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ChAmber Blog

Is Your Employee’s Extended Leave Request a Reasonable Accommodation?

6/30/2015

1 Comment

 
​by Doug Taylor, Shareholder, Bean, Kinney & Korman, P.C.
Consider the following scenario. You are an employer to which the FMLA and ADA apply. One of your employees has been on unpaid FMLA leave due to medical conditions that have required ongoing treatment by a team of doctors. The employee has exhausted all of his sick leave and paid time off and is nearing the conclusion of the twelve weeks of unpaid FMLA leave to which he is entitled. You prepare a letter informing him that he must report back to work on the day after his leave has run out. Just before that date, however, the employee provides you with a doctor’s note stating that the employee requires additional medical testing as a part of his treatment, is unable to return to work at the present, and without the additional testing, it is unclear when the employee will be able to return to his job.

Q: Can you terminate the employee because he is unable to return at the end of his twelve weeks of FMLA leave?

A: Yes, but with some important caveats. The FMLA entitles eligible employees to take up to 12 weeks of unpaid personal medical or family care leaves of absence during any 12-month period. Among the events that give rise to FMLA leave entitlement is a “serious health condition” that prevents the employee from performing an essential function of his job. Under the FMLA, an employer is required to reinstate the employee to the same job or a substantially equivalent one at the conclusion of the employee’s FMLA leave, but not if the employee is unable to perform one or more of the essential functions of the job at the time that the employee’s FMLA leave runs out. Under the FMLA, the answer seems clear. The employer would be within its rights to terminate the employee, if desired, because the employee has exhausted all available forms of leave, including FMLA leave, but is unable to return to work. Now to the caveats.

Q: Does the outcome change if the employee has made it known that he is unable to return to work because of a “disability” when his FMLA leave ends?

A: Possibly. An employee who requests FMLA time off due to a medical or disability-related issue may simultaneously have additional rights under the Americans with Disabilities Act (“ADA”). The ADA requires that a covered employer make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer’s business. Under the ADA, it is discriminatory for an employer to deny a request for a reasonable accommodation to a qualified employee with a disability. It is well-settled that extended unpaid leave can be a reasonable accommodation under the ADA.  Questions are necessarily left open for discussion, however, as to “reasonableness” in each particular employment situation.

Q: When does a request for unpaid leave become too attenuated to be reasonable under the ADA?

A: Open-ended leave requests have been deemed presumptively unreasonable. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. As to the question of what leave duration might be reasonable, the outcome depends to a large degree on the facts of the particular employment situation. A six month leave request was too lengthy to be reasonable, for example, in the view of one reviewing court.

Q: Under what circumstances might the employee’s request for unpaid leave become so burdensome on the employer that it becomes unreasonable?

A: Some factors important to the determination of whether a request creates an unreasonable burden on the employer are:

(1) the nature and cost of the accommodation;
(2) the overall size and financial resources of the employer;
(3) the type of business operations, structure, and geographic separateness of the employer; and
(4) the extent to which the accommodation could adversely impact the abilities of other employees to perform their work and the overall impact on the employer’s ability to conduct its business.

The prudent employer should consider these factors before denying an employee’s request for extended leave as a reasonable accommodation.
1 Comment

Legal Implications of Take Your Dog to Work Day for Your Business

6/16/2015

0 Comments

 
​by Rachelle Hill, Associate, Bean, Kinney & Korman
Take Your Dog to Work Day ("TYDTWDay"), sponsored by Pet Sitters International, is Friday, June 26, 2015. Every year, more than 10,000 companies participate, to celebrate dogs and encourage adoptions from local shelters.  This event also presents a great opportunity to partner with a local animal rescue, such as Arlington Chamber members Homeward Trails Animal Rescue and theAnimal Welfare League of Arlington. 
If your company is considering allowing pets for the day, there are some legal implications to consider.
First Steps
First, there are certain businesses, such as food or hospital settings, that cannot allow pets for sanitary reasons.
Even if dogs are not a health violation, employee health must be considered. Before allowing pets, survey your employees to find out about any allergies that may make the event problematic, and to assess overall opinions about having dogs in the office. Employees with severe allergies may need to be physically separated from pets, or this may make it impractical to participate in TYDTWDay.
The next thing to find out about is whether pets are allowed by the property owner in cases of leased office space. Check the lease to determine whether this is covered. When in doubt, ask for written permission.
Dog Bites
It may not be pleasant to consider, but the potential to be liable for dog bites is an important consideration. In most cases, it is the owner of the dog who is liable. However, in some personal injury lawsuits, the employer can be jointly liable.
A solution for this problem is to require employees to maintain insurance covering damage or injury by the dog. Employers should review the policy for any workplace exceptions. It is best not to allow someone to bring a dog to work if you are in doubt, until you have obtained a business policy that would cover such instances.
ADA Issues
There can also be legal implications with regards to the Americans with Disabilities Act. While courts have not come to any firm conclusions, there have been instances where employees have submitted ADA complaints both for businesses allowing and prohibiting pets. For example, one case involved someone who claimed a fear of cats was a disability in a cat-friendly workplace. Another case covered a claim that an employee with anxiety would perform better with his dog at work. Courts in both cases were reluctant to side with the employees. However, the potential for ADA claims is something to bear in mind.
Rules
While businesses that decide to allow pets more generally should create a comprehensive pet policy, even those that participate in TYDTWDay should consider laying down some ground rules.
Employees who want to participate by bringing Fido to work should be made aware that they will need to be in complete control of the dog at all times, and have the ability to take it out of the office if necessary. They should also bring documentation of the dog’s vaccination records.
Make sure your employees know that their dog must be well-behaved, not aggressive, housebroken and not an excessive barker.
In addition, consider having employees sign an indemnification agreement to pay the cost of defending any lawsuit relating to a dog bite.
TYDTWDay
As long as your business is careful about considering the potential legal issues, Take Your Dog to Work Day can be a great way to boost morale and allow employees to enjoy the company of dogs for a day. 
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Time Management Blog - Part 2: Why Do Most People Fail to Achieve Their Goals?

6/2/2015

0 Comments

 
​by Ann Rosser, CEO, Finding Resolution 
There are two primary reasons why individuals do not achieve their goals: 1.) Lack of real desire; and 2) No plan to get there.
A burning desire requires examining the reasoning behind the goal and the motivation to accomplish it. Decide what you want to achieve, set priorities and be 100% committed.
Planning allows a person to map out a course in a realistic way. Motivation means nothing if it is not set into action.
Important elements of planning:
  • Maintain flexibility
  • Plan for interruptions
  • Expect the unexpected
  • Anticipate, anticipate, anticipate
Think in detail about how to accomplish the goal and take that first step. Too many of us do not take the first step. We procrastinate. Inaction prevents us from gaining experience and opportunity. Try treating each day as though you are going on vacation for two weeks.
“Procrastination is the art of keeping up with yesterday.” - Don Marquis, American humorist, journalist
Time management is about setting priorities- not time itself. The key is not to prioritize what’s on your schedule, but to schedule your priorities.
For further reading on time management, take a look at the following Harvard Business Review articles: 
“Make Time for Time” at:  http://blogs.hbr.org/tjan/2011/12/make-time-for-time.html
“8 Ways Not to Manage Your Email (and 5 and a Half Tactics that Work)” at:https://hbr.org/2014/04/8-ways-not-to-manage-your-email-and-5-tactics-that-work
Next in the series on Time Management: “The Powerful Pull of Human Nature on Time Management”
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