The facts:

An employee who was being treated for cancer suffered from dry mouth and throat as a side effect of the treatment, and had to consume large amounts of water throughout the day to combat the side effect.

As a result, she asked for two disability accommodations:

• Relaxing of a rule that prohibited drinks of any kind at workstations.
• Permission to leave the workstation often, and without asking, because of a frequent need to use the restroom.

She was granted both accommodations, and worked under those conditions for several months without incident except for one time:  A substitute boss who hadn’t been informed of the employee’s condition refused to all the employee to leave the workstation during an especially busy period. The employee wet her pants.

The employee sued for denial of a disability accommodation.

The employee said:
The temporary supervisor’s blunder caused extreme embarrassment, besides being an illegal breach of the agreement to grant her the accommodation.

The employer said:
The employee had worked under the accommodation conditions for several months without a hitch — in that the regular supervisor had never once denied the employee the accommodation. The incident in question was a simple mistake in communication, in that the temp supervisor wasn’t aware of the accommodation, and would have granted it had he been aware. Further, the employer maintained, the employee should have informed the boss of the accommodation or should have just left the workstation to use the restroom.

Who won the case?

Answer: The employee, who received $200,000 in damages from the employer.

Why: The court rejected the employer’s argument on two counts –

• The employee was under no obligation to inform the boss of the accommodation. The legal language for such an event is called continuing the “interactive process” — the back and forth between employee and supervisor to arrive at a reasonable accommodation. The court said the employee had already engaged in the interactive process and was under no obligation to continue it with another supervisor once the accommodation had been granted.
• Even a single incident of failure to accommodate can have more-than-trivial consequences. An employer must be vigilant about maintaining the accommodation at all times. In short, someone should have informed the temp supervisor about the situation.

Cite: A.M v. Albertsons LLC.

Here’s what happened:

A steel mill worker in Arkansas had been demoted after having four unexcused absences for drunkenness.

The man filed suit, claiming his employer violated the Family and Medical Leave Act (FMLA) by demoting him.

He claimed that several phone calls he’d made to his supervisor during the four-day absence should’ve alerted the company to his need for FMLA leave.

The court’s decision

But a court said the calls merely put the employer “on notice that he was upset and intoxicated,” not suffering from a serious medical condition that would warrant an offer of FMLA leave.

Also, a judge said the company had no prior knowledge of the employee’s alcohol problem. And even if it had known of the worker’s problem, the FMLA only protects absences for alcohol treatment, not alcohol use.

Cite: Scobey v. Nucor Steel-Arkansas.

The scene:

“You know demoting Marty is going to present a little problem, right?” HR manager Diane Corsey said.

“You mean because of his cerebral palsy?” Darlene asked.

“I’m not saying you can’t or shouldn’t demote him,” Diane noted. “I just want to be sure it’s not because of his disability.”

“This is not about his disability,” Darlene affirmed. “It’s about his performance. It takes him forever to get anything done. He’s had warnings, and there’s been no improvement. In fact, it it wasn’t for his disability, I’d probably recommend firing him.”

“Have you talked to him about any accommodations we might make that would make the job a little easier for him?” Diane asked.

“No, because he hasn’t asked about accommodations,” Darlene said. “We talked about this when we hired him – that the law didn’t obligate us to offer him help if he didn’t ask for it. He’s pretty stubborn about being independent, you know.”

First move
“I know,” Diane agreed. “Still, I wonder whether we should make the first move on that.”

Darlene went through with the demotion, and Marty ended up quitting – and suing for disability discrimination. The company said Marty never asked for an accommodation, so the supervisor had gone by the book.

Did the company win? (Answer below.)

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Answer:

No, the company lost.

The HR manager and the supervisor had interpreted the law almost perfectly, the judge noted in the decision. Almost.

The Americans with Disabilities Act does state that in most cases, the employee is required to request a disability accommodation from the employer.

This was the exception, however.

When an employee’s disability is so obvious and the employee’s performance is below standards, the responsibility falls on the supervisor to approach the employee and suggest an accommodation for the disability.

