Tag Archives: handbook

Do You Have An ADA Policy In Your Handbook?

Employee Handbook

Every employee handbook should have a policy preventing discrimination and harassment in the workplace. These policies generally cover several protected groups including individuals with disabilities under the Americans with Disabilities Act (ADA). However, employers need to take their handbook one step further and create a policy that addresses accommodations in the workplace for disabled applicants and employees.

During our recent Master Series in April, we highlighted several policies that should be contained in every handbook including an ADA accommodations policy. Here are the terms you should have in your accommodations policy:

    • The policy should be directed toward “qualified individuals with disabilities.” Under the ADA, a qualified individual with a disability is a person that meets the legitimate skill, experience, education or other requirements of the employment position and can perform the “essential functions” of the job with or without reasonable accommodation.
  • The policy should confirm that the employer will provide reasonable accommodations to disabled applicants or employees if the accommodation would allow the individual to perform the essential functions of his or her job, unless doing so would create an undue hardship.
  • The policy should advise the employee that he or she is responsible for requesting a reasonable accommodation. Employers are only required to make reasonable accommodations for known physical and mental impairments. An employee does not need to use the magic words “reasonable accommodation,” but must disclose that: (1) he or she has a disability that creates work-related limitations; and (2) an accommodation is needed in order to do the job.
  • The policy should identify the specific individual or position to contact regarding accommodations. At a minimum, the specific job title should be referenced in the policy (e.g., Human Resources Manager or Safety Director).
  • The procedures for requesting an accommodation should be clearly stated in the policy including the requirement that requests be submitted in writing. It is strongly recommended that the policy direct the employee to submit the following information in writing: (1) the reason the employee believes he or she needs an accommodation including a statement of the limitations and restrictions imposed by the disability; (2) the job duties or assignments the employee is having difficulty performing; (3) a description of the accommodations requested by the employee; and (4) a statement as to how accommodations will help the individual perform his or her essential functions. All of this information will be fully discussed during the interactive process.
  • The policy should confirm that the employer has the right to request medical information concerning the employee’s disability and need for an accommodation. Any medical information received as a result of a request for a reasonable accommodation should be kept confidential and maintained in a separate file.

Once a request for an accommodation is received pursuant to the employer’s policy, the interactive process must be initiated with the employee to fully explore accommodations in the workplace. When questions surface regarding requests for accommodations or an employer’s legal obligations, it is recommended that employment counsel should be contacted at the outset to provide guidance regarding the process.

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Prohibiting The Prohibition Of Disrespectful Conduct: An Encore To Our Masters Series

Policy

During our Masters Series presentation in April, we addressed the National Labor Relations Board’s (NLRB) General Counsel’s memorandum relating to conduct policies. In the memorandum, the General Counsel contended that certain policies, including what appeared to be standard handbook provisions, violate employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). Concerted activity generally is two or more employees discussing or taking action with regard to terms and conditions of work or even one employee taking action on a matter involving terms or conditions of employment.

A number of the policies contained in the memorandum and addressed in our presentation likely left several employers scratching their heads. As an example, according  to the General Counsel, the following prohibition violates the NLRA:

  • Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.

In contrast, according to the General Counsel, this prohibition is lawful:

  • Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworker, customer, or vendor will result in discipline.

The difference, according to the General Counsel, is that “[a]lthough a ban on being ‘disrespectful’ to management, by itself, would ordinarily be found to chill Section 7 criticism of the employer, the term [in the second, lawful policy] is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats and assault.” The General Counsel came to this conclusion despite the obvious similarities of these rules, including the inclusion of “insubordination,” which employers are undoubtedly allowed to prohibit.

In light of this recent “guidance” from the NLRB, employers should keep the following in mind:

  • The lawfulness of the policies in the guidance is the opinion of the General Counsel and has not been tested in the Courts or decided directly by the National Labor Relations Board. Given proper legal analysis, many of the General Counsel’s opinions could and should be rejected.
  • Context and placement of policies in the handbook matter. The General Counsel repeatedly indicated in the memorandum that the lawfulness of the examined policies would be decided in context with the material around it. While the wording of a policy may be unlawful standing alone, it could be lawful given the context and surrounding material. For example, a policy prohibiting harassing or disparaging comments may be lawful if it was contained within the handbook’s discrimination and harassment policy.
  • If no employee is terminated, the penalty is low for maintaining an unlawful policy. Absent an employee termination as a result of an unlawful rule, if an employer is found to have an unlawful policy in its handbook, the employer will likely only be required to change or delete the policy and post a notice to employees informing them or their rights under the NLRB for 60 days. If an employee is terminated; however, the employer will likely be required to reinstate the employee with backpay.
  • While it is remarkable that the General Counsel continues to strike down long-used policies designed to maintain workplace order by claiming that the employees would reasonably believe the policies infringe on their rights to unionize and engage in protected concerted activity, the memorandum is helpful in that it provides examples considered to be lawful by the General Counsel to use in handbooks. In light of the General counsel’s tirade against standard policies, it is important to work with knowledgeable counsel when auditing or creating policies and handbooks.
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