What do Will & Kate, "birthers," and ADAAA/FMLA coordination have in common? Nothing, really.

Posted by Robin E. Shea on April 29, 2011

Woman reading newspaper screaming.jpgWhew - what a week! Try as I might, I could not think of a way to tie in the Royal Wedding and the release of President Obama's long-form birth certificate with employment law.

(But, aren't the bride and groom adorable? I love Kate's dress!)

(And, you know that birth certificate is a big fake. I'm kidding, I'M KIDDING!)

OK, enough of that -- back to work.

I actually have a serious topic today, which is the effect that the Americans with Disabilities Act Amendments Act will have on the Family and Medical Leave Act.

In subsequent posts, I'll talk about the effect of the ADAAA on the Genetic Information Non-Discrimination Act, the Occupational Safety and Health Act, the HIPAA privacy rule, and workers' compensation laws, and then I'll try to sum up with a comprehensive recommended approach to all of these laws.

As most of you already know, the ADAAA has dramatically expanded the class of people who are considered "disabled" within the meaning of the Americans with Disbilities Act. And, as most of you also know, Congress keeps passing laws affecting employees with medical conditions with very little apparent regard for already-existing laws and very little effort to coordinate. As a result, employers are continually having to learn the new laws, while trying their best to figure out for themselves how to comply with new Law E without simultaneously violating existing Laws A, B, C, and D.

(Remember the good old days when all we had to worry about was coordinating the "old" ADA, the FMLA, and workers' comp? And we thought that was hard! If we'd only known . . .)

The overwhelming majority of the workforce was not "disabled" within the meaning of the "old" ADA. On the other hand, the Wage and Hour Division of the U.S. Department of Labor, which enforces the FMLA, determined that "serious health condition" for purposes of FMLA leave could include conditions that were anything but -- in addition to covering truly serious conditions like heart disease, cancer, and multiple sclerosis, it also covered things like morning sickness, substance abuse treatment, and a sore throat if accompanied by one visit to a doc-in-the-box and a 10-day course of antibiotics.

This used to infuriate me because the FMLA statute doesn't require this expansive a view, but I have been beaten into submission and don't think about it any more.

When advising employers about FMLA issues, I would normally first ask whether the ADA might be implicated as well. It almost never was, which meant that the employer could give the employee his 12 weeks of FMLA leave per 12-month period -- if necessary, running concurrently with workers' compensation or short-term disability leave, let him come back to work or not, and be done with it, with no lingering ADA issues. It really was not that big a deal most of the time.

I am sorry to say that this is about to change.

Because of the vastly-broadened definition of who is "disabled" within the meaning of the ADA, I predict that we will rarely be able to rule out ADA issues when considering FMLA leaves. In other words, the expanded definition of "disability" in the "new," amended ADA is much more like the inflated definition of "serious" health condition in the FMLA. Here is what that means (at least, I think this is what it means -- because the ADAAA is so new, this is a work in progress):

*"Old" ADA guidelines, which have not been changed by the ADAAA, provided that an extension of FMLA leave might be required as a reasonable accommodation to an employee with a disability. So, now, employers "might" have to extend FMLA leaves beyond the 12 weeks as reasonable accommodations in many cases. I don't think it's clear whether these reasonable accommodation "extensions" of FMLA leave have to include job protection, but until we get some clarification I would err on the side of continuing the job protection as well as the leave.

*Assuming an employee is unable to return to a "substantially equivalent" job at the end of the 12-week FMLA leave period because of her medical condition, the employer will have to examine the possibility of reasonable accommodation (including, possibly, alteration to the "substantially equivalent" job, or restoration to a job that is not "substantially equivalent") rather than simply extending the leave or terminating the employee.

*It will be very dangerous for smaller employers to terminate employees whose 12-week FMLA leave expires, even though the employers may not be able to offer any other types of medical leave. Before terminating an employee in this situation, the employer should make sure that all reasonable accommodation options (including, possibly, an extension of FMLA leave) have been considered. (Remember that if you already meet the 50-employee threshold for FMLA coverage, you automatically also meet the 15-employee threshold for ADA coverage.)

