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Pregnancy can produce variety of ADA, FMLA claims

BY HBSDEALER Staff

Pregnancy is a game changer for women, a time when they must ponder whether to keep climbing the job ladder as before or scale back on work obligations. And it can lead to a host of pregnancy-related conditions covered not only by the Family and Medical Leave Act (FMLA), but also now the Americans with Disabilities Act (ADA)—thanks to the ADA Amendments Act’s (ADAAA) expansion of what is considered to be an ADA disability.

 

FMLA

In fact, women do “not need to have any complications to be protected by the FMLA,” notes Megan Norris, an attorney at Miller Canfield in Detroit, since pregnancy itself is defined by the law to be, rather than a joyous event, a “serious health condition.”

“She can take time off for prenatal appointments, for morning sickness, for any pregnancy-related conditions, including the need for bed rest due to concerns about premature birth, as well as for the disability that usually begins in the weeks just before birth and extends at least six weeks after birth. All of this is covered by the FMLA,” she remarked. “New mothers also can take time off for care of the newborn child. However, because the total FMLA leave allotment is only 12 weeks, any time taken off for the pregnancy prior to birth will cut into the time allowed after the birth.”

Employers shouldn’t go overboard with accommodating pregnant employees, though. A frequent mistake employers make with pregnant employees is forcing them to go on leave, even when the workers can perform their jobs, noted Anne Larson, an attorney with Ogletree Deakins in Chicago.

Sometimes employers mistakenly require a pregnant employee to remain on leave until the baby’s birth, even after she has recovered from the pregnancy-related condition that initially affected her ability to work, Larson added.

Baby bonding is available under the FMLA as well, but unlike leave for a serious health condition, baby bonding leave does not have to be provided intermittently, observed Joan Casciari, an attorney at Seyfarth Shaw in Chicago, in an interview with SHRM Online. Nevertheless, it may be, and sometimes such leave “actually benefits the employer,” she added.

“Among the mistakes I see are employers who forget that leave can be taken intermittently during the pregnancy and assign attendance points to employees who are too ill to come to work or who come to work late,” Casciari said. “I also have seen employers who are unwilling to consider light duty for pregnant employees even where it is available. While an employer generally does not have to allow light duty for pregnant employees where light duty is reserved for work-related conditions, where temporary light-duty jobs are available, they should be considered.”

 

ADA

So what if the pregnant woman runs through all of her FMLA leave before she has recovered from pregnancy-related conditions? What if she hasn’t worked for a year or the requisite 1,250 hours within a year? What if she doesn’t work at a location with 50 or more employees? She still might be entitled to leave as a reasonable accommodation under the ADA if she has pregnancy-related impairments that rise to the level of a disability.

“Prior to the ADAAA, pregnancy-related conditions may not have qualified as covered disabilities,” Larson said. Now a wide range of pregnancy-related physical impairments may qualify as covered disabilities, since the bar for ADA disabilities has been lowered. Such ADA-qualifying disabilities might include high blood pressure, severe morning sickness, gestational diabetes, preeclampsia, post-partum depression and uterine fibroids causing risk of premature labor.

In April 2013, the EEOC settled a case involving pregnancy-related disability with an employer that failed to engage in the interactive process with an employee to accommodate her severe nausea and vomiting by moving her office closer to a restroom, Casciari pointed out.

“Another tricky issue is what to do when the applicant is pregnant and will obviously need a leave of absence shortly after being hired,” she said. “There is no easy answer to this issue, but clients are often blindsided by this set of facts. Or they discover the pregnancy after onboarding and training the new employee.”

Pregnancy without any complications is not covered by the ADA, the EEOC notes in its Technical Assistance Manual to Title I of the ADA, so the answer may vary from new employee to new employee. (Title I is the part of the law that applies to private-sector employers.)

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

© 2013, Society for Human Resource Management. 

Have HR-related questions and concerns? Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and the Society for Human Resource Management (SHRM).   

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Kohler unveils Touchless toilet technology

BY HBSDEALER Staff

Kohler Co. has introduced the new Kohler Touchless toilet technology, which allows users to flush the toilet without making contact by using a sensor instead of the traditional flush lever.

"In a recent study of 800 U.S. consumers, we found that 51% of people surveyed are paranoid about germs in the bathroom. When looking at that same sample group but focusing on moms with children, that number jumps up to 65 percent," said Brian Hedlund, marketing manager of Kohler toilets and bidets.

"The Touchless flush is a great solution to this growing demand for increased hygiene in the bathroom. Homeowners are of course worried about the hygiene and health of their family members, and the toilet trip lever is an obvious area of hygienic concern. Touchless takes that concern out of the equation, utilizing new technology to provide a touchless way to control the flush."

Here’s how it works: Holding a hand over the tank lid directly above the sensor actuates the flush. The new Touchless technology is available in the Kohler Cimarron toilet and as a retro-fit kit that will work with almost any single-flush toilet with a canister or flapper type flush.

The Touchless flush uses emerging sensing technology, which projects an electromagnetic field that is both extremely accurate and reliable. This type of sensor detects the user in the projected field and initiates the flush.

It runs on four AA alkaline batteries which last on average six to 12 months, depending on use. 

 

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Asleep on the job: When to discipline, when to accommodate

BY HBSDEALER Staff

Two or three times a week, you find him in a break room chair, catching some Zs—and not just during the lunch hour.