Of course, the employee isn’t required to accept an accommodation, and in that instance the matter is closed. But for obvious disabilities, the supervisor must make the first move and ask.

Don’t ignore the obvious
The lesson here is that you just can’t ignore the obvious.

Being aware of the problem, the supervisor could have approached the employee and made a suggestion, especially because the employee was struggling with performance.

Broaching a subject like that can be difficult, but if you keep it performance-related, you’re on safe legal ground.

[Based on: Brady v. Wal-Mart Stores, Inc.]

The scene:

“But Jill refused to cooperate with me about the sexual harassment complaint,” Ned exclaimed to Carol, the HR manager.

“Did you tell her that, as her supervisor, you’d investigate and protect her?” Carol asked. “That’s your first responsibility.”

“Yes,” he replied, “but she said she didn’t want to ‘drag everyone through that.’”

“OK, let’s talk about the sexual harassment problem itself,” Carol suggested. “Jill says the guy you assigned to train her started groping her and calling her at home.”

“Right,” Ned nodded, ”and I told her we’d separate the two of them and investigate, but she said, ‘No, let’s just leave things the way they are. I don’t need that aggravation when I’m just starting.’”

“Until she just stopped showing up for work, right?” Carol asked.

“Exactly, and she wouldn’t return my calls when I left messages on her cell,” Ned said.

“I guess the reason she didn’t is right here,” Carol said as she held a letter. “It’s from Jill’s lawyer, and it says she’s suing us for sexual harassment by someone she worked under and because we forced her to quit.”

The company argued in court that Ned was Jill’s actual supervisor and that he had offered to help.

Did the company win?

Decision
Yes, the company won when a judge dismissed the case.

Although the judge agreed the employee was the victim of sexual harassment, three key points were in the company’s favor:

Her actual supervisor had offered help and a promise to investigate

The employee refused to cooperate with her supervisor to solve the problem, and

The harassing employee – while in a senior position – wasn’t the victim’s supervisor, and so had no hiring-and-firing power.

Given those facts, the judge said, the employee couldn’t justify her claim she was forced to leave the company.

That sort of claim holds water usually only when a supervisor refuses to help.

So, what do you do?
So when an employee informally complains but refuses to take things any further, what should a supervisor do?

The most direct answer is:  A supervisor should go to HR with the complaint and consider investigating even without the employee’s cooperation.

The bottom line is there’s a potential legal problem on your watch, and you have to address it. Yes, you may win in court if you ignore the problem, but who wants to go to court?

[Based on: Merritt v. Albemarle Corp.]

[Dramatized for effect]

The lawsuit involved the city of Mount Vernon, IL. Several city police officers were also members of the National Guard. In the past, the city had allowed the officers to use their vacation, sick or personal leave to attend National Guard training. This allowed the officers to collect their full city salary, plus military pay, for the days they spend in training.

Also, Mt. Vernon allowed the officers to rearrange their schedules when a typical work day conflicted with National Guard obligations. Mt. Vernon would “bump” other employees, allowing National Guard members to arrange their days off so that on National Guard weekends they could receive both city and military pay, without using vacation time.

This often meant National Guard employees were permitted to reschedule themselves so they were off weekends, even if another employee had requested off prior to the rescheduling.

In 2006, Mt. Vernon reversed its policy, and although National Guard members were still given time off, they were required to take it unpaid or use a vacation day.

Shortly after, one of the National Guard members sued the city, claiming its new policy violated the USERRA.

Who do you think won this case?

The decision:

The court ruled in favor of the city.

In its decision, the court said that the USERRA requires employers to offer the same benefits to National Guard (and others active military) members that are offered to other employees — but employers aren’t required to grant special privileges or benefits to members of the military.

Even though Mt. Vernon had given National Guard members preferential treatment in the past, it was allowed to reverse that policy.

Note: Under the USERRA employers must allow members of the military to take time off for National Guard duty and training. But time off was not the issue here. It was whether the employees would have to use sick or vacation days in order to receive their full city salaries, plus military pay.

