Category Archives: disability

Keeping Focus on Performance

A recent ruling in the case of A.D.P. v. ExxonMobil not only illustrates courts’ expanding definition of disability, but should remind employers of their limits in dealing with employees’ substance abuse problems.

In August 2007, an ExxonMobil employee—consistently ranked as a top performer throughout nearly 30 years with the company—informed her supervisors that she was an alcoholic, and would be taking leave to check into a rehabilitation program to address her alcohol dependency and depression.

At the time, there was no pending or threatened disciplinary action against her, and two representatives from the company’s HR department later testified they had only learned of the employee’s alcoholism after she had disclosed it voluntarily.

Upon her return to the job later that year, she was required to sign an agreement obligating her to abstain from alcohol and submit to random breathalyzer tests as a condition of her continued employment. Although she passed nine random tests over the next several months, a subsequent test showed a blood alcohol level between 0.04 percent and 0.05 percent. She was fired four days later.

She subsequently sued, claiming disability discrimination. The Appellate Division of the Superior Court of New Jersey ruled the testing requirement was indeed discriminatory on its face, as only self-identified alcoholics were subjected to the random breathalyzer tests.

A judge refused ExxonMobil’s motion to dismiss the case, finding the company had no safety consideration or business necessity that dictated requiring the test. The court also pointed out there were no signs the woman was suffering from the effects of her alcohol use, nor had her job performance been called into question since her return to work.

The court’s decision is “not surprising,” but holds a pair of important lessons for companies and their HR leaders, says Mark Spring, a Sacramento, Calif.-based partner in the employment law firm of Carothers DiSante & Freudenberger.

Employers and HR professionals need to make sure they are focusing on job performance [in such cases]. In this case, the employer’s focus on alcohol use—as opposed to job performance—is what got it in trouble. Had they simply implemented a reasonable suspicion testing program, allowing them to test after evidence of reasonable suspicion of on-the-job use or intoxication, this could have been avoided.”

The case also underscores the importance of treating conditions such as alcoholism and drug addiction like any other disability, says Spring.

As long as the disability is not impacting work, then the employer is going to be very limited in its ability to address any disability, including alcohol or drug addiction. I think some employers still have a hard time equating these conditions with more ‘traditional’ disabilities, and this can lead to violations such as what happened with this employer.”

Employee Health Takes on New Meaning

Two different studies came to my attention at SHRM’s 2012 Annual Conference and Exposition — both underscoring a growing awareness that keeping workers working, and healthy and productive, is probably the best way to cut healthcare costs.

In essence — though as important cost-cutting factors — focusing on plan design and doctors’ and drug costs may be taking a back seat to keeping workers healthy and happy, at work.

One, a just-released report from The Standard Insurance Co.’s Workplace Possibilities program, titled Health-Related Lost Productivity: Causes and Solutions, kind of turns on its ear the notion that medical care and drug costs should be employers’ biggest worries.

It cites recent studies (one in the Journal of Occupational Environmental Medicine, “Health and Productivity as a Business Strategy: A Multi-Employer Study,” and two others by Mercer and Kronos on the Total Financial Impact of Employee Absences) showing that medical and pharmaceutical costs make up only 30 percent of the total cost of poor employee health.

The other 70 percent can be attributed to what The Standard calls health-related lost productivity costs. Those accrue through presenteeism (workers showing up but not producing at full capacity due to illness) and absenteeism. And the latter costs accrue through all kinds of demons: overtime for the workers left to pick up the pieces, turnover should patients never return, temporary staffing, working slow, late deliveries (because, let’s face it, replacements just don’t know the ropes like the employees themselves), replacement training, customer and variable product quality.

Michael Klachefsky, national practice leader of The Standard’s Workplace Possibilities program and author of the report, calls it the “iceberg concept.”

“These are the hidden costs, like the part of the iceberg under the water’s surface,” he tells me. “Our findings show the people left to pick up the slack are, on average, 15 percent to 44 percent more expensive, and 21 percent to 29 percent less productive.”

