Government Regulation in the Workplace – Don’t Get Left in the Dark

The challenge of government regulation for business owners and managers is tough enough, but it can often be increased when multiple issues are overlaid.

I worked with a client who faced a good example. The business had an employee who was being personally offensive. Combined with his poor hygiene, he was often inappropriate and described as “creepy”. Not surprisingly, he was an outcast in his department. There had also been complaints outside the business from those he contacted as part of his job.

Then it got worse. He verbally harassed another employee, creating a clear case of sexual harassment and a hostile work environment.

All of this may seem like clear grounds for termination, but there was a catch. This employee had a disability, which, if you have more than 15 employees, can bring the Americans with Disabilities Act into play. The employee also had a close relative who was a lawyer.

I was able to solve the problem through negotiations with the lawyer, making her aware of the severity of her relative’s actions while offering a small severance pay and a neutral reference. I was able to protect the company from a wrongful termination suit through a hold-harmless agreement and waiver of the sunset provision. The employee resigned; the mess was managed.

As with many federal or state regulations, there are several lessons here. If you have 15-plus employees, it pays to be ADA aware. The ADA requires employers, once they are advised that their employee has a physical or mental condition, to consider making a “reasonable accommodation” so that the employee can continue in his or her job. The ADA does not require the employer to make the accommodation, only to consider making it.

It must be documented that the employer has received a request for an accommodation. Then, it must be documented that the employer considered it and made the decision to grant the accommodation because it was reasonable or to deny the accommodation because it was considered unreasonable.

If the employer makes a reasonable accommodation, that solves the problem. If the employer denies the request as unreasonable, the employee with a disability has an avenue of recourse. He or she can file a complaint with the DOL claiming there is a dispute and an investigation is then precipitated.

The courts, the states and the federal government take a very dim view of employers taking adverse action against employees due to their health conditions. These ADA challenges are costly and usually result in a bad image for the employer. It’s not likely to be a good outcome for the organization. But as this case illustrates, the issues are not simple, either. My recommendation is to keep your organization grounded and out of litigation by knowing the law.

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