In addition, members of the military are also entitled reinstatement after their service ends, as well as the benefits and promotions they would’ve received if they’d been on the job.

Source: Crews v. City of Mt. Vernon, et al., U.S. Crt. of Appeals, 7th Cir., S.D. of IL, No. 08-2435, 6/4/09.

The scene:

“And so the doctor says I’m going to have to stick with a permanent eight-hour schedule to keep my blood sugar on an even keel,” Frankie explained to his supervisor, Lisa.

At hearing the news, Lisa rocked back in her chair and let out a deep breath as she spoke: “That’s going to be a problem.

“I agreed to let you go on an eight-hour schedule temporarily to see if it would help straighten out your diabetes. But with that big new customer we just signed, I’m expecting everyone – and I do mean everyone – to work overtime.”

“I’d love the overtime,” Frankie countered. “But it’s a choice between money and my health.”

“OK,” Lisa nodded, “then maybe I can get you transferred to maintenance. They’re about the last group still working only eight hours a day.”

“That’ll mean an hourly pay cut,” Frankie said. “I can’t live with that, either.”

OT required
Frankie continued to refuse the transfer. After he was fired, he insisted in a lawsuit that the company had accommodated his health problem and should continue to do so – by letting him stay in his job and not requiring him to work overtime.

The company said OT was a mandatory part of the job, and asked a judge to throw the case out of court.

Did the company win?

Yes, the company won when a judge dismissed the case.In doing so, the judge explained that, yes, diabetes qualifies as a legitimate disability and any employee who suffers from it is eligible for a reasonable accommodation.

However, the judge also noted that reasonable accommodation doesn’t translate to any accommodation the employee desires.

When the supervisor established that overtime was a crucial part of job, that meant refusing to work overtime couldn’t be under the accommodation umbrella. Plus, the company had offered the employee a job that fit his schedule.

And what about the fact that the supervisor had allowed the employee to work a limited schedule on a temporary basis? That, the judge said, didn’t commit the company to keeping the schedule permanently.

‘Essential functions’
The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with qualified illnesses or injuries.

The Act states, however, that the employee must be able to perform the “essential functions” of the job – usually those demanded of other employees in similar positions.

[Based on: Rehrs v. The Iams Co.]

One common glitch: Some employees enrolled in the old plan fall through the cracks when transferring to the new carrier.

What happens if, for technical reasons, an enrollee is declared ineligible for the new plan? Read the facts and decide – who won this case?

The facts: A long-time employee was forced to on long-term disability while he battled a usually fatal form of cancer. During the last stages of his lengthy illness, the company switched its supplemental life insurance plan for employees.

The employee passed away, and his family put in a claim for a $150,000 death benefit. The TPA denied the claim, because the plan documents stated that only active employees were eligible to enroll in the new plan.

The employer said: While the situation was unfortunate, the eligibility conditions spelled out in the plan document were crystal clear.   Nothing in the plan document stated that exceptions would be made to carry over inactive employees who were inactive due to a pre-existing illness or serious injury. 

The employee’s family said: The family was eligible for death benefits under the company’s old life insurance plan. Even after the plan switch, the man was still technically employed by the company. He was placed on  long-term paid disability during the final months of his life.

Who won? The employee’s family.

Why: The court said the company, as sponsor of both the old and new plans, had dropped the ball on its ERISA obligations. Simply changing carriers wasn’t enough to release the firm from all of its legal obligations to employees enrolled under the old plan.

Specifically, it was up to the company – before the new policy took effect – to inform anyone who’d soon lose their benefits. It was the firm’s duty to give the man’s family a heads up that, as an inactive employee, he’d become ineligible for the new plan. 

After all, the judge said, management at the company knew ahead of time about the employee’s failing health and inability to work.

Cite: Miller v. Rite Aid Corp.

The employee sued for wrongful termination. His case hinged mainly on a passage in the employee handbook: “Employees who are discourteous or impolite to others will receive two warnings about such behavior and will be considered for termination after a third violation.” So, the employee argued in court, company policy stated that he should get two warnings before being terminated.