*Likewise, it will be very dangerous for employers of any size to terminate employees who are not yet eligible for FMLA leave, or who have exhausted their FMLA leave, because of absences due to non-work-related injuries or illnesses. (Just about every employer I know allows employees to stay out with some level of job protection if the injury is work-related.) The ADA, unlike the FMLA, applies to all employees, regardless of length of service. Again, no employee should be terminated for a medical-related reason unless the employer has fully considered all reasonable accommodation options first.

*One ray of sunshine: although it is illegal to discriminate against someone based on her "association" with a person with a disability, there is no right to reasonable accommodation under these circumstances. What this means is that all of the points I've made above apply only when the employee needs FMLA leave for his or her own serious health condition. If the FMLA leave is for the serious health condition of the employee's spouse, parent, or child, or (in the case of the 26-week "military" FMLA leave) for the serious injury or illness of the employee's covered family member, only the FMLA would apply and not the ADA. (With the exception of adult children, discussed below.)

*This is an esoteric point, but some clients have raised it over the years, so I think it's worth addressing. Because many, if not most, people with "serious health conditions" will now also be "disabled" within the meaning of the ADA, employers will have to grant FMLA leave to more parents who seek the leave to care for adult children.

Let me explain. The FMLA generally does not allow employees to take leave "to care for" a child over the age of 18 who has a serious health condition. The only time an employee is entitled to FMLA leave in such circumstances is when the adult child has both a serious health condition as defined in the FMLA regulations, and a "disability" within the meaning of the ADA. (I am oversimplifying the standard, but this is the gist of it.)

What this meant under the old ADA was that parents were almost never allowed to take FMLA leave for the serious health conditions of their adult children. (For what it's worth, I have always recommended that employers allow leaves for this reason, even though the leaves would not be FMLA-covered.)

For example, an employee's 35-year-old daughter might have a complicated pregnancy and childbirth. The complications would qualify as a serious health condition under the FMLA, but almost never as a "disability" under the "old" ADA unless the effects were long-term as well as severe. Under the amended ADA, it is very possible that this 35-year-old daughter would be considered "disabled," and therefore the mother would be entitled to take FMLA leave to care for her. 

Those are all of the ADAAA/FMLA coordination issues I've been able to think of. If you have more, or if you disagree with mine, please comment. Next week, I'll talk about the ADAAA and GINA, unless more pressing news intervenes.

Little lies employers tell . . . and why they shouldn't

Posted by Robin E. Shea on April 21, 2011

"If you tell the truth, you don't have to remember anything." Mark Twain

"No man has a good enough memory to be a successful liar." Abraham Lincoln

"A half truth is a whole lie." Yiddish Proverb

"Those who think it is permissible to tell white lies soon grow color-blind." Austin O'Malley

Q. "How do you know when a lawyer is lying?" A. "His lips are moving." Old lawyer joke. Har-de-har-har, Alice.

Crossed fingers2.jpgAll of us have been guilty of fudging on the truth, if not out-and-out lying, from time to time. But the fact that we've done it doesn't make it right. There are many reasons that honesty is the best policy, and with a hat tip to my colleague Bill McMahon for suggesting this topic, I'd like to talk about why it is important in the employment context.

First, the obvious: Perjury is a crime, and so is obstruction of justice. If you lie under oath, or in connection with a government investigation, or destroy or falsify evidence, you have committed a crime, and you could go to jail. If that's not a deterrent to lying, then I don't know what is.

But because none of you are perjurers or obstructors (obstructers?), I'll focus on the "little" lies that we are more likely to tell, and how they can come back to bite us as employers.

The truth, a fragment of the truth, and nothing but a fragment of the truth. The company is having a rough time in a bad economy, and a rumor begins that there will be a reduction in force next Friday. You don't want to have to say anything about the RIF until the day that it will take place, but you want to put an end to the gossip. So you call an employee meeting and say, "There is no truth whatsoever to the rumor that we are having a reduction in force next Friday." Technically, you have told the truth because the RIF is actually scheduled for the following Monday. Shame, shame, shame! Even though your statement was true and even though you may have bought yourself a weekend of peace, you'd better enjoy that weekend while you can. Come Monday, your credibility will be ruined, not only with the employees who will be let go, but also with those who stay.

