The ADA and Leave Policies - Don't Get Burned!!

The Equal Employment Opportunity Commission (EEOC) reported that Interstate Distributor Company, a trucking firm, agreed to pay $4.85 million to settle a lawsuit alleging pattern and practice violations of the Americans with Disabilities Act (ADA).  Read the EEOC’s press release here.  According to Interstate’s policy, if an employee, after exhausting 12 weeks of leave needed additional leave time Interstate automatically terminated them rather than determining if it would be reasonable to provide additional leave as an accommodation.  Under this policy, if an employee had restrictions, Interstate refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions. Interstate’s leave policy stated that employees on leave were automatically terminated after exhausting 12 weeks of leave unless they were able to return to full-duty work without limitation.  

This is a pretty straight forward policy – easy to administer; no discretion, objective on its face.  So, what’s the problem?

The EEOC charged that Interstate violated federal law by refusing to make exceptions to this "no restrictions" policy.  That’s the problem.  The EEOC holds the position that employers must make an individualized determination for each employee that has exhausted a leave of absence as to whether the employee can return to work with or without reasonable accommodation for a disability. The EEOC has been successfully pursuing this legal theory in court.  Enforcement of ADA claims remains a high priority for the EEOC and systematic violations, i.e., widespread or pursuant to employer’s policy or practice, are of special interest. 

Bottom Line  Employers would be wise to have their employee handbooks, policies and procedures reviewed and updated regularly to confirm that they are in compliance with the law.  Employers should have attendance policies and practices that address how reasonable accommodations will be provided – acknowledging that for paid or unpaid leave might be a reasonable accommodation for employees with disabilities.  Employers should also routinely provide EEO training for their managers and human resources personnel to insure that understanding and appropriate implementation of policies and procedures.  

Please contact the law office of Joycelyn McGeachy-Kuls if you're facing this issue or have any questions or visit our website at jmkuls.com for more information.  

Smart Performance Management – A Few Tips

Whether you’re running a nonprofit or a retail store, workforce management is essential but not necessarily easy or intuitive.  It’s not rocket science either, but it is an important skill that can be developed and improved with information and training.  Don’t worry, if you’re not good at it, admit it and get support.  Uninformed managers, even if well intentioned, can be the cause of low morale, which can translate into low productivity and high attrition at otherwise solid organizations.  High attrition rates can be costly to an organization in terms of human resources as well as increased need for recruiting and training new employees.  A poorly managed workforce is also often the source of litigation.  In short, consistent and effective workforce management is a business necessity.

SMART PERFORMANCE MANAGEMENT – A FEW TIPS

• Understand specifically, what performance you expect from your employees.  
• Know their job descriptions and assignments so that you can assess objectively how the employee is performing.
• Make sure that the performance expectations have been clearly and consistently communicated to the employee
• Ensure that you can communicate to your employees what kind of performance is considered average, poor or above and beyond.  I know you can’t be exhaustive but try to be specific. 
• Give feedback consistently and before there is a problem.  Your job as manager is to manage the workplace and that includes performance.  Try to get the best level of performance from the employee – not to catch them in wrong doing so that you can ding them later. 
• Communicate with your employees.  Employees should not be surprised by their performance evaluation or if there are complaints about performance.  In most cases, if the employee thinks they’re doing a great job but the evaluation states otherwise, you could do a more effective job managing them.
• Document the steps you've taken with a problem employee and provide regular, scheduled feedback and guidance.  Your goal should be to help the employee improve to the extent possible.
• Set measurable, quantifiable goals for the problem employee.

In addition to these tips, you should have written job descriptions and written performance evaluations/management plans.   

BOTTOM LINE

Make sure that employees are treated fairly and in accordance with your company’s policies.  More importantly, in order to minimize litigation risk, your performance policies and procedures must be applied consistently to all employees.  Workforce management is a business necessity.  Inconsistently managed employees are often the source of complaints and costly litigation.   

Contact me if you have any questions or would like to schedule an appointment.  Please visit my website for additional information.