‘Social anxiety disorder’ is qualifying condition under ADA: Court

The definition of disability — the kind employers have to make an effort to accommodate — just keeps getting wider and wider.  

A recent federal appeals court has ruled that “social anxiety disorder” falls into the category of conditions that interfere with a major life activity. Here’s a look at the case.

In January 2009, Christina Jacobs was hired by Court Clerk Brenda Tucker as an office assistant in the criminal division of the North Carolina Administrative Office of the Courts (AOC).

As an office assistant, Jacobs’s job duties included microfilming and filing.

Less than a month after Jacobs started working, Tucker promoted her to the position of deputy clerk.

At the time of Jacobs’s employment, 30 total deputy clerks worked in the criminal division. Four or five of the deputy clerks provided customer service at the division’s front counter.

The remaining deputy clerks performed other filing and record-keeping tasks, many of which do not require face-to-face interaction with the public.

Panic dealing with the public

Jacobs began training to work at the front counter. She was assigned to work four days a week at the front counter and one day a week microfilming.

Jacobs soon began to experience extreme stress, nervousness, and panic attacks while working at the front counter.

She became particularly panicked when she was asked a question to which she did not immediately know the answer — a common occurrence when working behind the counter.

She attributed these symptoms to her previously diagnosed social anxiety disorder.

On or about May 5, 2009, Jacobs went to a supervisor, Debra Excell, and told Excell that she had social anxiety disorder and was not feeling healthy while working at the front counter.

Jacobs told Excell that she had received treatment including medication) for mental health issues while in college, but that she was not currently under a doctor’s care.

Excell encouraged Jacobs to seek treatment from the doctor who had helped her in college. After her meeting with Excell, Jacobs went to a doctor and began receiving treatment for anxiety and depression.

Excell subsequently told Tucker about her conversation with Jacobs. Tucker took handwritten notes on Excell’s oral account of her conversation with Jacobs, which included the phrases “too stressful,” “nerve issues,” “anxiety disorder,” and “might have to go back to [the doctor].” Tucker’s assistant placed the notes in Jacobs’s personnel file.

On September 8, 2009, Jacobs sent an e-mail to her three immediate supervisors (Excell, Jan Kennedy, and Melissa Griffin) in which she disclosed her disability for a second time and requested an accommodation.

Specifically, Jacobs requested that she be “trained to fill a different role in the clerk’s office and perhaps work at the front counter only once a week.”

The next day, Jacobs followed up in person with Kennedy. Kennedy told Jacobs that only Tucker had the power to act on Jacobs’s request and, because Tucker was currently on a three-week vacation, Jacobs would have to wait until Tucker returned.

Soon after her meeting with Kennedy, Jacobs forwarded her e-mail request to Tucker. While she was waiting for Tucker to return and address her accommodation request, Jacobs sought to use some accrued leave.

Kennedy questioned Jacobs about why she wanted leave and denied her request. Jacobs’s previous leave requests were not questioned and had always been approved.

Instead of accommodation, termination

Upon returning to the office, Tucker called Jacobs into her office for a meeting. Excell, Kennedy, and Griffin were already in Tucker’s office when Jacobs arrived, where they had just concluded a meeting regarding Jacobs.

Jacobs also saw a copy of her e-mail requesting an accommodation on Tucker’s desk, annotated in someone’s handwriting. Tucker later testified that she had written the notes on the e-mail printout.

Jacobs assumed that the meeting was about her request for an accommodation. Instead, she was fired.

Tucker told Jacobs that she was being fired because she was not “getting it” and Tucker did not “have any place [that she could] use [Jacobs’s] services.”

When Jacobs asked Tucker whether she was being fired “because of the e-mail,” Tucker responded that “it doesn’t have anything to do with the e-mail.”

Mistakes were made

Jacobs complained to the EEOC and later filed suit against the AOC, claiming disability discrimination. A lower federal court ruled in favor of the agency, saying “social anxiety disorder” didn’t qualify as a disabling condition.

