Aria

Coronavirus and the ADA: Answers to 6 Key Employer Questions

Employers can no longer take a wait-and-see approach to the coronavirus. It’s not time to panic … but it’s definitely time to prepare.

However, in your efforts to keep employees healthy, you may soon face several tricky questions … Can you require workers to stay home if they seem sick? .., Can you require extra medical tests before hiring … Can you check their temperatures? 

Many of those issues are covered under the federal Americans with Disabilities Act (ADA). The EEOC last week issued employer guidance on how employers should apply the ADA in this new environment. Here are six of the most important answers:

 1. AT-RISK STAFF: Can we ask employees if they have any chronic health conditions that could make them more susceptible to influenza or coronavirus?

No. Asking an employee to disclose a chronic condition or compromised immune system would be considered an unlawful “disability-related inquiry” because the response is likely to disclose the existence of the person’s disability.The ADA doesn’t allow such inquiries unless there’s evidence that pandemic symptoms will cause a direct threat. Such evidence is absent before a pandemic is officially identified.

  2. MEDICAL INQUIRIES:   How much information can we request from employees who call in sick or report to work feeling ill?

You can ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Make sure to keep all information about employee illnesses as a confidential medical record in compliance with the ADA. If coronavirus is like seasonal influenza, these questions are not disability-related inquiries. However, if the coronavirus becomes more severe, the types of inquiries (even if disability-related) are justified by a reasonable belief based on objective evidence that the severe form of coronavirus poses a direct threat to the workplace or them employee himself or herself.  

 3. WORKING FROM HOME:   During a pandemic, can we send employees home (and/or require them to stay home) if they display influenza-like symptoms?

Yes. The CDC says employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advisingsuch workers to go home is not a disability-related action if the illness is akin to seasonal influenza. Also, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat to other employees, customers or the employee him/herself.

 4. TAKING TEMPERATURES:   Can we take employees’ temperatures to determine whether they have a fever?

The basic answer: only if there’s an official pandemic declared. Typically, measuring an employee’s body temperature would be considered a medical examination. However, if the CDC or a state or local health authority proclaims that an official pandemic has spread in the area, then employers are allowed to measure employees’ body temperature. Still, it is noted that some people with the flu do not have a fever. As of now, most agree that checking all employees’ temperatures is overreaching.

 5. MASKS, GLOVES:   During a pandemic, can we require employees to wear personal protective equipment (face masks, gloves) designed to reduce the virus’ spread?

Yes, you can require this if a pandemic is declared. Note that if an employee with a disability needs a reasonable accommodation under the ADA (e.g., non-latex gloves), you would need to provide these things, as long as doing so doesn’t cause an undue hardship.

 6. FITNESS-FOR-DUTY TESTS: If an employee has been away from work during a pandemic, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza was truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

Now is the time to get up to speed on your coronavirus compliance responsibilities. The Labor & Employment Law Advanced Practices (LEAP) conference offers answers to all of your compliance questions on this and every other employment law topic.

A big election … new regulations … increased state activity … and a whole new stack of employment law worries for HR professionals in 2020.

When it comes to compliance, you can’t just sit back and HOPE you know the answer – this isn’t a game of HR Jeopardy!

The most effective – and enjoyable – way to get your organization in compliance is to join your peers next month at the popular Labor & Employment Law Advanced Practices (LEAP) conference at the legendary ARIA in Las Vegas.

Today’s LEAP Letter challenges you to test your knowledge with our annual employment law quiz. (You’ll find the answers at the end.)

1. SUPREME COURT:  The U.S. Supreme Court will rule this spring whether federal anti-discrimination law also protects workers on the basis of their:

a. Weight
b. Sexual orientation
c. Marital status

Note: LEAP kicks off with a comprehensive Employment Law 2020 panel, which highlights the key Supreme Court cases that will require policy changes.

2. DISCRIMINATION: In 2019, the three most common types of job discrimination complaints filed by U.S. employees were (in order):

a. Race, sex, disability
b. Retaliation, disability, race
c. Sex, retaliation, race

Note: Retaliation claims are employment law’s “silent killer.” Learn how to steer clear of trouble at LEAP’s Retaliation Nation breakout session.

3. ACCOMMODATIONS:  When choosing among various effective options, who gets to choose the “reasonable accommodation” for an employee’s disability?

a. The employer
b. The employee
c. The Department of Labor

Note: Find out how to “reasonably” deal with injured and disabled workers at LEAP’s Employee Leave and Accommodations session.

