I saw The Avengers this week – brilliant, by the way, but nothing less ever comes from the great mind of Joss Whedon – and it got me to thinking about how people work together.  What are the advantages and disadvantages to workplace friendships?  Individually, each Avenger is effective in his or her own right.  Brought together under the assumption that being told you’re a team makes you a team, the results were disastrous.  It was only when casual friendships began to develop that this assembly of superheroes became a team – became The Avengers.

One of the questions commonly asked in surveys by the Gallup Organization is whether the individual queried has a best friend at work.  Gallup has determined that individuals who do have friends at work are more satisfied with their jobs.  And what do employers have to gain from satisfied employees?  How about these things, for openers:

• Higher productivity: despite the fact that friendships increase the amount of socializing that takes place at work, productivity increases for a variety of reasons, including the support system created by friendship that can get employees through stressful situations;
• Less turnover: working with those you consider to be your friends makes it less likely that you would ever wish to leave your job; and
• Improved communication: this is the upside of socializing.  It creates a team atmosphere which enhances the ability to make decisions and manage conflict within the group.

There are, however, potential downsides to friendships at work.  For one thing, the supervisor/subordinate friendship may lead to feelings of unfair treatment by other workers or inaccurate performance assessments, which can, in turn, lead to claims of discrimination, retaliation, and wrongful discharge.  Friendships at work also may result in the failure to report bad behavior.  In a claim of sexual harassment, for instance, the employer needs these reports to effect prompt, remedial action.

The pitfalls don’t stop there.  The promotion of one friend over another is another potential downside, and that certainly can lead to bad feelings which may disrupt the workplace.  Further, the sharing of more intimate personal information that arises out of friendship may lead to problems for employers – like being charged with knowledge of a disability in a lawsuit when the knowledge did not reside with the decision-makers in a matter of discipline or discharge.

When the Avengers finally come together as a team, it’s through casual friendship.  The strengths of each member of the team combined to become greater as a whole.  Decision-making became more efficient as a result of the friendships developed.  Gotta love synergy!  Think about it.  If there wasn’t that connection, there’s no way a trouble-maker like Iron Man would ever take orders from a boy scout like Captain America.  And as for conflict management, I commend the efficiency of the Hulk’s style.  I don’t recommend the exact method, mind you, but you can’t argue with his results!

I suspect every employer is different with regard to the balancing of workplace friendships.  At my firm, workplace friendship is encouraged in ways that you may be able to adapt to your own environment.  We have office newsletters in which we share the goings-on of both our various offices and our many local communities.  We have strictly social gatherings, as well as work-related functions.  Within our teams, communication is a river that flows constantly via emails, teleconferences, and in-person meetings.  In other words, building teams is a priority here, and it works for us.  In that way, we’re kinda like the Avengers ourselves.  Only less dysfunctional.

It is hard to believe that it has been almost 20 years since the Family and Medical Leave Act (FMLA) was originally enacted in 1993.  It would be easy to think that after 20 years, all of the kinks would be worked out and that it would be a piece of cake to administer, but unfortunately that has not turned out to be the case.  Issues surrounding administration of the FMLA continue to be one of the biggest challenges HR departments face today.

While most HR professionals can list the basics of the Act off the top of their heads, there are a many pitfalls that employers face that can potentially lead to costly litigation if their own policy is not administered properly.  Below are several suggested areas to help employers, managers, and HR professionals avoid potential pitfalls

Develop and Clearly Communicate Company FMLA Policies

As with most HR policies, the best way for employers to steer clear of problems is to communicate their FMLA policy in a clear and concise manner.  The DOL requires that covered employers post a notice (WH Pub 1420) explaining FMLA rights and responsibilities in a central location on the worksite, as well as include information about employee rights and obligations under the FMLA in employee handbooks.  But that is just the basics.  It is imperative that a policy be developed that not only explains what the law permits but how the company plans to administer their FMLA policy.  For example, what 12-month period will be considered a benefit year (calendar, anniversary, rolling forward, rolling back)?  How do employees arrange to pay for the employee portion of their health insurance while they are off payroll?  How will the company treat accrued paid time off (PTO, sick, vacation leave) and recertification of the need for leave?  At a minimum, all of these issues should be outlined in all FMLA materials and provided to employees on a regular basis.

