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New ADA Regulations Require Careful Consideration of Workers with Mental Disabilities

An employee has been arriving late at work for several weeks on end, and his work has become inconsistent. He recently revealed to his supervisor that he is on anti-depressant medication. As his employer, should you reprimand him for the tardiness and work performance? If you do, you could find yourself smack in the middle of an Americans with Disabilities Act (ADA) class action suit.

The ADA Amendments Act of 2008 greatly expanded the definition of disability and the potential number of employees who can pursue claims of discrimination, retaliation or failure to accommodate under the ADA. 

Now, under final regulations released in March 2011 by the U.S. Equal Employment Opportunity Commission (EEOC), workers would get more expansive protections for disabilities. These final regulations further the ADA Amendments Act and make it clear that now, more than ever, employers must pay attention to ADA compliance.

One byproduct of the new regulations will likely be more ADA class actions. That’s because the regulations include a list of impairments and/or conditions that will nearly always meet the definition of disability. The list includes: autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia.

Complying with non-discrimination and reasonable accommodation obligations

The focus of many ADA court cases will be less on whether the plaintiff is actually disabled than on whether an employer had discriminated against the person. Employers will need to make sure that they have complied with their non-discrimination and reasonable accommodation obligations. That’s why employers should carefully consider how they treat an employee who has disclosed a mental illness or disorder.

The ADA prohibits employers from asking applicants if they have psychiatric disabilities prior to making them a job offer. When dealing with employees with mental illness, how can your company avoid the time and expense of defending ADA lawsuits?

Good management practices will produce many of the workplace accommodations needed by people with psychiatric disabilities. Like all employees, workers with psychiatric disabilities will likely perform well under supervisors who keep an open mind about each worker’s strengths and abilities and clearly outline job and performance expectations. A good supervisor will also deliver positive feedback along with criticisms of performance in a timely and constructive manner, and demonstrate flexibility and fairness in setting rules and assigning work.
Employers can further protect themselves by doing the following:

  • There are many reasonable accommodations available for mental disorders. Consider changing the employee’s hours or allow him or her to use accrued leave time for treatment or recovery, or transferring the individual into another equivalent pay and status position that is less impacted by the condition. 
  • Institute an ADA refresher course to remind all managers that employees with disabilities may need accommodations to help them perform job functions. Make sure you provide them with information on the new regulations released in March 2011. 

  • Designate an individual in HR to handle accommodation requests. 

  • Ask the employee to suggest possible accommodations and assess each accommodation suggested in a reasonable and fair manner.

  • Document your company’s interactive reasonable accommodation process. Make sure that you “close the loop” in terms of making final decisions and in clearly communicating them to the employee.

  • Take action to avoid workplace tensions that can develop when some employees receive accommodations and some do not.

The EEOC’s final regulations, which interpret the ADA Amendments Act of 2008, are explained in full here. The EEOC has also provided a Q & A  and Fact Sheet on the new regulations. 

Board Appointment COIs

Busy schedules aside, many executives are honored to serve on the boards of various companies and charities within their community. By contributing to a cause or venture they believe in, they can help promote an opinion, fund research or simply lend a helping hand. But while these positions may seen harmless and perhaps even beneficial at first glance, human resource managers should be sure the affiliations and relationships created won’t be construed as a conflict of interest and uphold the company’s, and the industry’s, ethical standards.

A prime example of this came late last year when Brock Wright, chief medical officer and senior vice-president of clinical services for the Winnipeg Regional Health Authority, accepted a position on the board of directors of TearLab Corporation, a medical supply company. Despite clearing the appointment internally before taking it, many in the Winnipeg community expressed their outrage that a well-paid public employee would help support a private enterprise, and both Wright and the health authority endured months of discussion on the appropriateness of his new position.

The health authority had taken the stance that since they hadn’t purchased products from TearLab there was no conflict of interest, yet the tax payers and political names in the area still felt the association was wrong, proving that when it comes to ethics, there is no black and white rule book to follow.

Some aspects to consider before green-lighting a board appointment:

Personal gain. It’s one thing for an executive to get personal satisfaction or even a boost in public image from a board seat; its quite another for them to benefit financially. While stipends are typical, be sure the compensation being offered won’t paint your employee in a negative light to the public, or discuss how you will handle questions pertaining to his or her new additional income.

