Medical Leave and Disability Laws Still a Source of Confusion

sick dogThrough our blog, we always want to keep you up to date on new laws and/or cases that will affect the way you do business.  Today’s post is on an old topic that still creates huge liability problems for employers every day. If I were to make a Greatest Hits List of the top employment law mistakes that businesses make, Medical Leave/Disability Accommodation mistakes would top my list.

Here’s a common scenario: you have a California employee on a medical leave for some type of illness or disability.  The leave can be for any condition, ranging from depression to cancer to a bank injury to pregnancy complications. Generally, the employee begins taking leave for a serious medical condition under the Family Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”).  In this common scenario, the employee has taken and exhausted their allowable leave under these acts.  The employee is unable to return to work at the end of that leave and needs to remain on medical leave.

WHAT NOT TO DO: Do NOT summarily send the employee a letter from Human Resources, stating something to the effect of, “You have exhausted your FMLA/CFRA leave and are unable to return to work.  Therefore, we are terminating your employment.”  This is a common mistake that even large companies make.  Let’s refresh your disability laws savvy.

Why is this letter so devastating for your business?  Because the leave laws are different than the disability accommodation laws. Sometimes the disability laws require longer leaves, even if the leave laws have been satisfied. If your Human Resources personnel misses doing a disability accommodation analysis, that letter is going to be answered with a lawsuit for disability discrimination.

In my practice I have seen this occur an astounding number of times. The worst part of this scenario is that the best evidence the plaintiff employee will have against you will be the letter from your HR Department that basically admits you terminated that employee because of a medical leave of absence or because of their disability.

Writing letters such as these is like putting a bulls-eye target on your business.  You might as well just send out a flyer to Plaintiff’s lawyers that says, “Please sue me and use the smoking gun document that I just sent out to my former employee to prove your case.”  Plaintiffs’ lawyers salivate when a disabled potential client brings in such a letter from their former employer. And disability discrimination claims are the largest category of discrimination claims brought by both the EEOC and plaintiffs.

WHAT TO DO: Instead of sending such a letter, what you should and must do, if an employee is unable to return to work after exhausting their FMLA/CFRA leave, or even if they do not qualify for FMLA/CFRA leave in the first place, is to turn to an ADA analysis.  A disability is generally defined as any condition that interferes with a major life activity, which includes interfering with working and sleeping.  This definition is very broad and encompasses most health conditions.  The law was expanded in recent legislation and is constantly growing to include new conditions and facts. A disabled employee can ask their employer for an accommodation for their disability, and they are entitled to a reasonable accommodation, as long as it does not create undue hardship for your business.

If your employee requests an accommodation for their disability, such as a leave of absence, you MUST engage in the interactive process with them. This means, simply, having a dialogue with the employee (and potentially their physician) on how you may be able to accommodate their disability.  Then, it’s your duty to provide a reasonable accommodation for their disability. A leave of absence of reasonable length (which is sometimes well beyond a few months) has been held by courts to be a reasonable accommodation.

And even if your employee does not request accommodation, but simply states that they cannot work, the onus is on the employer to begin the interactive process. Once you are on notice of a potential issue, you must act to comply with the law.

This is only a snapshot of these rules, and there are other intricacies.  As you can see, this is clearly not a simple analysis to perform and having lawyers involved who are well-versed in the application of these laws is extremely helpful in your attempt to insulate yourself as much as possible from liability.

SUMMARY: The lesson to be learned here is to make sure that your HR personnel and business managers are knowledgeable that there are numerous laws that apply to disabled employees who are on medical leaves of absence.  Employees on medical leave have a great many rights, and to take steps toward terminating an employee who is on medical leave, you must jump through all the hoops under Americans with Disabilities Act (ADA) and you should document this process well.  Protect yourself by preparing yourself with evidence to defend a disability discrimination case that may be brought later.  Do this by documenting the interactive process and your attempts to accommodate the employee.  When you find yourself in this situation, involve a lawyer and go through these steps meticulously.  Disability discrimination cases, if successful, can have a lot of jury appeal and be very costly to your business.

Does It Matter If I Have An Employee Handbook?