Don’t Ask, Don’t Tell

Okay, you have received a medical certificate from an employee and it does not include all of the information that you need to make a FMLA determination, now what do you do?  You send them back to their physician to get additional information, of course, but it might not be quite as easy as that sounds.  As the employer, you are required to notify the employee in writing of deficiencies in the information and allow 7 calendar days for the employee to correct the discrepancy.   However, it is important to keep in mind that a medical note need only verify that an employee has a “serious medical condition”, including the medical facts that back up that designation and probable duration of the leave.  Remember, employers are not entitled to a specific diagnosis when an employee requests a medical leave under FMLA, just that he/she has a serious medical condition that needs on-going treatment.

Also, with all of the legislation that has been enacted to safeguard the medical conditions of employees (GINA, HIPAA), it is safe to say that employers must tread lightly when making requests for medical certification to support FMLA requests.  The 2009 FMLA regulations permit, under certain circumstances, an employer to contact an employee’s health-care provider to request additional clarifying information; however, the contact must be made by a HR professional, a leave administrator, or a management official of the employer.  The employee’s supervisor is strictly prohibited from making such contact.  This is a perfect lead to the next recommendation to prevent a pitfall…supervisor training.

Train Supervisors and Managers on Handling FMLA Issues

Let’s face it, direct supervisors and managers know much more about what is going on in the daily lives of their employees than the HR Department.  Therefore, training supervisors on how to handle FMLA absences and requests is crucial for risk management.    Training should outline employee rights under the FMLA regulations, teach supervisors to  respect the confidentiality of medical records, instruct them on when and how to apply company policy, and lastly, encourage them to point employees to their HR representative if they are asked questions that they are not comfortable answering.

Adjust Performance Standards

The FMLA does not limit employers from disciplining employees for poor performance, unless the performance problems are somehow related to that medical leave.  For example, employers may want to be cautious and reduce quarterly or annual sales quotas for those employees who have taken an approved FMLA leave.  Remember, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies.  Therefore, if an employer offers a perfect attendance bonus and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.  Remember, there should be NO penalties imposed on employees who take approved FMLA leave.

Bottom Line

The FMLA is one of the more complex rules with which employers and HR professionals must deal; however, with a little upfront planning, strong communication, and internal education, costly litigation may be avoided.

For the second time in less than a month, the National Labor Relations Board (NLRB) has come up empty in court trying to argue that one of its latest initiatives should stand.

A few weeks ago, the D.C. Circuit Court of Appeals rebuked the NLRB when it issued an opinion granting a temporary injunction to the National Association of Manufacturers (and others), stating that the NAM demonstrated a strong likelihood of proving that the Board’s promulgation of a rule requiring that employers post a notice advising all employees of their rights to unionization under the National Labor Relations Act exceeded its authority.  Our summary of that story can be found here.

Yesterday, Washington D.C. Federal District Court Judge James Boasberg issued a decision in favor of the U.S. Chamber of Commerce (and others) that one of the Board’s other seemingly pro-employee initiatives – their revised election rules – were invalid because they were approved as a final rule without a vote from the Board’s sole Republican member, Brian Hayes.  Because Mr. Hayes did not participate in that vote, the Board lacked the required full 3-member quorum at the time the agency finally approved them.  The new rules had been in effect since April 30, 2012.

We previously talked about these rules for the first time here.  As our loyal readers know, the rules drastically shortened the period for certain labor union elections after a Petition for an election is filed, and adopted other procedures which would defer certain challenges to the scope of the bargaining unit until after the election, among other changes.  While the rules taken together negatively affected employers in several respects, the most significant impact they had was to limit an employer to a much shorter window in which to share its point of view on the need for a union in the workplace.  Unions were very happy to spring a Petition for Election on employers and leave the employer with a much shorter time to spread its own message.

Interestingly, because Judge Boasberg’s ruling yesterday came largely on procedural grounds (the lack of quorum), what remains undecided is whether the rules violated the Constitutional rights of employers to free speech, or exceeded the Board’s authority – arguments which the Chamber of Commerce also advanced in their suit.