His research shows that, for every $1 employers spend on worker medical or pharmacy costs, they absorb at least $2.30 of HRLP costs.

“It’s intuitive,” says Klachefsky, “but no one ever measured it before.”

His company actually bases its services on this concept through numerous proactive fixes, such as on-site wellness and return-to-work consultants, ergonomic advice, products and services, and a blog — — devoted solely to educating employers and employees about ways to avoid medical leave and keep short-term disability from becoming long-term disability.

“We’re doing the 70 percent,” Klachefsky says. “Most others are addressing the 30 percent.”

Also at the conference, SHRM released its 2012 Employee Benefits Survey, showing more employers are offering benefits now that encourage employees to improve their health. Of the 550 randomly selected HR professionals surveyed by SHRM, 45 percent are now offering health and lifestyle coaching, up from 33 percent in 2008, and 35 percent are rewarding — through lower premiums or bonuses — workers who complete health and wellness programs, up from 23 percent in 2008.

“Employers recognize that providing employees with the opportunity to improve their health can increase morale, confidence and productivity,” says Mark J. Schmit, vice president or research at SHRM.

“Organizations continue to look for ways to manage costs as the economy slowly improves,” he says, “[recognizing that] healthier employees … help decrease healthcare costs to employers and employees.”



Bias Charges at All-Time High

It’s probably not too much of a surprise — due to both the economy and a more aggressive enforcement atmosphere — that the U.S. Equal Employment Opportunity Commission reports that private-sector bias charges hit an all-time high in fiscal year 2011.

The EEOC reports that it received a record 99,947 claims of employment discrimination, with the top five being:

Retaliation: 37,334

Race Discrimination: 35,395

Sex Discrimination: 28,534

Disability Discrimination: 25,742

Age Discrimination: 23,465

Employment attorneys say they always expect more claims in tough economic times — since there are plenty of laid-off workers struggling to find new jobs with little else to do than think about suing their former employers for real or imagined offenses.

Last year, we reported on HREOnline™ that the EEOC received 99,922 job-bias charges — which then was the highest number in the agency’s history.

The agency also reported that it obtained $455.6 million for complainants through administrative programs and litigation in fiscal 2011, and for the second year in a row, resolved more charges than it took  in — decreasing its inventory for the first time since 2002.

As for the agency’s enforcement efforts, some attorneys are suggesting that the EEOC goes too far, too fast at times — and may try to stampede companies into admitting to violations without having actual proof of any violations. See our story on a recent case, where the EEOC was ordered to pay $2.6 million in legal fees to an employer it sued.

That story and this bylined article by a former EEOC attorney also offer some advice to HR leaders on what to do when faced with inquiries from the agency.


Balancing Employment Rights with Freedom of Religion

In a U.S. Supreme Court decision, handed down today, the justices unanimously ruled that churches and religious schools cannot be sued for employment discrimination by their “ministers.”

This probably has little widespread importance, but I thought I would share it anyway. The case is Hosanna Tabor vs EEOC, (PDF) and concerns a religious-school teacher, Cheryl Perich, who was fired by the Hosanna-Tabor Evangelical Lutheran Church and School in Missouri after she had taken a disability leave for narcolepsy.

Perich, who was a “commissioned minister” as opposed to a lay teacher at the school, wanted to return to the school in February 2005 after missing the 2004-2005 school year, according to the Supreme Court opinion authored by Chief Justice John Roberts. She was told her position had been filled by a lay teacher.

Nonetheless, Perich reported to work in February and refused to leave, threatening to sue the school, which she ultimately did — joining a lawsuit initially filed by the U.S. Equal Employment Opportunity Commission.

The suit was dismissed by the district court on a summary judgment, but that decision was reversed by the 6th U.S. Circuit Court of Appeals. The High Court today reversed again, dismissing the complaint:

The EEOC and Perich contend that religious organizations can defend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need — and no basis — for a special rule for ministers grounded in the Religion Clauses themselves. Their position, however, is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

Whether this will be the end of the lawsuit is unclear. The opinion notes that “The Court expresses no view on whether the exception bars other types of suits.”