The employer said:
The handbook was not a contract, and just set guidelines and options for handling situations. And since the employer was in an at-will state where firing was permitted for any non-discriminatory reason, the termination was legal.

Who won the case?

Answer: The company.

Why: A judge ruled the handbook in fact wasn’t a contract with an at-will employee.  A “contract,” has to name a specific employee in the document.

So the company won, but only after a long, expensive court battle.

The case is a good illustration of the kinds of headaches company handbooks can cause when they’re open to interpretation. How might the handbook in this case have been written to avoid the mess altogether? At least two possibilities:

• The handbook could have stated specifically that the discipline approach outlined was an optional one – or a guideline – and not a mandatory procedure.
• Maybe there was no need to outline the approach at all. If at-will employees are treated equally and disciplined the same way for the same offenses, a “policy” might not be needed. Besides, evidence of fair treatment is more crucial than what’s written in a handbook.

Try to keep those factors in mind when someone insists that the handbook should cover all situations.

Cite: Denis v. P&L Campbell Co.

The facts:
The employee claims that, for religious reasons, he cannot sign or agree to a diversity policy that demands that he “respect the differences of all employees.” The employee such a clause indicates that he would have to respect and agree with a co-worker’s sexual orientation, and that his religion forbade him from doing so. The employee notes, accurately, that he has never discriminated against a homosexual in the workplace, but still refuses to sign the policy.

The employer said:
Adherence to the policy is a requirement for working at the company, and exists so that no one can accuse the company of failing to address mistreatment of employees because of nonwork factors such as sexual orientation or lifestyle choices. Since signing is a requirement, all employees are obligated to do so.

Who won the case?

Answer: The employee.

Why: The ruling hinged on the finding that employee had never discriminated against gays, despite his religious beliefs. Demanding that he sign an agreement that was counter to his beliefs was evidence that the company was going overboard in its diversity effort.

What matters most, the court noted, was whether or not his religious beliefs resulted in his discriminating against other employees. If there was no discrimination, there was no violation. As long as his religion didn’t interfere with business and treatment of workers, the company should have accommodated him and not required that he sign the agreement.

Look for two factors
Dealing with employees’ religion can be touchy, but for a general guide you can ask: Does the belief lead to -

• conduct that treads on the rights of others in the workplace, or
• actions that are harmful to business?

Without one of those factors, it’s hard to prove that someone’s conduct in connection with religion deserves to be disciplined.

Cite: Buonanno v. AT&T Broadband, Inc.

The facts:
One of the pieces of mail contained a letter — mistakenly addressed — from the employee’s lawyer. The letter contained details of a discrimination suit the employee was planning to file against the employer in connection with the firing.

The supervisor opened the letter, believing it to be standard business correspondence that need to be dealt with because the employer was no longer there. After seeing the contents of the letter, the supervisor made a copy and kept it in a file in case the employee did file the lawsuit.

The employer said:
The letter was sent to the company’s address, and as such was company property. And the supervisor hadn’t opened the letter with the purpose of learning confidential details of a lawsuit, so there was no intent to invade the employee’s privacy.

Who won the case?

Answer: The employee.

Why: A judge ruled that keeping a copy of the lawyer’s letter was an invasion of the employee’s privacy. In handing down the ruling, the judge noted the company indeed had a right to open and examine mail addressed to the ex-employee but delivered to the
company’s office. Most times, legitimate business needs are served by such action.

But that doesn’t give employers a free hand to keep mail that’s obviously of a personal, confidential nature, especially documents of the type that pass between attorneys and clients. There are distinct differences in types of mail.

Making careful choices
It’s a common situation. An employee leaves, sometimes under less-than-ideal circumstances, but the mail for that employee keeps coming in. What to do?

This case illustrates that managers must make some careful choices. Mail that’s obviously business-related may be opened and used strictly for business purposes. Other types of mail – say, from a lawyer or the IRS – should be returned to the sender or forwarded to the ex-employee (if you have a forwarding address) unopened if possible. To do otherwise leaves the company vulnerable to some serious charges.

Cite: Roth v. Farner-Bocken Co.