Judge Boasberg’s decision also leaves open the possibility that the Board may just go ahead and try to re-issue the final rule with the appropriate quorum to get over the procedural roadblock now on the ground.  Of course, only time will tell if the Board goes to the well again in an effort to push this initiative through now that President Obama has since made 2 recess appointments to the Board (giving it 5 members).  Even if the Board goes that route, however, the effectiveness of the election rules will remain up in the air as long as a legal challenge to the propriety of the appointments remains.  That is still pending, as we first discussed here.

Visit the Employment Essentials blog regularly for future developments on this critical employer issue.

While the National Labor Relations Board has no real competition as the most employer-antagonistic governmental agency over the last year, the Equal Employment Opportunity Commission (“EEOC”) certainly hasn’t been a wallflower during that period, either.

As most employers probably know, late last year, the agency caused quite a stir when it issued an informal discussion letter through its Office of Legal Counsel addressing whether a high school diploma requirement for a job potentially violates the Americans With Disabilities Act (“ADA”).  That letter – after purporting to summarize and apply long-standing statutes and regulations – went on to set forth the EEOC’s position as follows:

If an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity.  The employer will not be able to make the showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

The letter further noted that the employer may still have an obligation to determine whether a particular applicant whose learning disability prevented him or her from securing a high school diploma can perform the essential functions of the job with or without reasonable accommodation. The Office of Legal Counsel gave examples in the letter, such as considering relevant work history and allowing the applicant to demonstrate an ability to perform the essential functions during the application process.

Following the understandably quick flood of calls and letters to the EEOC from the employment community in response, the agency released a “Questions and Answers” news release to “clarify” the letter, while at the same time pointing out that neither it nor the Q & A press release was anything more than a restatement of long-standing law and policy.

In issuing its clarification and Q & A, the EEOC flatly denied having “just made it illegal” for businesses to require a high school diploma.  The EEOC did note that an employer “may have to allow that someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualifications for the job in some other way.”  The EEOC also denied granting ADA protection to individuals who decide not to graduate from high school, and even felt it was important to make clear that it was not creating a disincentive to finish high school.  In doing so, it pointed back to a United States Supreme Court decision 40 years earlier noting that a high school diploma requirement could be discriminatory because of a disparate impact on African-American applicants.

And to think – according to what the EEOC said after causing this stir – all the agency claims to have been trying to do in the first place was point out that the ADA would protect someone with a disability which makes it impossible for him or her to secure a high school diploma.

Nonetheless, and notwithstanding the EEOC’s efforts to “clarify” its informal discussion letter, the point of that letter and the follow-up clarification should not be lost on HR professionals.  The issue of high school diploma requirements was – and remains – on the EEOC’s radar, which makes an investigation more likely if a complaint is submitted by a dissatisfied job applicant.  Worse, the informal decision letter and clarifying Q and A also provide a road map for job applicants who lack a high school diploma for any number of reasons to circumvent that disqualifying fact by claiming disability status.

This situation puts employers in a tough spot.  Under the EEOC’s interpretation of the ADA, the employer must decide whether to actually attempt to enforce the high school requirement on job-related business necessity grounds, or to ignore the employer’s posted qualification in the interest of avoiding EEOC’s scrutiny on the issue.  As often is the case in the world of employment law, employers need to weigh the risks of each choice – and not hesitate to speak with qualified legal counsel for guidance in doing so.

One day after the two-year anniversary of the Upper Big Branch mine explosion, the federal Mine Safety and Health Administration (MSHA) released changes to its regulations pertaining to examinations of coal mines.  Under the new regulations, operators must record the actions taken to correct certain violations that mine examiners discover during preshift, supplemental, on-shift, and weekly examinations.  Previously, mine operators had to look for the violations during their examinations but did not necessarily have to correct them at that time.

The new regulations require the operator to record the corrective action taken when violations are found in the nine areas MSHA has identified as presenting the greatest unsafe conditions and the most serious risks to coal miners.  These areas include roof control, ventilation, methane, combustible materials, application of rock dust, guarding moving machine parts, maintenance of conveyor belt components, and other safeguards.

