Category: Commentary & Opinion

Posted on

Trust — The Biggest Workplace Benefit?

Employers are a trusted source of information. Trust could even be the most important unnoticed benefit in any workplace. For years I have strongly believed that trust is a key ingredient to any successful workplace, and two recent studies confirm it in ways that surprised even me. 

First, the Edelman Trust Barometer has followed trust around the world for 19 years. The 2019 survey included more than 33,000 people around the globe, and it shows some significant changes from previous years. The summary report says “Trust has changed profoundly in the past year — people have shifted their trust to the relationships within their control, most notably their employers.”

Around the world, 75 percent of people say they trust “my employer” to do what is right. Compare that with the percentage who say the same about NGOs (57 percent), business (56 percent), and the media (47 percent). But that’s not the most interesting finding.

People want leadership from their employers, too. Seventy-one percent of employees say it is “critically important for my CEO to respond to challenging times.” The general population agrees — 76 percent say they want CEOs to take the lead on change instead of waiting for government to impose it.

Edelman’s final conclusion? Employee trust is incredibly valuable to the organization. “Employees who have trust in their employer are far more likely to engage in beneficial actions on their behalf — they will advocate for the organization (a 39-point trust advantage), are more engaged (33 points), and remain far more loyal (38 points) and committed (31 points) than their more skeptical counterparts.”

Also read: Building Trust Through Storytelling

That conclusion mirrors MetLife’s 2019 “U.S. Employee Benefit Trends Study.” This survey, in its 17th year, follows workplace and benefits trends. This year MetLife concludes: “Our research reveals that trust — primarily in an employer’s leadership and their commitment to employees’ success — is the most significant driver of employee happiness at work.”

Why does employees’ happiness matter to the business? The survey shows happy employees are more satisfied with their job, and are loyal, engaged, productive, impactful and successful.

Trust and happiness seem like abstract concepts, but building them is entirely within our control. MetLife identifies these five drivers of happiness at work:

  • Employee trust in their company’s leadership.
  • Employers’ commitment to employees and their success.
  • Culture where employees are encouraged to share ideas and individual opinions.
  • Workplace where co-workers feel like family or friends.
  • Benefits customized to meet employee needs.

People trust their employers more than they trust nearly any other organization or entity. Trust is also the biggest driver of happiness at work, and when they trust you, employees are more committed to your success and will work harder. Let’s use this moment to do great things!

  • Every organization should be taking specific steps to foster even more trust. This could mean:
  • Making your leadership more accessible and transparent.
  • Taking a more vocal stand on current issues and events, including their impact on your local communities.
  • Showing how your organization is committed to employees and their success and taking specific action to give them more of a voice.
  • Fostering a greater sense of community and connection at work.
  • Helping your people unite around your organization’s mission.
  • Focusing on helping individuals to understand their sense of purpose and how they fit in your organization.
  • Showing your commitment to your employees’ health and financial security by making it easier for them to understand and take advantage of their benefits.

And if you can, do it all. The results will be great for your people and your organization.

Also in Benefits Beat: 

Communicating Your Benefits Vision to Your Executive Team

How HR Benefits By Getting Political

Benefits Offerings Shouldn’t Be a Puzzle to Assemble

Posted on

Which Mental Health Service Does the FMLA Not Cover?

Jon Hyman The Practical Employer

Recently I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need.

Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

I won’t leave you in suspense. The answer is licensed professional counselors (unless an employer’s group health plan covers licensed professional counselors). The FMLA’s regulations specifically itemize all of the other categories of mental health professionals as “health care providers,” and specifically omits licensed professional counselors from its list. This omission is important, because an employee’s mental condition cannot qualify for FMLA leave as a “serious health condition” if, for outpatient treatment, the employee is not under “continuing treatment by a health care provider.”

As a matter of policy, however, the FMLA absolutely should cover licensed professional counselors as health care providers. According to a recent study by the National Council for Behavioral Health, the leading cause of our country’s mental health crisis is a lack of access to mental health services. We should not be erecting any barriers to mental health services, let alone one ingrained in the federal law that protects employees’ jobs when they take time off for health reasons, including their mental health. By refusing to recognize licensed professional counselors as FMLA-covered health care providers, the FMLA is deterring employees from seeking critical mental health treatment, or at least forcing them to choose between treatment and their jobs if a licensed professional counselor is the only available help. Many who can’t afford to live without their jobs will choose their paycheck over their health, exacerbating their mental health issues.