But the appeals court disagreed. It referenced the the Diagnostic and Statistical Manual of Mental Disorders, which describes social anxiety disorder as a condition that “interferes significantly with the person’s normal routine, occupational . . . functioning, or social activities or relationships” — in other words, major life activities.

The judge pointed out that the employer had absolutely no documentation of Jacobs’ alleged performance problems. What’s more, the court said, the employer had failed to enter into any kind of discussion exploring possible accommodation for Jacob’s condition.

So the case now goes back to district court, where the employer faces an expensive, lengthy trial or an expensive settlement.

Case cite: Jacobs. v. N.C. Administrative Office of the Courts.




For more HR News, please visit: ‘Social anxiety disorder’ is qualifying condition under ADA: Court

Source: News from HR Morning

Pay discrimination on U.S. soil to cost Norway $2.1M in attorney fees alone

A U.S. district judge just levied one of the largest attorney fee penalties in American history for an individual discrimination charge against … Norway? 

You read that right, Norway.

Ellen Ewald worked in the country’s Minneapolis consulate, and sued the government of Norway, alleging pay discrimination.

Ewald claimed she was paid about $30,000 less than a male employee doing comparable work, and U.S. District Judge Susan Nelson just ruled the government’s actions did, indeed, violate both the federal Equal Pay Act and Minnesota’s Human Rights Act.

Nelson then ordered Norway to $270,000 to Ewald — $100,000 for emotional distress and $170,000 for lost wages times two, according to Minneapolis’ Star Tribune.

But that’s only a fraction of what the lawsuit will actually cost Norway, as Nelson also ordered the government to pay $2.1M in attorney fees to pay for the time Ewald’s lawyers put into the case.

Ewald’s lead attorney claimed her legal team put more than 6,000 hours into the case, which involved poring over roughly 90,000 pages of documentation, some of which had to be translated into English, according to the Star Tribune.

Another attorney on the case said this ranks among the largest court-ordered attorney fee awards in an individual discrimination case in U.S. history.

Norway can still appeal, but if it loses, the government will have to shell out another $200,000 in interest.

For more HR News, please visit: Pay discrimination on U.S. soil to cost Norway .1M in attorney fees alone

Source: News from HR Morning

Passing on health costs to workers without killing morale

When it comes to keeping rising health costs at bay, employers essentially have three choices: change carriers, change coverage or change (i.e., increase) workers’ contributions.

Because the little guys are negotiating with small risk pools, they’re hit especially hard by increases.

That means many small firms are left with little choice but to pass along more of the cost burden to employees. Here are morale-saving ways to do it:

Good for high-earners, but …

Offering and partially funding tax-advantaged accounts like HSAs, HRAs and FSAs can go a long way toward helping workers with out-of-pocket costs and high deductibles.

But there are plenty of obstacles. Example: High-deductible plans coupled with HSAs and HRAs tend to go over well with high-earners.

Low-earners, however, tend to balk at fully funding tax-advantaged accounts, which can leave them in the lurch when a major medical event takes place.

To prevent this, show folks exactly how much they can save in taxes. Example: If you fully fund an FSA ($2,550 for ’15) and spend that amount, you’re saving $800 or $900.

3 unique takes on cost-sharing

Creativity is another way to make cost-sharing more bearable for staff.

According to Roger Howell of Howell Benefit Services, there are plenty of non-traditional approaches to cost-sharing that can benefit both employers and employees, such as:

  • The self-funding approach: Some employers will make workers
    self-fund a portion of the deductible and they cover all costs (co-pays or co-insurance) beyond it.
  • The split approach: Howell sees some employers offering a 50/50 or 80/20 split of deductible costs.
  • A three-tier approach: Here an employee may be responsible for the first $500, the company for the next $1,500 and, beyond that, staff will cover any additional expenses.