4 Good Reasons To Have An Employee HandbookIt shouldn’t surprise you that an employment lawyer will advise you to have an employee handbook.

But it may surprise you is that I would rather you have no handbook than one you write yourself.

Why would I say that?

Well, a handbook is an important legal document in lawsuits and labor audits. If you have non-compliant policies, it can create presumed liability automatically. In other words, non-compliant policies are like an admission of guilt.

In some cases, no written policies (for example, with respect to certain breaks, required notices, and pay policies) can also create a presumption of guilt. But non-compliant policies are a greater danger.

By far, my recommendation is that you have a lawyer-drafted, compliant employee handbook. Here is a short video on four good reasons why:

So now you know why you should have an employee handbook. Is downloading one off of an internet resource good enough?

NO! Employment laws are complex and numerous. Boilerplate employee handbooks often have provisions that sound reasonable to you as the employer, but are in fact illegal in some jurisdictions or may mislead you into doing something illegal.

I write several handbooks a year. I have never found a good template off a website (and I have tried several). I ended up creating my own template and checklist for management decisions. (You can choose different policies depending on how you want to run your business, and I advise on the financial, business and legal implications of those decisions as part of the drafting process.)

An employee handbook is a 50 page legal document that you should not attempt to DIY. Call a pro. And keep it updated!

Video Transcript:

Does it matter if I have an employee handbook?

“Does it matter if I have an employee handbook?” Yes! Here are four good reasons why. 1. A handbook teaches your managers and your employees the proper and legal way to do things. It’s not always commonsense. 2. A handbook empowers you to politely tell an employee “No” to a special request because it is against policy. This keeps everything fair. 3. A handbook can be used to defend you, should an employee lie about a situation to a court or governmental agency. 4. Employers are required to provide certain notices in writing to their employees, and a handbook is a good way to do it. Failure to provide these notices can result in lawsuits, fines and even criminal penalties. So yes, a handbook is essential and it should be reviewed by an employment lawyer annually. Does your business need employment law help? Visit us at bellatrixlaw.com to apply for our Employer Protection services.

You can find the full video on Employee Handbooks on YouTube.

How to Say "You're Fired"

Just FiredIf you’ve ever watched reality TV, you know the producers go for a big shock factor on each show. Nothing shocks someone more than hearing those two dreaded words:

“You’re Fired!”

There’s one show in particular, on which the “boss” actually utters those words and makes a cobra-like gesture when he let’s a contestant know they been fired.

Queue the dramatic music. Cut to the scowl on the face of the “boss.”  Pull the camera back to catch the look of shock on the face of the “employee.”

It’s good television for sure.

But in real life that is a dangerous scene.

In real life, in real business, that scene should never happen.  Any time an employee is separated from his position, there should be an orderly process void of snap judgments and surprises.

There are four main reason people lose their jobs:

Reason 1:  A Reduction in Force

Reason 2: Elimination of a Position

Reason 3: Poor Performance

Reason 4: Misconduct

Just about every job termination can be fit into one of these categories so let’s look at the business implications of each of them.

Quick reminder: This is not legal advice. You pay for legal advice. These workplace observations are free.  Always consult an attorney (preferably me) before making a decision on terminating the employment of any employee.

1. Reduction in Force

Sometimes you have more employees than you need. Maybe sales have slowed. Maybe you have a seasonal shift in demand. Maybe you just hired too many people and you cannot pay all of them.

Regardless of the reason, if you have more employees than you can afford, it may be time to reduce the size of your workforce.

In this case, you can and should prepare written notification for each employee whose position is eliminated.  The documents should be personalized and they should contain the specific dates when employment will be discontinued. They should also detail what, if any, severance pay and benefit packages are available.

You want to take great care to be fair and consistent in the methodology you use to calculate any severance or continuing benefits.

You also want to have your attorney review any documents the employee will need to sign as he departs. This is particularly the case for large workforce reductions, but certain Federal laws may apply, requiring notice and severance revocation periods.