Gene Scalia has been nominated to replace Alex Acosta as Secretary of Labor. I implore him to close this dangerous loophole by amending the FMLA’s regulations to make it clear and explicit that licensed professional counselors qualify as health care providers in all cases, and not just those in which an employer has made the choice that its group health plan covers their services.

Posted on

Employee Suicide Is the Next Big Workplace Safety Crisis

Jon Hyman The Practical Employer

A recent headline at businessinsurance.com caught my eye:

Suicide seen as “next frontier” in workplace safety risks. It’s a pretty dramatic headline, but when you drill down into the statistics, it has a lot of weight.
  • Suicide is the 10th leading cause of death in the U.S.
  • Between the ages of 10 and 34, however, suicide is the second leading cause of death, and the fourth leading cause of death between the ages of 35 and 54.
  • In 2017, 47,173 Americans died from suicide (more than double the number of homicide victims), and another 1.4 million attempted suicide.
  • Between 2000 and 2016, the U.S. suicide rate among adults ages 16 to 64 rose 34 percent, from 12.9 deaths for every 100,000 people to 17.3 per 100,000.
  • In 2016, the U.S. Bureau of Labor Statistics hit a record in its 25-year tally of workplace suicides at 291, with the number gradually climbing over the prior decade.
  • The highest suicide rate among men was for workers in construction and mining jobs, with 53.2 deaths per 100,000 in 2015, up from 43.6 in 2012.
  • The highest suicide rate among women was for workers in arts, design, entertainment, sports and media, with 15.6 deaths per 100,000 in 2015, up from 11.7 in 2012.
The numbers are stark and scary and show a nation in the midst of a mental health crisis. What can employers do to recognize and mitigate this risk, and provide a safe workplace for employees in crisis?
For starters, educate yourself. There are a lot of free resources available online.

Next, employers need to increase awareness and reduce the stigma that surround mental health issues. Stigma and silence are the two biggest reasons why those that need help don’t receive it. What can employers do to recognize and help an at-risk employee?

1. Be aware of individual risk factors for suicide. You cannot always prevent suicide, but you can understand some of the risk factors so that can recognize when an employee might be in crisis and in need of help.

  • Mental disorders, particularly mood disorders, schizophrenia, anxiety disorders, and certain personality disorders.
  • Alcohol and other substance use disorders.
  • Hopelessness.
  • Impulsive and/or aggressive tendencies.
  • History of trauma or abuse.
  • Major physical illnesses.
  • Previous suicide attempt(s).
  • Family history of suicide.
  • Job or financial loss.
  • Loss of relationship(s).
  • Easy access to lethal means.
  • Local clusters of suicide.
  • Lack of social support and sense of isolation.
  • Being victimized by discrimination, harassment, or bullying.
  • Stigma associated with asking for help.
  • Lack of healthcare, especially mental health and substance abuse treatment.
  • Cultural and religious beliefs, such as the belief that suicide is a noble resolution of a personal dilemma.
  • Exposure to others who have died by suicide (in real life or via the media and Internet).

2. Provide mental-health awareness training to managers and supervisors. They spend the most time observing their employees, and are often in the best position to observe behavioral changes and risk factors, and hear from co-workers that someone might be in danger. Some of the warning signs for everyone to look for include:

  • Talking about wanting to die or to kill themselves.
  • Looking for a way to kill themselves, like searching online or buying a gun.
  • Talking about feeling hopeless or having no reason to live.
  • Talking about feeling trapped or in unbearable pain.
  • Talking about being a burden to others.
  • Increasing the use of alcohol or drugs.
  • Acting anxious or agitated; behaving recklessly.
  • Sleeping too little or too much.
  • Withdrawing or isolating themselves.
  • Showing rage or talking about seeking revenge.
  • Extreme mood swings.

3. Consider implementing a comprehensive psychological health and safety management program to help improve overall workplace culture and resolve issues more effectively. This program would include eliminating stigma related to mental health issues; developing an inclusive working environment for all; and ensuring that you have a confidential Employee and Family Assistance Program (EAP) that offers support and counseling services and that your employees are aware of it.