Keep reading →

2015 Job Seeker Nation Study

It’s been a long road to recovery, but the economy is finally bouncing back after the Great Recession. Businesses are growing, companies are hiring and quality talent is in high demand. For the skilled worker, the job market has shifted in their favor, and professionals everywhere are taking advantage. The findings of the fifth annual Job Seeker Nation Study explore the progression of the job market, the modern job seeker’s approach to job hunting, and what this means for the workforce in 2015.

Click here to learn more!  

For more HR News, please visit: 2015 Job Seeker Nation Study

Source: News from HR Morning

EEOC finally issues wellness rules: 8 things employers will want to know

EEOC finally issues wellness rules: 8 things employers will want to know

wellness rules, eeoc

It took a while, but employers finally have some sold guidance on how to design their wellness program incentives so they don’t violate the ADA. 

The EEOC has been promising for a while now to issue rules to clear up the confusion it’s created around what kinds of wellness incentives are legal — and when non-participation penalties become so steep as to render a program “involuntary” and, thus, illegal under the ADA.

Well, the EEOC has finally kept its promise, and its new proposed rules outline, in its words, “how Title I of the Americans with Disabilities Act (ADA) applies to employee wellness programs that are part of group health plans …” The regs will be published in the Federal Register on Monday.

But the EEOC did offer a sneak peek of the proposed rules on its website.

How we got in this mess

But before we get to them, here’s what got us to this point.

This past summer, the EEOC decided it was going to go after employer wellness programs it felt punished employees too harshly for not participating in wellness initiatives.

Example: In the first of three lawsuits the agency filed, it claimed Orion Energy Systems’ wellness program non-participation penalty for failing to complete a health risk assessment was so steep it rendered the program “involuntary.”

The ADA says a program can’t submit employees to medical inquiries that aren’t job-related and consistent with business necessity, unless those inquiries are part of a “voluntary” wellness program.

Orion charged employees who didn’t complete a health risk assessment their entire health plan premium, plus a $50 dollar non-participation penalty.

In the third lawsuit the EEOC filed, the one that’s gained the most prominence, it went after Honeywell International for slapping employees who didn’t submit to health screenings with a penalty worth roughly $4,000 in some cases. The EEOC felt this rendered Honeywell’s wellness program illegally “involuntary.”

Why this is such a mess

Employers have been complaining that by filing these lawsuits, the EEOC has overstepped its bounds.

Their argument: The EEOC hasn’t released any specific guidance as to what kinds of penalties would be so steep as to render a wellness program involuntary.

Some members of the GOP have even blasted the agency’s actions.

In some cases, employers and members of the GOP have said the EEOC’s actions fly in the face of the wellness regulations enacted by the Affordable Care Act, which state employers can offer wellness incentives/penalties as long as they don’t exceed 30% of the value of an individual’s insurance premiums (50% if the incentives are tied to smoking cessation).

In response to these allegations, the EEOC promised to issue regulations clearing the air on what kinds of wellness program incentives are legal once and for all.

What the proposed rules say

Employers that feared the new rules would be a tangled mess of confusing rules and exemptions (what federal law isn’t?) will likely be pleasantly surprised.

The rules appear to be pretty straightforward.

Here’s a rundown of the key points:

  1. The proposed rule clarifies that the ADA allows employers to offer incentives up to 30% of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes.
  2. The rule also allows employers to impose penalties on employees who do not participate or achieve certain health outcomes. The maximum allowable penalty an employer can impose on employees is 30% of the total cost of employee-only coverage.
  3. The total cost of coverage is the amount the employer and employee pay, not just the employee’s share of the cost. Example: If a group health plan’s total annual premium for employee-only coverage (including both employer and employee contributions towards coverage) is $5,000, the maximum allowable incentive an employer could offer to an employee in connection with a wellness program that includes disability-related questions (such as questions on a health risk assessment) and/or medical examinations is $1,500 (30% of $5,000).
  4. Asking employees to complete a health risk assessment or have a biometric screening for the purpose of alerting them to health risks (such as having high cholesterol or elevated blood pressure) is acceptable under an employee health program (a.k.a., a wellness program).
  5. Collecting and using aggregate information from employee assessments to design and offer programs aimed at specific conditions prevalent in the workplace (such as diabetes or hypertension) is also acceptable under a wellness program.
  6. Asking employees to provide medical information (like that obtained through a health risk assessment) without providing any feedback about risk factors or without using aggregate information to design programs or treat any specific conditions would not be acceptable under a wellness program.
  7. For a wellness program to be voluntary, it must not: A) require employees to participate, B) deny access to health coverage or generally limit coverage under its health plans for non-participation; and C) take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees (such as by threatening to discipline an employee who does not participate or who fails to achieve certain health outcomes).
  8. If a health program is considered a wellness program that is part of a group health plan, an employer must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.