If there will be some positions eliminated and some positions retained within one job classification, you definitely want to make sure you review each employee being retained and each employee whose position is eliminated, with your attorney.  This should be done for a number of reasons (cough avoiding a discrimination lawsuit cough) not the least of which is fairness.

2. Elimination of a Position

Similar to a reduction in force, eliminating a position requires a legal review to test for fairness and objectivity.

You may need to prepare similar paperwork detailing the date the work period ends and what, if any, severance pay and benefits are available.

One of the things you want to focus on when you eliminate a position is how you will redistribute the workload from that position. Many employers expose themselves to liability when they simply change the title of the job but all the responsibilities remain the same.

Eliminating a position is not a shortcut to terminating a problem employee. It should only be done when a position is no longer required or when a job has drastically changed. Using that excuse for firing a poor performing employee can result in a wrongful termination lawsuit in which your defense (poor performance) looks like pretext or retaliation. It’s also cowardly.

3. Poor Performance

When an employee is not performing up to standard, his employment can be discontinued.

While it may not be required, it is always a good idea to have a documented discussion with the employee about his performance prior to job termination. This provides an opportunity for the employee to improve and it helps show your desire to correct the situation without additional disciplinary action.

Documentation should be carefully worded and you should always have your attorney review it before you present it to the employee.

In the event the employee’s performance does not improve, you have a record of the previous conversations and it should come as no surprise to the employee.

The key in addressing poor performance with an employee is to have a process in place and make the employee aware of the process at the outset of his employment. But that being said, you have to simultaneously make clear that the process is ideal, but not required, before a termination can occur. It’s a tricky line to walk, so a good handbook and training for you HR staff is key.

4. Misconduct

Rarely, you may need to address an incident of misconduct that warrants job termination. Incidents such as theft, harassment, dishonesty, violence and discrimination require immediate action. In fact, ignoring such conduct and not terminating right away can create serious liability issues for you as the employer. So take these things seriously and act swiftly.

These incidents almost always require the involvement of or guidance from an attorney. Other people’s rights may be implicated. Or you may get an excuse from the employee for his behavior (such as a disability) that make things tricky. You want to connect with your lawyer to review what to say, how to say it and what documentation to prepare and deliver to the employee.

In some cases, you may need to gather facts and investigate before making a final determination. Again, it is best to have an attorney involved in the matter to advise you on how to conduct and document this investigation.

The law, as it relates to employees, is complex and it varies from state to state. The best time to review these laws and address them with your attorney is before you hire your first employee. The second best time is right now.

Nobody likes surprises when it comes to employee issues. Let’s leave the drama to reality television.

Reach out to me today to discuss my Employer Protection Package. My employment law team and I will review your current state and make recommendations for improvement before they become expensive litigation matters.

Pregnancy Discrimination Attorneys

PREGNANCY DISCRIMINATION

Pregnant employees’ legal rights are vigorously protected under various state and federal laws. This can place employers in a challenging position in terms of balancing regulatory compliance against protecting the best financial interests of the business. If your company requires advice in dealing with pregnant employees, employees disabled by pregnancy, or has been served with any type of pregnancy discrimination lawsuit, the employment law lawyers of Bellatrix PC can help.

pregnant woman

Our business attorneys are committed to providing employers with aggressive legal representation. We will thoroughly investigate the claim to see if it has merit and then develop defense strategies to defend your business. To start exploring your options in a confidential legal consultation, call Bellatrix PC at (800) 889-8376 today.

Is Your Business Compliant with the Pregnancy Discrimination Act?

The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. This act states that under Title VII, it is considered unlawful sex discrimination to discriminate against employees based on pregnancy, childbirth, or related medical conditions. Female employees affected by pregnancy, or pregnancy-related conditions, must be treated in the same manner as other applicants or employees with similar abilities or limitations. The Pregnancy Discrimination Act applies to employers with 15 or more employees, including state and local governments.

A few common examples of pregnancy discrimination in employment include:

  • Refusing to hire or terminating a female employee because she is pregnant, or is considering becoming pregnant.
  • Terminating a female employee because she has taken pregnancy leave.
  • Denying a qualified female employee a promotion, or demoting her, because she is pregnant or is considering becoming pregnant.
  • Treating pregnancy in a manner differently than any other temporary illnesses or medical condition, including rights and benefits.

