Putting the Humanity in HR Compliance: Seek to Help, Not Just Follow the Law, with ADA Claims

Jathan Janove, J.D. By Jathan Janove, J.D. November 9, 2018
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Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.  

When you learn that an employee has a health problem that may interfere with his or her job, and that employee needs a reasonable accommodation to do the job well, how do you react? 

The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination based on disability and requires employers to help employees with disabilities perform their jobs to their full potential. 

Paul Buchanan, a partner at Buchanan Angeli Altschul & Sullivan in Portland, Ore., advises employers throughout the country on ADA compliance issues. "The ADA is a codification of basic human decency. It instructs employers that when someone's health poses a challenge, instead of simply replacing that person, the employer must communicate with the employee—engage in the interactive process—about whether there is something the employer can do to allow the individual to perform his or her essential job functions. The employer has to be willing to be flexible and humane and to respond to an individual's specific needs." 

Unfortunately, however, some employers and HR professionals approach ADA compliance issues without compassion. To them, the ADA is a burden, a legalistic chore to get through. 

To employees needing help, a cold and bureaucratic by-the-book approach to compliance can be devastating. If there was ever a time to combine compliance with compassion, this is it. Instead of starting with filling out forms and processing medical paperwork, begin with empathy and understanding. The operative question shouldn't be "Are we complying with the law?" It should be "How can we help?" 

In Equal Employment Opportunity Commission (EEOC) v. Dolgencorp LLC, a store associate with diabetes asked her manager if she could keep a bottle of orange juice by the cash register, because she needed to drink it when her blood sugar got low. 

"No. It's against company policy," the store manager said and added, "Be careful of the store cameras." 

The employee experienced hypoglycemic incidents on two different occasions while on the job. In both instances, she went to the store's cooler and took orange juice. She promptly paid for the juice both times by placing $1.69 in the register.  

Upon learning of her actions, the company fired her for violating the store's "anti-grazing" policy. 

A Knoxville, Tenn., jury entered a verdict against the employer totaling more than $700,000. In August 2018, the 6th Circuit Court of Appeals upheld the jury's verdict, finding it reasonable because the store manager denied the employee's request and offered no alternatives. The court chided the employer for what it called its "accommodate thyself" defense. 

According to EEOC Commissioner Chai Feldblum, "The Dolgencorp case shows that complying with the ADA's reasonable accommodation obligation is often not burdensome for the employer. It simply takes a little flexibility and willingness to engage in a good-faith discussion with one's employees." 

But what if you suspect the employee is faking a disability or manipulating the system? 

"Over time, we all get frustrated when we think someone is just working the system, but not everyone who requests medical leave or an accommodation is [doing that]. In all cases, compassion, not skepticism, should be HR's first response," said Kyle Abraham, a partner at Barran Liebman, a management-side labor and employment law firm in Portland, Ore.

Compassion is also good for lowering exposure to punitive damages. In Kolstad v. American Dental Association, the U.S. Supreme Court recognized that punitive damages—damages designed to punish a defendant and deter bad conduct—cannot be imposed on an employer for the bad actions of even the employer's managerial employees if the employer can demonstrate its own good-faith efforts to comply with the law. This means that courts are rewarding employers for being fundamentally decent and humane in their responses to discrimination issues. 

"Smart HR people know that communicating directly and compassionately with employees about challenges like health problems—taking employee concerns seriously—is not only the decent, human thing to do, it also prevents litigation and, when litigation does arise, it dramatically reduces legal exposure," Buchanan said. 

So the next time an employee health issue arises, begin the interactive process with compassion and understanding. Seek to help, not primarily because the law requires it, but because it's the right thing to do.

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to JathanJanove@comcast.net.

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