3 Steps Employers Must Take When Engaging in the Interactive ADA Process

Here are three things to keep in mind when responding to requests for extended leave that will help your business avoid unnecessary legal proceedings and costs.

Employment and labor relations attorneys across the country took notice when the U.S. Supreme Court recently decided not to review an appellate court decision regarding leave of absence from work. The appellate court held that a leave of absence lasting several months is not a reasonable accommodation under the Americans with Disabilities Act (ADA). A reasonable accommodation is defined as a change to an employee’s job duties that allows an employee with disabilities to perform his/her job. That decision came from the Seventh Circuit Court of Appeals, which covers Illinois, Indiana and Wisconsin.

The plaintiff in Severson v. Heartland Woodcraft, Inc. requested that the Supreme Court decide whether a finite leave of absence of more than one month is a reasonable accommodation under the ADA. Mr. Severson had taken a 12-week leave under the Family and Medical Leave Act (FMLA) to deal with serious back pain. At the end of the 12-week FMLA period, he had back surgery and told his employer that he could not work for an additional two to three months while he recovered. The employer denied his request and later terminated his employment. Mr. Severson brought suit against his employer, alleging that they had violated the ADA by failing to grant the additional leave as a reasonable accommodation. The trial court granted the employer’s motion for summary judgment, which is a judgment entered by the court without a full trial. The Seventh Circuit affirmed that ruling, reasoning that an extended medical leave would not assist Mr. Severson in performing his job, but would actually keep him from working. 

RELATED: Check out other articles by the legal team at Walter | Haverfield by clicking here.
 
When the plaintiff requested that the Supreme Court hear the case and express its opinion on the issue, the court declined. Without the Supreme Court weighing in, there is contradictory authority depending on the employer’s jurisdiction. Outside the Seventh Circuit, multiple courts of appeals (including the Sixth Circuit Court of Appeals) and the Equal Employment Opportunity Commission (EEOC) have held that a finite leave of absence can be a reasonable accommodation under the ADA. Further, the EEOC has even indicated that placing a limit on the amount of leave to which an employee is entitled is a violation of the ADA.  

Without the Supreme Court's input or consistent guidance on the issue, employers should always engage in the ADA interactive process with employees to evaluate possible reasonable accommodations, including finite leaves of absence. Here are three key recommendations for employers to follow when responding to requests for extended leave:

Recommendation No. 1
Consider all laws, regulations and policies that may apply to the request. The ADA, FMLA, state and local laws may operate to provide leave for the employee.  Additionally, check your handbooks and policies to see if the leave request fits into any of your company’s leave provisions. 

Recommendation No. 2 

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    Talk it through. Explore whether another accommodation, such as a revised work schedule or frequent breaks, would allow the employee to perform the essential functions of his/her position.

    Recommendation No. 3
    When in doubt, consult an attorney.  Determining whether any request, including a leave of absence, is a reasonable accommodation can be complicated, and requires consideration of many factors. 

    Following these recommendations will help employees receive required reasonable accommodations under the law. They will also help employers avoid unnecessary legal proceedings and expense.

    Rina Russo is an attorney with Walter | Haverfield’s Labor & Employment Services practice group. She can be reached at 216-928-2928 or at rrusso@walterhav.com.


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    Next up: 3 Things to Know: Employment Law
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  • 3 Things to Know: Employment Law

    Correct classification, smart use of business tools and dealing with workplace misconduct—as a business owner, there’s a lot to know when it comes to employment law. We’re looking back at some of the articles that touched on this topic from Mind Your Business.

    We’ve written a lot about employment law and covered a variety of related topics. Here are three things we think you need to know.

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    The first thing you need to know: Correct classification is crucial. Misclassifying employees can be pricey with taxes and penalties that can add up. One common misclassification is treating contractors as employees. Be aware of the distinctions between your employees and your independent contractors. Another step in avoiding major lawsuits and other costs is to understand the differences between exempt and nonexempt employees as laid out in the Fair Labor Standards Act. And, here are 10 things you should know about mitigating exposure to employment-related lawsuits.