Title VII also makes it unlawful for employers to retaliate against employees who oppose discriminatory employment practices, or who wish to testify, file a discrimination complaint, or otherwise participate in any legal proceedings related to an alleged violation.

California Employer Regulations: the FMLA and CRFA

In addition to the considerable federal protections afforded by Title VII of the Civil Rights Act of 1964, female employees are also protected on the state level by the California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA). The provisions of the CFRA and FMLA apply to employers who have a minimum of 50 employees working within 75 miles of the office or worksite. Furthermore, the employee must have worked for the employer for a minimum of 12 consecutive or non-consecutive months, and must have also worked for no fewer than 1,250 hours during the past 12 months.

Under the provisions of the CFRA and FMLA, both male and female employees are permitted up to 12 weeks of unpaid leave for the purposes of adopting a child, fostering a child, or caring for a newborn baby. Upon return, female employees maintain the legal right to the same job, or a job on the same level which provides approximately equivalent benefits, pay, and terms and conditions pertaining to employment.

What to Do if Your Company is Being Sued

Charges of pregnancy-related sex discrimination come from a wide range of women holding entry-level jobs all the way up to senior executive positions. The number of these cases has increased in recent years, as more and more women wait to start a family until they have established careers.

In order to avoid or minimize the likelihood of becoming embroiled in an employee discrimination claim, employers must be highly vigilant in the way in which they deal with their female employees. Here are some simple tips to help reduce the chances of an employee taking legal action against your entity:

  • Document all personnel actions in writing.
  • Know the law. Be aware of whether or not the Pregnancy Discrimination Act and/or FMLA/CFRA apply to your business, and what sort of policies the relevant provisions mandate.
  • Develop and implement gender-neutral personnel policies.
  • Confirm that comprehensive benefits packages provide coverage for pregnancy-related issues.
  • Acquire adequate liability insurance.

It is also important for employers to be aware that discrimination claims by pregnant employees may be brought under the California Fair Employment and Housing Act (FEHA). FEHA claims can be couched as wrongful termination claims, retaliation claims, disability discrimination claims, gender discrimination claims, and more.

Under FEHA, women who become disabled by pregnancy, childbirth, or related medical conditions are eligible for up to four months of pregnancy disability leave. This leave can be taken as needed, and can be taken in addition to time taken off for bonding under the CFRA and/or FMLA. Furthermore, women disabled by pregnancy, childbirth or related medical conditions are also eligible to receive accommodations from their employer, such as a less strenuous position during their disability.

If you are faced with an employee who needs accommodations for a pregnancy-related disability, you must engage in the interactive process with that employee and make your best efforts to work with them and their health care provider to find a reasonable accommodation for their situation. It is absolutely critical to properly document this process in writing.

Contact Our Employment Law Attorneys

If your business has been affected by an employee’s pregnancy, anticipated pregnancy, or a related medical condition, it is critically important to address the situation before litigation becomes necessary. If your entity needs assistance reviewing its proposed or current employee leave policies, or if an employee has already filed a lawsuit against your business, the experienced pregnancy discrimination lawyers of Bellatrix PC are here to help.

To arrange for a private case evaluation, call us today at (800) 449-8992. Our law offices are located in St. Louis, San Diego, and Riverside, CA.

Accommodate Your Hearing-Impaired Employees

Women signingThe American With Disabilities Act is expansive and requires employers to give reasonable accommodations to disabled employees. The general framework of the ADA is this:

