That seems the best mantra for HR leaders in this new ADA day.
Two reminders of the mounting murkiness when it comes to drawing the line between your work policies and the amended Americans with Disabilities Act floated my way recently in this piece from the Society for Human Resource Management (registration required) and this from The Growth Co., headed up by Lynne Curry.
The SHRM piece highlights a $180,000 settlement Walgreens agreed to pay a cashier who the company fired after she took and ate a $1.39 bag of potato chips without paying for it. Turns out the cashier, Josefina Hernandez, was a diabetic who needed the chips during a hypoglycemic attack to stabilize her blood sugar.
Also turns out, in this age of heightened disability sensitivity and the need for employers to be sure they’re engaging in reasonable-accommodation discussions and the interactive process, Walgreens apparently did everything wrong. (Requests for comments from Walgreens have not been returned.)
According to the piece, when a loss-control supervisor asked for an explanation after finding the empty potato-chip bag under the counter at her cash register, Hernandez wrote in a statement, “My sugar low, not have time.” The supervisor didn’t know what she meant, so she was fired for violating Walgreens’ anti-grazing policy. On the contrary, the courts found, it was Walgreens that was in violation, of the ADA.
Had HR been involved throughout the investigation and pre-termination process, Walgreens would probably have been $180,000 richer. As Robin Shea, an attorney with Constangy, Brooks & Smith, says in the piece, “HR people are generally in the best position” to determine whether workplace discipline and/or termination is an overreaction.
“If it appears that the employer is using a nuclear weapon to kill a gnat, then maybe termination is not the answer,” she tells SHRM.
The other piece concerns alcohol. In it, Curry reminds us that, as much as an employee’s alcohol dependence brings everyone down — employee, co-workers and employer — and although you can establish policies prohibiting alcohol consumption at work or prior to work events, an alcoholic does have rights.
For the record, here’s Curry on that:
“According to the federal Equal Employment Opportunity Commission, an alcoholic who can perform the essential functions of his [or her] job may have a disability requiring employer accommodation under the Americans with Disabilities Act. The courts are fairly unanimous in ruling that an employer needs to grant at least one leave of absence so an alcohol-dependent employee can participate in a treatment program if the employee hasn’t misused alcohol on the job or engaged in misconduct.
“For example, in the landmark Schmidt v. Safeway Inc. case, the court ruled that the ADA may require an employer to provide a leave of absence to an employee with an alcohol problem if it is likely that the employee would be able safely to perform his duties following treatment. With an alcohol-dependent manager, a leave of absence for outpatient or inpatient treatment may be the logical accommodation.”
At the same time, she writes:
” … alcoholism doesn’t immunize managers or employees from the consequences of their actions. Employers can hold alcohol-dependent managers and employees to the same performance and behavior standards as non-alcoholics and discipline or discharge an alcoholic whose alcohol use adversely affects his job performance. As an example, if an alcoholic employee often arrives late to work or makes frequent errors, the employer can take disciplinary action based on the poor job performance and conduct. Furthermore, the 2nd U.S. Circuit Court of Appeals ruled that the ADA does not protect an employee from termination for alcohol-related absenteeism when reliable attendance at scheduled shifts is an essential job function.”
Where does this leave us? I guess with a simple “Be Careful.” And in today’s increasingly employee-supportive legal landscape, “Consult Counsel,” too.
As clear-cut as it may seem that certain activities — such as stealing company property and alcohol abuse — have no legitimate place in your organization, except as forbidden zones in your employee handbook, just remember to beware the law, where black-and-white mandates are far outweighed by shades of gray.Twitter It!