4. Educate all employees and support those are struggling. This effort includes mental-health awareness and suicide prevention education to employees; reducing stigmas relating to protected classes, mental illness, substance use disorder, and suicide; expanding awareness of mental illness and addiction; encouraging help-seeking for those at-risk; creating a caring and supporting work environment, including the promotion of listening and interpersonal skills to help all employees.

If you or someone you know is having suicidal thoughts or exhibiting suicidal behavior, help is just a phone call away via the National Suicide Prevention Hotline, 800-273-8255. One phone call can save a life.
Posted on

The 14th Nominee for the Worst Employer of 2019 Is … the Horrible Harasser

Jon Hyman The Practical Employer

In its press release announcing a recently filed sexual harassment lawsuit, the EEOC says that a New York-based housing development and property management company violated Title VII when its owner and top executive repeatedly subjected female employees to crude sexual comments, called them sexually obscene names and showed them pornography.

And, as bad as that sounds, that description barely scratches the surface of what is actually alleged to have happened in this workplace.

The complaint that the EEOC filed fills in the blanks with disgusting details about the daily barrage of unwelcome and offensive misconduct.
    • The owner made crude remarks about his sexual interests, such as: that his “dick may not always work but my tongue will”; and that he “knows how to satisfy a woman” and “likes the way they [women] taste.”
    • The owner made unwelcome and sexualized comments about female employees’ bodies, such as: telling a female employee that her body was curvy and reminded him of his wife’s body, telling another that he admired her breasts, and telling another that he “felt like a kid in a candy store,” when she bent over.
    • When angry, the owner called female employees hostile, abusive, and demeaning names, such as: “cunts.”
    • The owner repeatedly put his hand down his pants and touched his genitals while speaking to female employees.
    • The owner showed female employees pornography on his cell phone.
The women say in the complaint that this egregiously offensive misconduct happened on daily or near-daily basis, that their complaints to the company’s CFO fell on deaf ears, and that it finally compelled them to quit.
I’m speechless, other than to say that if these allegations are true, “Congratulations, Birchez Associates and Rondout Properties Management of Kingston, N.Y., you’re the 14th nominee for the worst employer of 2019!”
Thanks to Janette Levey Frisch for bringing this story to my attention.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

The 9th Nominee for the Worst Employer of 2019 Is … the Fertile Firing

The 10th Nominee for Worst Employer of 2019 Is … the Exorcising Employee

The 11th Nominee for the Worst Employer of 2019 Is … the ****y Supervisor

The 12th Nominee for the Worst Employer of 2019 Is … the Disguised Doctor

The 13th Nominee for the Worst Employer of 2019 Is … the Excoriating Executives
Posted on

Parental Discrimination Claims Pose Big Risks for Employers

Jon Hyman The Practical Employer
The article is right — parental discrimination claims (which are really just sex discrimination claims brought by working parents) are very dangerous for employers.

What is parental discrimination? The article breaks this claim down into four different subsets.

    1. Pregnancy discrimination: Examples include firing someone because she is pregnant, refusing to hire someone because she’s pregnant, or denying an accommodation to a pregnant employee that you otherwise grant to other employees with similarly disabling limitations.
    2. Caregiver discrimination: Treating moms (or dads) differently than non-parents because of their parental responsibilities outside of the workplace.
    3. Breastfeeding discrimination: Denying accommodations, including unpaid break time and private lactation spaces, to new moms.
    4. Stereotyping discrimination: Denying employment or employment-related opportunities (i.e., promotions) to moms (and dads) based on stereotypes like, “You’re more dedicated to your family than your job.”
According to the article, the number of parental discrimination claims filed in federal courts rose an astounding 269 percent between 2006 and 2015, and continues to rise.

Moreover, not only are parents suing more, but they’re also more likely to win. A typical employee only wins a workplace discrimination case between 16 and 33 percent of the time. Parental discrimination claims, however, are two to four times more successful for employees, with plaintiffs winning 67 percent of cases that go to trial.

Why are these claims so dangerous for employers? Working Mother offers several theories.