  • During the hiring process, employers may not ask about disabilities, seek medical information or require potential employees to disclose physical impairments in the hiring process.
  • Once an employee is hired, the employer may not seek certain medical information (such as diagnosis or prognosis), nor disclose medical information or the need for an accommodation to other employees. The employer may disclose the disability and the need for accommodation to certain supervisors or managers, advisors (legal, HR, insurance, ADA consultants) and emergency/safety personnel.
  • Once an employee is hired, an employer may ask about medical conditions only to the extent that it is looking to accommodate the employee. Indeed, the employer has a duty to ask and provide accommodations once it has a reasonable belief that the employee has a medical impairment (including if that impairment is impacting job performance).
  • An employer may not demote, terminate or treat the disabled employee differently than non-disabled employees. The goal of the ADA is to provide disabled people with the same opportunities as non-disabled people. The relevant question is whether the employee can accomplish the necessary job functions with or without reasonable accommodations.
  • Accommodations must be provided unless they create an undue hardship. The EEOC defines that as “a significant difficulty or expense.” In other words, most accommodations are going to be required. And if one is burdensome, there may be a lesser accommodation that gets the job done and helps the employee succeed. So employers: make sure you engage in the interactive process!

There are many applications, disabilities and tales-of-woe that I could tell you about with respect to the ADA. Employers get it wrong all the time. Even big employers with big law firms get it wrong all the time.

For example, in 2011, the EEOC prosecuted UPS for not providing sign language interpreters for deaf employees. They ended up paying $95,000 in fines (not including their defense attorneys’ fees) and had to make an EEOC-supervised company-wide correction (including hiring an ADA Coordinator and posting the rights of deaf employees at each facility.

Here are some things that employers must do when they have a hearing-impaired employees. And, by the way, as many as 1 in 5 Americans may be classified as hearing-impaired and protected by the ADA, according to the EEOC.

  • Provide a sign-language interpreter at company meetings, reviews and trainings. Written records and a note-taker will not be adequate because important aspects of the communication is lost.
  • Use assistive technology such as a TTY, text telephone, voice carry-over telephone, or captioned telephone, a video relay service, a telephone headset, computer software (for example, net meetings, voice recognition software), assistive listening devices, augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice, or communication access real-time translation, which translates voice into text at real-time speeds.
  • Use written memorandum and notes when appropriate, rather than just oral instructions.
  • Adjust the employee’s work area (for example, put their office or desk away from noisy areas that interfere with hearing devices and place them near emergency alarms that feature strobe lighting).
  • Adjust the employee’s non-essential job duties.
  • Give time off for leave, medical appointments, etc.
  • Engaging in the interactive process with the employee and his or her physicians to determine other possible accommodations.

There are good business reasons to do the work of accommodating employees (besides not getting sued!)  For example, you avoid miscommunication, frustration and wasted time. Miscommunication with hearing-impaired employees frustrates their supervisors who may get the false impression that the employee is a poor performer or unintelligent. It may require HR or legal to become involved. Miscommunication takes up valuable company time with back and forth. It adds to employee discontent and frustration.

When you are considering a reasonable accommodation for a deaf employee, step into their shoes and think about their experience as your employee. Be careful to not marginalize hearing-impaired employees by not facilitating their ability to voice their opinions and ask questions. Always keep in mind that communication is vital to the health of our businesses and knowledge. Inclusion in the company is vital to your employees’ happiness. If you have deaf employees, consider the way they communicate and the way you can maximize their contribution to your organization.

Americans with Disabilities Act (ADA)

AMERICANS WITH DISABILITIES ACT (ADA)

The Americans with Disabilities Act is commonly known as the ADA.  Enacted by Congress in 1990, the ADA is meant to protect disabled individuals from discrimination in the workplace, public places and at businesses while simultaneously promoting equal-opportunity participation in the American workforce.  In addition to the ADA, which protects disabled employees on the national level, many states have adopted similar laws. The Fair Employment and Housing Act, or FEHA, grants additional legal protections to persons employed or seeking employment in the state of California. The Missouri Human Rights Act also protects individuals in much the same way.

Man walking his disability Dog

While the ADA has afforded countless Americans invaluable employment opportunities by challenging negative stereotypes, noncompliance with the Act can spell financial doom for employers of all natures, structures, and sizes.  If an employee or job applicant alleges disability-based discrimination and files a claim against your company, you could be facing considerable civil penalties in addition to the ongoing disruption to overall productivity wrought by litigation.