After reviewing accident reports and enforcement data for a 5-year period, MSHA determined that the same types of violations are repeatedly found by its inspectors and that these violations present some of the most unsafe conditions.  Because violations in these areas present the most serious risks to coal miners, MSHA estimates that the new rule will prevent an average of approximately 2.4 fatalities and 6.4 lost-time injuries per year.

In addition to the new inspection requirements, the new rules also require mine operators to review with mine examiners all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required.  It is hoped that these quarterly reviews will educate and enhance the skills and knowledge of the operators and examiners, resulting in continual improvements in the safety and health conditions of the mines.

Employers in the mining industry should familiarize themselves with the new rules and ensure that they are in compliance.  You can review a copy of the new rules here. If you have any questions about the new rules, it’s a good idea to consult your legal counsel.

Recently, the Fourth Circuit Court of Appeals addressed the question of whether, under Pre-ADAAA jurisprudence, an employee is not substantially limited in the major life activity of working if he or she can work a 40-hour workweek, but is not able to work overtime because of a physical or mental impairment.

In Boitnott v. Corning Incorporated, the plaintiff, Michael Boitnott, was diagnosed with leukemia while on medical leave from his employment with Corning as a maintenance engineer.  Although his leukemia was asymptomatic and did not require treatment, Boitnott was advised by his physician to limit his work hours to no longer than eight hours per day and 40 hours per week.  Accordingly, Boitnott informed Corning when he was prepared to return to work that he would be unable to return to his regular work schedule as a maintenance engineer, which consisted of 12-hour shifts and required overtime.  He either sought that reduced schedule, or a position that required only an 8-hour straight shift.  At that time, however, the only open positions at Corning required 10-hour shifts and some overtime.

Because Boitnott was capable of working a normal eight hour day and 40 hour week, Corning felt that he was not disabled under the Americans with Disabilities Act (“ADA”), and therefore, did not accommodate his request for a reduced schedule.  Boitnott responded by filing a charge of discrimination against Corning with the Equal Employment Opportunity Commission, alleging that the company failed to provide reasonable accommodation for his disability as required by the ADA.  The EEOC felt there was reasonable cause to believe a violation of the ADA had occurred, and Boitnott filed suit soon thereafter.

The district court ruled in favor of Corning, concluding that Boitnott was not disabled under the ADA.  The court considered whether Boitnott’s asymptomatic leukemia substantially limited him in the major life activity of working, but found that Boitnott’s inability to work overtime did not significantly restrict his ability to work in a broad range of jobs.  On appeal, the Fourth Circuit affirmed the district court’s decision, joining the view of the First, Third, Fifth, Sixth, and Eighth Circuits in holding that the inability to work overtime does not constitute a substantial limitation on a major life activity under the ADA.

Although this outcome was a good one for Corning, employers should be careful not interpret the Court’s decision as completely absolving employers from the obligation to accommodate an employee’s inability to work overtime in all instances.  The Fourth Circuit decided Boitnott under the law as it existed prior to the 2008 Amendments to the ADA, which became effective on January 1, 2009.  Under the ADAAA – which significantly broadened the definition of disability – an employer who acts hastily to deny an employee’s request for accommodation to address an inability to work overtime could very well face liability. 

In Boitnott, the plaintiff had to resort to attempting to prove disability based upon a substantial limitation on his ability to work since his leukemia was asymptomatic and he was unable to prove that he was substantially limited in any other major life activity.  Now, based on how the revised regulations to the ADA define disability, it is very likely that an employee with a health condition like leukemia will be able to prove that he or she is disabled by showing substantial limitation of a major life activity other than working, even if the disease does not cause symptoms.  Of course, there still remains the issue of whether the employee is “qualified” if overtime is an essential function of a position.

Since that issue has not yet been resolved by post-ADAAA litigation, and since the contours of the ADAAA in general are still being fleshed out in the courts, employers should certainly consider consulting competent legal counsel when dealing with any accommodation question.

The EEOC has stated in no uncertain terms that reasonable accommodation should be the new focus for employers of individuals with disabilities.  In fact, an update to the EEOC guidance on reasonable accommodation was third on the agenda at this week’s Commission meeting, but it was bumped at the last minute.  That’s a pretty big indication that employers are going to see an approved guidance in the very near future.

