tasks all add up.
  • Other legal fees – You may need to call expert witnesses, as well.
  • Damages or settlements – Even if you try to reach a settlement with your client, they may opt to take the case to trial in hope of winning the full amount of the damages they are claiming.

 

You can see how the costs can quickly mount and if it gets to a damages or settlements stage, the costs will increase significantly.

You should know too that even if the case was frivolous, you’d still have to pay attorneys to defend it and file motions to have it tossed out of court. That alone could run you at least $5,000 in legal fees – a lot of money to pay out of pocket.

In fact, the U.S. Small Business Administration estimated in a recent study that legal costs for litigation ranged from $3,000 to $150,000, and only one-third of small business owners reported spending less than $10,000.

And there can be other fallout, as well. Perhaps word has gotten out about the lawsuit, damaging your reputation and ability to attract new clients and retaining existing ones.

And if one client has sued, others who may have held off and had similar experiences could also file suit.

 

Professional liability insurance

Insurance could have saved you from these significant expenses. The coverage, which is relatively inexpensive, is what’s known as “claims-made” coverage.

That means your policy must be active when the alleged incident occurred and when the claim is filed, in order to receive your benefits.

Client allegations that your work caused them a financial loss are often covered by a professional liability policy.

Professional liability insurance can cover errors and oversights with your work, as well as legal fees and the cost of settlements or judgments.

Cost: The average yearly cost of professional liability insurance for a small business, regardless of the limits chosen or the industry of the business, was $985.49 in 2015, according to the Insurance Information Institute. The median was $758.00.

Respond quickly and effectively to harassment, discrimination complaints

A businesswoman shouts through a megaphone and points up towards a much larger businessman who is standing over her.

Employers need to respond swiftly when employees complain about discrimination or harassment and the response must be effective, a U.S. District appeals court has held.

When a company addresses workplace it is responsible for ensuring that its solution will stave off further harassment or discrimination, a court of appeals has held in a case of a father and son who were eventually fired after complaining about harassment.

The case illustrates the need for an employer to not only act swiftly to respond and investigate claims of harassment or discrimination, but also to ensure that any remedies that are put in place are effective. Barring that and if the harassment or discrimination resumes, an employer could be opening itself up to a possible lawsuit.

In the case of Efrain Reynaga v. Roseburg Forest Products, the 9th District Circuit Court of Appeals held that a Hispanic millwright’s discrimination case against his former employer should go to trial and the court overturned a motion for summary judgment.

 

What happened

The case involved a father and son who worked as millwrights for Roseburg Forest Products and they were reportedly the only Hispanics working at the site.

The father claims they were regularly subjected to verbal abuse and derogatory comments from the lead millwright and harassed them, including comments like “minorities are taking over the country” and asking if “all Mexican women are fat.”

They also say they were regularly assigned dirtier, harder and more dangerous jobs than their white counterparts. When hostile work environment worsened, the father complained.

The company took action and rearranged the supervisor’s schedule so that he would not work the same shifts as the father and son.

But one day when they showed up to their shift, their old supervisor was there they immediately left the premises. They told their new supervisor they would not work with their old boss and they were promptly suspended and the father was later fired.

Reynaga sued Roseburg for hostile work environment, disparate treatment, and retaliation. The lower court granted the employer’s motion for summary judgment and threw out the case, but the appeal’s court decision reversed that decision, which means the case can go to trial.

 

The decision and why it’s important

The appellate court, in making its decision, said that a jury could find the termination retaliatory, saying that the termination for missing one-and-a-half shifts was widely out of proportion to the company’s “benign treatment of [the supervisor].”

“Efrain’s prima facie case is strong, particularly in light of the timing of the termination. Efrain had worked at Roseburg for more than five years, yet he was fired barely one month after making a formal written complaint. Proof of a causal link between Efrain’s complaint and his termination-as evidenced by temporal proximity-is certainly relevant to an evaluation of pretext.”

 

The takeaway

If you have had an employee legitimately complain about a hostile work environment, harassment and discrimination, you should:

  • Move quickly to investigate and address the issue if you find the complaint to be valid.
  • Ensure that the action you take is effective.
  • Don’t retaliate against employees for complaining about harassment or discrimination.

 

Remember, harassment and discrimination cases that go to trial can be costly in terms of litigation expenses, but also any potential judgments and penalties. The final level of protection is employment practices liability insurance.

Talk to us if you want to know more about this coverage.

EEOC Eyes Employer Actions against Prescription Drug Users

By now you will be aware of the scourge of opioid abuse that’s swept the country over the past decade and the damage it is doing to individuals and families.

