By: Tabitha S. Etlinger, Esq., Associate at Saxon Gilmore & Carraway, P.A.
Published in FAHROGram March/April 2015

TSE-Cropped2-sIn the January/February edition of the FAHROgram, we discussed the Family Medical Leave Act (the “FMLA”), including its interaction with the Americans with Disabilities Act (the “ADA”). The 2014 annual statistics from the Equal Employment Opportunity Commission (the “EEOC”) give additional insight as to why it is critical to establish and consistently enforce workplace policies regarding the FMLA, the ADA, and other laws designed to protect ill or injured employees. Nearly half of all employment claims filed in 2014 involved an allegation of retaliatory action by the defendant employer. Retaliation claims may be based on any negative action (including demotion, termination or other disciplinary action) against an employee as a result of that employee’s actual or attempted exercise of rights under the FMLA, the ADA, or another law designed to protect the employee’s rights.

An employer’s best defense in avoiding or successfully defending retaliation claims is maintaining thorough records reflecting consistent enforcement of appropriate employment policies. To illustrate, the ADA requires an employer to provide a reasonable accommodation upon the request of a disabled employee, allowing some leeway for the employer to require alternative accommodations. Assume an employee requests permission to arrive late to work each day in order to accommodate a disability and assume the employer allows the accommodation on the condition that the employee works through lunch. Assume further the employer terminates the employee two months later for continued use of inappropriate language at the office. The issue in an ADA claim would be whether the employer appropriately conditioned the employee’s request to arrive late on working through lunch. In a retaliation claim, however, the employer would be required to show the employee was not terminated as a result of the employee’s request for an alternative work schedule, but rather as a result of the employee’s unrelated inappropriate behavior. In defending any retaliation claim, the employer in this example would want to present all of the following:

(i) An appropriate written policy for treating requests for accommodating a disability; and
(ii) A written policy prohibiting the use of inappropriate language in the office and stating the consequences of violating that policy; and
(iii) Evidence that both policies are consistently enforced as to all employees, including examples of other scheduling accommodations and other employees who have been disciplined or fired for use of inappropriate language; and
(iv) Evidence that each policy was applied consistently as to the employee in this example, including appropriate responses to the employee’s request for an accommodation as well as documentation of the instances of, and responses to, the employee’s use of inappropriate language.

With retaliation claims on the rise, employers should be cautious of all employment decisions made in close proximity to an employee’s request under the FMLA, the ADA, or any other law protecting employees’ rights. The best way to manage this risk is to regularly review all employment policies to ensure compliance with applicable law, conduct regular staff training on consistent enforcement of those policies, and maintain thorough records of employment practices.

 

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