Or, maybe you finally managed to terminate an employee (we'll call him "Joe") who has been a thorn in your side for many reasons, no one of which is bad enough in itself for termination: mediocre attendance, lackluster performance, annoying personality, and the last straw was suspected misconduct (let's say embezzlement). In telling Joe the reason for the termination, you're afraid to get into that suspected embezzlement issue, and the lackluster performance and "personality" are a little squishy, too. So you tell him that he's being terminated for attendance, and that's what you tell the folks at your unemployment agency . . . in writing and under penalty of perjury, of course.

Joe then files an EEOC charge, saying that you must have discriminated against him because he didn't have enough attendance points under your policy to warrant termination. You tell the EEOC, "Yeah, but he also had lackluster performance, an annoying personality, and we had reason to believe he was ripping off the company!" The EEOC says, "Oh, really? Then why didn't you tell Joe or the unemployment commission about those other grounds?" and next thing you know you're sitting in a conciliation meeting deciding whether it's worth $300,000 and 18 months of reporting to get Joe the Thorn out of your side once and for all.

It is legal to terminate an employee for being "substandard" in multiple areas, and it's legal to terminate based on reasonable suspicion of misconduct. So, if that's really the reason you're getting rid of Joe, tell him that, and tell the unemployment people that, too.  

Deliberately mischaracterizing the issue. This is one that, I'm sorry to say, our President has used, but he's not the only one. An employee complains to you about a legitimate, substantive issue that -- for whatever reason, you aren't able to fix. Rather than getting bogged down in a discussion about something you can't change anyway, you "admit" to a "communication problem." Sometimes communication is a problem, but if it's not and the employee has a substantive grievance, it's much better to acknowledge that,  provide a brief explanation as to why it can't be resolved, and offer to do what you can.

The "non-apology" apology. The Subversive Copy Editor has a satirical list of "non-apologies" that is as funny as it is sad (because so true). My personal favorite is, "Ah, I see now. Thanks for explaining. No worries!"

When you've done wrong, failure to admit it is an honesty issue. "Mistakes were made" isn't really a lie, but it's not as honest as it could be. "I was wrong, and I'm sorry," sounds so much better, doesn't it?

Why should an employer care about this? Because plaintiffs' lawyers, the Equal Employment Opportunity Commission, and any agency or court will tell you that many of the charges and lawsuits filed against employers have no legal merit but were filed because the employee, with some justification, believed that he or she had been "done wrong" by the employer. Even though the employers eventually win these cases, they have to go through the expense and hassle of retaining counsel, drafting and submitting position statements, attending mediations, and defending themselves in court.

If you don't believe that a sincere and honest apology will help, think about the way you feel when a stranger shoves you on the street. If the stranger says, "Get outta the way, buddy," or says nothing, you'll probably be stewing for at least 15 minutes until you get distracted by something else. But if the stranger smiles apologetically and says, "Excuse me," you will be over it immediately. That's the way it works in employment litigation, too. Erich Segal was wrong: Love means having to say you're sorry . . . a LOT.

Of course, the apology should be sincere to be effective. If you are really sorry, your actions will support your words. If you're not sorry, then don't apologize because your insincerity will show. Also, the classic non-apologies "I'm sorry YOU were offended" or "I'm sorry IF I was rude" aren't recommended. Instead, you might be better off trying to explain what you did and why you believe it was the right thing to do. 

Not even the white lie is safe. "No, honey, you don't look fat in that dress." "Do you really have to leave so soon?" "I'm doing just super, how are you?" We tell little lies like this all the time, and usually with the good intention of trying to avoid hurting someone's feelings. (Or, in the case of "I'm doing just super," to avoid boring them to death with our problems, which we know they don't really want to hear about.)