Overdoses from legal prescription drugs – mostly opioids and other strong pain relievers – last year surpassed overdoses from street drugs like heroin for the first time.

However, some employers are going too far in trying to prevent employees from taking certain medications while on the job and have as a result run afoul of the Equal Employment Opportunity Commission.

As you would enter an interactive process when trying to make accommodations for an employee’s disability, you must do the same if you have concerns about a worker taking prescription drugs for a medical condition.

Two recent lawsuits illustrate the issues that could spark action by the EEOC.

 

Refusing to hire after drug test

One case, filed in September 2016, concerns a woman who had her job offer by a casino rescinded after she had failed a pre-employment drug test. But the applicant was taking prescription medication for a back and neck impairment, which caused her to fail the test, the EEOC alleges.

Despite the applicant’s explanations and even offering to provide documentation, the casino still refused to hire her, according to the agency.

The EEOC alleges that the company violated the Americans with Disabilities Act (ADA) when refusing to hire the applicant, because she was taking lawful prescription drugs due to a disability.

The lawsuit also challenges the casino’s blanket policy requiring all employees, regardless of whether they work in safety-sensitive positions, to disclose their prescription or non-prescription drug use.

 

Fired for prescription drug use

The EEOC sued a medical center in Georgia for firing one of its doctors after learning that he was taking prescription narcotics to treat chronic pain for which he was undergoing treatment.

He was terminated despite offering to provide a letter from his own doctor explaining why he was taking the medication and receiving spinal injections. The medical center said he would be unable to perform his duties while taking the medications.

The EEOC alleges that the physician could have performed his job safely and competently, and that the medical center failed to enter into a dialogue with him, in violation of the ADA.

 

The takeaway

The Littler Mendelson law firm in a recent blog had the following tips for employers:

  • If you suspect someone is taking prescription narcotics that are affecting their performance, you can have a talk with them. If they have a prescription, you may need to enter into an interactive process with them to try to find ways to accommodate them under the ADA.
  • If they are taking pharmaceuticals for which they do not have a prescription, that is illegal drug use and you can impose discipline for violating your policy against illegal drug use.
  • You can still conduct pre-employment drug tests legally and regulate abuse of drugs in the workplace. But make sure that you account for the need to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations.
  • Avoid taking adverse actions when you have not gathered all of the facts.
  • You cannot have a policy that requires all employees to divulge the prescription medications they are taking. However, there are exceptions when public safety and the safety of other employees is concerned.

FMLA, FLSA Lawsuits Surge, Exposing Employers to Large Awards

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The number of employee lawsuits against employers for Family Medical Leave Act (FMLA) and wage and hour violations has skyrocketed in the last five years and your firm could be the next target even for a small misstep, which can be costly.

The Department of Labor has increased its budget and the number of investigators pursuing employers who violate the Fair Labor Standards Act (FLSA), which covers wage and hour complaints, including exempt and non-exempt employee violations, overtime violations and similar issues.

Employment law attorneys say that the surge in FMLA complaints is a result of more people knowing about the law as the DOL has expanded its reach and publicized the act in press releases about actions it has taken against various employers.

Also, they say, the term “serious health condition” is broadly defined, making it easy for employees to satisfy.

Here we take a look at the problem and what you can do to avoid being sued.

 

FLSA

Wage and hour lawsuits are typically filed under the Fair Labor Standards Act, and they’ve been creeping up, a trend employment lawyers attribute to more people working from home and technology, which has blurred the lines between when workers are on or off the clock.

 

FLSA cases filed:

Fiscal 2015: 8,160

Fiscal 2014: 7,500

 

Notable FLSA settlements from last decade:

Walgreens – $23 million

Wells Fargo – $15 million

Roto-Rooter – $14.2 million

 

What you need to know:

  • There are four main areas you need to be concerned with: minimum wage, overtime pay, record-keeping and youth employment.
  • Make sure you properly classify your employees as non-exempt or exempt (the minimum salary to be classified as exempt is currently $47,476 a year).
  • There are six exempt positions: executive, administrative, learned professional, creative professional, computer professional and outside sales staff.
  • Track exempt employees’ hours just in case.
  • Compute overtime properly.
  • Telecommuting can expose you to FLSA liability when employees work or send work-related e-mails outside normal working hours.
  • Employees must be compensated for time spent answering e-mails during off hours, including vacation.

