Category Archives: Medical

Accommodating Pregnant Employees

Discrimination, Forms and Policies, Medical, , , ,

Employers often face the question of how to reasonably accommodate pregnant employees. Many of my male (and some of my female) clients panic when they discover that one of their employees is pregnant. They fear that the pregnant employee won’t be able to do the work, that the employee will have some kind of workplace injury or that the employee won’t return to work after maternity leave.

Most employers walk on eggshells around their pregnant employees, even afraid to ask when the baby is due so that the employer can plan for work to get done while the employee is out on maternity leave. Overall, employers are just scared that they will inadvertently do something that will get them sued for pregnancy discrimination.

Their fear is not unfounded. The Equal Employment Opportunity Commission and the courts are taking a careful look at pregnancy discrimination. They want employers to reasonably accommodate the pregnant employee just as you would a disabled employee. You would do this anyway if the expectant mother had any pregnancy complications, such as gestational diabetes.

The only change is that now you would be wise to accommodate an employee who is having a normal, healthy pregnancy, if the employee asks for a reasonable accommodation.

A recent U.S. Supreme Court case held that a plaintiff can establish an initial case of pregnancy discrimination by showing that she is pregnant, that she sought some sort of reasonable accommodation for her condition, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

In other words, if you let other employees work light duty jobs from time to time, you need to allow your pregnant employee the same privilege. If you would allow an employee who has severe back problems to skip the duty of lifting heavy boxes, do the same for a pregnant employee is she asks for that accommodation. If standing at a cash register all day is hard on an expectant mother, offer a stool for her to sit on, just as you would an elderly employee.

Don’t be patronizing and assume that a pregnant employee can’t work or needs an accommodation. Allow her the dignity of working without help if she chooses. But if an accommodation is requested, you should engage the employee in a discussion (“the interactive process”) to determine what help she needs. You can decide together if her request is reasonable or if there are other equally effective options. Work willingly with your employee to help her out for a few months and she will most likely be glad to return after her maternity leave to be a very productive employee.

Here are a few other quick tips for dealing with pregnant employees: Continue reading Accommodating Pregnant Employees →

Employers Face Obesity Discrimination Issues

Discrimination, Employee Rights, Hiring, Medical, , , ,

In June, the AMA recognized obesity as a disease, instead of just an issue of poor judgment. As an employer, you now have to think about obesity in terms of the Americans with Disabilities Act (“ADA”). To be protected under the ADA, an employer must have a physical or mental impairment that affects a major life activity, such as walking or bending, or affects a major bodily function, such as the cardiovascular system. In addition, the ADA protects people who are “regarded as” having a disability, even if they don’t.

With the AMA’s decision as ammunition, you as an employer are now in the crosshairs of many more disability claims because the Centers for Disease Control says 35.9% of American adults over 20 are obese. We don’t know all the ramifications yet, but it is reasonable to assume that the AMA’s label will eventually change your legal obligations.

As an employer, you are going to need address the obesity of your employees in three ways:

  1. You must not discriminate against obese applicants or employees by treating them adversely in hiring, promotions, discharge, compensation, job training, or other terms and conditions of employment. Appearance discrimination hasn’t found much support in the courts before the AMA’s decision, but this could give that kind of claim new life. This means that the overweight applicant who you fear will have absenteeism problems because of health issues cannot be excluded on that basis from hiring consideration. Also, that obese employee who you have consistently passed over for a promotion because you think he is lazy, or the fat assistant who wants to go into sales but you don’t believe she presents a professional image, may have a discrimination claim against you either because he/she is disabled by obesity or is regarded as such. Finally, when you are firing an employee, you’ll need to have well-documented reasons if obesity could be a claim.
  2. You will have to accommodate an obese employee’s reasonable requests for bigger, more comfortable furniture, more doctor’s visits or additional time to perform certain physical functions at work. As with any disability, you will have to handle these requests with discretion and sensitivity. I imagine that public theaters, airplanes and stadiums will also have to address this issue of whether they will have to provide larger seats.
  3. You must prevent harassment based on a person’s disability. That means that fat jokes will have to be tamped down just as you would racial or religious slurs to prevent a hostile work environment.

At a time when some parts of the federal government (HHS, DOL and IRS) are promoting wellness programs under Obamacare and encouraging employers to adopt programs that reward employees who stop smoking, lower their cholesterol or their BMI, the federal discrimination enforcement agency, the EEOC, is going to be scrutinizing wellness programs that may stigmatize obese employees. As an employer, you are going to need to walk a fine line with your wellness incentives. Heck, just having a motivation poster glorifying skinny people climbing to the top of a mountain may imply a negative stereotype of disabled obese employees.

There are no easy answers to this new issue. The AMA’s decision, by itself, doesn’t carry any legal weight. But it could influence the courts and accelerate the EEOC’s efforts to make appearance a protected class. My advice is to avoid becoming the test case on this issue and just use some care and common sense when dealing with obese employees.

 

Health Care Reform for Small Employers

Benefits, Hiring, Medical

Since the U.S. Supreme Court ruling upholding the Patient Protection and Affordable Care Act (“PPACA”), health care reform questions have been raised by many of my employer clients. It is important for small businesses to know if and how the PPACA will affect them.

The PPACA “mandate”, requiring employers to provide health insurance to employees or face a penalty, does not apply to employers with less than 50 full-time employees or the equivalent of 50 full-time employees. This is the small business exemption to the mandate.