Similarly, it is notoriously hard for an employer to tell an employee that he's not doing a good job, and is one more screw-up away from being fired. Of course, having never been properly warned, the employee then commits the final screw-up and gets fired, and didn't even see it coming because the employer was so afraid of hurting the employee's feelings. (As if getting fired without due warning doesn't itself hurt one's feelings!) Not only is this unfair to the employee, but it's also throwing the door wide open to an allegation that the employee was actually terminated for an illegal reason.

Here are some examples of gross understatements commonly seen on performance evaluations:

"Mary is improving in her interpersonal relations." TRANSLATION: "Mary now cusses out her supervisor only once a week, whereas she used to do it twice a week."

"Generating new business continues to be a development need for Clyde." TRANSLATION: "Clyde hasn't generated a new customer in two years. If he doesn't find one by close of business Friday, he's fired."

"Linda has had challenges in adapting to technology." TRANSLATION: "Linda is still carving her memos into stone tablets."

Have you heard these before? The problem is, when it comes time to terminate Mary, or Clyde, or Linda, you have a problem because you have not clearly let them know that their performance is unacceptable. That's bad enough, but if you wind up in court, you will also have trouble convincing a judge or jury that this person was really that bad. If Mary was cussing out her boss on a regular basis, why didn't you say so? The fact that you didn't (even if it was because you wanted to "encourage" Mary to improve) is going to be used as evidence that you manufactured a reason to get rid of her and that the real reason was illegal.

Similarly, and for the same reason, don't ever say you're terminating an employee because of a "RIF" or "job elimination" when you're really not.

Admittedly, you are not going to be able to disclose everything going on at your company, and there may be times when tact is required. Here are a few suggestions for dealing with those situations honestly:

*If you're not at liberty to talk about something (such as an imminent reduction in force), say that. If that's giving too much away, you may be able to admit that the company is trying to do the best it can in the economy and leave it at that.

*If you want to pull your punches on the reason for a termination so that the employee can collect unemployment, don't lie or provide an incomplete explanation to the unemployment agency. Rather, give a truthfully vague explanation that encompasses all of the real reasons. In the case of Joe, above, you might say, "Overall loss of confidence," or "Employer dissatisfaction in multiple areas of accountability."  These reasons will allow him to collect unemployment but don't conflict with the specific reasons for Joe's termination. You should also be sure that Joe himself knows exactly why you are terminating him and knows you are purposely going to be vague so that he can get his benefits.

*If you want to say that an employee's job was "eliminated" to allow her to save face and collect unemployment, make sure you and the employee agree to that in writing. If you allowed her to "resign," be sure that she understands you'll have to tell the unemployment agency that it was a forced resignation so that she will be eligible for benefits.

*If you really think it's best to be as upbeat and positive as possible in performance evaluations, be sure you are addressing any problems somewhere else -- for example, by providing progressive written warnings. 

"Honesty is the first chapter in the book of wisdom." Thomas Jefferson

Religion in the Workplace: 5 Devilish Employer Mistakes

Posted by Robin E. Shea on April 15, 2011

Devil.jpgAccording to a recent study, organized religion is being "driven to extinction" from nine countries, including Canada, Ireland, the Czech Republic, and Switzerland. Although the United States is not on the list, studies here have also shown an increase in the number of people who call themselves "unaffiliated."

Meanwhile, American workplaces continue to struggle with the issue of religious discrimination and accommodation, and it's by no means all related to Muslims and Seventh-Day Adventists. The Evil HR Lady posted this week a question from an atheist who was worried that his involvement in an atheist organization during college (see? there's even "organized un-religion"!) might hurt his efforts to find a job.

In my own corner of the world (North Carolina), the toughest religious accommodation issues I've ever faced had to do with devout Baptists wanting to be off on Sunday mornings so that they could go to church. The reason? I'll tell you at the end of this post, but here is a clue: North Carolina is a heavily Baptist state.