 

FMLA

Qualifying reasons for FMLA leave, according to the DOL, include: birth of a child; a serious health condition that makes the employee unable to perform their work functions; and to care for a spouse, child or parent with a serious health condition.

The rapid rise in FMLA lawsuits is a direct result of the law becoming increasingly complex for employers to navigate, and its increased enforcement. The number of FMLA cases filed last year hit 1,108, almost a fourfold increase from the 280 that were filed in 2012.

 

FLMA cases filed:

2014: 1,108

2013: 877

 

Notable settlements or awards:

Staples Inc. – $275,000

Solvay Chemical – $1.5 million

Christ Hospital and Medical Center – $11.6 million

 

What you need to know

  • Post and distribute information about employees’ FMLA rights and include it in your employee handbook.
  • Don’t retaliate against someone seeking FMLA leave.
  • Develop an internal process for employees to use when applying for FMLA leave.
  • Make sure managers and supervisors apply your FMLA process consistently.
  • Be careful to balance any pushback against the employee, but you have the right to ask for more information from the employee and their doctor. And you can monitor the use of FMLA days.

Workplace Bullying Can Cost Your Company

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WORKPLACE BULLYING poses a major risk to companies that fail to take action against a problem employee who is pushing others around at work.

You can be sued and be facing a hefty damages tab like the $2 million that Microsoft Corp was ordered by a court to pay out after it allowed bully managers and supervisors to create a hostile environment for a salesperson by undermining his work, making false accusations against him, blocking him from promotions, and otherwise marginalizing him.

With so much at stake for your business, you need to put policies in place to reduce the chances of bullying in the workplace, including procedures for reporting, investigating, identifying and responding to bullying – as well as preventing it in the first place.

 

Steps for your business

In order to a have workplace that can prevent it and deal with it f it occurs, you need to have in place a complete anti-bullying policy with reporting and response procedures. Here are the basics from WorkSafe British Columbia:

  • Develop a zero-tolerence policy on bullying.
  • Develop procedures for reporting incidents.
  • Develop procedures for responding to incidents.
  • Develop disciplinary policies.
  • Train your workers and supervisors on the policies.

 

Investigating a complaint

Typically, the best source of information that an employee is being bullied is a co-worker who has witnessed the behavior or been the confidant of the target.

You’ll want to interview everyone who works with the alleged bully and find out as much as you can about any incidents of bullying they may have witnessed or been subject to themselves.

Document everything: Dates, times, places, what was said, what was the exact behaviour, whether physical threats were made, if they touched the worker, and any witnesses.

This may require some patience. Some workers may be afraid to spill the beans, but you should assure them of the confidentiality of the process and that they won’t suffer any repercussions.

 

Respond quickly

When management learns of or witnesses bullying behavior, an immediate response is necessary.

You should prepare in advance the disciplinary procedures you will implement if you have an employee who is harassing others. In addition, supervisors need to be trained in how to identify and address the issue if confronted with a complaint.

Stick to those procedures when disciplining an offender you’ve identified.

The costs to a company that tolerates bullying can be significant: low morale, absenteeism, high turnover, difficulty recruiting and retaining talented staff, or litigation against the company.

Litigation can become a reality if you ignore the signs or complaints of bullying.

And if the bullying appears to target a particular race or gender, disabled individuals or anyone similarly protected by anti-discrimination laws, the legal stakes become even greater.

Trimming Hours to Avoid Employer Mandate Can Land You in Hot Water

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Ever since the Affordable Care Act was enacted, critics of the law have said that employers would cut staff or reduce workers’ hours to avoid coming under the employer mandate requiring them to provide coverage for their staff.

But a decision by a federal judge not to dismiss a lawsuit against an employer for doing just that highlights the legal rat-trap that employers may open if they go that route.

Workers at Dave & Buster’s, a restaurant chain, in July 2015 filed a lawsuit in the Southern District of New York alleging that the national restaurant chain reduced their hours to keep them from attaining full-time status for the purpose of avoiding the requirement to offer them health coverage under the ACA’s employer mandate.

In February 2016, the federal judge in the case, in declining the employer’s motion to dismiss the case, cited its likely breach of the Employee Retirement Income Security Act (ERISA), which prohibits employers from interfering with a worker’s right to benefits.

This case is significant because many other employers have implemented similar strategies striving to limit work hours for certain groups of employees for the purpose of avoiding penalties under the ACA.

 

Some background

The ACA’s employer mandate generally requires large employers (those with 50 or more full-time workers or full-time equivalent employees) to offer affordable and minimum value health coverage to their full-time employees (employees who regularly work an average at least 30 hours per week).