4. IMMIGRATION: From 2017 to 2019, the Immigration and Customs Enforcement (ICE) increased by 400% its audits of:

a. H-1B visa applications
b. Green card applications
c. Employers’ I-9 forms

Note: This is a hot topic! On the first morning of LEAP (March 25), we’re hosting a special three-hour I-9/E-Verify Summit that will help you survive – and even avoid – a visit from ICE.

5.  COMPANY POLICIES:  McDonald’s CEO was fired for violating which company policy?

a. Misuse of a company computer
b. Having a romantic relationship with a subordinate
c. Disclosing the secret-sauce recipe

Note: LEAP’s Friday morning panel, Beyond Harassment & Bullying to Actual Cultural Change, will help your organization avoid a similar fate.

6. THE FMLA:  The U.S. Department of Labor ruled last year that employees can take FMLA leave to visit their children’s schools for:

a. Sports events/activities
b. Special education meetings
c. General teacher meetings

Note: Get your questions on FMLA, return-to-work and accommodations answered at LEAP’s popular Employee Leave Roundtable discussions.

7.  LABOR LAW:  A new labor board ruling gives U.S. employers renewed power to prevent workers from using _____ for nonbusiness reasons.

a. Company email
b. Company-owned cellphones
c. Employee mailing lists

Note: Our Washington Watch session will explain how to take advantage of a surge of new rulings by the National Labor Relations Board.

8. WATERCOOLER POLITICS:  According to a survey by SHRM, the rising tension over America’s political climate the past four years has led to:

a. More employee talk of politics at work
b. Less employee talk of politics at work

Note: At LEAP’s Thursday luncheon, former Congressman Charlie Gonzalez (D-TX) will talk about “The Election and the Workplace” – and how you can prepare.

How did you score? I understand if you didn’t ace the quiz – the employment law world is changing rapidly and could face more big changes in 2020. You can get in total compliance at LEAP 2020 … and have a fabulous time with your peers. Hope to see you in Vegas!

 

THE ANSWERS   

1. b. By the end of June, look for a decision on whether Title VII prohibitions on sex discrimination also protect lesbian, gay and bisexual people.

2. b. More than half (54%) of employee bias complaints filed with the EEOC last year included a charge of retaliation.

3. a. Employers are required to offer a “reasonable” accommodation, not to give the employee anything he or she requests.

4. c. In 2017, ICE initiated worksite and I-9 investigations at 1,360 U.S. workplaces. That spiked to 6,812 last year.

5. b. Even consensual relationships can trigger legal trouble – know the law.

6. b. While regular teacher meetings aren’t protected by FMLA, meetings to discuss a child’s individual education program (IEP) are protected.

7. a. This has been a hot labor-law issue for years, as unions like being able to use a company’s email to communicate with employees.

8. a. More than half of U.S. workers (56%) say talk of political issues at work has become more common during the Trump administration.

Your employee handbook is your best line of defense in a lawsuit. But like any form of documentation, mistakes can and will be used against you in a court of law.

So if your handbook goes under the legal microscope, what will the court look for? Here are six key factors that courts will consider when weighing the evidence:

1. A CLEAR, CONSPICUOUS DISCLAIMER. Your handbook likely includes a disclaimer saying the employment relationship is strictly at-will and nothing in the handbook should be considered a contract. But where in the handbook is that disclaimer located? Would a typical employee see it?
In one case, a court ruled that the company may have created a contract in its handbook because the disclaimer was buried among unrelated paragraphs under the uninformative heading “Introduction.”

2. CLARITY OF RECEIPT. In the same case, the wording on the receipt – acknowledging that the employee had received the handbook – was unintelligible, with whole phrases missing. That’s confusing and unenforceable, the court ruled.

3. EMPLOYEE EXPECTATIONS. While your may have a disclaimer, judges tend to look at the “reasonable expectations” of the employee involved. For instance, in one case, the court noted that a company included a progressive discipline system in its handbook. The court decided it was reasonable for the employee to expect that the company would abide by its own rules.

In this two-hour workshop hosted by attorney Carrie Hoffman, discover how to spot the ticking time bombs in your handbook – and defuse them without drama or lawsuits. Start complying with confidence! Review the full agenda for the conference or register now

4. ORAL PROMISES. Even a carefully worded disclaimer can lose its effect if HR or a manager tells the employee that he or she will be terminated only for cause – or that their “jobs are secure” – and then the employee is discharged for some minor infraction.

