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This Changes Everything . . . Not Good

Yesterday, a prominent national legal publication asked me to comment on new regulations by the Equal Employment Opportunity Commission (EEOC). Stated quite simply, the new regulations and the act on which they are based change everything. That is not good for employers.

It just became much easier for employees to sue employers and more difficult for employers to defend those claims. The cost of hiring employees just increased substantially. Proactive, take-charge employers will take the thirteen actions listed below.

You are no doubt familiar with the Americans with Disabilities Act (ADA). It required employers to provide reasonable accommodations to people with disabilities that “substantially limited” a “major life activity.” United States Supreme Court cases over the years brought some guidance to the ADA’s case-by-case analysis.

Congress amended the ADA to overturn several Supreme Court rulings and expand the definition of “disability” by adopting the ADA Amendments Act (ADAAA).

The EEOC published its final ADAAA regulations on Friday, March 25, 2011. The new regulations will go into effect on May 24, 2011.

Under the EEOC’s new regulations, almost every employee you hire can now be considered “disabled.” It does not mater that a condition can be corrected by medications, devices (such as glasses) or other treatments. It does not matter that the condition lasted only a brief time or may never reoccur (a headache for example). It does not matter that a condition does not prevent or even significantly limit a major life activity. Under a “regarded as” analysis, it does not even matter that an employee is not disabled or that the regarded as condition is not even a disability.

The ADA’s case-by-case analysis is replaced by a comprehensive “virtually always” list of body systems and functions.

As a result, virtually everyone is disabled under the EEOC’s new regulations. Employers must now dot all “i’s” and cross all “t’s” or risk a discrimination or failure to accommodate claim for conditions that the employer may not have been aware or even realized constituted a “disability.” 


Hire Slowly

Have you heard the old expression “Hire slowly, fire quickly?” This old pearl of wisdom can help you respond to the ADAAA and the new EEOC regulations.

Ask probing questions. Ask why questions. Then listen carefully.

Avoid asking “bad” questions. The list of questions to be avoided must now be expanded.

Check references. Call prior employers. Ask for the names of all supervisors and coworkers. Go beyond HR and try to talk to these other people. Use a strategically designed reference consent form to obtain more information from reluctant former employers.


Describe What You Expect

Effective, written job descriptions have always been a good idea. Now they are critical.

Describe the essential functions of each job. Describe the physical and mental requirements. Describe performance expectations. Most (maybe all) job description forms are now obsolete. Systematically update your job descriptions (more on this later).


Test at Your Own Risk

You may have seen the recent story where the U.S. Justice Department forced an American city to dumb down their test for firefighters. Under the new ADAAA regulations, testing is extremely dangerous. Consult with an experienced lawyer before you test another job applicant or promotion candidate.


Try Before You Hire

You should be aware of the legal dangers created by probation periods for new employees (DO NOT do this). You can, however, hire new workers as temporary employees. This give you time to evaluate before promoting to a full or part time position. After 30, 60 or 90 days of temporary work, you should know whether you want to hire as regular employees.


Document, Document, Document

No more “squishy” employment actions. You now must document all of the actions you take, including hiring, promotion, transfer, discipline, pay raises and termination.

Several of our prior articles can help with this. See Prevent 101 Problems with a Supervisor’s Log, What is the Hardest Case to Win?, and If It’s Not In Writing . . . It Did Not Happen.


Update (or Create) Employment Policies

The employee handbook updates we have recommended since the ADAAA was adopted in 2008 (the 2009, 2010 & 2011 updates) are a great start. As court cases are decided and the EEOC interprets its own rules and begins enforcement actions, more updates will certainly be recommended in the future.

For our employee handbook updates, see our 23 Employee Handbook Revisions for 2011 and Recent Employee Handbook Updates.


Review (or Create) Accommodation Procedures

Make it easy to request an accommodation. No, you will not get a flood of requests. Instead, you will have arguments you can assert to defend after-the-fact claims by terminated employees that you failed to accommodate some previously unknown disability.


Review (or Establish) Complaint Procedures

Review or establish a formal employee complaint and appeal process. As with easy to request accommodations, you want it to be easy for employees to make complaints or appeal adverse employment decisions.

Yes, it is good to get early warnings of problems before they turn into serious liability risks. Once again, the real purpose is to head off after-the-fact claims by terminated employees that “oh yeah, something bad happened in the past that I did not report and therefore I want money.” Head off these claims with an effective complaint and appeal process.


Train Supervisors

Supervisors are the eyes, ears, arms and legs of an organization. They need to know what to say, what to do, what to report and just importantly, what not to say and what not to do.


Honest, Accurate, Constructive Evaluations

Employers make employee evaluations way too difficult. Then, employee reviews are more often used as a sword against the employer than a shield protecting the employer from liability. I could go into great detail about how to make your review process a strategic link in your employer liability prevention practices. For now, let’s address just a couple of points.

First, give honest, accurate and constructive evaluations in writing. If performance issues are not addressed, that failure will be used against you. Be honest or don’t even bother.

Second, base evaluations on the written job descriptions discussed above. Update the descriptions as appropriate as part of the evaluation process.


Look Before You Act

Avoid summary terminations. Instead, properly investigating claims of employee misconduct and documenting the results of your investigations could make all the difference. A proper investigation by the right person (sometimes outside counsel) can be the secret to successfully terminating anyone, regardless of claims the employee may assert later.

See our article Don’t Let Problem Employees Become “Bulletproof.”


Fire Fast

If an employee is not working out, you must now terminate the employee without delay. Where you once could take a risk and give an employee a number of chances to improve, those risks are now much greater.

Of course, let the employee know your expectations and give him or her a chance to improve. If you do not see the improvement you expect, let the employee go. Otherwise, there are too many opportunities for an underperforming employee to set up an unsuspecting employer for employment claims. 

This is also addressed in our Don’t Let Problem Employees Become “Bulletproof” article mentioned above.


Get A Release

You are under no obligation to pay severance pay to departing employees. However, in the right case, it can be a great way to prevent problems and get a release during layoffs or when terminating problem employees. If you are doing anything nice for a departing or terminated employee, have them sign a severance agreement releasing you from all liability relating to his or her employment.

Most (if not all) release or severance agreement forms are now obsolete for reasons other than the ADAAA. Work with experienced legal counsel for an effective severance agreement that will protect you. 

Please don’t shoot me, I am just the messenger. Few commentators discussing the new EEOC regulations adequately address the many problems created by the ADAAA and its regulations. Fewer still (if any) have compiled a list of ways employers can comply with the Act and prevent employer liability claims. Please remember, this is a work in progress. You no doubt will hear more about this issue in the future.

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