Employers are not generally required to offer coverage to employees working less than 30 hours per week on average.

Since the employer mandate took effect, many employers have been moving employees to part-time status to avoid triggering penalties under the employer mandate.

 

Why the case is important

The Dave & Buster’s employees alleged that the company violated ERISA by cutting their hours. They cited Section 510 of ERISA, which prohibits employers from discriminating against any participant or beneficiary for exercising a right under ERISA or an ERISA benefit plan.

The workers alleged that by reducing employees’ hours to keep them below the 30-hour weekly average to qualify as a full-time employee, Dave & Buster’s interfered with the attainment of the affected employees’ right to be eligible for company health benefits.

Dave & Buster’s in October 2015 filed a motion to dismiss the case, but the Southern District of New York federal judge denied the motion in February 2016.

The law firm of McDermott Will & Emery in its blog highlighted the importance of the decision, stating, “The opinion focuses on ERISA Section 510 and holds that the plaintiff has a viable claim that reducing her work hours was done for the purpose of interfering with her right to benefits under the company health plan.

“Second, the opinion finds that the complaint successfully alleged the employer’s ‘unlawful purpose’ and intention to interfere with benefits, pointing to allegations that company representatives publicly stated that they were reducing the number of full-time employees to avoid ACA costs.”

The law firm noted that the decision has given plaintiff’s attorneys a model for filing similar complaints when employers reduce hours to avoid their obligations under the ACA.

It also noted that if judges in other cases deny employers’ motions to dismiss cases, it will put the employer in a more difficult position because the employees’ attorneys will be able to take discovery and depositions, and to compel document production.

Any signs or proof of reducing hours to avoid their obligations under the ACA will make defending the case even more difficult, McDermott Will & Emery wrote.

If you have trimmed hours to avoid the employer mandate, or if you are contemplating doing so, it’s best that you first discuss these plans with your company lawyer.

EEOC’s Data Collection Proposal Could Spike Litigation against Employers

equal pay

A new proposal by the U.S. Equal Employment Opportunity Commission to collect pay data from all organizations with more than 100 employees would likely open up employers to further litigation and regulatory actions.

The EEOC says it wants to use this data to identify areas of possible pay discrimination. But this fresh trove of data would likely lead to litigation by employees who feel they are underpaid compared to their colleagues, and to administrative actions, according to employment law attorneys.

The commission already uses so-called EEO-1 reports to collect demographic data about employers’ workers, such as race, ethnicity, sex, and job category of employees. Under the proposal, starting in September 2017 it would also gather data on pay ranges and hours worked.

The EEOC and the Department of Labor would use this data to identify pay disparities across industries and occupations, and strengthen federal efforts to combat pay discrimination.

The agencies would also use the information to assess complaints of discrimination, focus agency investigations, and identify pay disparities that it could probe more deeply.

Under the proposed regulations, employers with more than 100 workers and who file the EEO-1 forms would be require to include on the revised form:

  • Total W-2 earnings.
  • Aggregate W-2 data in 12 pay bands (pay ranges) for the 10 EEO-1 job categories. Employers will count and report the number of employees in each pay band.
  • The total number of hours worked by the employees in each pay band. The EEOC intends to use this data to analyze pay differences while also taking into account the differences in hours worked, as well as accounting for part-time work. (Note: The EEOC made a point of saying it doesn’t want data about specific employees, and that the data will be kept confidential.)

 

EEOC investigators would analyze W-2 pay distribution within single organizations and compare that data to aggregate industry or metropolitan area data.

 

Employers react

Already there has been pushback from employer groups about the administrative burden this would put on businesses. And some have voiced concern that data could be misconstrued as it fails to take into account the subjective factors influencing pay, such as experience and skill.

According to a new report in Bloomberg BNA, the EEOC’s assurance that it will keep employers’ pay data confidential doesn’t necessarily mean it will. It interviewed one labor law attorney who said that the data could be subject to Freedom of Information Act requests.

There are also “serious questions” about relying on the W-2 data, as pay could be influenced by shift differentials, an employee’s willingness to work overtime and other factors, Greg Keating of Boston-based Choate, Hall & Stewart L.L.P. said.

An employee’s W-2 form “doesn’t tell the whole story by any means,” he said, adding that pay differences within pay bands also can occur for many reasons that have nothing to do with gender or race bias.

So, the data on which the EEOC intends to rely is “quite suspect” as an indicator of any unlawful practice, Keating said.

