Counties across the state and across the country are reopening as the coronavirus pandemic continues to spread. With most states operating under staggered reopening guidelines, many counties have met the guidelines to enter into “Phase 1” and “Phase 2” of the reopening process. Mask mandates are becoming more prevalent with businesses adhering to state and federal government regulations and OSHA and CDC guidelines.
As an employer, business operations are a top priority, but the safety and health of your employees should be right up there as well. How do you balance both? How do you reopen your organization and focus on business operations, but ensure that your employees are kept safe and just as important, feel safe when reentering the workforce?
Ensure Compliance with New Regulations and Orders – Most if not all states have some level of executive orders in place. Intended to provide additional regulations surrounding federal standards and expectations on maintaining safe working conditions, make certain that you are in compliance with your state’s specific rules and that health standards are met and maintained.
Prepare the Workplace – Based on those regulations and orders, ensure that the workplace is set up according to standards. Ensure that measures have been taken to meet social distancing rules, enforce rules regarding facial coverings, and identify best practices for maintaining disinfecting routines and identifying and eliminating any risks for possible exposure.
Communicate!! – With many employees still working remotely, there is a prevalent and understandable concern with returning to the workplace as COVID-19 cases continue to rise across the country. Communicate with your employees. Listen to their concerns and communicate to them what your organization is doing to ensure the safest possible working environment. Communicate new policies and practices, along with expectations of all employees.
What if They Refuse? – A problem many employers are running into, what if an employee refuses to return to work based on executive orders or concerns for their health? The nitty gritty is that a fear of returning to work is not a protected reason to continue to telecommute. You can reasonably require an employee to return, so long that you are meeting guidelines regarding workplace safety. However, as in many situations in which accommodations are requested, work with the employee to see if a temporary and mutually beneficial compromise can be met that works for everyone. This may include a part time work from home arrangement, or a work location that is more isolated from others.
The impact the new coronavirus has had on organizations is staggering. Transitioning back to work is a process that should be as smooth as possible, but keep in mind that every industry, every employee, every case is different. There is still so much gray area regarding employees returning to work and managing leaves under the FFCRA. No one situation is the same nor should they be treated as such. As we slowly start resuming (somewhat) normal activities, feel free to contact us for advice and counsel regarding implementing policies and practices that are tailored for your organization and culture.
For months, Frank had been the epitome of a problematic employee; attendance issues, sub-par performance, and behavioral issues that have resulted in frustrated coworkers. Frank’s supervisor administered a record of discussion, addressing all three of these concerns with the hopes of rehabilitation and significant changes. Shortly after the disciplinary action, Frank underwent shoulder surgery and took a job-protected leave of absence for 8 weeks, returning to work with a reasonable accommodation as his recovery warranted short-term disability.
Upon his return, the areas addressed in his record of discussion began again and a written warning was quickly delivered. Frank’s supervisor mentioned in his written warning “after returning from an FMLA leave of absence, Frank has been absent on 4 occasions in a 2-week period.” Shortly after this second disciplinary document was administered, Frank got into a verbal altercation with a co-worker in front of customers who filed a complaint with management and Frank was promptly terminated for the incident. A few weeks later, the company received notice from the state that Frank had filed a wrongful termination suit, claiming that he was being discriminated against because of his job-protected leave of absence and subsequent disability.
A common situation that arises with employees who are out on a medical leave of absence, or who are protected under ADA due to a disability, is the issue of disciplinary action. How can you effectively apply performance or conduct standards to your employees, while not violating ADA regulations?
An employee with a disability is still required to meet the same production and performance standards as a non-disabled employee in the same position, and an employer may hold the employee to the same performance and conduct standards as they do to all other employees. In most situations, the employee’s disability will not be a relevant factor in reviewing conduct or performance violations. The ADA does not protect employees from the consequences of violating conduct rules, even when such conduct is caused by the disability.
What you have to make certain of however, is whenever administering disciplinary action, you make it very clear that the discipline and the disability or leave of absence are entirely unrelated. Frank’s supervisor made the mistake of mentioning his leave in his write up, which opened a can of worms with regards to the perception of discrimination.
Navigating the world of leave and disability management can be a headache with so many laws and regulations to adhere to and form your policies around. HRCentral specializes in alleviating this stress from organizations, allowing you to focus your resources on your employees and customers. Contact us today to discuss how we can help you implement a program that is streamlined, compliant, and beneficial for both your company and your employees.