    The second thing you need to know: Be smart with your business tools. There are many forms, contracts and other tools that are helpful to your business—if you use them correctly. Non-compete and non-disclosure agreements are often regarded in the same light, but you’ll want to know the differences in how they work and why they are important. If you feel overwhelmed when it comes to the many different types of employment contracts, agreements and lingo, join us as we take this deep dive into the 13 essential employment contract provisions.

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    The third thing you need to know: Dealing with workplace misconduct is part of the gig. Ideally, you’ll have pretty good success at keeping the peace in your workplace. But in the event that you find yourself in a sticky situation, here are some guidelines for dealing with employee misconduct. If a sticky situation escalates to something more intense, be sure to know when, where and how to conduct employee workplace searches. And no matter what kinds of situations arise, as a business owner it’s necessary to know the limitations of employment at will.

    Join us for BizConCLE 2018 on Nov. 1 as we offer workshops that delve into such topics as the top 10 HR mistakes to avoid and much more. Click here to learn more and register.

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    Next up: 4 Reasons a High School Intern Could be a Fit for Your Business
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  • 4 Reasons a High School Intern Could be a Fit for Your Business

    When you’re evaluating potential candidates for your internship program, don’t discount students who might still be in high school. These younger candidates can bring unique value to your business.

    In the lead up to the Third Annual Cleveland Internship Summit on Feb. 27, Mind Your Business will be running a series of articles previewing some of the sessions that attendees will have the opportunity to sit in on. Today’s preview focuses on the legal aspects of internships. Click here to view the other preview articles for this year’s Internship Summit.

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    When looking to fill internship programs, businesses oftentimes automatically go straight to college students. While these students can certainly prove to be competent internship candidates, these businesses might also want to set their sights a little younger.

    JumpStart’s Zerrine Bailey and Youth Opportunities Unlimited’s Craig Dorn—panelists on the “Why Employers Should Consider High School Students for Their Internship Programs” session at the Third Annual Cleveland Internship Summit Feb. 27—took time recently to highlight some of the reasons high school students can be just as good of a fit for internship programs as college students are.

    Listed below are just four of the reasons why your business should not be so quick to dismiss potential high school internship applicants.

    1. They are tech savvy. These young people have proven to be very tech savvy, especially as it relates to activities such as social media. Having a high school student assist with a social media marketing campaign can prove to be a great value add for businesses.

    2. They are trainable. High school-age students in particular have shown themselves to be moldable and open to constructive criticism. This kind of feedback can help guide their future career choices. And speaking of future career choices …

    3. They are eager to learn. Many times, high school students have not yet settled on a potential career path and because of this, are open to learning as much as they can about many different aspects of the business. A college student on the other hand who takes an accounting internship, likely knows that accounting is what their post-internship profession will be and thus will be more focused on learning about that particular subject.

    4. They bring diversity. Young students bring a fresh perspective to the office. And has been noted before, such workplace diversity holds a lot of positives for businesses.

    Register today for the Third Annual Cleveland Internship Summit, taking place on Feb. 27, to learn more about internship program best practices.

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    Next up: Getting Away: 4 Ways to Recharge Without Neglecting Your Business
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  • Getting Away: 4 Ways to Recharge Without Neglecting Your Business

    We know your business takes up a lot of your time, but you can still manage to break away to recharge your batteries without everything going to pieces at your company.

    I have been working with clients to shape more balance in their lives.  I have been working to do that in my own life as well.  There are a few things that I have learned.

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    1. Planning is key

    Set vacation or rejuvenation goals that make sense for the cycles in your business.  I have a goal for a long weekend quarterly and then two bigger vacations one in the spring and the other at the end of the year, which is a staycation so I can have time for planning and family.

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    2. Block out time

    As a business coach and consultant, I have to block out my away time just like its client work and plan that out for the year. Then it’s about keeping my commitment to myself. 