Another attorney, Stanley Pitts, a partner with Honigman Miller Schwartz & Cohn L.L.P. in Detroit, told Business Insurance magazine that the EEOC is most interested in probing higher-paid categories and “trying to look at the ‘glass ceilings’ for gender or pay discrimination.”

 

The takeaway

At this point, it’s unclear how the EEOC might use this data, but employers can nonetheless take some preemptive action.

The law firm of Thompson Coburn LLC in a recent blog recommends that employers with more than 100 workers examine their payrolls to identify any inadvertent pay differences and to compare the pay rates of similarly situated employees when changing workers’ salaries.

The law firm also recommends that employers that currently must submit EEO-1 reports conduct self-audits of their payrolls to identify any areas where they could be vulnerable to litigation for unequal pay practices.

The public has until April 1 to submit comments on the proposed rules.

 

 

How to Avoid Being Sued for ADA Violations

During the last eight years since the Americans with Disabilities Act Amendments Act (ADAAA) was enacted, the landscape for employers has changed dramatically.

The odds of being sued have increased significantly and the onus is now on employers to engage in an interactive process with an employee who claims to be disabled or one that you, as an employer, consider to be disabled.

The original Americans with Disabilities Act has been in effect for 25 years, but the ADAAA shifted the emphasis from whether an employee has a qualifying disability to the interactive process and the efforts employers take to explore reasonable accommodation with employees. That is where the focus remains today.

The employment law firm of Foley and Lardner LLP, in a recent blog post, recommends the following whenever an employee mentions a potential disability or the circumstances suggest a potential need for accommodation:

 

  1. Majority of people have a ‘disability’

The law firm recommends working from the position that if an employee begins talking about a mental health or physical condition affecting their ability to work, you should consider approaching the issue from the perspective that they potentially have a disability. Better that than to ignore what you’re hearing.

Many recent precedent-setting lawsuits have hinged on employers starting the interactive process too late or ignoring employees’ requests for accommodation. And some courts have ruled that even if the employer “perceives” that the employee is disabled, they may have an obligation to consider accommodation.

In other words, it’s better to start interacting with the employee than shutting down the process before it has a chance to start.

 

  1. Process matters as much as the result

Under the ADAAA, the focus is on the interactive process with the end goal of identifying how the employer can reasonably accommodate the employee or job applicant so that they can do their job.

The process must be conducted in good faith and thoroughly with the legitimate goal of identifying a reasonable accommodation. Courts have increasingly viewed this process as crucial, and almost as important as the end goal.

 

  1. Truly engage in the process

You’ll need to back up your interactive process with proof that you were engaged in it.

Even when it may be clear to you that you won’t be able to accommodate someone, you should still show that you tried to find a solution that would work.

Foley and Lardner recommend that you at least:

  • Communicate with the employee and show that you either reached agreement on the restrictions or obtained supporting medical documentation.
  • Show that you explored with the employee and their supervisor the possible reassignment of non-essential tasks.
  • Show you assessed the employee’s qualifications and looked at every open job for which they qualified to assess a potential transfer.
  • Show you had a final conference with the employee before concluding reasonable accommodation was not possible.

 

Make sure that you have a clear record of the interactive process. The more you can back up your efforts of trying to identify a reasonable accommodation, the more likely it will be that a court would view your efforts favorably and that you made good-faith steps in arriving at your conclusion.

“As we counselors love to say – document everything, including the thought process leading up to all conclusions reached, and the fact that you did not reach the final conclusion until after completing all steps in the process,” the law firm wrote in its blog.

 

  1. No cookie-cutter approach

While many employers want to consistently perform the same kinds of steps from situation to situation, it is equally important to take each accommodation inquiry and each employee’s unique circumstances on their own merits.

It’s highly unlikely that multiple employees will have the same limitations and the same medical diagnoses, restrictions and prognoses regarding the various essential functions of the job.

Because of this, there is no single approach to accommodation, and your approach to the interactive process should allow for flexibility.

 

  1. Don’t forget the FMLA and workers’ comp

Often there is some overlap between the ADA and other legal frameworks like the Family Medical Leave Act and workers’ compensation insurance.

For example, if an employee cannot return at the expiration of FMLA leave for his or her own serious health condition, the employer runs a serious risk of terminating the employee without first conducting an independent ADA analysis and assessing whether additional leave or moving them into a different position conforming with their restrictions is a reasonable accommodation.

The same applies after an employee receives a permanent and stationary workers’ compensation diagnosis with restrictions that preclude maintaining him or her in the same position. State workers’ compensation requirements may not require an employer to take further steps in such a circumstance, but the ADA does.

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