Mental Health and the Workplace — Accommodations

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Depression. Anxiety. Bipolar Disorder.

These and similar mental health diagnoses may affect your boss, the CEO of your company, the head of HR, your assistant, two of your peer workers, or maybe even you.

And their symptoms may also affect how well employees perform their jobs. Just as with physical disorders, mental disorders that rise to the level of qualifying as a “disability” under the Americans with Disabilities Act (and similar state and local laws) require the employer to provide accommodations to allow the employee to perform essential job functions. This article explores some of the steps you should be taking as an employer of someone with a mental disability — and the first step is to start the process with patience. As a wise colleague of mine recently told me, “Patience is a weapon. Use it aggressively.” Continue reading this entry

Multiple Requests for Extension of Medical Leave – Three Strikes and the Employee Is Not Out!

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A recent Americans with Disabilities Act case is a reminder the employers must proceed carefully before denying repeated requests for extensions of medical leave by an employee. In the case, the employer had a “personal leave” policy that allowed for up to two additional 30-day leaves of absence after Family and Medical Leave Act leave was exhausted, subject to the employer’s approval based on individual circumstances. The policy also provided that “personal leave of absence may not be granted for more than 60 days in a rolling 12-month period.” The employee exhausted her FMLA leave in July 2009, after taking intermittent leave since November 2008. At that time, she requested a 30-day personal leave based on her doctor’s statement that she would be able to return to work one month later, in August 2009. This leave request was approved. The employee was unable to return to work in August 2009, and she submitted another note from her doctor saying that she would be able to return to work a month later, this time in September 2009. The employer granted that request also. When that leave expired, the employee presented a doctor’s note that said she would be able to return to work in February 2010, five months later. The employer terminated the employee at that point because she was unable to return to work. Continue reading this entry

Responding Effectively to Third-Party Subpoenas

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It is your lucky day!! A subpoena comes in the mail and makes its way to your desk. The subpoena comes from a creditor involved in a lawsuit with one of your employees and demands that you produce copies of your employee’s payroll records, bank direct deposit information, and medical records. In this common scenario, there are several issues that you must consider, such as whether you should object or produce the documents, whether you can legally limit the documents you produce, and whether you can be subject to liability if you refuse or fail to respond to the subpoena, or alternatively, if you produce the requested documents. Continue reading this entry

Paycard Use Comes With Convenience, Regulation

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For some employers, paycards have become a convenient and cost-effective alternate method to pay their workers, and for employees to have fast and easy access to their wages. Even direct deposit, for all the administrative ease it provides, is often less attractive than paycards for employees whose banks have a mandatory deposit holding period before wages can be accessed. As a consequence, the move to paying employees with a paycard system is gaining traction, and appears to be growing in popularity among employers and employees alike. Continue reading this entry

Gentlemen’s Club Cannot Strip Dancers of Employee Status

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We mentioned early last year that the U.S. Department of Labor intended to start cracking down on the (mis)classification of workers as independent contractors. All is not lost however, as we also recently discussed a New York case where a court found that the employer properly classified its 200 drivers as independent contractors and dismissed their claims, indicating that there remains (when done very carefully) ways to properly use independent contractors. Within this context, over the last several years, dancers at gentlemen’s clubs around the country have brought numerous Fair Labor Standards Act and related state law wage and hour suits challenging their classification as independent contractors, and a gentlemen’s strip club in Nevada recently ended up on the wrong side of one of these challenges. Continue reading this entry