    3. Prepare your clients for your time away

    It’s just like a tradeshow and facilitating a big retreat with clients, I make sure I am attending to my client’s needs before I leave and scheduling their sessions and meetings in advance so they know they have me when I get back. This is great for my spring vacation because I am off the grid. I also leave work and instructions with my assistant to follow up with folk who have questions even if that just means she schedules a call with them when I get back. It’s about setting up systems for service while I am away. It’s a competitive world and most things can wait a few days, even a week.

    4. Go off the grid

    At first it was anxiety creating not to have my laptop, not to be connected to my phone.  It would take me the first 3 days just to detox from being constantly on and available to clients and on social media.  That’s when I realized I needed 7 nights so I would have time to detox, unwind, rest and have fun.  The short vacations, I try to work in the mornings before breakfast if needed and then let it go.

    If you are not taking breaks to recharge your spirit periodically, you will eventually experience burn-out, experience deep and unhealthy stress which causes all kinds of chronic disease.  Ultimately, you will be less effective than when you do take breaks.

    Monika Moss-Gransberry is President of MKM Management Consulting 

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    Next up: 5 Smart Hiring Practices Every Business Should Know
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  • 5 Smart Hiring Practices Every Business Should Know

    As with anything, there can be a right way and a wrong way to go about hiring. If you’re ready to add to your team, take a look at these five smart hiring practices and make sure you’re taking the best approach to finding the best candidate.

    Smart hiring practices can help you to identify and recruit the best people for the job. It may seem easy to gather a bunch of resumes and hire them if you like what you see on paper and when you meet the candidate. However, in taking that approach you may be doing a huge disservice to your business. Hiring and training a new employee costs money and time so it is important that you go about it in the right way. We suggest employing the following five smart hiring practices.

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    Smart Hiring Practice No. 1: Take the time to hire proactively. This means actively recruiting the right candidates as opposed to just filling the position with someone who may have some skills, but in actuality may not be the right choice for your business. Small businesses are often guilty of this. Just filling an open position instead of taking the time to identify, recruit and vet the right candidate is not the best route to a successful hire. Think of where you want your company to be in the future. Consider your growth plans and what kind of talent can help you achieve your goals and objectives. Taking the time to do it right will help you avoid mistakes, layoffs and firings, as well as lessen your risk and save you time, money and frustration in the long run.

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    Smart Hiring Practice No. 2: Thoroughly screen candidates. This is a very important step that should never be skipped! Consider all aspects of a candidate’s experience, personality, background and job history. Always have them sign a release that allows you to test for drugs, perform a background check and a credit check. While this may seem like an unnecessary step, especially to a small business, it can give you important information. You can hire an outside firm to run these checks for you. It’s well worth the minor cost. You may also want to consider personality tests that will give you an idea of how the candidate will work with others, clients, etc.

    Smart Hiring Practice No. 3: Be aware of red flags! Never ignore red flags in the hiring process. These warning signals can include:

    • frequent job changes;
    • excuses or vagueness about why they left previous positions;
    • not researching or having any information about your company or what you do;
    • not being able to back up their resume with names, facts, etc.;
    • being late for interviews;
    • not dressing appropriately for a job interview;
    • not taking responsibility for previous failures, etc.;
    • being unprepared for the interview;
    • complaining about previous employers;
    • not being able to provide references; and
    • rudeness or a bad attitude.

    Also, be just as aware of a candidate being too eager or too bubbly. This can fade as time goes on to reveal a different attitude. Remember, you are most likely seeing them at their best during the interview process and this is always subject to change.

    Smart Hiring Practice No. 4: Smart job listing practices. If you are going to post an opening somewhere it’s best to list objectives in addition to the job responsibility. You don’t want to eliminate people who could be good hires because they don’t have the exact experience for the job. Sometimes, the best hires are people who have the skills to meet the objectives, but their experience may be in a different area or industry. Skills are often transferable from industry to industry. Since there is always a learning curve anyway on a new hire, they can learn the nuances of your business if they have the basic skills.