What’s next?

The public has until June 19, 2015 to comment on the proposed rules.

The EEOC will then evaluate all of the comments it receives and make revisions to the rules if deemed necessary. The agency will then vote on a final rule. After it’s approved, the final rule will be sent to the Office of Management and Budget and will be coordinated with other federal agencies before it is published in the Federal Register.

So it’ll likely be several months before the final rules are enacted.

It’s also unclear what effect, if any, the proposed rules will have on the wellness program lawsuits the agency’s filed against employers. We’ll keep you posted.

For more HR News, please visit: EEOC finally issues wellness rules: 8 things employers will want to know

Source: News from HR Morning

To go where few companies have gone before — a land without managers

Can a company function without bosses?  

As you’ve no doubt heard, online shoe retailer Zappos — or at least Zappos’ CEO Tony Hsieh — thinks so. The company’s been dabbling in a structure called Holacracy (more on that in a second) that encourages personal creativity. But to this point, it’s still had a traditional management setup.

As of April 30, that all changes. Hsieh recently sent out a memo decreeing that as of April 30, there will be no more managers at Zappos. And everybody who disagrees with the move can quit and get a fairly nice severance package.

Here’s a definition of Holacracy, straight off the website:

Holacracy is a distributed authority system – a set of  rules that bake empowerment into the core of the organization. Unlike conventional top-down or progressive bottom-up approaches, it integrates the benefits of both without relying on parental heroic leaders. Everyone becomes a leader of their roles and a follower of others’, processing tensions with real authority and real responsibility, through dynamic governance and transparent operations.

Sounds good to us.

But Hsieh is unhappy with the melding of this New Age approach and the old-fogey management structure. In his memo to employees, Hsieh said, “Having one foot in one world while having the other foot in the other world has slowed down our transformation towards self-management and self-organization.”

So as of April 30, the old management structure will be no more.

A shift in hue

Another bit of explanation is needed here. Richard Feloni, writing on Business Insider, explains Zappos’ current system:

In the new Zappos lexicon, the company has been a “Green” organization, one that encourages employee freedom but functions with a traditional hierarchy. Hsieh wants to transition it to a “Teal” organization that doesn’t need managers to grow and fix internal problems.

How’s that going to work? In his memo, Hsieh says:

After many conversations and a lot of feedback about where we are today versus our desired state of self-organization, self-management, increased autonomy, and increased efficiency, we are going to take a “rip the bandaid” approach to accelerate progress towards becoming a Teal organization. …

Our main objective is not just to do Holacracy well, but to make Zappos a fully self-organized, self-managed organization by combining a variety of different tools and processes.

Not a fit for everybody

Hsieh acknowledged that the new regime wouldn’t be a great fit for everybody, so he’s offering nonbelievers a severance package. On a company-wide scale, each employee will be offered at least 3 months severance (and up to 3 months of COBRA reimbursement for benefits) if he/she feels that self-management, self-organization, and (other company programs) are not the right fit. (For employees that have been with Zappos for 4 or more years, the offer will be 1 month for every year worked at Zappos, along with up to 3 months of COBRA reimbursement for benefits.)

