Leave Is Not Always an Accommodation

Earlier this week, Brookdale Senior Living Communities, Inc. agreed to pay $112,500 in settlement of an Americans With Disabilities claim. Briefly, here are the allegations, which are quite common:

After the employee took a leave of absence from work due to her disability, fibromyalgia, she requested a reasonable accommodation of a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting of her office. But, whether or not these were “reasonable” was not the issue. The real issue, which all of you should watch for, is that in denying these requests, Brookdale required the employee to remain on leave until she was able to return to work without any restrictions or accommodations.

Even though extended leave may be a reasonable accommodation, requiring an employee with a disability to stay out of work until he/she is 100% healed is a violation of the ADA.

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

The UNIQUE perspective of ERS will reduce your risk of a lawsuit!

When Is Racist, Offensive Speech OK?

On June 5, the NLRB ordered an employee be re-hired after he was terminated for his “racist, offensive and reprehensible” speech.

As many of you know from my seminars, the hottest area of employment law today is the NLRB decisions. Pursuant to the National Labor Relations Act, an employee is protected from termination if he/she engages in protected (regarding the terms and conditions of employment) and concerted (with other employees) activity. The NLRA does not, however, give employees a right to defame, disparage or otherwise criticize their employer or to engage in discriminatory conduct.

In this recent case, the employee was caught on video saying racist comments to black employees. He was terminated for violating the company’s anti-harassment policy. But the NLRB ordered his reinstatement because he made the comments while he was engaging in protected concerted activity on a picket line! ¬†According to the Administrative Law Judge, the statements most certainly were racist, offensive and reprehensible, but they were not violent in character…coercive or intimidating to the exercise of his NLRA Section 7 rights.

Further, remarkably, the ALJ held that although the company’s anti-harassment policy covers this type of conduct as a terminable offense, the harassment policy makes no reference to conduct on a picket line. So, the employee is protected.

PLEASE make sure that your anti-harassment/discrimination/retaliation training includes NLRB decisions….

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

Stress Due To Inability To Work With Supv?

As you know, some employees will claim they are disabled, and get a doctor to support it, thereby causing HR departments to scramble for an appropriate accommodation. Is requesting a new supervisor a “reasonable accommodation”?

This week a California state appellate court held that an employee’s inability to work under a particular supervisor because it caused anxiety and stress is NOT a disability to sustain a claim of disability discrimination under California state law.

Unfortunately, prior to discharging this employee for failing to provide additional documentation related to her “disability,” the company provided various leaves of absences over several months. The Court ruled that because the employee failed to show that she “suffered from a recognized mental disability” all of her claims based upon that disability must fail.

While it is always a good idea to be cautious when dealing with an employee claiming a disability, make sure that what they are claiming, if valid, is recognized under the law as a protected illness.

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

When Is A Disability Obvious?

In disability cases where an employee needs an accommodation, the employee is generally required to advise the employer of the extent of the disability and request an accommodation. Then, it is up to the employer to engage in an interactive process to determine what, if any, accommodations can be made.

But, in rare cases, if the disability is “obvious,” courts have said that the employer should have known that an accommodation was necessary and, therefore, should have started a dialogue with the employee.

In a case filed last week, a former JetBlue pilot is seeking $15M after he was arrested for interfering with a flight crew for running down the aisles and forcing the crew to subdue him, but was found not guilty by reason of insanity. He claims that only after his arrest did he learn that he suffered from a “complex partial brain seizure” due to a childhood head injury.

He is alleging that management should have known he had a medical problem because he (1) failed to show up for a required crew meeting; (2) didn’t answer his phone; (3) eventually showed up disheveled and disoriented; and (4) nearly failed a preflight check (but didn’t). How many of your employees could possibly fit this description?

Does this mean that you must start to ask each employee who misses a meeting if they need an accommodation under the ADA? Of course not. And I expect that JetBlue will prevail in this case, especially since prior to this incident there were no signs of any issues that they could reasonably have foreseen.

As I do in my presentations, I present the most extreme type of examples in an effort to remind you to pay attention to detail in the not so extreme cases that you see everyday.

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.

Post Complaint Retaliation

As you know from my training sessions, retaliation is the #1 claim filed in the United States. Retaliation can ONLY occur due to the actions of a Manager. Which means that many management employees are not properly trained in the law and/or the many vulnerable risk areas that a Plaintiff’s attorney will seek to attack.

In a recent case against HSBC Securities, an employee is seeking to amend his initial complaint to add additional claims of retaliation that allegedly occurred after he filed the complaint. For example, he claims new allegations of a “continued pattern of retaliation” by physically locking him out of HSBC offices, placing him on administrative leave and denying him a bonus for the first time in his nearly four year tenure. All of these actions were obviously done by a manager.

My point is this: managers must be made aware of the risk of taking any action against an employee who had filed any form of complaint, even just an internal one.  Of course, if there is a legitimate reason for the action, it must be clearly documented. But as with the HSBC case, employees will tell their attorney every action that they believe is adverse, even if it occurs after termination, and the attorney will craft it into a retaliation claim which will cost you more time and money to defend.

 

Contact me to learn how ERS can customize affordable training options that meet your specific needs and train your staff on how best to avoid an employee claim.