From my perspective, the EEOC’s laser-focus on this issue means that employers are going to have to get creative when it comes to accommodating individuals with disabilities.  Under the current definition in the ADAAA, more employees than ever before are considered disabled, but from my point of view, that works somewhat of an injustice to those who truly need the assistance of the ADA to enjoy the full benefits of employment.

This brings me to something which I’ve noticed many employers seem to be overlooking with alarming frequency.  Everyone should know by now that a reasonable accommodation should be offered to enable a qualified individual with a disability to perform the essential functions of his or her job.  The ADA also requires accommodations that allow those individuals “to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities” Some examples of cases that have worked through the court system under this prong demonstrate why employers need to start thinking outside the box when it comes to engaging in the interactive process of accommodation.

In a case out of Montana, a disabled employee used a service animal to brace her while she walked, to stimulate her when the dog sensed that a dissociative episode was coming on, and to alleviate her depression.  The dog, while trained to walk on tile floors and slippery surfaces, was not able to maintain traction on the employer’s floors – through no fault of the dog.  The employee requested that her employer accommodate her by providing nonskid floor coverings for the areas of the workplace her job required her to use.  The employer argued that it was not required to accommodate the employee’s dog, just her, and she had no trouble doing the essential functions of her job.  The appellate court disagreed, noting that the use of a service animal is no different from the use of any other assistive device.  For instance, installing ramps for the use of a wheelchair is not substantively different from installing nonskid flooring for the use of a service animal.  And, while the employee was capable of doing her job, she was not getting to enjoy equal benefits and privileges of employment as other employees moving around the building.

In a case last month out of Illinois, an employee suffering from panic disorder and generalized anxiety disorder experienced increased anxiety when his supervisor changed.  Among the accommodations he requested was the ability to work from home for a period of time.  Obviously, this accommodation would not be reasonable for many employers, but this particular one could make this accommodation and had for others in the employee’s position.  Nevertheless, it argued that the accommodation was not medically necessary as the employee was capable of performing his job.  The court determined that this was not the appropriate inquiry; rather, the question was whether the employee had to work from home so that he could be free from levels of stress not experienced by other employees – in other words, so that he could similarly “enjoy” his employment.

In another case, an employee with degenerative joint disease requested an electric door for access to the workplace.  While she was capable of doing her job and could open the door, just with difficulty, the court found that the right to enjoy the benefits of employment equally required the employer to make it less of a struggle for her to enter the building by installing an electric door.  The struggle exacerbated the employee’s condition, and that was a key factor considered by the court.

Each one of these examples reiterates that it is important for employers to evaluate accommodation requests on a highly individualized basis, but they go further than that.  They also illustrate that employers need to think about accommodations not just in a traditional sense, but in terms of whether employees with disabilities are being deprived of equal entitlements in the workplace – even those which may not be related or connected to their day-to-day work functions.

I hope we see some sound guidance coming from the EEOC in the near future, but I fear its position on indefinite leave as an accommodation – something else that was on the agenda this week – is going to be rough on employers.  While we wait for that with baited breath, I’d like for you to share with us your interesting experiences and/or creative solutions to requests for reasonable accommodation.  To the right of this column, you’ll see a box with a link taking you to the contest page where you can share your reasonable accommodation stories and perhaps win a little swag for your effort.  I hope to hear from you!

Here at the EE Blog, we’d like to have even more interaction with our readers, and what better way to do that than with a simple contest.  To the right of your screen, you will see the link that will take you to the contest page.  We’d like to hear your unique, funny, or interesting stories about going through the interactive process and finding reasonable accommodations for your employees.  We will select the best entry, be it the funniest or even the most helpful, as the winner, and that person will receive prizes from the EE Blog.  The contest runs for only a limited time, so check it out today.  We look forward to hearing from you!

On March 20, 2012, the Supreme Court of the United States issued an important decision regarding the applicability of the Family and Medical Leave Act of 1993 (“FMLA”) to state governments.