5. CONSIDERATION. When a company replaces its handbook with a version that changes the terms of employment – such as dropping a seniority system that employees have relied upon – courts expect the company to have provided some “consideration.” Consideration is some additional benefit, payment or privilege other than continued employment to compensate employees for the loss. Courts often disapprove of unilateral changes.

6. GOOD FAITH, FAIR DEALING. Although your handbook may say that employees are hired on an at-will basis, courts in some states basically ask whether what happened was fair. Finding an implied covenant of good faith and fair dealing, the court may award damages for outrageously unfair employment decisions. That’s another reason to be consistent and impartial in all employment-law decisions.

Even the best handbooks contain a few potential explosive mistakes. To make sure your handbook is really in compliance (and to find answers to ALL your HR-law questions) join us at LEAP 2020 next month. Plus, you’ll have a fabulous time with your peers at the legendary ARIA Hotel & Casino.

Think about the last time you had to terminate an employee … Was the person surprised? … Did they argue the merits? … Did they think your decision was fair?

According to a recent poll, a surprising 61% of people who had been fired believed that their terminations were unjustified. And for many of those people, “unjustified” is just one step away from “illegal” and a trip to a lawyer’s office.

Terminations are your biggest risk when it comes to employee lawsuits. And the termination meeting itself goes a long way in determining whether the person wants to hug you … or sue you. In our last LEAP Letter , we gave you five tips for conducting stress-free, liability-free termination meetings. Here are five more:

6. HANDLE FINAL PAY. Under some state laws, when an employee is involuntarily terminated, the employer must pay all earned and unpaid wages within 24 hours after the employee’s demand. To avoid any potential dispute over when a demand was made, simply have the final paycheck available at the termination meeting.

7. RESPOND TO INQUIRIES, BUT DON’T RUSH. Some states allow terminated employees to request copies of their personnel records or even demand a written statement of the termination reason. Know the law in your state and how to respond. Review these requests with legal counsel, and take the allowable time to formulate your response.

8. CONSIDER SEVERANCE. Many employers offer severance benefits as a way to help terminated employees make a transition to other employment. When those benefits add up to a significant amount, they should be conditioned upon an agreement releasing the company of any and all legal claims. Employers must meet various legal requirements for such releases to be enforceable. They are complicated, so work with your legal counsel to make certain your release agreements are enforceable.

9. DOCUMENT THE DISCUSSION. Right after the meeting, you and the witness should document what happened. If you did a good job of preparing a script and sticking to it, you should be well on your way to completing the documentations. In your notes, document specific quotes – both from your and the employee – on important points.

10. MAINTAIN CONFIDENTIALITY. Resist the urge to use this event as a lesson to other employees – or to put to rest rumors about why the employee left the company. With the exception of those who have a legitimate need to know more, employees and customers should simply be told that the person is no longer employed with the company.

The bottom line: Good preparations, sticking to a script and treating departing employees with respect will go a long way toward minimizing the tension (and legal risks) that come with a termination. You can learn more about terminations and all other types of HR-law compliance at LEAP 2020. Plus, you’ll have a fabulous time with your peers at the legendary ARIA Vegas Hotel & Casino.

Takeoffs and landings are the most dangerous part of an airline flight. The same is true when it comes to employment law. Hirings and (even more so) firings are the biggest flash points for employee lawsuits.

Just one mistake in the termination process – a discipline error, a documentation slip-up or the wrong words on the way out the door – can lead to crippling litigation. Plus, you have to deal with the emotional fallout … risk of violence … and co-worker response.

The actually termination meeting is your biggest risk. Here are 5 tips to conduct a stress-free, liability-free meeting (we’ll bring you five more in our next LEAP Letter):

1. BE PREPARED. Review the facts ahead of time to make sure the decision was sound. Document legitimate business reasons supporting the action. Make sure the termination won’t breach any contractual obligations, and that people closest to the situation will confirm the underlying facts. Prepare a meeting script so that if emotions become raw, you can stay on message and cover all the issues that need to be addressed.

2. DETERMINE THE BEST TIME & PLACE. Losing a job is stressful. Don’t add to the employee’s embarrassment by meeting where others might see or hear what’s going on. Schedule the meeting at a private location where there will be no interruptions. If the employee becomes angry or argumentative, you may need to get up and leave once you’ve communicated the decision. For that reason, don’t use your own office.

3. CAN YOU GET A WITNESS? It’s always best to have another company official present. That way, the employee will have less opportunity to make false accusations about events that occurr and the words that are said. Your witness should be a manager, but one who is not emotionally invested in the termination.