Time commitment. Long hours at the office are a given these days, and being on a board can require participation in several meetings a month, some of which require travel. Can the executive in question truly handle the responsibilities of both positions in a 24-hour day? How will his or her absence at the company be handled and accounted for?

Agenda. Be it personal or corporate, board members should not be taking positions to help out their company’s standing, nor should a board take on a member simply to have ties to a company. The more distant the industries or causes of the board and the company, the better. A hospital executive working with a zoo seems harmless, but one working with a pharmaceutical company or medical research organization may raise eyebrows.

Avoiding conflicts of interest. While you may see a board appointment on its own not to be consequential, there may be situations that come up over the course of an appointment that may be considered a conflict of interest, such as an unforeseen company merger or buy-out. Be sure there is a plan in place for how the executive will remove themselves from discussions and decisions on these types of matters, stressing that their first allegiance has to be to the company they help run.

Legal issues. Decisions made by the board may carry some legal liability. Will your company indemnify the executive in these instances? Will you require the executive to retain their own attorney to handle potential cases? How will the company respond if associated with the decision?

Safe Renovations Keep Employees Happy – and Your Workplace Hazard-Free

It’s time to spruce up your office space, yet you can only get contractors in on weekdays. Some improvements and renovations, such as painting or carpeting, may not seem like a big deal.  However, if they are done on the premises while your employees are working, you could be crossing a line.

Occupational Safety and Health Administration (OSHA) violations and environmental hazards are touchy areas, and whistleblowers are (rightfully) allowed to report potential violations anonymously. Here’s what you should think about before you renovate during working hours. 

Almost every U.S. employer and worker is under OSHA jurisdiction for occupational safety and health standards in the workplace and elsewhere on the job. Employers also have a general duty to provide their employees with work and a workplace free from recognized, serious hazards. OSHA enforces the Act through workplace inspections and investigations. If you are in a state with an OSHA-approved State Program, you may be subject to different or additional requirements.

Prior to beginning the renovations, it’s a good idea to have someone in your HR department review OSHA Part 1910, Occupational Safety and Health Standards. He or she should also take a look at the OSHA Complaint Form, which is the form that would be filled out by an employee who may decide to report on you. 

Communicate to employees beforehand what exactly the renovations will entail.  It is important to alert employees to the scheduled work dates, and to be very clear about the specific work that is being done. That way, any worker with concerns will have time to bring them up with a manager before the work begins.

When painting, ensure that there is adequate ventilation at all times.  There are certain OSHA regulations for types of ventilation required when employees are in confined spaces.

Pay special attention to employees who are pregnant.  Paint fumes, some cleaning products, leaded paint, mercury and products containing benzene or formaldehyde are potentially harmful to a growing fetus. Any employee who is pregnant will likely feel extremely uncomfortable about breathing in paint or carpet adhesive fumes, yet may be afraid to say anything about it. Offer to move a pregnant employee to a different area while the renovations are being done, or consider allowing her to work from home. 

Accommodate employees who are asthmatic. Be equally accommodating to employees who are asthmatic, as the fumes may make it difficult to breathe and function properly on the job.

Ask for a copy of the material safety sheet for the paint being used.  Your painting contractor should be able to provide this. 

Do not threaten or fire a whistleblower. Generally, if a worker contacts OSHA about a workplace safety issue and the company fires the employee for that reason, that worker is eligible for whistleblower protection. In 2007, a jury awarded a worker $111,601 in damages, supporting his claim that he was fired in retaliation for calling OSHA.

In addition to potential hazards caused by renovations, you should also be aware of environmental hazards such as pesticides and herbicides, industrial chemicals and asbestos exposure.  For help with compliance, OSHA’s Hazard Awareness Advisor is a tool you may find useful.

The Importance of a Document Retention Policy

The Sarbanes-Oxley Act prohibits the destruction of documents that are subject to review in litigation. The U.S. Securities and Exchange Commission is quite clear about its final rule on retention of records relevant to audits and reviews.

Section 802 of the Act makes it a crime to knowingly alter, destroy, mutilate, conceal, cover up, falsify or make a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any federal department or agency or any case filed under the federal bankruptcy code.

Adopting a document retention policy is not only sensible — it is also sound risk management. You will be creating a regular business practice of systematically destroying documents in accordance with an approved schedule.  Having a written policy — and a regular practice of document destruction according to a formal schedule — lets employees know what documents to retain, and for how long. And it can help you avoid pitfalls in the future.

