Best Defense Against Leave Fraud? Continuous Performance Management

In yesterday’s Advisor, Attorney Patricia Eyres briefed us on dealing with employees’ chronic health conditions. Today, we present her tips on managing those employees’ performances, plus an introduction to the all-things-HR-in-one-place website, HR.BLR.com.

Continuous Performance Management Is Your Best Potential Defense

Always start dealing with the productivity or performance issue, says Eyres. Let the employee bring up the disability. Eyres, who is managing partner of Eyres Law Group, LLP, offered her tips at a recent BLR-sponsored webinar. Consider the following, she says:

• Employees should not be genuinely surprised by candid, constructive performance feedback.
• Good feedback may bring to light unknown barriers to performance.
• Specific performance evaluations help with later analysis of skills, experience, and potential for other jobs assignments as a reasonable accommodation.
• Regular feedback avoids the “I didn’t know what was expected” syndrome.
• Well-crafted documentation, done contemporaneously with identifying performance issues, enhances the defense that actions were job-related and not retaliatory (if employee is injured or sues later).

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It is helpful to remind managers and supervisors of the difference between performance issues and discipline issues, says Eyres.

Performance Management	Disciplinary Action
Based on standards for acceptable performance	Based on standards of conduct (workplace rules)
Occurs with regular evaluations and feedback—requires communication	Occurs when a rule is broken or misconduct occurs—requires investigation
Can support a termination without cause, as long as policies are consistently followed and non-discriminatory	Can support a termination, based on misconduct that rises to cause or violation of specific rules in Employee Handbook or other communications

Mitigating Measures to Define Disability

The issue of mitigating measures has caused confusion. A mitigating measure is “a treatment, therapy, or device that eliminates or reduces the limitations of a disability.” Here’s what makes it confusing, says Eyres:

• Positive effects of mitigating measures must be ignored in determining if an impairment is substantially limiting. Focus on whether the individual would be limited in performing a major life activity without the mitigating measure.
• Negative effects of a mitigating measure must be considered in determining if an individual meets the definition of disability. For example: the side effects from the use of medication for hypertension may be considered if they limit a major life activity such as sleeping or concentration.

However, the employer can consider the value of mitigating measures when addressing reasonable accommodations.

Sample Reasonable Accommodations

Eyres offers the following examples of reasonable accommodations for neurological, cognitive, or emotional disorders:

Attendance

• Allow flexible start and end times.
• Allow a modified weekly schedule.

Concentration

• Reduce distractions.
• Increase natural lighting or provide full-spectrum lighting.
• Work from home/telecommuting.
• Divide large assignments into smaller tasks.
• Allow job restructuring.
• Provide memory aids such as schedulers and organizers.

Control over emotions

• Allow flexible breaks.
• Provide stress management techniques.

Fatigue

• Provide a goal-oriented workload.
• Reduce tasks.

Memory

• Provide a job coach.
• Provide a mentor.
• Allow additional training time.
• Provide written checklists.

Organizational skills

• Use daily, weekly, and monthly task lists.
• Divide large assignments into smaller tasks and goals.

Managing multiple priorities

• Provide a job coach.
• Use  checklists.

Final Tips

Remember, says Eyres, the healthcare provider doesn’t have to be a “doctor” or an MD. It can be a nutritionist, acupuncturist, nurse practitioner, or family therapist, for example.

Finally, attendance may be an essential function of the job, but remember that people can have excellent attendance but not be able to perform the job.

Accommodating disabilities—just one of the many challenges all HR pros face. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, 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.

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Find out what the buzz is all about. Take a no-cost look at HR.BLR.com, solve your top problem, and get a complimentary gift.

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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 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 analyses of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)

You can examine the entireHR.BLR.com® program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place and accessible at the click of a mouse.

What’s more, we’ll supply a free downloadable copy of our special report,Critical HR Recordkeeping—From Hiring to Termination,just for looking at HR.BLR.com. If you’d like to try it at absolutely no cost or obligation to continue (and get the special report, no matter what you decide), go here.