To apply this small business exemption, Continue reading Health Care Reform for Small Employers →

What is the Maximum Leave an Employee Can Take?

Attendence, Discrimination, Medical

Sears Roebuck & Co. recently settled with the Equal Employment Opportunity Commission a class-action lawsuit for $6.2 million, the largest monetary award for a single Americans With Disabilities Act (“ADA”) suit in EEOC history.

The accusation against Sears was that the company discriminated against the disabled because it had an inflexible policy that allowed injured employees to take off of work for one year before they were automatically terminated for exhausting all leave. The EEOC said that this apparently neutral policy did not provide injured employees with reasonable accommodations in violation of their ADA rights.

With this suit, the EEOC is signaling an end to maximum leave policies. So if an employee has a serious health condition and uses all of his Family and Medical Leave but still cannot return to work, the employer now has to determine whether it would be a reasonable accommodation to allow the employee to miss more work. This is the EEOC position even though the courts have held that regular attendance is an essential function of most jobs and that indefinite, open-ended leave requests are not reasonable.

Texas courts have long held that maximum leave policies, neutrally applied regardless of whether the employee suffered an on-the-job injury, had a heart attack or wants to extend her maternity leave, are valid in Texas. The EEOC is undercutting those holdings in an attempt to impose a different standard (or no standard at all). From the settlement with Sears, the EEOC apparently wants all employers to follow these steps when an employee has been on leave and is unable to return at the prearranged time:

  • The employer must notify the employee 45 days in advance of the date her leave expires.
  • The employer must engage in the interactive process with the absent employee to determine whether part-time work, modified duties or a move to another position  would reasonably accommodate the employee and allow him to return to work.
  • If none of the previous options work, then the employer should consider offering additional leave beyond what the policy calls for.

What this means to even a small employer (15 or more names on the payroll) is that there will be no bright-line cutoff to an employee’s leave. If the EEOC’s position prevails, employers will have to hold all jobs open indefinitely for an employee who must take time off for an injury or illness.

At this point, my only advice is to wait and see how the courts react to the EEOC’s position. The Sears suit was a pretrial settlement, so we don’t know how this unreasonable position of the EEOC will hold up in court.

In Texas, it is still the law that an employer can enforce a neutral leave of absence policy by automatically terminating an employee who has exceeded the maximum leave offered. Just be aware that that law could change at any time if courts begin to side with the EEOC.

Genetic Information Now Protected By Law

Discrimination, Medical

In June 2008, the Genetic Information Nondiscrimination Act (GINA) was passed by Congress and signed into law by President Bush. The law prohibits discrimination based on genetic information about employees and applicants, their dependants, and any relatives out to the fourth-degree, such as great-grandparents. GINA stops employers from requesting, requiring or purchasing genetic information about an employee or his family members. The law goes into effect for employers beginning in November 2009.

Although many people have questioned why we needed a law when no one recognized that genetic discrimination was a problem, the federal government seemed to think that the law was necessary to allow genetic testing to begin to be used to its full potential in fighting disease. In fact, the law passed with only one “no” vote in the House and unanimously in the Senate.

How do you as an employer need to respond to GINA? Continue reading Genetic Information Now Protected By Law →

Employing Mentally Disabled Employees

Medical

            It is disconcerting to consider the issues an employer faces with a mentally impaired employee.

            The Americans with Disabilities Act and the Texas Human Rights Act protect employees with mental impairments when they are employed by a company with at least 15 employees. But many employers are unprepared to legally interview, hire, employ and occasionally fire a mentally impaired employee.

            Generally the ADA protects employees who are qualified for the job but whose physical or mental impairments substantially limits major life activities such as concentrating or interacting with others. Employers must reasonably accommodate these disabled individuals if they can perform the essential functions of the job.

            Most employers I work with are willing to give mentally ill employees a fair chance and many mentally impaired employees are performing satisfactorily at all sorts of jobs.

Continue reading Employing Mentally Disabled Employees →

Family and Medical Leave Act Mistakes

Employee Rights, Medical

Although the law was adopted with much political posturing in August 1993, I have rarely mentioned the Family and Medical Leave Act (“FMLA”) in this column over the last ten years that I’ve been writing it for two reasons:

1.    It only affects employers who have 50 or more employees on the payroll; and

2.    It provides only unpaid leave, so very few employees can afford to take the 12 weeks off that the FMLA allows.

But I have decided it is time to readdress the FMLA if for no other reason than to combat the misinformation that seems to exist about it. If you are an employer that is affected by it, then you need a lot more knowledge than I can provide in this column, but this should act as an introduction for you.

Continue reading Family and Medical Leave Act Mistakes →

Options For Compensating Injured Employees

Medical

             Bill is an employee of a small manufacturing business in Amarillo. His job involves operating heavy machinery. One day he injures his back at work. He stays at home for a couple of days. When the pain doesn’t get better, he goes to his family physician, who sends Bill to a specialist, who recommends surgery. Bill has the surgery and misses three months of work. Bill’s medical treatment and lost wages amount to more than $50,000.

            This scenario or a variation of it happens every day in the workplaces across the Panhandle. And employers dread it every day.

            On the job injuries raise very difficult questions for an employer. Obviously you as the employer want your employees taken care of properly before and after an injury. But what will that cost the employer? Will Bill sue his employer? What if Bill’s accident happened because he was negligent in not following the safety rules?

Continue reading Options For Compensating Injured Employees →