Anyway, in honor of the coming Passover and Easter holidays (or whichever holiday you observe or do not observe), here is a list of the top five religious discrimination and accommodation mistakes made by employers:

"I don't agree with you, so I'm not going to accommodate you!" In determining whether an employee is entitled to a religious accommodation, some employers first assess whether the belief is valid in the employer's opinion. To use a blatantly obvious example, a Christian employer might be unwilling to accommodate a Muslim employee's need to make a pilgrimage to Mecca because the Christian considers it unnecessary.

In fact, when considering a request for a religious accommodation, the employer should make only two judgments: (1) is the belief "religious" in nature, and (2) does it appear to be sincerely held? The employer should not be assessing whether the religious belief is "valid." Put another way, it is not necessary to get into theological debates when asked for a religious accommodation. This is the case even if the employee's belief seems "ridiculous" to the employer.

"Joe Baptist needs off on Sunday mornings? OK, I need a letter from Joe's bishop." It is lawful for an employer to verify the need for a religious accommodation, but the verification must be done in accordance with the employee's religion. Baptists, for example, do not have a formal "church structure," and they don't have bishops, so an employer seeking to verify the accommodation need of a Baptist employee has no real "authority" to go to except the employee. On the other hand, if a Catholic employee seeks an accommodation, it might be perfectly logical to ask for a letter from the employee's priest or even, if necessary, his bishop.

By the way, the best way to verify a need for accommodation from an employee who has a less structured religion is to get the employee to explain the basis for the belief in writing. That way, you'll have documentation directly from the employee to support your decision. Of course, any doubts should be resolved in favor of the employee.

"Please come with me to church this Sunday. . . . Oh, you already worship somewhere else? Oh, there? Hmmm." This may be more of a problem in the Southern United States than elsewhere. Some employers can be quite aggressive about "encouraging" employees to go with them to church or other religious events. One low-key invitation might be all right, but any more than that is likely to result in an allegation of religious discrimination, especially if the employee later has to be disciplined or, Heaven forbid (pun intended), laid off or fired.

By the way, courts do not like it when employees (even non-management employees) "preach" to their co-workers that they will go to Hell if they don't repent and convert. Repeated offenses are generally considered legitimate ground for termination of employment.

"Religion is a topic of which we must never speak, ever ever ever ever." This is the opposite of the last one, and just as wrong. Many employers are so worried about "separation of church and state," respecting all viewpoints, and avoiding offense that they shut down any discussion or expression of religion in the workplace, including discussions that are consensual and expressions that are subtle and inoffensive. That employee who wears a Star of David necklace or her co-worker who has a crucifix at her computer station should generally be left alone. Hijabs (the headscarves that Muslim women wear) should be allowed unless they create a safety issue. This ain't France*, ya know.

*I'm exaggerating here, but not too much -- France has outlawed public wearing of the niqab and the burqa (veils that cover the face) but has outlawed the hijab (headscarf) only in state schools.

On a somewhat related note, beware of pressuring employees to sign "diversity" statements "affirming" lifestyles or values that are contrary to their religious beliefs. Of course, all employees can be required to treat all of their co-workers with respect, but anything more than that can amount to religious discrimination.

Santa thumbs up.jpgAlso, you don't have to ban the "C" word (you know, that major holiday that occurs on December 25?). You can say it -- it's really ok!

Atheists and agnostics and "the unaffiliated" have rights, too. Who'da thunk? But it's true -- the religious discrimination laws also protect the rights of people to not believe. 

(I'm always asked, "Well, then, what about Satanists?" That's a post for another day.) 

Answer to Question About "Baptist Accommodation" in North Carolina: Employers in the Carolinas, and, I suspect, most of the South, are afraid to accommodate Baptists because of the "floodgates" issue. They fear that if they let one Baptist off work on Sunday and the word gets out, they'll get so many similar requests that they'll have to shut down. With Jews, Muslims, Seventh-Day Adventists, and even non-Baptist Christians, this concern either does not exist at all or is much less severe.