At Bellatrix PC, our knowledgeable employment law lawyers have years of experience defending businesses against discrimination lawsuits.  We will guide you through each and every stage of the legal process while vigorously protecting your legal and financial interests.  Don’t allow a minor problem today to become a major problem tomorrow: for a private consultation, call the business defense attorneys of Bellatrix PC at (800) 449-8992.

Is My Business Subject to the ADA?

With a few exceptions, the ADA prohibits workplace disability discrimination by the following types of entities:

  • Corporations
  • Employment Agencies
  • Federal Agencies
  • Private Employers
  • State Agencies
  • Unions

Generally speaking, the ADA applies to employers who have 15 or more employees.  The ADA prohibits employment discrimination against all “qualified individuals with disabilities,” meaning job applicants are also potentially covered in addition to existing employees.

An individual has a disability under the ADA definition if he or she:

  • Has a physical or mental impairment that substantially limits one or more major life activities.
  • Has a record of such impairment.
  • Is regarded as having such an impairment.

For the purposes of the ADA, a person is considered to be a “qualified individual with a disability” if they meet the actual, performance-based qualifications for a job and can perform a job’s essential functions with or without a “reasonable accommodation.”  We will discuss the concept of reasonable accommodations in greater detail in the next section.

Employer Compliance: Requirements of the Americans with Disabilities Act

The Americans with Disabilities Act requires that the applicant must be able to perform the essential functions of the job with or without “reasonable accommodations.”  The employer is duty-bound to attempt to provide reasonable accommodations to a “qualified individual with a disability,” as long as these accommodations do not impose an undue burden on the employer.  Unfortunately for employers, the standard for an undue burden can be difficult to meet and is determined on a case-by-case basis.

Generally speaking, employers should seek to provide reasonable accommodations (1) when faced with disabled employees, and (2) wherever feasible.  Attempting to determine whether an individual is a “qualified individual with a disability” and whether an accommodation is truly “reasonable” can be a challenging task, but the attorneys at Bellatrix PC can help you analyze and find workable solutions to these types of situations as they arise.  Another important part of this process is documenting your efforts to accommodate, and/or discussing accommodations with any of your disabled employees.  The evidence contained within your written records can have a tremendous impact on the outcome of a legal claim.

“Reasonable accommodations” for disabled workers is a broad term which can include a wide array of options, as such accommodations depend on the nature of the employee’s disability.  Some examples may include:

  • Modifying work schedules.
  • Acquiring adaptive equipment or modifying work equipment, including equipment renting and leasing.
  • Appropriately modifying examinations, training, or other programs.
  • Reassigning the employee to a vacant position for which he or she is qualified.

Finally, it is important to note that the ADA is not the only anti-discrimination law with which California employers must comply.  The California Fair Employment and Housing Act, or FEHA, also prohibits discrimination against individuals with disabilities.

In fact, the FEHA has a broader definition of disability than the ADA, covers more conditions than the ADA, and is applicable to a greater number of employers by virtue of the lower employee threshold.  More specifically, the FEHA generally applies to employers with five or more employees, subject to certain exceptions.

Under the FEHA, employees can potentially sue their employers specifically for failing to provide a reasonable accommodation or failing to engage in a timely, good faith interactive process to attempt to find a reasonable accommodation for a disabled employee.

Contact Our Employment Law Attorneys

Disability discrimination is a complex area of law, and related claims require persistence and knowledge. If you have a disabled employee who notifies you of a need for accommodations, you must act promptly to comply with the disability discrimination laws and find workable solutions for your business.  Our business defense lawyers will work closely with you to identify and evaluate your potential courses of action.

If you have been sued by an employee for alleged discriminatory practices, including wrongful termination and employer retaliation, our experienced attorneys can help.  Whether it is most appropriate to settle your case prior to suit, bring your case through through arbitration or mediation, or challenge the claim in court, Bellatrix PC is prepared to assist.  In addition to handling disability-based discrimination claims, we also handle claims arising from:

To schedule a confidential consultation and learn more about how our legal team can serve your business, call Bellatrix PC right away at (800) 449-8992.  The sooner we can initiate a review of your employment policies, the greater peace of mind you will feel knowing your company is protected.  Ask about our business risk review package.

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Alicia Dearn

Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.


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