For the third episode of What the Hell Just Happened? Paul Edwards has a conversation with CEDR Social Media Coordinator and Compliance Expert Ally Dagnino to discuss a common issue – mental health and other medical accommodations in the workplace. Can you choose which accommodations to implement? Will your business get in trouble if requested accommodations are not met? How do you know which ones are valid? Listen as Paul and Ally analyze the risks associated with this scenario and hash out how to handle it in a safe and legally compliant way.
Transcript
Paul: Hello. My name’s Paul Edwards and welcome to the WTHJH podcast. You’re about to listen to an episode of “What the Hell Just Happened in HR?”.
I’m an HR nerd who loves to talk about HR with just about anyone who will listen. So, during each podcast, we’re going to delve into the solutions for dealing with a real-life HR issue. Plus, occasionally, we’re going to share some big-company, HR-strategy ideas.
Keep in mind that for every HR problem you solve, there are state, federal, and local laws that govern what we can and cannot do. And now, let’s get started.
Ally: Hey, Paul.
Paul: Hey, Ally.
Ally: How are you doing?
Paul: Good. I’m kind of worried because you’ve got that look in your eye like you’re gonna ask me a question I can’t answer.
Ally: I think you’ll have plenty to say on this one. Today I wanted to chat a bit about this article that we saw recently. One of our great HR Base Camp members actually posted it in the group.
Paul: Oh cool!
Ally: It created a lot of discussions and it was something that we touched on briefly, and we found pretty interesting and wanted to kind of share with people how important training is in this particular situation.
Paul: Okay.
Ally: So the article I’m talking about is the employee from the medical laboratory who told his manager that he did not want to have a birthday party because it would cause a panic attack and trigger his anxiety disorder. And “birthday party” meaning just a lunchtime gathering that managers sometimes put in place for their employees. And this employee told this manager that, lo and behold, he shows up on his birthday, there’s a party going on in the lunchroom…
Paul: Wow.
Ally: …and as he said, triggers his anxiety, and he spends the whole lunch break in his car.
The next day he gets called into the office, the manager talks to him about his reaction the day before and sends him home for a couple of days. Over the weekend, he gets a text that he’s being let go because of his behavior from the past week and, as you can imagine, the employee is upset. Long story short, he ends up suing this company and he wins $450k.
Paul: Plus his legal fees.
Ally: Right, for disability discrimination and retaliation. So, I thought that this was just a really interesting topic because, man, it was avoidable, right?
Paul: Yeah. That one was avoidable. You know, the first thing, a little bit off-topic, but I love that our members in HR Base Camp are posting stuff like this.
Ally: Totally.
Paul: People who are part of that whole group and who we’re answering questions for, and all those managers and owners are in there and they post things like this every now and then and they talk about it and I think it’s invaluable because I don’t know that we would have even noticed this article that went by.
Ally: Yeah, absolutely. They know what keeps us HR nerds…
Paul: …engaged?
Ally: Engaged. Yeah, exactly. They know what we’re looking for.
[Paul laughs]
Ally: So, with you, I kind of just wanted to talk a little bit about, you know, where did this go wrong? What was the manager’s mistake? What laws were missed here and training was missed that could have avoided this whole situation?
Paul: I’m gonna guess that this HR manager had no formal… no real training. I’m gonna guess that… do you remember if it was male or female? It doesn’t matter.
Ally: You know, I don’t remember.
Paul: I’m gonna guess that this person doesn’t have any formal training, that they’re in a company that is growing. I’m also gonna guess that she was thinking, “This is ridiculous, everybody loves a birthday party. I love a birthday party.” And she’s always looking for ways to kind of team-build. And so, we do it here. We do the cupcake, or the cake, or whatever it is, and we all come together. And it’s actually kinda nice because we all get so busy in our businesses that we sometimes fail to just stop and see one another and hang out and talk as a group.
And so, I’m just gonna think that she didn’t understand what her role was as an HR person and that there are all kinds of laws that protect employees that HR managers have to have at least minimal training on. And if they don’t have the training that’s okay, but they need someone like us who does have the training, where they can reach out and say, “You know, I see this red flag.” But I don’t think she saw it as a red flag at all.
I’m also concerned that she had the autonomy to be able to send that employee home for this. And then she had the autonomy to make the decision to fire the employee. Or, she made that decision without… maybe they made the decision, in other words, she went to her boss and they made this decision without consulting an HR expert. I mean, you don’t need an attorney here. Nobody needed an attorney. Everyone is always like, “Call a lawyer!” That’s not the case here. Just call somebody who understands HR at the most basic level and get a little bit of help.
I mean, the worst HR that we see out there comes from payroll companies. I think your payroll company could have gotten this one right.
[Paul laughs]
[Ally laughs]
Ally: They could have even figured this one out!
Paul: They might have been like, “Well, I don’t know what the problem is, but I know there’s a problem. Maybe you should speak to a lawyer or someone else.” So, wow!
Ally: And so, from an HR perspective, what should have been that manager’s first step? How could they have avoided this?
Paul: She should have had the basic training to understand that that was a request under the ADA, the American Disabilities Act. I mean, it’s not cut and dry, but it’s an easy red flag to see. She should have had some education around that.
Ally: Yeah, and I think, with medical accommodations, a lot of the time we see employers who say, “Well, my employee is requesting this, it’s just gonna be really hard to handle for the business.” This situation, this didn’t really impact the work whatsoever.