1. The number of employees with family responsibilities has swelled.

2. #MeToo has affected a cultural shift towards the rights of women in the workplace.
3. There exists more awareness of sex and pregnancy discrimination laws.
4. Society can be more progressive than many employers, who are still operate from the stereotypical idea of one-working-parent households.

We no longer live in an Ozzie & Harriet world. Long gone are the days when the wife would be waiting at home to greet her husband with a pair of slippers and a martini while she put dinner on the table for the family. Women work. Moms work. And no one should be treated differently or punished as a result.

As the Working Mother article adroitly points out, there is only one unhappy ending to telling an employee that his wife, or she, belongs at home with the children. It starts with law- and ends with -suit. Women have the right to work, and neither they, nor their spouses, should be punished for exercising that right, regardless of their chosen profession. Employers, force a working parent to make that unlawful choice at your own risk.

Posted on

There Isn’t a Magic Number of Racial Slurs an Employee Must Prove to Establish a Hostile Work Environment

Jon Hyman The Practical Employer

Jamie Ortiz (of Puerto Rican descent) worked for the Broward County, Florida, School Board in various capacities for nearly 20 years, including, from 2009 through 2017, as an auto mechanic in the district’s garage under the supervision of Michael Kriegel.

According to the testimony of both Ortiz and many of his co-workers, Kriegel had some issues with Puerto Ricans and other Hispanics, which he expressed to anyone who would listen, including Ortiz, on a daily basis.

  • Kriegel made offensive comments and jokes about Puerto Ricans, such as, “I’m around too many Puerto Ricans, I better carry my gun with me”; “we need to lock our toolboxes because we’re hiring too many Puerto Ricans”; “this New York Puerto Rican is on me”; “Puerto Ricans like to do their own thing, they don’t follow orders”; and “it ain’t right you Puerto Ricans are making more money than me.” Kriegel never used Ortiz’s name and instead called him “Puerto Rican.” Kriegel also used the ethnic slur “spic” “several times.”
  • Ortiz also testified that Kriegel harassed him “every day on any type of work order.” Kriegel would wait for him to finish his bus route and say things like, “your Puerto Rican ass think you can do whatever you want to do.” Another time, Kriegel criticized Ortiz for using a certain bus and stated that he was “going to write your Puerto Rican ass up.” Over Ortiz’s objections, these and other comments did not stop.
  • According to Ortiz’s coworkers, Kriegel used the terms “spic,” “lazy spic,” “knock-kneed spic,” “dumb spic,” and “wetback,” either specifically about Ortiz or about Hispanic people more generally. Kriegel also made other discriminatory comments, including “here comes the Puerto Rican gang, I need to call the cops”; “the damn Puerto Rican again, I’ve got to go see what this freakin’ Puerto Rican is doing, they’re all the same”; “I would rather have, you know, three more of these guys than a smelly Puerto Rican in here”; “spics come over here and they want to eat up all the benefits”; and “had a lot of niggers and spics apply, and we won’t need no more of them here.”

Amazingly, the district court granted the employer’s motion for summary judgment and dismissed Ortiz’s racial harassment claim. The 11th Circuit Court of Appeals, however, was not having it.

Here, a reasonable jury could conclude that Ortiz’s workplace was objectively hostile to a reasonable person in his position. First, for nearly a two-year period preceding Ortiz’s EEOC charge, the frequency of the harassment was daily or near daily. Ortiz reported that, from the beginning of 2013 through September of 2014, Kriegel made offensive comments and jokes every day about Puerto Ricans. Likewise, one of Ortiz’s coworkers stated that he heard discriminatory comments by Kriegel about people of Hispanic origin on a daily basis during the same time period. Other coworkers reporting hearing discriminatory comments on a less frequent but still regular basis. This evidence is not consistent with the type of “isolated” or “sporadic” conduct that is insufficient to meet Title VII’s threshold. Rather, it reflects a work environment “permeated with discriminatory intimidation, ridicule, and insult.”

[T]here is no “‘magic number’ of racial or ethnic insults” that a plaintiff must prove. …

I am flabbergasted that a federal district court judge could conclude that these facts did not, as a matter of law, constitute a racially hostile work environment.

Indeed, I’d argue that even one “spic” or “wetback” is enough to create a hostile work environment. A daily barrage of these slurs is the definition of racially hostile work environment. Bravo to the appellate court for correcting a very poor decision.

