How healthy is your medical leave policy? It may be time for a checkup

The Equal Employment Opportunity Commission (EEOC) has filed a class-action lawsuit against UPS for violating the Americans with Disabilities Act (ADA) when it terminated an employee with multiple sclerosis. According to the lawsuit, this particular employee (as well as a whole class of disabled UPS employees) was unfairly treated under the company’s 12-month leave policy.

Some details regarding the case: The employee took a leave of absence from her job when she started experiencing symptoms that were later diagnosed as multiple sclerosis. She came back to work for a few weeks after the 12-month leave period, but then needed additional time off to deal with the negative side effects of her medication. It was at this point that UPS fired her for exceeding its 12-month leave policy.

From an EEOC press release:

“One of the main goals of the ADA is to provide gainful employment to qualified
individuals with disabilities. However, policies like this one at UPS, which set
arbitrary deadlines for returning to work after medical treatment, unfairly keep
disabled employees from working. Sometimes a simple conversation with the
employee about what might be needed to return to work is all that is necessary
to keep valued employees in their jobs.”

UPS is defending its 12-month leave policy, calling it “one of the more generous and flexible leave policies in corporate America.” The company claims the employee never asked for an accommodation under the ADA – and that after returning from a year’s leave of paid absence, she basically “abandoned” her position 18 days later, without providing any medical documentation justifying additional time off.

What about your company’s leave of absence policy? Could it pass this sort of ADA scrutiny? Are you prepared to handle and properly administer requests for reasonable accommodations? A quick checkup of your leave policy and ADA administration practices may be in order to ensure they are healthy, stable and could stand up in court.

How healthy is your medical leave policy? It may be time for a checkup

Can an employer fire an employee for being too buff?

During a recent conversation with a friend in the HR industry, an interesting story came up about a situation at a past employer. To keep it simple, we’ll call our friendly HR-pro “Jane.” (Note: Names, dates and company information have all been omitted to protect the innocent.)

Years ago, Jane was recruiting physicians for the medical clinic she worked at when she thought she came across the perfect doctor to fill an open position. The applicant filled all the necessary qualifications, was well-educated, well-spoken, energetic and self-motivated. Jane offered the job to the doctor the day after the interview. He accepted and was hired.

After about a week on the job, Jane unexpectedly found the doctor showing off to some of the medical assistants in the employee lounge. The doctor, dressed in scrub pants and an undershirt, was having the medical assistants count off how many one-handed push ups he could complete in one minute. After the push-up routine, he proudly took off his shirt and asked for volunteers to hang on his biceps as part of another strength test.

Jane fired Dr. Muscle a week later and some of the female assistants seemed to be rather upset. However, Jane thought the office was better off without someone revealing their muscles and working out when they should be focused on their job.

While Jane may think she did her office a favor by getting rid of Dr. Muscle, could she have potentially put her clinic in serious legal trouble for the firing? A list of questions ran through my brain:

Can an employer fire an employee for being too buff? Could that warrant a sexual discrimination claim? Behavior is one thing, but what about just looking too hot and that being a distraction to the other employees? Is there a discrimination lawsuit in there? Is it the same for a good looking man or a good looking woman?

According the G.Neil legal team, unless you are a government employer or operate under a contract, your company is most likely an at-will employer. At-will simply means the employment relationship may be terminated at any time for any reason by either the employer or the employee. The only “catch” is that the “any reason” really means any reason except for an illegal one. In other words, you can terminate an employee because of absenteeism, poor work performance or simply because he/she isn’t a good fit for your company. However, you cannot fire someone for being Asian, a female, too old, etc. Firing someone because of race, color, national origin, religion, age, gender, disability or other legally protected characteristic is prohibited by law and may result in a claim of wrongful discharge.

Although there is no law that prohibits discrimination based on personal appearance, appearance-based litigation arises under several discrimination laws. These days employees and former employees are bringing lawsuits, which are in essence appearance-based discrimination claims, alleging violations of the ADA, ADEA, Title VII, and state fair employment statutes. By tying an unprotected physical characteristic to race, sex, national origin, religion, or disability, plaintiffs are able to get their appearance-based complaints in front of a judge or jury.

Can a particular employee be asked/required to cover up more than other employees because of appearance (good or bad)? Possible situations … large breasts, ugly scars, big muscles, deformities, etc. Is there a level of distraction that could justify such a request as part of a legitimate business need on the part of the employer?