High-School Diploma Requirement May Violate ADA

Wow! The U.S. Equal Employment Opportunity Commission has added yet another wrinkle to the hiring process and has taken us that much further away from “the way it used to be.”

In this informal letter, issued Nov. 17, the EEOC has warned that requiring a high-school diploma from a job applicant might violate the Americans with Disabilities Act because the requirement could effectively screen out anyone unable to graduate because of a learning disability.

“Under the ADA,” the letter states, “a qualification standard, test, or other selection criterion, such as a high-school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job-related for the position in question and consistent with business necessity.

“A qualification standard,” it says, “is job-related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job-related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation.”

This legal alert from Ballard Spahr points out that “the informal letter, although not an official opinion, demonstrates that the hiring process can present a minefield of obstacles for employers.”

No kidding. I can only imagine what the job applications I filled out “back in the day” would look like if all discriminatory “mines” were ommitted. Name, address and Social Security number perhaps?

At least this would cut down on all the frantic phone calls to parents from teens and 20-somethings sitting in HR offices: “Hey, what month and year did I graduate high school again???” Oh, you didn’t get those? I did.

Giving Veterans a Chance

Got a yellow ribbon or “Support Our Troops” sticker on the back of your vehicle? Good for you. But are those sentiments reflected in the actions you undertake once you’ve parked your car and entered your office? Specifically: What is your organization doing to help disabled veterans enter the workforce?

Injured and disabled vets have it tough. Sure, many get a disability check from the Veterans Administration and access to rehabilitation services and counseling. But, in addition to having to cope with the circumstances of their particular disability (which can include traumatic brain injuries and post-traumatic stress disorder, especially for those returning from service in Iraq or Afghanistan), they’ve also got to find a way to carve out a meaningful existence for themselves in a civilian world that may–especially after years or even decades spent in the military–feel dauntingly unfamiliar.

Helping disabled vets find employment was the focus of a summit at the EEOC yesterday. In attendance were representatives from the VA, the Dept. of Labor, Defense Dept., the Office of Personnel Mgt. and the Chamber of Commerce. One of the big topics was the important role that employment plays in helping vets recover from their injuries and avoiding homelessness and drug addiction, a fate that befalls way too many vets.

Many employers are concerned that vets who may suffer from TBI or PTSD could be difficult to accommodate, panelists said. However, the DOL’s Job Accomodation Network provides special resources for employers who need to learn more about accommodating vets with these conditions, said Anne Hirsh, co-director of the JAN.

EEOC Senior Attorney-Advisor Joyce Walker-Jones noted that the EEOC issued two guides in 2008–one for veterans, the other for employers–explaining how the Americans with Disabilities Act and the Uniformed Services Employment and Reemployment Act protect disabled vets. “We issued the guides because we wanted … employers to know that many veterans with disabilities are able to–and want to–work,”  she said.

I’m pretty sure that the last thing vets want to be thought of is as “victims.”  But they deserve a fighting chance to prove they’re more than capable of being an asset to any organization, regardless of their disability.

HR Bloggy Goodness

For some post-candy, pre-turkey goodness, we’ve got a lot of interesting — let’s even say, colorful, since we still have some beautiful fall foliage here in the East — blog posts for you to read from this, our first hosting of the Carnival of HR.

I was putting this together while listening to tunes on my iPod, thus the subheads, which are all songs — although only one of them is on my playlist (and it’s probably the one few of you know; hint: it’s by Randy Newman).

Since this is the season, I guess the first post should be about the flu. Nancy Saperstone of Insight Performance’s Workplace of Choice Blog points out HR’s vital role in keeping employees healthy and productive.

Speaking of vital roles, should HR be skilled at gathering information on competitors? Mark Stelzner at Inflexion Advisors offers up some thoughts — but no simple answers — on capturing competitive intelligence.

