Category: Legal

I’ve been thinking a lot lately about stress, and the anxiety it can cause.

Stress-induced anxiety can cripple someone. According to the Anxiety and Depressions Association of America:

• 72 percent of people who have daily stress and anxiety say it interferes with their lives at least moderately.
• 40 percent experience persistent stress or excessive anxiety in their daily lives.
• 30 percent with daily stress have taken prescription medication to manage stress, nervousness, emotional problems, or lack of sleep.
• 28 percent have had an anxiety or panic attack.

What happens, however, when the thing inducing the stress and anxiety is the workplace itself? What are an employer’s obligations under the ADA to accommodate this mental health disorder?

Let’s start with the basics.

Under the ADA, the term “disability” means, among other definitions, that an individual has a physical or mental impairment that substantially limits one or more “major life activities.” One such major life activity that an impairment can substantially limit is one’s ability to work. In this context, however, work means something more than one’s current position or workplace. It means a significant restriction in one’s ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. It does not mean a substantial limitation in performing the unique aspects of a single specific job.

It is for this reason that almost all courts that have examined this issue have concluded that anxiety or other mental health issues caused by workplace stress are not ADA-covered disabilities that an employer must accommodate.

I received some great feedback on LinkedIn on last week’s post on New York’s new paid family leave law.

That law grants paid leave for the same general reasons one can take unpaid leave under the FMLA. What it does not do, though, is create a new protected class.

Indeed, discrimination based on one’s status as a parent is, in and of itself, NOT illegal.

Case in point? Spink-Krause v. Medtronic (E.D. Mich. 10/23/17).

In that case, the plaintiff, a medical sales rep and working mom, claimed sex discrimination. The alleged discrimination? Her boss made her job as working parent more difficult by reassigning all of the accounts close to her home to other reps, thus requiring her to travel further from her children.

The court dismissed her sex discrimination claim, because Title VII protects against sex discrimination, not parental discrimination:

If Plaintiff were to allowed to take her sex discrimination claim to trial by showing that she was treated differently than a female who does not have children, then the claim she would present to the jury would be a parental discrimination claim — not a gender discrimination claim.

This is not to say that “parental status” can never be a valid basis for a discrimination claim, but it must equate to sex discrimination. In other words, one can claim parental status discrimination, so long as one can show that the employer treated the parent differently because of the parent’s gender (i.e., the employer treats working moms worse than working dads, or vice versa).

So, here’s my Monday question for y’all. SHOULD parental status discrimination be a thing?

Leave me your comments below, or jump over to LinkedIn and let me know your thoughts there. I’ll curate the best thoughts in a future post.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

It is freakin’ hard to be a working parent in America. It is even more difficult when both mom and dad work.

It’s not just child care, but also doctors’ appointments, kids’ sick days, summer vacations, winter and spring breaks, Labor Days, Memorial Days, and all the other “Days” (and don’t get me started on “teacher in-service days”).

Beginning Jan. 1, New York is implementing the start of solution for any employees that work in that state.

On that date, New York’s Paid Family Leave law — the nation’s most comprehensive to date — takes effect.

It provides job-protected and employee-funded paid leave (eight weeks in 2018, scaling up to 12 weeks by 2021) to care for a spouse, domestic partner, child, parent, parent-in-law, or grandparent with a serious health condition; to care for a newborn child during the first 12 months after the child’s birth or after the first 12 months after placement of the child for adoption or foster care; and for when a spouse, domestic partner, child, or parent is called to active military duty.

In other words, it takes the FMLA, adds “domestic partners,” and pays for the job-protected time away from work via insurance proceeds funded by mandatory employee payroll deductions.

If your business employs anyone in New York, this law, for obvious reasons, is a really big deal.

Yet, New York’s move on paid family leave should matter to all employers even if you never have and never will employ anyone in that state. This law matters to all because it moves the needle on this issue.

To compete in the job market against those employers that offer paid leave, other companies will have to begin voluntarily offering paid sick leave as a fringe benefit. Thus, over time, paid sick leave will spread to most, if not all, employers nationwide, whether by government fiat or voluntary adoption.

Those of you who’ve been reading for a while know that I’m not a fan of government mandates. Yet, it is embarrassing that America lags so far behind the rest of the world on employee paid time off.

This law illustrates what happens when the private sector delays making necessary changes. Because our nation’s businesses are so out of touch on the issue of paid leave, governments are compelled to step in.

Bottom line? It’s time to get ahead of the curve on the issue of paid sick leave. Given how far we have to catch up, it presents an amazing recruitment and retention opportunity for the American employer.

Or, look at it this way. Now is the time to board the paid sick leave train. It’s leaving the station one way or the other. The only question is who is going to be the conductor — employers or the government.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

On last night’s season nine premier of HBO’s “Curb Your Enthusiasm,” Larry David was faced with this age old problem.

How does an employer handle an employee who skips work because she’s constipated?

Larry handled it by foisting his problem employee (his personal assistant) onto someone else.

What should you do?

It depends.

First, is constipation an ADA-protected disability?

Likely, the answer is yes.

The ADA defines an “actual disability” as “a physical or mental impairment that substantially limits one or more major life activities.”

Major life activities not only include the handling of day-to-day manual tasks, but also the operation of major bodily functions, including the digestive system and the bowel. As a result, severe constipation likely qualifies.

Assuming that constipation that is severe enough to keep one home from work qualifies as an ADA disability, what does one do with an employee who simply fails to come into work, without notice, because of the disability?

Take a look at your attendance policy. Does it penalize employees who no-call/no-show? A protected disability (or FMLA qualifying event, if you are FMLA-covered) does not justify an employee to ignore your attendance policy, or its requirements. If your policy requires that an employee call out (when feasible), then you can enforce that policy even if the absence is related to a medical condition.

Assuming the employee asks for a few days off to get things moving, you likely have to grant the request as a reasonable accommodation. For the record, I would not recommend Larry’s offered accommodation, a desk chair that doubles as a toilet.

Your homework assignment? Dust off your attendance policy and review its requirements for sick employees missing work. If you do not have call-in/call-out procedures in place, consider adopting them so that you are sufficiently positioned to discipline your AWOL employees.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.