There are some conditions, however. Each departing employee (who want the package) must:

Once all the non-believers are gone, will this Teal plan work. It’s a big gamble — one Hsieh acknowledges:

“This is a new, exciting, and bold move for Zappos. Like all the bold steps we’ve done in the past, it feels a little scary, but it also feels like exactly the type of thing that only a company such as Zappos would dare to attempt at this scale,” he wrote. “… I can’t wait to see how we reinvent ourselves, and I can’t wait to see what unfolds next.”

For more HR News, please visit: To go where few companies have gone before — a land without managers

Source: News from HR Morning

Employee forced to show mastectomy scars after FMLA leave — or get fired

The latest FMLA lawsuit to gain prominence shows the expensive danger of failing to incorporate some form of flexibility in return-to-work policies. In the case, an employee wanted to return to work, but her employer wouldn’t let her until she underwent an unusual medical exam. 

Broward Health, which runs hospitals in Broward County, FL, has a policy that requires employees who’ve missed work due to surgery to submit to a medical examination of their wounds before being allowed to return to work.

Broward takes this policy very seriously. In fact, its strict adherence to the policy is well documented in a new lawsuit brought against Broward Health by Andrea Santiago, who worked for the employer as a social worker until she was fired.

What happened?

According to Santiago’s lawsuit, she was granted FMLA leave after she informed the employer that she needed a mastectomy resulting from her breast cancer.

After taking less than a month of FMLA leave, Santiago was cleared by her doctor to return to work.

Santiago knew about the return-to-work policy, as she had her breasts examined by Broward Health’s in-house medical clinic following an earlier biopsy. She claimed the examination by her employer was “demeaning and humiliating.”

So following her mastectomy, Santiago asked if the exam requirement could be waived. A Broward nurse she spoke to indicated that the requirement might be waived if Santiago could provide a note from her doctor declaring that she had no open wounds or sutures.

Santiago then submitted such a note to Broward. But the employer refused to waive the exam requirement. Santiago then tried appealing to the medical clinic’s management — again having no luck with anyone she spoke with.

During this process, Santiago even gave Broward permission to speak to her doctor about her condition. That had no effect. Broward officials still insisted she submit to the exam.

Santiago finally took her waiver request to Broward’s head of HR, who also told her she’d need to submit to the examination. Santiago then countered by saying she’d done some research and found that the policy violated both the ADA and the FMLA, and that she “did not want to have to hire an attorney.”

Broward still didn’t budge.

Santiago then got her attorney to submit a letter to Broward, explaining that the return-to-work policy violated the FMLA.

To that, Broward’s attorney responded with a letter of his own, reiterating that the policy would not be waived.

Submit or else

Santiago was then informed via a separate letter that she had until March 18, 2015 to submit to the exam or be terminated.

When she failed to submit to the exam by that date she was sent another letter stating that she had voluntarily resigned from her position.

On April 3, Santiago sued Broward health, claiming FMLA interference and retaliation.

Her claims have yet to be heard, but this case is a good example of what can happen when employers fail to bend even a little in the return-to-work process.

Broward’s desire to make sure employees returning to work don’t have open wounds that could affect patients’ health is certainly understandable. But, having only Santiago’s lawsuit as a guide, it certainly seems Broward could’ve found some wiggle room in its policy — by at least discussing Santiago’s condition with her doctor for starters.

That kind of flexibility can do wonders in the courtroom — or keep you out of one altogether.

Even if Broward wins the case, it now stands to lose a pretty penny. Fighting a case like this isn’t cheap.

Cite: Santiago v. Broward Health

For more HR News, please visit: Employee forced to show mastectomy scars after FMLA leave — or get fired

Source: News from HR Morning

Reminder: The states are looking at your pay practices, too

Just a reminder: It’s not just the feds who are on the lookout for wage and hour violators — it’s state authorities, too.  