Posted on

A Handy FAQ for Service Animals in the Workplace

Jon Hyman The Practical Employer

A local Subway recently earned itself some bad publicity when an employee denied access to a customer with a service dog.

While this story involved a customer and not an employee, it did get me thinking about employee service dogs at work.

I created this handy FAQ on service dogs at work for your reference.

Q1:     What does the ADA say about service animals?

A1:     Believe it or not, Title I of the ADA (the part of the law that covers employers and employees) is completely silent on the issue of service dogs. Thus, because Title I does not specifically address service animals, an employer should consider a request from an employee to bring a service animal to work just like any other request for a reasonable accommodation. This means that employers must consider the request, but do not have to automatically allow employees to bring their service animals to work.

Q2:     What types of service animals does the ADA cover?

A2:     Only two species can ever qualify as service animals under the ADA—dogs and miniature horses. That’s it. Any other animal, even if trained to do work or perform tasks for the benefit of an individual with a disability, is not an animal for which the ADA requires the consideration of an accommodation.

Q3:     How should employers process requests for service animals by employees?

A3:     Because the ADA is silent on this issue, a request to bring a service animal to work is nothing more than a request by an employee for an employer to modify its no-animals-in-the-workplace policy. If you have such a policy, you must consider modifying the policy on a request-by-request, case-by-case basis. If you don’t have such a policy, and generally allow other employees to bring animals to work, then you should allow employees with disabilities to bring service animals.

Q4:     Must an employer allow service animals upon request, or can it offer other accommodations?

A4:     A disabled employee is entitled to a reasonable accommodation, not his or her preferred accommodation. Thus, if there exists another reasonable accommodation (other than an exception to your no-animals policy) that will enable the employee to perform the essential functions of his or her job, then you can offer that accommodation in lieu of permitting a service animal. That said, because of the personal nature of a service animal, you should be prepared for the possibility that it might be the only reasonable accommodation in many instances.

Q5:     What kind of documentation can an employer seek from an employee in support of the request for a service animal at work?

A5:    When an employee with a disability requests the use of a service animal at work, the ADA grants the right to an employer to request medical documentation to support the need for the accommodation (if the need is not otherwise obvious; a blind employee should not need to prove the need for a seeing eye dog). Also, an employer has the right to request proof that the service animal is appropriately trained and will not disrupt the workplace.

Q6:     Can you require proof of certifications, vaccinations, or insurance coverage?

A6:     I would. Before being permitted to bring animals to work, owners (even those with disabilities and service animals) should verify that vaccinations are up to date, that the animal licensed and free of parasites and insects, and on regularly scheduled flea and tick preventatives. An employee should verify, in writing, sufficient homeowners’ or renters’ insurance to cover any damage to person or property caused by the animal. You could also consider indemnification in case your business gets sued, and a written paycheck deduction authorization for any damage caused (but I wonder if this could creep into the realm of discrimination or retaliation if you don’t require the same of other employees in similar circumstances.)

Q7:     Can I hold the animal to certain workplace standards?

A7:     Absolutely. I have no issues with requiring that all service animals be “office broken.” Animals with any bite history should not be permitted. Moreover, any aggressive behavior, such as growling, barking, chasing, or biting, should result in the animal’s expulsion on the first complaint. Animals should also be house broken, friendly towards people and other animals, and not protective of their owners or their owners’ spaces. Finally, you should define when animals must be leashed or otherwise restrained.

Q8:     Can an employer deny a request if certain areas are off limits, or to accommodation other employees with certain animal allergies or phobias?

A8:     No. If certain areas are off limits, for example, because of safety or other reasons, you just set rules and limits keeping the animal out of those areas. It’s not a reason to deny a request outright. Similarly, when you have When you have two people with disabilities, you don’t treat one as more important than the other. Instead, you work out a balance between each’s needs and accommodations.

Q9:     How you handle a service animal’s bathroom needs?

A9:     Designate a specific area outside for animals to go to the bathroom (preferably away from the entrances), and make sure pet owners understand that it is their responsibility (and only their responsibility) to clean up messes outside and accidents inside. You may, however, have to considering altering an employee’s break time(s), or providing additional breaks, to permit the disabled employee to care for the needs of his or her service animal.

