In yesterday’s Advisor, the Advanced Employment Issues Symposium panel offered tips for dealing with an increasingly aggressive Wage/Hour Division; today, the panels advice for dealing with ADA issues, plus an introduction to the leading all-HR-in-one website.
EEOC is coming after anyone not using a unique interactive process, says attorney Stacie Caraway. They want to see one-on-one engagement.
Caraway, of counsel with Miller & Martin in Chattanooga, Tennessee, joined Dinita James, partner with Ford & Harrison in Phoeniz, Arizona, and moderator Charles Plumb, a partner with McAfee and Taft in Tulsa, Oklahoma, in a wide-ranging panel discussion of the challenges of 2012 at BLR’s Advanced Employment Issues Symposium in Las Vegas.
[Go here for the panel’s tips on wage and hour issues for 2012.]
Time Off Accommodation? Give Two More Months!
As far as granting extra time off as an accommodation, Caraway says the EEOC always wants 2 more months. If your policy says employees are terminated after 12 months, as many policies do, the EEOC will ask, why not 14?
To deal with this, some of Caraway’s clients are dialing back to 6-montth termination policies.
Don’t Use Jargon with Employees
When you are talking to employees, Caraway says, use lay language. For example, instead of saying, “I want to engage in the interactive process to see about reasonable accommodations,” say, “I’d like to talk to you about your options.”
Talk to Supervisor And …
When considering reasonable accommodations, always talk to someone in addition to the direct supervisor. Direct supervisors are likely to respond with a kneejerk “no” to any accommodation request, says Caraway. You need to be able to show you gave thorough consideration.
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Push Back Against Doctors?
James notes that you can push back against doctors who want to keep extending leave. If the doctor can’t say that the employee will return at some future point, the person is probably not a “qualified individual.”
Make Accommodations Conditional
When you offer an accommodation, like new hours or new duties or a new way to allocate job functions, make it conditional, says Caraway. Say, “We’re not sure this accommodation (new hours, new duties, etc.) will work, but we’ll try it out.” Otherwise, the employee thinks the accommodation is approved even if it turns out to be a nightmare for the department when you put it into practice.
Show You Went Through the Process
Plumb says that you must be prepared to show an investigator or a jury that you went through the interactive process. Be sure to indicate, he says, that you:
- Solicited the employee’s ideas as to what accommodations might work
- Had a huddle with the employee to discuss the options
- Got together with others who know the job to explore the possibilities
Dealing with accommodation requests—a critical task, but certainly not your only challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, harassment charges, and then on top of that whatever the agencies and courts throw in your way.
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general non-solicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
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