Maybe his naps are interfering with deadlines or meetings. Perhaps they don’t affect his work, but you’re wondering if you should say or do something.

When an employee sleeps on the job, a manager’s first task is to ascertain the reason for the fatigue: Is the worker hung over because of late-night partying or a second job? Is he suffering from a medical condition such as narcolepsy or sleep apnea? Does she use prescribed drugs or undergo medical procedures that leave her tired? Is he suffering unusual stress or anxiety that makes it hard to sleep?  Perhaps life events—like a newborn—mean the worker is pulling all-nighters.

“Talk to the employee and find the reason behind them sleeping on the job,” said Laura Anderson, a human resources supervisor at Reno, Nev.-based EE Technologies, an electronics manufacturing company. “Offer suggestions to help, and remind the employee that sleeping on the job is unacceptable and what the consequences will be.”

Once a manager has identified the reason for the sleepiness, the next task is deciding how best to address it—whether that means discipline, support for the worker or something else.

 

Discipline

Before disciplining the employee, managers should ask themselves if the sleeping is an isolated offense or habitual.

For instance, it will take most people a few days to adjust to the loss of one hour of sleep following daylight saving time changes, according to a 2009 study by the National Sleep Foundation (NSF).

Managers should also ask themselves how serious the potential or real repercussions were because the employee nodded off. There’s a difference between a recruiter who sleeps on the job at her desk and an anesthesiologist who nods off during an operation. In the first case, the recruiter might need reprimanding. But an anesthesiologist’s patient might have been harmed, and harsher action is probably warranted in that situation.

If it appears that the “employee is hung over, or up playing music all night, and cannot stay awake at work, it’s the employee’s poor planning that put them in that situation,” Anderson said.

“It is not the employer’s responsibility to make allowances for [that] poor planning,” she said. “The employer is not paying for the employee to sleep. Workers should be disciplined for sleeping on the job for all cases unless they have a condition that is considered a disability that is protected by state and federal laws.”

 

Medical conditions

Nearly 50 million Americans suffer from sleep problems and disorders that affect their careers, their personal relationships and their safety, the NSF reports.

Narcolepsy (a disorder caused by the brain’s inability to regulate sleep cycles) and sleep apnea (a breathing disorder that interrupts sleep patterns) are two conditions that might contribute to someone being fatigued.  These and other conditions—sleepwalking, insomnia—may be considered disabilities and protected by state and federal laws, such as the Americans with Disabilities Act (ADA), which would require an employer to make reasonable accommodations for the worker’s condition.

“I expect there is no cookie-cutter answer on how to accommodate an employee with narcolepsy,” said Anderson, who acknowledged that it can be difficult for managers in a manufacturing environment to be flexible with workers who have sleep disorders. “The employer and the employee can explore creative ways to meet both parties’ needs.”

Many medical conditions can also make sleeping difficult.  They include asthma, fibromyalgia, epilepsy and even attention-deficit/hyperactivity disorder.

Anderson suggested that if an employee with a sleep disorder or medical condition routinely nods off in meetings, managers may want to let him or her record the gatherings and fill in the gaps later.  While the employee may not finish work in the same manner as others, he or she might be able to produce the same results.

Another approach is to offer the worker a shift that better accommodates his sleep patterns.

An employee taking prescription drugs that cause fatigue might want to take a temporary reassignment until she’s finished her medication.

In all cases, Anderson said, employees known to sleep or become drowsy on the job shouldn’t be around heavy or dangerous machinery and shouldn’t be driving. 

 

Chronic sleepiness

According to a 2008 poll by the NSF, prolonged workdays that extend into the night may cause Americans to fall asleep at work. Americans spent about 4.5 hours each week doing additional work from home, on top of an average 9.5 hour workday, the poll found.

Sixty-three percent of those surveyed said they were very likely to work through their fatigue while on the job, while nearly one-third were very likely to use caffeinated beverages to stay alert. But 29 percent of respondents reported falling asleep or becoming very sleepy at work during the month before the survey. Another 12 percent were late to work because of sleepiness.

Some courts have weighed in on workers who sued companies that fired them for sleeping on the job.

Sidney Riddle, a manufacturing engineer for a lighting company, was diagnosed with fibromyalgia that made it hard to sleep. Riddle, who sometimes fell asleep on the job, told the company about his condition and was given a Family and Medical Leave Act (FMLA) option allowing him to call in on days he felt too tired to work or to return home after telling his supervisor he felt sleep-deprived. But shortly after the accommodation was approved, Riddle’s manager fired him after finding Riddle asleep at his work station.

Riddle sued the company under the ADA, claiming it violated the law by failing to accommodate him. In August 2013, a federal court in Virginia ruled that Riddle had stated a good initial claim under the ADA but also found that because Riddle had never called in sick or asked permission to go home, he did not state a good FMLA claim.

In February 2014, the 7th U.S. Circuit Court of Appeals held that a former employee at an Illinois packing company—who was fired after repeatedly falling asleep on the job—was let go after the company knew she had an ADA-covered medical condition that caused her sleepiness. The court also ruled that the company failed to engage in an interactive process with the employee to find a reasonable accommodation.

Dana Wilkie is an online editor/manager for SHRM.

©2014, Society for Human Resource Management.

Have HR-related questions and concerns? Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and the Society for Human Resource Management (SHRM).   

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