Q10:     What about emotional support animals, and other animals not classified as “service” animals?

A10:     Emotional support animals, comfort animals, and therapy dogs are not service animals under the ADA. Thus, you have no duty to accommodate these requests.

These are not easy issues to work through. My recommendation is that you work with your employment counsel if you receive an accommodation request for a service animal from an employee.

Posted on

The 13th Nominee for the Worst Employer of 2019 Is … the Excoriating Executives

It’s been nearly a month since I posted the last nominee for 2019’s Worst Employer.

It’s not for lack of ideas; it’s just that the prior nominees have been so awful that the bar for qualification has been set pretty high. Thankfully, France Télécom has come to the rescue.

What did the former top executives at France’s national phone company do to earn their nomination?

I’ll let the New York Times story take it from here:

The men — all former top executives at France’s giant telecom company — wanted to downsize the business by thousands of workers a decade ago. But they couldn’t fire most of them. The workers were state employees — employees for life — and therefore protected.

So the executives resolved to make life so unbearable that the workers would leave, prosecutors say. Instead, at least 35 employees — workers’ advocates say nearly double that number — committed suicide, feeling trapped, betrayed and despairing of ever finding new work in France’s immobile labor market. …

“They were stuck, cornered,” said Michel Ledoux, one of the plaintiffs’ lawyers. “The only possibility was to make them leave, one way or another.”

Weeks of wrenching testimony about despairing employees who hanged themselves, immolated themselves, or threw themselves out of windows, under trains and off bridges and highway overpasses, have suggested that the former executives went very far in “pushing the company into the new century,” as corporate strategy dictated. …

“The company was going under and it didn’t even know it,” Mr. Lombard, the ex-chief executive, testified. “We could have gone about it much more gently if we hadn’t had the competition banging on our door.”

Unfortunately for Mr. Lombard, he was recorded saying in 2007 that he would reach the quota of layoffs “one way or another, by the window or by the door.” The window is what a number of the employees chose.

“This isn’t going to be lacework here,” Mr. Barberot said in 2007. “We’re going to put people in front of life’s realities.”

If you harass employees to the point of mass suicide in the name of layoffs, you might just be the worst employer of 2019.

Big thanks to Kelly Paxton for bringing this story to my attention.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

The 9th Nominee for the Worst Employer of 2019 Is … the Fertile Firing

The 10th Nominee for Worst Employer of 2019 Is … the Exorcising Employee

The 11th Nominee for the Worst Employer of 2019 Is … the ****y Supervisor

The 12th Nominee for the Worst Employer of 2019 Is … the Disguised Doctor

Posted on

Why Are Employers Testing Job Applicants for Prescription Medications?

Jon Hyman The Practical Employer

During a pre-employment medical examination and drug screen, an applicant tests positive for Alprazolam, the generic form of Xanax (a medication commonly prescribed for anxiety), a fact she had already disclosed during the examination.

The doctor performing the medical exam and reviewing the drug screen concludes that the applicant is medically acceptable for work as an intake specialist at an inpatient mental health facility. The employer, however, has other ideas. It withdraws the job offer without providing the applicant any opportunity to discuss the results.

The applicant sues, claiming disability discrimination.

Who wins?

(a) The employer, because the ADA permits pre-employment medical examinations and drug screening, and further because there exists a nexus between the applicant ’s underlying mental impairment (anxiety) and her fitness to work at a mental health facility.

(b) The employer, because the ADA only protects physical and mental impairments, not drugs used to treat them.

(c) The applicant, because the employer conducted an illegal medical examination.

(d) The applicant, because the only logical explanation for rescinding a job offer after an applicant tests positive for a prescription drug commonly used to treat anxiety is that the employer regarded the applicant as disabled.

While we may eventually find out the official answer to this puzzle (the EEOC recently filed suit alleging an ADA violation arising from these facts), if you answered (d), grab yourself a Kewpie Doll.

Still, the answer might not nearly be this cut-and-dry. The ADA is remarkably silent on the issue of testing for legally prescribed medications.

generic drugsThankfully, courts have stepped in to fill in the ADA’s omission. For example, Bates v. Dura Automotive Sys. (6th Cir. 8/26/14) [pdf].