Case in point: New York Attorney General Eric T. Schneiderman announced settlements totaling $970,000 with four current Domino’s Pizza franchisees, who together own 29 stores across New York State, as well as with one former franchisee who owned six stores. The franchisees admitted to a number of labor violations, including minimum wage, overtime or other basic labor law protections, according to Schneiderman’s office.

The admitted violations varied by location and time period, and included the following:

  • Some stores paid delivery workers below the tipped minimum wage applicable to delivery workers under New York law.
  • Some stores failed to pay overtime to employees who worked over 40 hours in a week, and others under-paid overtime, because they did not combine all hours worked at multiple stores owned by the same franchisee, or because they used the wrong formula to calculate overtime for tipped workers, unlawfully reducing workers’ pay.
  • Delivery workers who used their own cars to make deliveries were not fully reimbursed for their job-related vehicle expenses.
  • Delivery workers who used their own bicycles to make deliveries were typically not reimbursed for any expenses related to maintaining their bicycles, nor were they provided with protective gear as required by New York City law.
  • Some stores violated a state requirement that employers must pay an additional hour at minimum wage when employees’ daily shifts are longer than 10 hours.
  • Some stores also violated a state requirement that employers must pay restaurant workers for at least three hours of work when those employees report to work for a longer shift but are ultimately sent home early because of slow business or other reasons.
  • Some stores took a “tip credit” without tracking tips, and assigned delivery workers to kitchen or other untipped work for more time than legally permitted. Employers may only take a “tip credit” and pay a lower minimum wage to tipped restaurant employees if those employees earn enough in tips and spend most of their time – at least 80 percent –performing tipped work.

Schneiderman’s been on Domino’s case for awhile. The recent agreements follow settlements announced last year with six Domino’s pizza franchisees, who together owned 23 stores and agreed to pay a total of $448,000 in restitution.

For more HR News, please visit: Reminder: The states are looking at your pay practices, too

Source: News from HR Morning

Best Employee Evaluation Software – Review Top 10 Systems for 2015

Employee reviews are arguably the best opportunity an organization has to energize and motivate its employees. For many organizations, though, the process of scheduling, executing and documenting reviews can be incredibly arduous. Performance management software can help modernize and automate the process, but there are so many software solutions on the market, how do you know which one is right for your organization? Let the unbiased experts at Software Advice help. They’ve reviewed more than 50 systems and are ready to help you narrow your search so you can find the vendor that’s right for you.

Click here to learn more!  

For more HR News, please visit: Best Employee Evaluation Software – Review Top 10 Systems for 2015

Source: News from HR Morning

Telecommuting ruling not all it’s cracked up to be for employers

Telecommuting ruling not all it’s cracked up to be for employers

telecommuting, eeoc, ford

A district court just ruled Ford Motor Co. was right to deny a disabled employee’s ADA accommodation request to telecommute. But don’t pop any corks in celebration of the ruling that said “… regularly attending work on-site is essential to most jobs … “ just yet. 

While the ruling certainly is good news to employers who fear being dragged into court for denying a disabled worker’s request to work from home under the ADA, it’s far from a green light to deny such requests.

In fact, all this case does with any certainty — despite the seemingly one-sided ruling — is show just how hard it is to prove that on-site attendance is an essential function of someone’s job, which is the case you’ll have to make in court to show a worker’s accommodation request to telecommute is unreasonable.

Issues with her request

To fully understand why this ruling isn’t all it’s cracked up to be, we have to go back to the beginning.

Jane Harris worked for Ford as a resale steel buyer. Her job was to act as the intermediary between steel suppliers and plants.

Harris also suffered from irritable bowel syndrome. Her symptoms caused her to repeatedly show up to work late, leave early and miss work entirely on many occasions. Her attendance issues got worse as time went on, and in the latter years of her employment, she consistently received low performance ratings and criticism.

Eventually, Harris claimed her condition made it impossible for her to drive or leave her desk without soiling herself. So she requested that she be allowed to work from home as many as four days per week.