Maybe it’s a cultural thing, like respect. John Hunter at Curious Cat Blog writes about practical ways to respect co-workers and colleagues, while Ian Welsh at HR Toolbox says employee relations is the key to HR success.

 Everybody’s Talking at Me

Tim Gardner at the HR Introvert explores the “cult” factor in a company’s culture and Doug Shaw at Stop Doing Dumb Things To Customers just wants to sing about work and not in a good way, as evidenced the title, Crap Engagement.

Maybe you’re not into singing your heart out, but still want to communicate? Steve Roesler at All Things Workplace suggests you take your communication cues from your audience and “meet people where they are.”

One critical skill, writes Trish McFarlane of HR Ringleader, is mastering the art of negotiation — and she offers some practical tips to successfully enhance that competency, while Jennifer V. Miller at The People Equation writes that HR’s role in the workplace is similar in ways to curating an art competition.

 Leader of the Pack

Moving from the art world to the workplace, Wally Bock at Three Star Leadership writes that managers must enjoy enabling workers — if they are to be effective at their jobs. Want much more detail? Tanmay Vora at QAspire Blog provides 25 ways to effectively facilitate business strategies.

To create high-performing organizations, Laura Schroeder at Working Girl offers a list of questions that HR should ponder before making any workforce decisions, and Jon Ingham at Strategic HCM writes about human-centric management.

Humans are not created equal, I guess, as Ben Eubanks at upstart HR looks at some gender preferences for male and female bosses.

There’s also a difference, writes Dan McCarthy at Great Leadership, between leaders and managers. And there’s a difference between good succession plans and bad ones, writes Lois Melbourne at Aquire Blog.

Lonely at the Top

Carol Morrison at i4cp’s TrendWatcher writes about leadership competencies — and if companies are taking aim at the right ones or missing the target altogether — while Mike Haberman at Omega HR Solutions explores five powerful leadership lessons.

One of those lessons, writes Linda Fisher Thornton of Leading in Context, should point out the important reasons to engage in social media.

We can segue from there into HR technology, which is where Naomi Bloom at In Full Bloom puts on her turban and does an imitation of Carnac the Magnificent by providing answers to 2011’s unknown questions. (Full disclosure: I met Johnny Carson once and she doesn’t look anything like him!)

 On The Road Again

John Sumser at HR Examiner, on the other hand, did an imitation of a nonstop traveler, and even though it lasted only seven weeks, it pointed him to some insights about mobile recruiting.

The insights offered up by Paul Baribeau at Workplace Tribes Blog involve those impacting HR strategies at a game development start-up.

Paul Smith at Welcome to the Occupation says HR can do better when it comes to recruiting disabled job candidates; Joe Jones at The Rainmaker Group’s Maximize Possibility Blog says ditto about leveraging the sales-talent selection process; and Mike McCarty of Safe Hiring Solutions says ibid on adding value to employment background checks.

We will close out this section on recruiting with an infographic from Joseph Fung at Tribe HR, exploring whether job boards matter anymore to the recruiting process and we’ll close out this issue of Carnival of HR with a blog post by Lynn Dessert at Elephants at Work on the importance of saying thank you.

So, thanks to everyone who participated in this Carnival of HR — and to everyone reading this. I hope you find this HR bloggy goodness is something to sing about.

And while you’re here, please scroll around The Leader Board. Some of our recent posts include this report from The Conference Board’s Human Capital Metrics Conference; the induction of three new Fellows as well as the induction of IBM’s Randy MacDonald as a Distinguished Fellow of the National Academy of Human Resources; and a bit of Romance, HR-Style.

Deadline Approaching for Disability Hiring Help

Wanted to alert you all to a deadline fast approaching to get applications in for funding designed to encourage disability hiring.

The deadline came to my attention through this piece on the Society for Human Resource Management site (subscription required) about the U.S. Department of Labor making $1.6 million available in a second round of funding aimed at increasing employment opportunities for people with disabilities.

