Be cautious when hiring or firing employees due to ADA protections

A new and increasingly utilized protection under the Americans With Disabilities Act (ADA) has been defined as “Associational Discrimination.” The Equal Employment Opportunity Commission explains it this way:

“The association provision of the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability.  This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant or employee has a relationship or association.”

Employers need to be cautious when deciding not to hire an applicant or terminating employees. They must ensure that the decision is not associated with knowledge of an employee’s family, friend or partner with a disability that they perceive would require the employee to miss work, for example.

An employee who is eligible for the Family and Medical Leave Act (FMLA) is granted legal rights to take leave to care for a family member with medical certification. However that requirement only applies to employees who have been with the company for at least one year (cumulatively) and have worked 1,250 hours in the previous 12 months. Under the ADA, any employee, no matter the length of service, is eligible for ADA protections. Even an applicant for an open position has these protections.

Under the ADA, an employer who makes an adverse employment action could be charged with “associational discrimination.” This could include failing to hire an applicant or terminating a current employee due to an assumption that the employee will miss time from work to care for a family member that has a disability.

An employee must be able to perform essential functions of a job. However, recent court cases have also determined that  an employee that does not fall under certain attendance or tardiness policies (an exempt employee, for example) cannot be held responsible if that  employee regularly starts the work day late due to caring for a family member with a disability. Disciplining or terminating an employee who is not subject to attendance or tardiness policies could result in an associational discrimination charge.

It is important to structure your company handbook or employment policies to limit your exposure to associational discrimination claims and to train your hiring managers to avoid hiring decisions that leave the company vulnerable. Additionally, it is imperative to review all factors being used when making decisions to terminate employees. Consider the following points when taking an adverse employment action:

  • Was the employee qualified for the job at the time of the adverse employment action?
  • Was (s)he subjected to an adverse employment action?
  • Did the employer know at the time that (s)he had a relative or associate with a disability?
  • Did the adverse employment action occur under circumstances raising a reasonable inference that the relative’s or associate’s disability was a determining factor in the employer’s decision?

As always, contact your BCN Services Partnership Manager to arrange manager training, handbook or policy development and/or guidance in questionable employment situations.

 

Jeff Walsh (200x190)

Jeff Walsh, Partnership Manager

Inclement weather policy can keep your business humming this winter

Does your company have an inclement weather policy?  Many employers choose to deal with individual situations as they arise, but planning ahead of time can ensure peace of mind for both employer and employees.

You may wish to consider how to address these top three matters:

  1. Will you maintain regular hours of operation or close?
    Some employers may choose to close their business when the weather reaches a certain threshold.  Others may choose to stay open and encourage employees to exercise caution when deciding whether to report to work or not.  Some employers, such as hospitals or emergency workers, may not have the luxury of choosing to stop operations due to bad weather.  In any case, make sure your employees know your policy and how any changes/decisions will be communicated to them.
  2. How will you handle pay issues?  
    Whether the company decides to close or whether the employee is unable to report to work, non-exempt (hourly) employees are not required to be paid for this time.  However, if the employee is entitled to paid time off (PTO) or vacation time, your policy should indicate whether that paid time would be applied during such circumstances.Employers are not required to pay exempt (salary) employees if they do not report to work, although PTO or vacation time may be applied to cover this time.  HOWEVER, in today’s age of technology when many exempt employees are “connected” to    the office by email, voice mail and other means, if an exempt employee works any part of a day – regardless of whether they are physically at work – they should be paid a full day’s wage and vacation or PTO time should not be applied.
  3. Can employees work from home or make up their time?
    As stated above, you may want to consider whether to let exempt employees work from home.  That may not be possible with some positions, but making up the time off may be an option to consider.

Having an inclement weather policy that stands on its own, or as part of an Emergency Action Plan, can reduce confusion and ensure that your employees know how to respond accordingly.  The BCN Services Human Resources Department can assist you in customizing a plan that’s right for your business.

 

SueKester_6669

 

Sue Kester, Human Resource Manager