Ford had a few problems with her request:

  • It said her job was “interactive,” in that it required her to have face-to-face contact with suppliers and plant officials to keep up relations — therefore, in-person attendance was an essential function of her job, the company claimed
  • Her job required computer work that couldn’t easily be completed remotely, and
  • She had already been granted the ability to work from home up to two days per week and her performance under that arrangement had been substandard.

So Ford denied her telecommuting request, and she was eventually terminated for performance issues.

EEOC sues

Harris took her case to the EEOC, which sued on her behalf, claiming Ford discriminated against her on the basis of her disability. The agency claimed Harris’ telecommuting request was reasonable and should’ve been granted.

Ford fought the suit and, originally, a district court sided with the automaker. It dismissed the EEOC’s case on summary judgment, ruling it shouldn’t go to trial.

But, on appeal, a three-judge panel of the Sixth Circuit court reversed the decision and said her case should go to trial. It said that as technology has advanced, so have remote work arrangements. As a result, the court said, “… attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.

This ruling sent shock waves through the employer community, as it seemed to suggest that telecommuting would be a reasonable accommodation under most work arrangements.

Court rehears case

Shortly after the appeals court ruling, the full panel of Sixth Circuit judges agreed to vacate the decision and rehear the case en banc (meaning, in front of all the judges of the court).

In an 8-5 decision, the panel sided with Ford and dismissed the EEOC’s case on summary judgment.

It said Ford acted reasonably in denying Harris’ telecommuting request. While it acknowledged that there have been great advancements in technology, which could make telecommuting easier, those advancements didn’t prove that Harris’ job could be performed at home.

It said Harris only provided “unsupported testimony” that she could perform her job at home, and that wasn’t enough to create the “genuine dispute of fact” needed to send a case to trial.

The court also acknowledged that Harris’ poor performance ratings under the two-day telecommuting arrangement helped support Ford’s case that she couldn’t perform her job remotely.

But perhaps the most compelling statement the court made is this:

“We do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’ … And for good reason: ‘most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.’”

“That general rule — that regularly attending work on-site is essential to most jobs, especially the interactive ones — aligns with the text of the ADA.”

Hold the celebration

That certainly seems to be a powerful statement — one that suggests it’ll now be easier for employers to make the argument that on-site attendance is an essential function of most jobs.

But pump the brakes.

There are two things employers should be careful not to overlook about this case:

  • This was by no means a slam dunk victory for Ford. An appeals court did rule that the EEOC’s case should proceed to trial, before the court’s full panel of judges swooped in to save the employer — and even then five judges dissented letting Ford win summary judgment, and
  • The EEOC has, time after time, demonstrated it doesn’t consider itself bound to past court decisions like this one. Translation: If it feels you’ve wronged a disabled individual, and it believes it can milk some cash out of you and make an example of you, it’ll sue.

Bottom line: It appears no matter the circumstance, it’s still going to be hard to prove that in-person attendance is an essential function of any job. So it’s going to be tough to defend denying disabled individuals the ability to telecommute on those grounds.

Steps employers should take

So if you’re an employer in Ford’s shoes — and want to be able to deny a person’s request to telecommute — what should you do?

The best advice we’ve come across is from labor and employment law attorney Eric. B. Meyer of the firm Dilworth Paxon LLP.

In his blog, The Employer Handbook, Meyer suggests employers:

  • Make sure your written job descriptions spell out when attendance is an essential function. Then provide copies of those descriptions to employees when they’re hired — and perhaps get employees to sign off on them.
  • Make sure managers understand and abide by the job descriptions. If a manager starts to let telecommuting slide, it’s going to be hard to prove in-office attendance is an essential function.
  • Analyze all accommodation requests on their own merits. There’s no one-size-fits-all formula to treating employees’ accommodation requests. You’ve got to enter the interactive process for each request — and keep the dialogue open with employees — in an attempt to seek out reasonable accommodations.

Cite: EEOC v. Ford Motor Co.

For more HR News, please visit: Telecommuting ruling not all it’s cracked up to be for employers

Source: News from HR Morning