UPDATE (Monday, 4/18/11 -- happy tax day!): I saw today that Abercrombie & Fitch has moved for summary judgment in a religious discrimination suit filed by the EEOC in Oklahoma. According to the article, the store admits that it refused to hire a Muslim woman as a sales clerk because she wore a hijab but says it's entitled to dismissal because the hijab is not consistent with the Abercrombie "look" (Abercrombie says its look is "American preppie," but having been to their website, it doesn't appear to me that preppy clothes is what they're trying to sell.) I have two questions for Abercrombie about this:

(1) So, are you saying that Muslim women are per se excluded from achieving your "look"? Why is a hijab inconsistent with preppy clothes?

(2) Are you willing to lose that large a segment of your market? Even if there aren't a lot of Muslims in Oklahoma, what about all the other Muslims nationwide who read about this case?

You never know what has gone on behind the scenes of a motion for summary judgment. I hope that, before filing its motion, Abercrombie had tried to settle this case and made an unconditional offer of employment to this woman. Otherwise, its case doesn't seem to me to be particularly strong. 

And I have one question for the plaintiff and the EEOC:

Is there, or could there be, such a thing as a "preppy" hijab? Like a "rep" hijab? I am not being smart -- I honestly don't know and am asking.     

Oh, the humanity! Stupidity rules in social media and employment

Posted by Robin E. Shea on April 08, 2011

Dunce donkey.jpgH.L. Mencken once said, "No one in this world, as far as I know . . . has ever lost money by underestimating the intelligence of the great masses of the plain people." Being a "small d" democrat and believing that stupidity is not limited by one's social standing, I'd delete "the great masses of the plain."

But, apart from that nit, I am in awe -- I just can't figure out how Mr. Mencken, writing long before even the invention of Eniac, could have known so much about the way people would (mis)use social media like Facebook, MySpace, Twitter, texting, et cetera, et cetera, ad nauseam, 100 years later.

So much social media stupidity has been in the news this week that one hardly knows where to begin. School teachers who allegedly* vented about their students on their Facebook pages and got busted by alert (and litigious) parents. Text messages about job searches accidentally sent to current employers. And, meanwhile, the National Labor Relations Board is doing its best to give employees a federally guaranteed right to be stupid.

*There isn't really much "allegedly," since these postings were available for all to see. But I'm still using the word "allegedy" as a courtesy to the teachers involved.

Ding-Dong School. Blogger Ann Althouse linked to one story, which led me to two others, about teachers who had been a bit too frank about their students on their Facebook pages. (I have more sympathy for these teachers than I do for anyone else I'll be talking about today.)

A high school teacher in Pennsylvania vented on Facebook about how her students were "rude, disengaged, lazy whiners." (Not true, Teacher, not true! I was a disengaged, lazy whiner in high school, but I was never rude.) The parents of these little darlings were not impressed, and so they raised Cain with the school. The teacher is now suspended and may be fired.

In Chicago, the public school system is being sued by the mother of a second-grader who had asked to have her mom do a picture day hairdo that involved braiding Jolly Ranchers candies in the girl's hair. (From the photo in the link, it appears that the candies were in their wrappers and were tied to the ends of the girl's braids, so no worries about sticky, sugar-coated hair.) The teacher posted the little girl's picture on her Facebook page and allegedly ridiculed the girl. Commenters also allegedly made fun of the little girl's "do." The teacher and principal both apologized after the girl's mother complained about it, and the teacher took down the posting, but no matter -- Mom is now suing the school system for the "emotional distress" suffered by her daughter, who probably would never have seen the postings if her mom hadn't shown them to her.

Finally, a first-grade teacher in Paterson, NJ, has been suspended after posting on her Facebook wall that she felt like a warden overseeing future criminals. (First graders????) Anyway, irate parents are calling for her permanent removal. 

So, teachers (and everybody else) beware -- what you say on Facebook can and will be held against you. School systems, you might want to consider a little "social media" training for your faculty.

Stupid job-hunters. Wrong Number Texts has a text message about job-hunting sent to the wrong number. Unfortunately, the person sending the text was already employed (though probably not for long) and supposedly sent the message to his/her current employer. I don't know whether this was actually the case, and the website does not guarantee the authenticity of its posts, but I do know of several real-life acquaintances who searched for alternate employment using the e-mail system of their current employer. Of course, they were "outed" and their departure date came a bit sooner than they had planned for.

