Second-guessing the advice columns on workplace law -- again!

I'm going to have to make this a regular series.Dog Writer.flickrCC.Canine-to-Five

A few weeks ago, I posted about an "Ask Amy" column involving a bullying boss, which I thought had really poor employment law advice. (To her credit, Amy posted not one, but two, corrections not long afterward.)

Last week, Karla Miller of the "Work Advice" column in The Washington Post -- who is a bona fide "HR advice" columnist, and a very good one -- had one that I disagreed with.

Could this difficult supervisor have Alzheimer's?

Ms. Miller's letter writer said that she had initially believed her boss was a bully but, after some period of time, was coming to believe that he had early-onset Alzheimer's. The letter writer wanted to know what she should do. One of the two lawyers Ms. Miller consulted said that "HR absolutely should not 'play doctor.'" Here is the rest of the attorney's recommendation, as paraphrased by Ms. Miller:

[T]he employer must focus on an employee's observable behavior and performance, not speculate about medical causes. If your boss tells the employer he has a medical impairment, then under the Americans with Disabilities Act he must be granted reasonable accommodations -- digital reminders? a personal scheduler? -- to perform his essential job functions. But the ADA offers your boss no protection if he's unable to perform his essential job duties with or without accommodations.

Yikes. Before I go on, a disclaimer:

Dear Abby.flickrCC.RayMacLean
Dear Abby sez: Nothing in this post should be construed as legal advice!

I realize that the attorney's actual comments may have been more nuanced, which Ms. Miller may have had to boil down to a single paragraph, meaning that some subtleties may have been lost in translation. But, yikes.

Under the ADA, 99 times out of 100, ignorance is indeed bliss for employers. Usually, the less they know about their employees' health conditions, the better. But there are important exceptions to that general rule, and this may be one. Waiting for a supervisor who may have Alzheimer's to "self-identify" and request accommodation is less than optimal, as they say. In this situation, it might be better for the employer to "embrace the disability" (or, at least, "embrace the 'regarded as'").

If the employee's concerns and observations seem to have merit, then Human Resources can follow up by making its own observations of the boss's demeanor and memory to confirm what the employee has reported. HR may also want to talk to some other employees in his department, and to his superiors. Those conversations, of course, should be about the boss's behavior, not medical speculation.

Assuming the employer is satisfied that it has objective "reason to believe" that the boss's memory and interpersonal issues may have a medical cause, and are interfering with his ability to effectively do his job, then the employer should consider sending the boss to be evaluated by an appropriate medical specialist. The employer can give the doctor specific information about the observations made by the employees and by HR, and should specifically ask for suggestions about reasonable accommodations. Under these circumstances, a medical examination would probably be "job-related and consistent with business necessity," meaning it would not violate the ADA.

If the boss can continue to work with accommodations, then the employer should of course make them and continue to monitor the boss's performance and behavior, adjusting the accommodations as needed.

But if the boss is medically unable to do the job, he still has rights under the law. First, if the employer is covered and the boss is eligible, he would be entitled to take leave under the Family and Medical Leave Act. He also still has rights under the ADA. Assuming he can't do the job any more, "reasonable accommodation" could include transferring him to another vacant position that he can perform*, providing him with short-term and long-term disability under the employer's policies, or extending his FMLA leave.

*An employer is never required to "create" a job or displace another employee to make a reasonable accommodation for an employee with a disability.

By taking this "embrace the disability" approach -- which should be done only in consultation with employment counsel -- the employer obviously would not be able to claim that it didn't know the boss had a disability or that it did not "regard" him as having a disability. But, on the positive side, the employer may be able to effectively -- and legally -- resolve a bad situation in a way that benefits both the boss and the employees who work with him.

In defense of HR

"Ask Amy" had a letter from an HR rep on Saturday, too, and I just have to share (it's the third letter at the link):

Dear Amy: I'm writing in response to a comment from a person who works in human resources who said that HR's role is to protect the company, not the employee.

I've been in HR for nearly 25 years. I realize that writer's viewpoint is a common one, but HR folks who take their roles seriously and thoughtfully see it as a dual-advocacy role.

Yes, part of our jobs is to keep the company out of court, but if you're doing it right, with the right motivation, you are also advocate [sic] for doing right by the employees. In ethical companies, those are not mutually exclusive concepts.

HR From Both Sides

HR From Both Sides: Point taken. Thank you.

Couldn't have said it better myself.   :-)

Image Credits: From flickr, Creative Commons license. Dog writer by Canine-to-Five; Dear Abby by Ray MacLean.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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