4. DON’T DEBATE THE DECISION. You don’t need the employee’s agreement that the termination is justified. Simply communicate the decision; refuse to engage in any argument over its merits. If the termination is for performance reasons or misconduct, the employee should already be aware of the reasons behind the decision. You gain nothing by trying to convince the employee that he or she deserves to be fired. Such a discussion will only ratchet up tension.

Also, while you may feel compassion for employees you terminate, avoid the instinct to express those feelings the wrong way. For example, if the employee’s performance was substandard, don’t offer compliments on certain parts of his job performance. Doing so may make you feel better, but it will only anger the worker because it will appear that he’s being fired for no reason. And that can spark a wrongful-termination lawsuit.

5. FOCUS ON TRANSITION ISSUES. If the employee has company property, make arrangements now for its immediate return. If departing employees have noncompetes or other ongoing obligations, inform them of your expectations. Make arrangements for removal of the employee’s personal belongings. The focus should be on an amicable separation between the parties.

As you can see, terminations can be a legal minefield. Learn how to stay out of court (and in compliance) with the expert advice you’ll find at LEAP 2020. Plus, you’ll have a fabulous time with your peers at the legendary ARIA Vegas Hotel & Casino.

Hope to see you in Vegas!

Time and again, HR professionals rank “managing employee leave” as the number one compliance problem. How much leave to allow? How to track it? Which leave is covered by the FMLA? How about pregnancy, religious and disability-related leaves? When it comes to employee leave, the best compliance lessons don’t come from a book or government manual, but from the expensive mistakes made by your fellow employers.

Here are three recent leave-related errors that resulted in multi million-dollar legal verdicts. Some mistakes were caused by poorly written policies and others by poor supervisor decisions. All were preventable.

 CASE #1: Can Employees Take Vacation During FMLA Leave?

During an IT manager’s FMLA leave after foot surgery, he left on a pre-planned vacation to Mexico. He chilled on the beach most of the time because his foot was still in a medical boot. But when HR learned about the trip, he was fired … then he sued.
At trial, the HR person said she believed employees on FMLA could never take vacation. That’s not automatically true. In ruling for the employee, the judge said that “an employee recovering from a leg injury may sit with his or her leg raised by the seashore while fully complying with FMLA leave requirements, but they may not climb Machu Picchu without abusing the FMLA process.” (DaPrato v. Massachusetts Water Resources Authority)

The verdict: a whopping $1.3 million for the employee, including $715k in punitive damages.
The lesson: Even if it appears an employee is misusing FMLA leave, you must make discipline or termination decisions based on a rational review of the facts, including doctor’s certification. When in doubt, check with an attorney (maybe at LEAP’s Employee Leave Roundtables!).
Case #2: Can You Require Employees be 100% Healed Before Returning?

An Arizona company’s policy required employees returning from medical leave to show they were completely healed and had no medical restrictions. Employees who couldn’t meet that criteria and didn’t have any leave remaining were fired. The EEOC sued the company, saying the ADA gives all returning employees the right to reasonable accommodations (reassignment, modified schedule, more leave, etc.).

The verdict: $950,000, shared by 23 disabled workers at the company.
The lesson: If you have a “100% healed” policy, rewrite it now. If you learn employees aren’t completely healed after medical or FMLA leave, begin the interactive process to discuss accommodations, including extra leave.
 Case #3: Can You Give More Leave to New Moms than New Dads?

A financial company’s generous parental leave policy – a full 16 weeks of paid leave after birth – came with a key caveat: It was only available to the “primary caregiver.” The other parent got a max of two weeks. When a male employee asked for the full 16 weeks, he was told that the company considered birth mothers to be the primary caregiver. His complaint grew into a class-action lawsuit.

The verdict: a $5 million settlement, the largest settlement in a U.S. parental leave discrimination case.
The lesson: Federal law makes it unlawful to provide one gender with more (or better) benefits than the other. You can justify longer parental leave for mothers only on the basis of medical necessity. Paid leave beyond the time it would take a mother to recover from childbirth (about six weeks) must be offered to fathers as well.

As you can see, employee leave is a complex – and potentially expensive – legal maze for HR. Learn how to get in compliance (on every aspect of employee leave) with the expert advice you’ll find at LEAP 2020. Plus, you’ll have a fabulous time with your peers at the legendary ARIA Vegas Hotel & Casino.
Register Now