The most important part of a document retention policy is to aim for consistency in every aspect of managing your company’s records. Start by identifying what types of paper and electronic files your organization generates, determine the appropriate (and legal) length of time to retain them and record those retention times on a formal schedule.  
In addition:

  • Appoint a records-retention team. Ideally, this team should include a senior executive (such as a CEO or COO), legal counsel, either in-house or outside, a high-level professional from your company IT department and a high-ranking individual from operations. This “task force” from different areas of the company can brainstorm, troubleshoot and manage an effective policy.

  • Select an electronic records management system, if you don’t already have one. The head of your IT department and your CIO should be the ones to make the final decision on which solution best fits your company’s needs.

  • Implement a universal retention schedule. After obtaining senior management support, implement a universal retention schedule for all business units. The schedule should be organized and classified by business function that categorizes similar records into broader groupings to ensure consistency and manageability.

  • Clearly state the reasons why retention is necessary. For example, do the documents need to be retained for Sarbanes-Oxley or HIPAA requirements? As requirements change, the reasons for retention should be reviewed, and any changes (if necessary) to the retention period should be made.

  • Establish document retention periods. Make sure the retention periods within the retention schedule reflect the longer of the legal and operational requirements of the records. For example, if a law or regulation states they must be held for five to seven years, retain them for seven. Document the justification (both legal and operational) for the retention periods.  

  • Schedule records to be destroyed. A good electronic records management system should be able to calculate actual retention dates. This calculation will include a combination of the retention schedule within the system and the records’ creation date.

  • Review the schedule periodically. It should be viewed as dynamic, not static. The retention schedule should be reviewed periodically (approximately every 12 to 18 months) to determine the impact of legal changes upon retention periods. Also consider updating records classification to keep pace with changes in your company’s business.

  • Communicate the policy clearly and openly. The document retention policy and schedule should become part of your company’s way of life. Both, along with the records management program, should be communicated clearly and frequently to employees throughout the organization.   

For a sample document retention and destruction policy to use as a guideline, check out this version by the Insight Center for Community Economic Development.

Stay on Top of FMLA Recordkeeping Regulations

Last year brought big changes in the Family and Medical Leave Act (FMLA) arena, including the U.S. Department of Labor’s (DOL) extension of leave to cover children of same-sex parents. In June 2010, the DOL clarified the definition of “son and daughter” under FMLA to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship. 

Indeed, FMLA has seen several revisions in the past couple of years, which in turn have changed HR recordkeeping requirements. Included in the revisions were military family leave entitlements as well as increased notice obligations on employers to help workers better understand their FMLA rights. Employers must be up-to-date on the latest FMLA rules and regulations, as well as what forms are required in order to manage FMLA leaves. If the forms are done incorrectly, they can become expensive headaches.

Employers covered by FMLA have a number of legal obligations to post and keep various records. They are also obligated to provide in a timely manner certain notices to an employee who requests leave under the law. If these obligations are not met, the result can be civil penalties and possible exposure to claims of discrimination.  

Smart employers carefully track FMLA leave and make sure employees know their rights. That includes warning employees when their leave is about to expire and explaining their options for returning or requesting additional time off. By keeping employees informed and meticulously tracking all conversations, employers can avoid getting sued.

The DOL has the right to request review of records once a year in regard to an employee’s FMLA implemented benefits. These documents need to be kept on file for at least three years in accordance with the FMLA and the Fair Labor Standards Act (FLSA).  If a complaint or compliance is being investigated by the DOL, the files can be requested more frequently than the usual once a year as stated in the guidelines.

The DOL will require certain forms that may vary from case to case. In addition to standard forms, here are some types of FMLA recordkeeping that can help employers avoid potential minefields:

  1. Records of any dispute between the employer and an eligible employee regarding the designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.

  2. A record of dates FMLA leave is taken by FMLA-eligible employees. These include time records and requests for leave.   Leave must be designated in records as FMLA leave.  

  3. Copies of all notices given by the employer to employees, as well as any received from the employee requesting FMLA leave. Copies may be maintained in employee personnel files.
  1. Copies of all documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave.

It’s also important to note that states that have enacted their own family and medical leave laws may have additional record-keeping requirements on employers. The DOL has a list of those states, along with a link to each state’s labor website. 
Employers who fail to comply with FMLA guidelines for recordkeeping can be held liable for their actions in a court of law. By keeping careful records today, you’ll avoid trouble tomorrow.


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