In the last month alone, at least three huge national employers (Home Depot, Time Warner, and Michael Stores) have been hit with class action lawsuits alleging that their background screening practices for job applicants violate the Fair Credit Reporting Act.
What is the Fair Credit Reporting Act, and why must you, as an employer, pay attention to it? Thankfully, I have the answers, wrapped up in a tidy one-hour webinar I presented for BackTrack late last month. Enjoy!
Paraskevidekatriaphobia is the fear of Friday the 13th. Fragapane Phobia is the fear of celebrating birthdays. Today is my birthday, and, thankfully, I suffer from neither of these phobias. Happy birthday to me.
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
When I was a little kid, I was petrified of clowns. I would run screaming anytime I would see one in a parade, or one would show up on TV. I vividly remember a recurring nightmare of Ronald McDonald chasing me around the coffee table in our basement. Upon reflection, the dream was inevitable, given my coulrophobia, and the McDonald-land motif of a yellow coffee table, and bright red shag carpet that bore a striking resemblance to Ronald’s hair. I’ve been over my fear for nearly 40 years. But, if I wasn’t, I could flat our guarantee that I wouldn’t be applying for jobs at the circus. And, if I applied, I wouldn’t expect the circus to hire me.
Even if coulrophobia is an ADA-protected disability (and it likely is), that is only half of the equation to determine whether the ADA offers job protections to an individual with a disability. The individual must also be “qualified,” which means he or she must be able to perform the essential functions of the job, with or without reasonable accommodation.
With all of this as background, consider Waltherr-Willard v. Mariemont City Schools [pdf], decided yesterday by the 6th Circuit. Maria Waltherr-Willard is a schoolteacher suffering from pedophobia, a debilitating fear of young children. She sued Mariemont City Schools for disability discrimination when it denied her transfer request. Needless to say, she lost.
The ADA, as amended in 2009, is wide-reaching. I’m on record as saying that most medical conditions will qualify as “disabilities” under the statute. But, just because an employee is “disabled” does not mean that you must accommodate the disability. You need to engage to employee in the interactive process to determine if an accommodation is needed at all to enable the employee to perform the essential functions of the job, and if so, whether such an accommodation is reasonable and available. If the answer to these questions is no, then the ADA does not protect the employee.
(Yes, this is a real band).
You may heard that we have a bit of a measles issue going on around the country.
At his HR Solutions blog, and on his Twitter, Make Haberman asked, “Are measles protected by the ADA?”
The ADA no longer carves-out “short-term” impairments from its definition of “disability.” Thus, there is an argument to be made that the measles could qualify as an ADA-disability, provided that it substantially limits a major life activity of the sufferer. Given that one only suffers from measles symptoms (albeit rather severe symptoms) for a week or so, I have my doubts that a one-week impairment “substantially limits a major life activity” of the sufferer. No matter how loosely the Act’s 2009 amendments liberalized the definition of “disability,” I can’t imagine Congress intended the ADA to apply to short-term viruses.
Whether or not the ADA covers the measles as a disability, if you are going to fire an employee who cannot come to work because of the measles (FMLA notwithstanding), you need to engage in some serious self reflections about the type of employer you are.
Of course, if everyone was vaccinated against the measles, we wouldn’t need to have this discussion. So, can you require that your employees present proof of vaccination as a condition of employment? Here’s what the EEOC has to say on the issue:
An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
At least as far as the EEO laws are concerned, private employers can require vaccinations, as long as you are willing to accommodate employees’ disabilities and religions.
Some of you may recall that I serve on the editorial advisory board of Workforce Magazine. I also pen a monthly column for the mag. Since we are approaching Valentine’s Day, I’m sharing this month’s timely column. Enjoy.
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| Love Has No Boundaries — Except at Work | |
Two years ago, we cancelled our Plain Dealer subscription. As working parents of two young kids, reading the paper took a back seat to, well, life in general. The fine folks at the Plain Dealer, however, do not appear to believe us. Each Sunday morning, we awaken to find a four-page “promotional” edition of the paper in the driveway. No amount of phone calls have stopped the annoyance of this weekly driveway spam.
Last Sunday, I awoke to six inches of snow. Perhaps it was because the paper was buried under the blanket of white, or because it didn’t register as a fact important enough to recall, but I did not give the four pages of promo-news a second thought as I pushed the snowblower down my drive. More accurately, I didn’t give it a second thought until I saw a few scraps of paper fly from the chute, followed quickly by the smell of smoke and the abrupt sound of the blades seizing.
“F***ing newspaper,” I yelled!
“What,” you are saying to yourselves, “does this story have to do with employee terminations?”
When you terminate an employee, you cannot act on impulse. When the snowblower jammed, my first impulse was to do everything possible to unjam it. The joy of my success, however, would have been severely tempered by a hospital trip to reattach my finger(s). The same holds true when you terminate an employee. Without exception, you cannot act out of anger or impulse. Your decisions must be well researched and deliberate. Review the personnel file. Talk to managers and supervisors. Read relevant policies. Research how similar employees have been treated in similar situations. And, if you have any doubt, call your employment lawyer. More often than not, impulse leads to lawsuits.
I’ll leave it to you to decide—between a lawsuit or lost finger—which is the more painful.
There is only one person that I chose to live with longer than my wife—Rob Schwartz, my college roommate. We shared a doom room, and then an apartment, for four years in Binghamton, NY. It’s no wonder that our world views are so similar. I cannot more highly recommend his newly launched blog, Dad Working. His mission:
There are tons of blogs about the challenges of working moms and I recognize the reality in their struggles, too. I’m hoping to fill the gap for those fathers who also strive and struggle with the expectations of home and work while presenting a new view of what it means to be one of two working parents.
Welcome to the wonderful world of blogging (or, as I call it, my addiction).
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations