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The Employer Handbook Blog
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Fact or Fiction: Denying a discretionary bonus may be discrimination?
That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”
Many claims of discrimination require proof of what’s called an “adverse employment action.” A firing would qualify; so would an unpaid suspension. (But, not a paid suspension). Really, it’s anything that “materially adverse” to one’s job.
Ok. Suppose an employer withholds a discretionary bonus. Could that be discriminatory?
Attendance may be an essential job function under the ADA. But, how do you know?
The regulations to the Americans with Disabilities Act include a non-exhaustive list of reasonable accommodations that may apply to allow an employee with a disability to perform the essential functions of the job. They include job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters. There’s also a catchall: “other similar accommodations for individuals with disabilities.”
ADA and accommodating peanut allergies at work
Well, damn.
To those who you who receive my blog posts via email, I’m sorry. Yesterday, we had some technical difficulties and my card check post didn’t make it into your inbox. I realize that for some of you — ok, all of you — my blog posts are an icy-cold bottle of beer in the arid desert that is your mid-week slog. Again, I’m sorry. I’ll release the wrongdoers from the shackles in my basement do better.
But just to be safe, as a Versace belt to the Hermes suspenders, you may want to like The Employer Handbook on Facebook. Every post is shared there.
Now, back to employment law and what-not.
A job duty performed 5% of the time is probably not ADA-essential, you guys
“Smithers, refill my lime rickey. And find me a dunce cap. Post haste.”
The Americans with Disabilities Act requires employers to provide a reasonable accommodation, upon request, to an individual with a disability to enable that person to perform the essential functions of the job. Oftentimes, the questions arises: What are the essential functions of the job?
Can you legally fire an employee for extreme gas?
My readers are the best!
On Friday, I received two emails within 15 minutes of one another, encouraging me to blog about this story. Kenneth Hilario at the Philadelphia Business Journal writes about an employee of an NJ company who is suing her employer. What makes this story special? The company allegedly fired the spouse’s husband, the company’s controller, because of his “extreme gas and uncontrollable diarrhea.”
ADA accommodation requests generally require a, um, oh what’s the word? “Request.”
The Americans with Disabilities Act requires an employer to accommodate an employee with a disability, if doing so will enable that individual to perform the essential functions of the job. The exception is if the accommodation would create undue hardship for the employer.
But when is that duty to accommodate triggered?
Under the ADA, can you fire an alcoholic who doesn’t request treatment?
An alcoholic employee can present a number of tricky legal issues affecting the workplace. Under the Americans with Disabilities Act, there’s a certain dichotomy. That is, alcoholism is a disability under the Act. However, an employer can ban alcohol in the workplace and require that employees not be under the influence of alcohol.
But what about an alcoholic employee, who, while remaining sober at work, seeks a leave of absence to treat?
ADA accommodations for deaf employees in safety-sensitive positions
One of my all-time favorite ADA cases — God, am I a dork — is Keith v. County of Oakland, which I previously blogged about here. It involves a deaf lifeguard who applies for a position at a public pool and what, accommodations, if any are reasonable to allow him to perform the essential functions of the job. Why I like the case — in addition to singing the Baywatch theme when I speak about it at SHRM events — is it teaches employers never to judge a book by its cover. Even a deaf lifeguard may be qualified to perform the essential functions of the job.
Yesterday, I read about another case involving a deaf applicant for a safety-sensitive position.
SHRM hosted a Twitter chat on tricky ADA/FMLA issues. Guess who’s got the full recap?
The SHRM blog does, silly. But, I can link to the preview (here) and the recap (here). Definitely check those out. Allen Smith, Manager of workplace law content at SHRM, and a host of others did a great job fielding questions about the ADA and FMLA issues that keep HR professionals up at night.
(Me? I sleep comfortably on a pile of money on top of another pile of money. Thanks for asking.)
P.S. – Special shout out to my little guy Pierce, who turns three today. May next year bring him his first body bopper victory over his older sister.