This month we have been discussing the ADA and leaves of absences, how to identify the need for either of these protections, and understand what protections apply to your organization and your employees. We know that in situations in which an employee sustains and injury or illness that a job-protected leave of absence or period of disability may apply. A common question is how do you know which applies? Do they overlap? Do they run concurrently? Does the employee get one or the other?
For many employers who do not meet the eligibility requirements for state or federal job-protected leaves (primarily falling under 50 employees), the ADA and disabilities are going to be the predominant reason for a personal, medical leave of absence. As this is the case, it is important for you to be familiar with ADA/disability regulations, understand how they apply to you, know what you can and cannot ask, and be confident with handling situations in which a disability is present.
What qualifies an individual? Title I of the Americans with Disabilities Act (ADA) covers “qualified employees with disabilities.” A qualified individual can be further defined as: an individual who satisfies the skills, experience, education, and other job-related requirements of the position sought or held, and can perform the primary job tasks of the position, with or without reasonable accommodation.
The term “disability” can be further defined as: a physical or mental impairment that substantially limits one or more major life activities; a record of a physical or mental impairment that substantially limits one or more major life activities; or having a physical or mental impairment that substantially limits one or more major life activities.
A common scenario in which the ADA and a job-protected leave of absence may overlap is in situation in which an employee has exhausted their 12 weeks of job-protected leave but requires additional time off (or a reasonable accommodation upon their return to work). If an employee’s condition constitutes a disability, the law may require additional time off or reasonable accommodations provided to the employee after the expiration of their leave.
Navigating the many areas of state and federal leaves of absence and the ADA can be tricky. HRCentral can provide you with the expertise and guidance your organization needs to ensure compliance with all areas of leave administration, saving your company valuable time and resources. Contact us today!
Looking back on the situation regarding Diane and her illness which caused attendance issues, we know now that when Diane disclosed to her supervisor that her problems with attendance were due to a mental health illness and the medication she was taking, the appropriate process wasn’t necessarily followed with regards to seeing if Diane qualified or required a reasonable accommodation or a leave of absence. Granted, it was Diane’s responsibility to request a reasonable accommodation, but when a supervisor is made aware of a situation, the right questions need to be asked.
How do you know what applies and what questions to ask? In situations that warrant a serious health condition (whether that be physical or mental) or a disability, there are typically three types of protections that may apply to the employee:
- Federal (the Family and Medical Leave Act) – The FMLA typically applies to organizations with 50 or more employees working within a 75-mile radius and warrants job protection for up to 12 weeks;
- State (in Oregon we have the Oregon Family Leave Act) – At the state level, leaves of absence typically run concurrently with the FMLA, but the eligibility requirements may differ (for example, in Oregon organizations with over 25 employees are required to comply); and
- Disability Protection (the Americans with Disabilities Act, the ADA) – Prohibits discrimination against individuals with disabilities, ensuring that they have the same rights and opportunities as everyone else (such as providing them with a reasonable accommodation to enable them to perform the essential functions of their job).
Managing employees often means managing your department while they are out and ensuring the employee’s time off is protected or calculated correctly. It is important that managers and supervisors understand which leave protections apply to their organization, how they work, and what both the employer’s and employee’s rights and responsibilities are before, during, and after a leave of absence or period of disability.
This is where we step in! Leave Administration is something that HRCentral specializes in. We understand that your time and resources are valuable to your organization, which is why we work with your HR department and your management team to take as much of this process off your plate as we can. In addition to administering this process for you, we offer Leave Administration management training, educating your supervisors in the different types of leaves, who is responsible for what, and how to identify the need for a leave of absence or a reasonable accommodation.
Contact us today to see how we can work together to make this process as seamless for your Company as possible!
In our last Nuts-and-Bolts post, we discussed the proposed rules that the EEOC recently published that pertain to the application of the American’s with Disabilities Act (ADA) to wellness programs that employers offer their employees.
It is important that employers and managers stay abreast of the constantly changing and evolving rules and regulations that apply to leave management and administration to ensure compliance. A very important aspect of leave administration is what you as an employer are permitted to say, and more importantly, what you are not permitted to say when dealing with a disability-related leave of absence. (more…)