Employers generally have the right to establish dress code and appearance standards for appropriate business reasons. Common business reasons include sustaining a positive public image, promoting productivity, and complying with health and safety standards. Legal claims can arise when an employer enforces dress code or appearance standards that are not business-related or applied uniformly, or when the standards affect one group of individuals more than another, in violation of federal or state anti-discrimination laws.

In some cases, a company might be required to make an exception to its established dress code or appearance standards for legal reasons. For example, employers are required to reasonably accommodate an employee’s religious beliefs and employees generally should be permitted to wear head coverings, religious insignia and other tokens of faith. Religious accommodations are not required, however, if they present a safety risk, public health concern, or other undue hardship on the employer. For example, employees may be prohibited from wearing long hair or flowing garments near machinery, or they may be required to wear hats or ponytails in a food service establishment.

We know that firing an employee is never an easy thing to do, but knowing how to handle each stage of the process can make it go much smoother. The ComplyRight How to Fire Anyone: Your Guide to Fair and Legal Terminations will give you a clear explanation of the legal do’s and don’ts when it comes to firing employees.

Can an employer fire an employee for being too buff? Leave a comment and let us know what you think.

Can an employer fire an employee for being too buff?

Build employee morale during good times and bad

Everyday, more and more industries are facing layoffs and major downsizing. Paired with a looming recession, employees are more stressed than ever.

Keeping employee morale high during times like these can be tough, but those at Harvard Business Online say good leaders should be able to inspire no matter what.

“Good morale does not require people to be happy.” Instead, the definition of good morale is that individuals’ emotions contribute to the unit as a whole in order to achieve goals. A leader’s job is building team focus and dedication, according to the author.

This can be achieved if you hold on to four truths:

Employee efforts contribute to making someone else’s life better. People work their hardest when they know they are making a difference in another person’s life. Show your employees the good work they’re doing with examples. Something as small as a positive customer review can make an employee feel proud of what they do.

The company depends on their ideas. After downsizing, it is usually a company’s top performers who are left to keep the business moving. Let these employees know that their ideas are crucial to the company’s success and be open to listening to new ideas.

Bad times will end soon. Most of the time, employee layoffs happen before a company is in financial trouble, and used as a means to cut costs before profits plummet. Let your employees know that the downsizing is only temporary and when you foresee an end to the job cuts.

Good times are just around the corner. During a downsizing, employees may take on roles and responsibilities they may not have had under any other circumstances. When good times roll back around, managers will notice how these employees have stepped up and possible promotions may follow.

Build employee morale during good times and bad

Confronting Poor Performers

Bob, your accounting manager, comes rushing into your office to tell you he's got to fire Joe, the accounts receivable clerk, immediately. Apparently, Joe can't get anything right and if something isn't done, the whole company is going to go down the drain.

UGH!! Sound familiar?

After presenting Bob with the Oscar for "Best Actor in a Workplace Drama," you ask him if he's written up Joe for any specific incidences, or if he's shared Joe's performance issues in his last annual review. Bob gives you a blank stare and tells you he's got too much paperwork to handle as it is. Translation: No. And when you pull Joe's previous performance appraisals from your files, you get every indication that Joe's work has been nothing short of glowing.

Can you terminate Joe? Yes. Should you terminate Joe? Maybe. Is it a good idea to terminate Joe today? A resounding NO.

I've seen it time and time again — managers who are afraid they won't be liked if they give any negative feedback. But if you don't tell employees what's wrong, how can they do anything to improve? I've found that most employees would rather get honest feedback — for the benefit of their own career development — than be left in the dark. Plus, you want to inform them of the next steps should they not improve, so they're not in complete shock if/when you escort them out the door.

Here's more inspiration for you: This could save your company from a lawsuit if Joe decides to sue for discrimination. Although most states let you fire employees "at-will" with no reason or paperwork, it's not a smart move. Joe may claim Bob discriminated against him — even if he knows it's not true. And without the proper paperwork (counseling or warning forms and/or performance reviews with specific expectations), your company may not have any proof to defend itself in court.

My suggestion? Do yourself, your company AND your employees a big favor and deal with the performance issues as they occur — and document, document, document. It shows you are a great manager who not only cares about your company, but also your employees.

- Maurice Rosenberg, Human Resources Manager

Confronting Poor Performers