DUDES! This is why Paulie not only never sent e-mails (since they hadn't been invented yet) but wouldn't even take a phone call. He always made his minions do the phone calls . . . and on pay phones. Didn't you ever see Goodfellas?

"Hey, everybody in the world -- my boss, Joseph R. Smith, Jr., of Apartment 5-G, 123 Elm Street, Smallville, Kansas, zip code 57123**, is a dirty rotten creep. . . . WHAT?" If you've been reading this blog for long, you know that I have little sympathy for employees who publicly post nasty comments about their employers and bosses, and then can't believe it when they have to face the consequences. In a less-technological era, if Mr. Dithers overheard Dagwood at the water cooler telling his co-workers what a big jerk Mr. Dithers was, Dagwood would know he was about to get fired . . . again. So why is it any different when you post it on the internet, where millions of people can see it? Yes, in my opinion, people who do this are making what a former colleague of mine used to call a "career-limiting gesture."

But the current NLRB doesn't see it this way. The NLRB sees this as "concerted activity" that is entitled to the protection of the federal labor laws. Even as we speak, the Board is reportedly getting ready to file a complaint against Thomson-Reuters for reprimanding an employee who made a critical "tweet" on Twitter about the news agency. (In the NLRB's defense, the tweet at issue in this latest case appears to be the type of communication that the labor laws were intended to protect . . . as opposed to the emergency medical technician in Connecticut who referred to her boss on Facebook in the code for "psychiatric case.")

**Any similarity between this Joseph R. Smith, Jr., of Apartment 5-G, 123 Elm Street, Smallville Kansas 57123, and actual persons, living or dead, is purely coincidental.

Uber-stupidity. Need I even mention the people who think it's "funny" or "cool" to publish themselves nude, or drunk, or on drugs, or committing crimes, on line? Nah, didn't think so. But if you are rejected for hire because of your extremely poor judgment, you can always sue the company for "social media discrimination." No, I am not making this up.

Words for the Wise. If you aren't sure how much privacy you have on social networking sites, it's always best to assume "none whatsoever." But if you want more refined information than that, go to the source -- Cracked.com. Seriously, although its list of "6 Things Social Networking Sites Need to Stop Doing" is funny (WARNING: contains some inappropriate language), it also contains good information in plain English about privacy settings and the like, and how you can try to work around them.

I wish I could take credit for this thought, but I know I heard it from someone else and just can't remember where -- but never forget that the internet and social media have made the world into "Mayberry." There are no secrets any more, and everybody knows everybody else's business. If you grew up in a small town, you will know what I'm talking about. If you grew up in a big city, you won't, and this will take some getting used to. Anonymity is over. Maybe that's not such a bad thing, I don't know. But it certainly does mean that we have to be more circumspect about even our "private" behavior than we used to have to be.

If you're an employer, continue monitoring the status of social media postings and "protected concerted activity." If you do check out job applicants on social media sites, be sure to avoid using information that you may find about a job candidate's age, medical condition, religion, or protected activity. Otherwise, you may be accused of "social media discrimination."

SIGN UP FOR CONSTANGY'S ADAAA WEBINAR! On a completely unrelated note, I'll be presenting a webinar at 2 p.m. Eastern on Wednesday, April 20, with my colleagues Kristen Allman (Jacksonville office) and Edel Cuadra (Dallas office) on the Americans with Disabilities Act Amendments Act and the new regulations issued by the Equal Employment Opportunity Commission. It's a real bargain at $25 a phone line. We hope you will join us! 

New ADAAA regs: the untold story!!!

Posted by Robin E. Shea on April 04, 2011

shh girl.jpgAs most people in the Human Resources and employment-law worlds are aware, the U.S. Equal Employment Opportunity Commission recently issued its final rule interpreting the Americans with Disabilities Act Amendments Act.