1. Does the ADA permit an employer to test for prescription medications?

Whether the ADA permits an employer to test employees for prescription medications will hinge on whether the test is a “medical examination.” If the test is a “medical examination,” then the ADA only permits it during employment if the test is “job-related and consistent with business necessity.” According to the Court, whether the prescription-drug screen is a “medical examination” will hinge on whether the test “is designed to reveal an impairment or physical or mental health,” which examines both the employer’s reasons in using the test and the test’s typical uses and purposes.

2. Does the ADA permit an employer to require employees, after a positive test, to disclose medications to a third-party administrator?

The court concluded that there exists a huge difference between a general requirement that employees disclose a list of all prescription medications taken (possibly illegal), versus a policy that only requires the disclosure of job-restricted medications after a positive test.

How can an employer make sense of this discussion? These are difficult issues that balance an employer’s right to maintain a safe workplace against an employee’s right to medical privacy. What is an employer to do?

    1. Limit testing for the use of prescription drugs to safety-sensitive positions, and then only for those medications that could pose a safety risk.
    2. Do not ask employees to disclose the underlying medical condition for which they are taking the medication.
    3. Be consistent in your treatment of employees who test positive.
    4. Only disclose the results to those who need to know.

In conclusion, I want to focus for a moment on point No. 1 — limit testing for the use of prescription (any?) drugs to safety-sensitive positions and then only for those medications that could pose a safety risk.

Unless one is applying for a job that poses a safety risk, why are we drug testing at all? If you don’t want those who use illegal drugs to work for you, I get that.

That’s your right and your decision. But prescription drugs?

What are you hoping to learn from those tests? Unless you have a legitimate reason to hunt for medications that could impair an employee’s ability to safely perform their job, the risks of the test severely outweigh any benefits to gain.

You’ll learn a heap of protected medical information (or make assumptions based on the physical or mental impairments the drugs are used to treat). Either way, you are opening yourself up to a difficult disability-discrimination lawsuit if you rescind a job offer, as Rogers Behavioral Health in the lawsuit the EEOC recently filed.

Is this risk worth the minimal benefit?

Posted on

3 Ways to Cultivate a Global Business Mindset

In today’s increasingly connected and international marketplace, HR professionals who have a strong understanding of global dynamics are going to have an advantage. The question I hear often is “How do I develop that global mindset?”

Many people in HR assume they can’t travel abroad and build valuable global knowledge unless their company sends them on an official work trip overseas. The reality is that you can take that initiative yourself and learn to become an effective global leader — whether you travel abroad regularly or not — and there’s a good chance your employer will take notice if you do.

Develop global relationships online: No matter what function you’re in within an organization, there’s a global community you can join via Facebook, LinkedIn or a professional association. These online communities are excellent ways to connect with your peers in other parts of the world and start meaningful conversations.

Investing time and energy in global social media groups can both help you with your professional development and expand your understanding of the global scope of your industry — all from your home or office.

Travel to an overseas conference, then hang out: To fully expand your global understanding you’re going to have to travel. I would suggest figuring out how to travel internationally once a year — with an intention to visit a different country every trip.

Also read: How to Build a Leadership Pipeline with Global Experience

If you’re traveling to a three-day conference in another country, add a few days and use the connections that you’re making in your online groups to meet with people face-to-face in that city. There’s nothing better than immersing yourself in another culture.

Explore international development opportunities: A very powerful way to expand your global mindset is to travel with a group of like-minded professionals to really explore a specific country.

An associate and I organize an HR delegation every year to a different country. In recent years, we’ve taken 21 HR-related professionals to Cuba for a week and another dozen to Japan. Last year we traveled with an HR group to the Czech Republic and Hungary.

On one of the trips, an attendee was the head of talent acquisition for a specific business unit inside a global organization, and she said the trip was part of her strategy to take on a more global job.

When she returned her company took note of her willingness to invest her own funds and time in an international learning perspective and put her into a global job within a few months.

If you truly want to understand how things work in other parts of the world and make the investment to start your learning curve, your employer is likely to notice that effort and support your journey. And if they don’t then you have a great foundation to find an organization that’s more conducive to your global learning.

Also read: Keeping Data Safe: The Next Wave of HR Tech Innovation