Paul: This is a do-nothing solution. They would have saved the cost of cupcakes. I’m surprised that it went to court. So that’s the other thing here. I’m really stunned that this business chose to fight this. I say this all the time, part of the cost of litigation or of getting something wrong here is higher than… it goes far beyond the amount of money that might be awarded in court. It’s about all of the depositions and all the work that goes into defending yourself in a lawsuit, which can be considerable. And then there’s your own expenses. And then, if you lose, you have to pay their expenses.
So, I’m really surprised they fought it. And I’m surprised that they found…no, I’m not.
[Ally laughs]
Paul: I was about to say, “I’m surprised they found a lawyer who would fight the fight for them.” You know, because I think most attorneys that I come into contact with, or certainly the ones that work here, would be saying, “Look, you need to settle. You screwed up here.This is something that you need to settle and get out of the way.” And I think this went to trial. And I think maybe, unfortunately, ended up in front of a jury. And, these are things that you typically wanna avoid.
I mean, that’s the role we play. If we had… okay, so we’ll toot our own little horn. If we had gotten that call, it would have been really clear that we would have said, “You need to not do the birthday party.” And if they had called us afterward and said, “Well, he told me,” we would have talked about it and that would have come out, “So, now I’ve sent him home.” At that point we would have been like, “What?” and we would have guided you towards communicating in ways, saying, “Look, you know, after careful consideration here and looking further at this, we wanna get you back in here, please. We’ll see you on Monday. We’re gonna pay you for the days that you were off, and do everything we could to remove the damages there, maybe even issue a little apology from the HR director: I’m sorry. I wasn’t thinking and considering it. Now that I’ve had time, I see, you know, what your request was.”
Ally: And I think that we would probably would have also guided them to understand the need for medical accommodations so that, in the future, if they have anything like this, they would know the importance of taking that request into consideration and being able to go through the process and see, “What is this employee asking of me? Is it reasonable?”
Paul: Um hmm. All of those things.
Ally: And, “What can I avoid if I decide not to accommodate?”
Paul: Yeah.
Ally: Yeah.
Paul: Yeah, this would have been easy. This would have been, “Don’t do that. And if you did do it, correct it. And, lastly, no, don’t fire them. Definitely don’t terminate over this.”
Ally: Absolutely. And I think something that maybe people listening might be wondering is, if they are in this situation – we get these questions every other day, it happens all the time – if they are in this situation and their employee is asking for something that they actually can’t accommodate, that does impact their day-to-day work, what are their options there?
Paul: Well, that goes to a different conversation and it’s the interactive process. So, you enter into this thing called the interactive process, which is recognized and something that the EEOC expects you to enter into, so that you can show your process for determining that you can’t make the accommodation. An accommodation that no one can make is, “I have an illness. I don’t know when I’m gonna be here and when I’m not gonna be here, and I’m gonna be calling out the day of, and you can’t count on me. And some days I’ll work the whole week, all the hours, and other weeks I’ll work – who knows? – I may only work a few hours.” That’s an accommodation request that you don’t have to meet.
The accommodation request can come in other ways like buying equipment, or repositioning, or having someone stand on a different side of a chair because they’re providing support to maybe a clinical provider or something like that and they can’t stand on the left, they’ve gotta be on the right. And, I mean, there are just all kinds of accommodations that are gonna come down and most of the time you can do it. But, back to the answer to your question. We’re not gonna go all the way down in it. it’s the interactive process that you go into.
Ally: Right. Yeah, I think it’s important for employers to recognize that this is such an individual, case-by-case basis and they do need to take each request seriously to avoid this kind of thing.
Paul: Yeah, and we can guide them through it. Do you involve doctors? There’s job descriptions. It’s a known process and it’s not so bad. It’s pretty easy. You kind of put all the work on the person asking for it and their doctor. And then the last thing, just because, I think we’ve got to say it. You may think that it’s not tenable to give this thing, this accommodation that this employee is asking for, but most of the time you’ve gotta figure it out. Okay, so, no HR training. I believe that this was a growing company that didn’t have a real HR person in. She may have had a lot of experience doing a lot of things around HR.
They made three mistakes: they threw the party when they were asked not to and the employee was able to document that; they then sent the employee home in retribution for them being upset and freaking out and going and getting in their car and doing exactly what they said was gonna happen; and then they terminated him. And I think the fourth mistake was that they tried to fight it in court, but that’s not my call.
Ally: Yeah.
Paul: Okay. Hey, thanks for that. That was kind of an interesting post.
Ally: Yeah. Absolutely, Paul. It was good chatting with you.
Voice Over: Thanks for joining us for this week’s episode of “What the Hell Just Happened?”. If you have an HR issue or a question you’d like us to discuss in this podcast, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join our private Facebook group, HR Base Camp, or visit HRBaseCamp.com.
Make sure you tune in next week. And remember: when you improve your workplace, you improve your life.
This podcast is sponsored by CEDR HR Solutions. The old way of keeping your staff HIPAA compliant is over. Train your team anytime, anywhere, and keep them current with automatic reminders to retrain. Why shut down your office and pay a trainer for a day of HIPAA training when you can bring your staff into compliance for free with CEDR’s on-demand system? Get one year of free HIPAA training from CEDR HR Solutions and start training your team today. Visit www.cedrsolutions.com/HIPAA to learn more!