    Smart Hiring Practice No. 5: Don’t throw new hires to the wolves. This means once you find a new hire, it is important to continue to mentor them and to help them fit in to your company. It can take months for a new hire to become completely comfortable. Make sure to offer training when necessary. And always give a new hire a copy of your employee handbook and make them sign a paper stating they received it. Communicate all objectives, your expectations of their timeliness, specific rules and regulations (i.e. use of cell phones on the job) and be clear in explaining their roles and responsibilities.

    While hiring new employees is usually not an employer’s most fun task, it is one of the most important. When done correctly, it can save time, money, hassles and can ultimately be a very rewarding process.

    Timothy A. Dimoff, CPP, is president of SACS Consulting & Investigative Services, Inc., a high-risk HR and security consulting firm located in Akron. He is a renowned speaker, trainer and a celebrated author of several books, including the popular Life Rage. Tim, a former highly decorated police detective and SWAT team member, is a nationally-recognized authority on high-risk workplace and HR issues, security and crime. Contact him at tadimoff@sacsconsulting.com.

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    Next up: 5 Takes on the Value of Internships
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  • 5 Takes on the Value of Internships

    The value of internship programs to the actual interns working within a firm isn’t hard to see. The interns get an opportunity to put their classroom skills to work in a real-life environment while also getting a chance to add valuable contacts to call on during their impending future job search. But what’s in it for employers? Some of the early returns to a Greater Cleveland Partnership survey on the value of intern programs have found hesitancy on the part of some companies to bring interns on, citing such reasons as not understanding the value interns can bring to an organization or not seeing a need to have an internship program in place.

    The value of internship programs to the actual interns working within a firm isn’t hard to see. The interns get an opportunity to put their classroom skills to work in a real-life environment while also getting a chance to add valuable contacts to call on during their impending future job search. But what’s in it for employers? Some of the early returns to a Greater Cleveland Partnership survey on the value of intern programs have found hesitancy on the part of some companies to bring interns on, citing such reasons as not understanding the value interns can bring to an organization or not seeing a need to have an internship program in place.

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    Data around those companies that have such programs in place, however, indicates there is a benefit to employers who commit to internships. Employers made job offers to 64.8% of their interns during 2014 with 79% of interns accepting those offers, according to a study by the National Association of Colleges and Employers. The study found that employees who had completed either an internship or co-op program were more likely to be with their employer at both the one-year and five-year retention benchmarks.

    As part of the Greater Cleveland Partnership’s ongoing internship study, which is being completed in conjunction with Cleveland State University, survey respondents were asked to identify their top reasons for bringing interns aboard. Five responses from Northeast Ohio companies are below.

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    Citizens Bank

    We have a Commercial Banking internship program to create a pipeline of diverse talent for future hiring. The college students are also a value-add for time-limited projects.


    FIT Technologies

    • Helps offset high staffing needs during summer season.
    • Offers value at an economical hourly rate.
    • Supports IT training and college programs.

    foundation. a brand and communication strategy firm 

    • Valuable assistance.
    • Opportunity to make a positive impression of Cleveland on young talent in an effort to bring them back to this market.

    Safety Controls Technology

    Many of our interns participate in our intern-to-hire program. Interning with our company allows the student to see what an occupational safety and health company actually does and allows them to ascertain whether or not they’re truly interested in the field. We find that interns who have completed service with us are more engaged and ready to start in a career the day after they graduate.

    Turner Construction Company

    Aid in success of future recruiting efforts. Increase diversity. Provide exposure to our industry for interested candidates.

    Add your voice
    The survey, part of a broad collaboration on internships between Dr. Ronald Berkman of Cleveland State University and GCP, should take no more than 10 minutes and asks about the perspectives of your organization on internship programs, your use of interns, and related questions. The information will help build mutually rewarding connections between the business community and local interns. To access the survey, visit www.gcpartnership.com/internshipsurvey. Also, stay tuned for information on the upcoming Cleveland Internship Summit presented by Cleveland State University and GCP on February 10. 

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