As most employers know, the FMLA allows employees, who meet certain criteria, to take up to 12 weeks of unpaid leave per year for the following reasons:  (a) the care of a newborn child; (b) the adoption or foster-care placement of a child; (c) the care of a spouse, child, or parent who suffers from a serious health condition (“family-care” leave); and (d) the employee’s own serious health condition when the condition affects the employee’s ability to work (“self-care” leave).  Of course, the FMLA allows employees to sue employers who fail to provide the required leave.

In Coleman v. Court of Appeals of Maryland, Daniel Coleman was employed by the Court of Appeals of the State of Maryland, which is a state agency.  Coleman requested sick leave (“self-care leave” from his employer.  In response, his employer (wisely or otherwise) told him that he would be terminated from employment if he did not resign.

Coleman sued his employer for this decision, claiming that it violated his entitlement to leave under the FMLA, but the federal court where he sued dismissed the suit on sovereign immunity grounds – the theory where States, as sovereign entities of government, are immune from suits for damages unless they elect on their own to waive that defense.  Congress, of course, may also make that decision for the states when it enacts legislation.  That authority comes under Section 5 of the Fourteenth Amendment.  When doing this, however, Congress must make its intention unmistakably clear in the statute, which it did in the FMLA by making it plain that any public agency is subject to being sued under it.  However, in order to fully abrogate the immunity of the states, Congress must also tailor its legislation to remedy or prevent conduct on the part of states that is illegal through the Fourteenth Amendment.  Under the FMLA, that means gender discrimination.

About 10 years ago, the United States Supreme Court determined that states could be held liable for their refusal to provide “family-care” leave.  Basically, the Court felt that Congress had properly abrogated the states’ immunity to remedy gender discrimination because the family-care provision was “narrowly targeted at the faultline between work and family – precisely where sex-based overgeneralization has been and remains strongest.”

In Coleman, however, the Supreme Court held that Congress could not abrogate the states’ immunity with respect to the “self-care” provision because that particular part of the FMLA was not enacted to address sex discrimination or other discrimination.  The Supreme Court noted that the vast majority of state employees received sick leave at the time the FMLA was enacted, and there was no evidence of widespread sex discrimination or sex stereotyping in the administration of sick leave among state employees.  Rather, Congress enacted the self-care provision because of a concern about the economic burdens of an employee’s sickness or unequal treatment based on that illness, not because of gender.

Coleman argued that the “self-care” provision works in tandem with the “family-care” provision to eradicate sex discrimination, but the Supreme Court rejected this argument because there were no Congressional findings to support the argument.  The Supreme Court also rejected Coleman’s theory that because the “self-care” provision helps single parents keep their jobs and because most single parents are female, it does, in fact, work to eradicate gender discrimination.

In the dissent, Justice Ginsberg, who was joined by three justices, argued that the entirety of the FMLA was directed at remedying sex discrimination.  She focused on the fact that the “self-care” provision allows women to care for themselves following pregnancy – a condition that only affects women.  She noted that it would make little sense to provide “family-care” leave for women to care for a newborn but not allow women leave to recover from delivery miscarriage, or the birth of a stillborn child.  Further, she argued because the “self-care” provision applies to both males and females, it would undermine stereotypes of women as caregivers by increasing the likelihood that both men and women would take similar amounts of FMLA leave.

Coleman makes clear that state governments are immune from suits seeking monetary damages for violation of the “self-care” provision of the FMLA.  However, that doesn’t mean employers out there should automatically start firing their employees for requesting leave to take care of their own serious health condition figuring they can get away with it.  Since Coleman doesn’t apply to private employers, the FMLA continues to be a very challenging issue for HR professionals everywhere on a daily basis.  For those folks – and for employers everywhere – we encourage you to visit this blog often, as we expect to have further useful news and information on the FMLA in the very near future.

Folks, we told you this year would bring you some new ways to interact with the Employment Essentials Blog Team.  Here’s the scoop on our newest bit of fun and education:  a contest for our readers.  And, no contest is complete without prizes!!!  Sometime around the end of this month, you will see an icon/graphic in the right margin of our blog page that will take you to the contest screen for the rules on how to play and how to win.  The hot topic for our contest is reasonable accommodation.  Share your experiences – share the fun!