The ADAAA, which took effect in January 2009, was enacted toward the end of the administration of George W. Bush, with the support of disability rights advocates as well as the U.S. Chamber of Commerce and the Society for Human Resources Management (both of whom were trying to head off a version that would have been worse for employers). The ADAAA dramatically expands the population that is considered "disabled" within the meaning of the ADA but does not change the ADA's provisions on, for example, reasonable accommodation, medical examinations, or confidentiality.

There has been a lot of commentary about the new regulations, but here are some points that I have not seen anywhere else:

1. The 40-or-so pages of dense preamble and regulations, and the EEOC's "Interpretive Guidance," can be summarized in one sentence, as follows: It is now unlawful to discriminate, not just against individuals with "disabilities," but against anyone because of a medical condition, whether actual, past, or perceived. (Please note that "medical condition" also includes mental/psychiatric conditions and learning disabilities.) The only exceptions might be, for example, a person suffering from the common cold or the flu, or someone who wears eyeglasses or contact lenses. But not necessarily. The new definition of "disabilities" in the ADAAA is as loosey-goosey as the definition of "serious health condition" in the Family and Medical Leave Act. 

2. Individuals who are "regarded as" being only impaired are protected. The only perceived "impairments" that don't count are those that are both transitory (duration of less than six months) and minor. Because it's going to be so easy to qualify, the EEOC is actively encouraging individuals to always sue under the "regarded as" prong as long as they aren't challenging an employer's failure to provide a reasonable accommodation. (For obvious reasons, reasonable accommodations do not have to be provided to individuals who are only "regarded as" being impaired, so an individual seeking a reasonable accommodation would have to establish either an actual "disability" or a record of a "disability.")

3. Thanks (but no thanks) to this law, I expect to see some class action lawsuits alleging ADAAA violations in connection with post-offer medical examinations and terminations at the end of extended medical leaves of absence. Under the prior version of the ADA, these cases were normally unsuccessful as class actions because an individualized analysis was required to determine who could be a member of the class (that is, who was "disabled"). But now that the determination of who is "disabled" is virtually automatic, disability discrimination cases will be more susceptible of class treatment.

4. Most ADA case law on who is "disabled" is no good any longer. The ADAAA explicitly overruled some excellent Supreme Court decisions, including Sutton v. United Air Lines (1999) and Williams v. Toyota Manufacturing of Kentucky (2002). However, our court system is slow, and so we are still seeing ADA decisions that take a restrictive view of who is "disabled." This is nothing to be excited about, unfortunately. Be sure to read the fine print: If the facts alleged in the case occurred before January 1, 2009, then the court is applying the old ADA, which really was a pretty good and reasonable law. (On the other hand, if you see a pro-employer decision based on facts that occurred after January 1, 2009, then you may have reason to open a bottle of champagne.)

So, what should an employer do to comply with the ADAAA?

*Always assume that everyone has an ADAAA "disability." You will be right 99.9 percent of the time, and the rest of the time you'll be erring on the right side.

*Brush up, if you need to, on your legal obligations concerning reasonable accommodations. You will have to consider reasonable accommodations in many more cases than you did in the past. 

*If you think a "medical condition" disqualifies a person from performing the job, go through the full-blown ADA/reasonable accommodation analysis. If you think you will be unable to accommodate, consult with counsel before making any irreversible decisions.

*If you require post-offer medical screening, review what you are doing and make sure that your medical department (or outside physician) is not automatically rejecting everyone who has certain conditions. All medical rejection decisions should be considered "preliminary" until they have been reviewed and approved by someone in Human Resources and/or a lawyer. (This may require the offeree to sign a HIPAA authorization that will allow the medical department to share relevant information with HR/Legal.)

*Review your medical leave/termination policies and practices, and be especially on the lookout for any provisions that seem to call for "automatic" termination without an individualized assessment or consideration of reasonable accommodation options.

*Make sure your "paws" know the laws. Now that we have the potential for cat's paw liability, be sure that your front-line supervisors and other managers know at least that the ADA has been amended and that it will cover significantly more people than before.