“Documentation can be extraordinarily helpful when it’s done completely, timely, and appropriately.” Ann Bowden-Hollis told us in a recent BLR webinar. But it can also be problematic if done improperly or without oversight. At the conclusion of the webinar, Bowden-Hollis answered participant questions including questions regarding how to address cognitive abilities in job requirements (to have documentation of essential job functions for ADA purposes), what information to keep out of an employee’s personnel file to protect their privacy, and more. Here are her answers.
Q. What if an employee has a disability/injury/illness that affects his or her ability to follow problems and remember things? When we list the job requirements or essential job functions, how do we address the need to do both?
A.What an employer should do is to describe the functions that the person must be able to perform, rather than the specific skills or tasks. If the employee has an inability to perform the functions (such as creating financial statements, for example), then the employer should see if there are accommodations that would allow the employee to perform the function. The key is to describe the function rather than a task. There are often different ways to accomplish the essential function.
Q. Typically, physical requirements are provided in detail. But what about cognitive aspects of the job—what should be detailed in your job posting?
A.The rule of thumb is that if a specific type of ability is required, such as the ability to have a reading comprehension at a specific level, that could be listed as a cognitive function. However, employers must be very careful that they have a valid requirement for these things.
Employers get into trouble with job requirements that are not valid or legitimate—which could lead to a discrimination suit based on a claim of disparate impact. When you think about cognitive functions that are mandatory, this is a considerably more involved process to determine these and ensure they’re valid.
Q. Cognitive functions in a job description can also refer to knowledge rather than skill, correct?
A.If you need to have a level of knowledge that is mandated by a specific type of degree or training or years of experience—those are things that you can objectively demonstrate. However, employers need to take care to understand that when these items are specified (such as the need to have a specific degree), then the employer needs to ensure it is truly a valid requirement. Use terms that explain the type of degree or the level of experience and equivalents.
Q. Regarding employee performance improvements, what are some examples of language to use when employees need to be accountable for improving their own performance or conduct?
A.Provide them with what the expectations are. Ask them to advise what steps they are going to take to meet the expectations. You’re asking them to tell you what they’re going to do, specifically, to meet the performance expectations.
Q. While we know that medical information should be kept separate from employee personnel files, what about benefit enrollment and beneficiary forms? Must those be kept separate as well?
A.Not necessarily. The issue with medical records is to ensure you’re complying with HIPAA and state privacy laws. Those records shouldn’t be available to everyone. Benefit information wouldn’t necessarily need that protection. But the rule of thumb is to watch what should be generally available to any manager who has access to personnel files versus what should be kept private.
For more information on employee documentation, order the webinar recording of “Employment Documentation: Avoid Costly Mistakes with Defensible Drafting Strategies.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Ann Bowden-Hollis is an attorney in the Gulf Coast office of Butler, Snow, O’Mara, Stevens and Cannada, PLLC, where she provides her clients with employment compliance counseling and training, business and contractual analysis, and problem-solving guidance.