The money is being made available through the Add Us In program, launched in 2010 by the DOL’s Office of Disability Employment Policy. The deadline to get applications in is Sept. 2.

Labor Secretary Hilda L. Solis, in announcing this second round of funding at the National Disability Forum on Aug. 4, said her department “is committed to ensuring that every American who wants a job can find one, including people with disabilities.”

Employers’ failures to hire disabled workers was only one of the concerns raised in a recent story by Jared Shelly on HREOnline™ about the skyrocketing number of disability discrimination claims filed in 2010.

One reason for the increase, according to experts quoted in his story, was the expanded definition of “disabled” under the revised Americans with Disabilities Act. But also onerous is the hesitation on the part of employers to hire people with disabilities because of the perceived difficulties in ensuring the required accommodations are provided.

Sollis stressed during her announcement, however, that “if we [simply] make modest accommodations, we can see [disabled workers’] talent[s] unleashed.”

A New ADA Category?

Who knows if it would fly here — after all the United States does now have a much less rigid definition of disability — but in Sweden, a restaurant dishwasher qualified for disability based on his love of heavy-metal music.

According to The Local, an English-language Swedish newspaper, Roger Tullgren, 42, from southern Sweden, will receive state benefits to supplement his income since his heavy-metal addiction has dominated so much of his life, causing him to lose previous jobs.

” ‘I have been trying for ten years to get this classified as a handicap,’ ” Tullgren told The Local. ” ‘I spoke to three psychologists and they finally agreed that I needed this to avoid being discriminated against.’ ” 

 According to the article, Tullgren skips work so he can attend rock concerts — about 300 a year. After losing his previous job, he relied on welfare, but a session with an occupational psychologist led to an assessment in which “his heavy metal lifestyle was classified as a disability.”

 “The manager at his new workplace allows him to go to concerts as long as he makes up for lost time at a later point. He is also allowed to dress as he likes and listen to heavy metal while washing up.”

Well, back to reality, maybe this wouldn’t qualify as a U.S. disability, but I wouldn’t bet any money that it might not pass muster as a religion: An employee could seek accommodation for services in accordance with the Book of Black Sabbath — or whatever.

Numbers of Unemployed and Disabled On the Rise

I guess it should come as no real surprise, considering today’s economy and aging workforce, that the numbers of unemployed and disabled Americans is rising. According to this recent study by Allsup, a Social Security disability provider, unemployment for people with disabilities continued to significantly outpace the unemployment rate for other workers throughout 2010.

In fact, the study shows the number of people applying for SSDI benefits reached a record 2.9 million applicants in 2010, the highest on record since the SSDI program began. It appears the number of people who leave the workforce due to a disability and then come to realize they can’t return is climbing.

This recent piece we ran on our magazine’s website, by the managing editor of our sister magazine, Risk & Insurance®, confirms this trend through 2009 figures from the U.S. Bureau of Labor Statistics.

All of which can and should serve as a reminder to all employers to make sure their disability hiring and return-to-work practices are as proactive as they can be and are making full use of all the resources at their disposal. For instance, this story came across my radar screen about the good work going on in Oklahoma, where that state’s department of rehabilitation services just got a hefty $2.3 million in reimbursement from the Social Security Administration for helping a total of 2,292 clients start new jobs in the 2010 fiscal year. They may not all be as aggressive as Oklahoma’s, but state and federal agencies everywhere are biting at the bit to help employers find good hires from the ranks of the disabled and unemployed. There are tons of resources, including, of course, the Americans with Disabilities Act home page.

Do your due diligence, of course. Know the rules of the ADA and the Family and Medial Leave Act as they apply to returning to work after a disability. Companies continually seem to be getting into trouble around this, the latest on my radar screen being a $3.2 million settlement between the Equal Employment Opportuity Commission and supermarket giant Supervalu.

Bottom line, though, companies can and should be doing more, within legal guidelines, to help put disabled Americans to work. As disability consultant Milt Wright told R&I‘s Managing Editor Cyril Tuohy, they’re “the most overeducated and underemployed people in the country.”