Minnesota Employee Handbook Updates for 2016

An employee handbook needs to be a living document that is continually reviewed and updated to reflect the rapidly changing state, federal and local laws, as well as changes that new technology brings to the way workplaces operate.  There are many reasons you may wish to revise your handbooks if you have not done so within the past few years, including new laws that require specific handbook provisions, new or revised clauses that may be advisable due to new laws or agency actions, or increased agency scrutiny of certain types of clauses.

The following is a discussion of several types of clauses that should be reviewed for one or more of these reasons.

1.  Accommodation policy that includes making accommodations for pregnant employees

• As part of the Women’s Economic Security Act (WESA) Minnesota passed a law that specifically requires providing reasonable accommodations for eligible pregnant workers, even beyond those that may be required under the ADA.  Such accommodations may include providing additional break time, seating, changes to facilities, equipment or furniture, providing a leave of absence even after 12 weeks of FMLA leave, light duty, acquiring/modifying equipment or devices, job restructuring, part-time or modified work schedules, or reassignment to a vacant position.
• Additionally, employers are required to provide reasonable break time and a private place to express breast milk at work.
• In connection with these policy changes, managers should be trained on these accommodation requirements so they don’t illegally refuse to provide accommodations.

2.  Make sure FMLA policies do not exclude same-sex spouses in the definition of a spouse

• Under the Supreme Court’s rulings, same-sex spouses are entitled to the same legal protections as opposite-sex spouses, including FMLA leave to care for a spouse with a serious health condition, etc.

3.  Medical marijuana

• Minnesota employers may not discriminate against or penalize an employee or applicant based on the person’s status as a legal medical marijuana user or for a legal medical marijuana user’s positive drug test for medical marijuana, unless the individual used, possessed, or was impaired by medical marijuana on the premises of the place of employment or during the hours of employment. 

4.  The NLRB’s scrutiny of policies

The National Labor Relations Board (NLRB) in particular has taken a special interest in handbook provisions over the past several years.  The NLRB invalidates policies that explicitly prohibit employees from engaging in protected activities under Section 7 of the National Labor Relations Act (NLRA); i.e., “concerted activity” for the purpose of collective bargaining or other mutual aid or protection.  In other words, if employees work together to try to address or complain about their wages, hours, or any other terms and conditions of employment, that activity will generally be legally protected as concerted activity.  In addition, even if a policy does not explicitly prohibit this activity, today’s NLRB will still find it to be unlawful if:

• Employees would in it its opinion “reasonably construe the rule to prohibit  concerted activity;
• The rule was enacted in response to concerted activity; or
• The rule was actually applied to restrict concerted activity.

Policies that have come under fire for these reasons include confidentiality policies; policies regarding employee conduct toward the company and supervisors; policies regarding employee conduct towards co-workers; policies regarding third party communications; policies restricting use of company logos, copyrights, and trademarks; policies restricting photography and recording; policies restricting employees from leaving work; conflict of interest rules; and social media policies.

5.  Wage disclosure protection

As part of the WESA, Minnesota passed a new law that prohibits employers from:

• Requiring nondisclosure by an employee of his or her wages as a condition of employment;
• Requiring an employee to sign a waiver or other document which purports to deny an employee the right to disclose the employee’s wages; or
• Taking any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.

Employers are required to include in their handbooks a clause laying out employees’ rights and remedies under this law.

6.  No fault attendance policies

• Certain laws, such as the FMLA and the ADA can provide legal protection for certain employee absences, so no fault attendance policies that penalize employees after a certain number of absences, no matter what the reason, may need to be modified to allow for exceptions for legally-protected absences.

If your business has not updated its handbook within the past few years, it should be a top priority for 2016.  For a free quote to update your handbook, contact Wessels Sherman attorneys in our Minnesota office at (952) 746-1700 or email jasherman@wesselssherman.com.

Minnesota Federal Court Finds Police Officer Required to Undergo Psychological Evaluation Was Not “Regarded As” Disabled

Can employees or applicants have a claim under the Americans with Disabilities Act, if they are not even disabled?  They can if they were “regarded as” disabled and were discriminated against on that basis.  In a recent case, a Minnesota federal court considered whether an employer regarded an employee as having a mental impairment when it required the employee to undergo psychological evaluation.  The court determined that the employer did not regard the employee as disabled, making the distinction between assuming an employee is not able to do his/her job (because of perceived anger issues) and assuming that the employee has a mental impairment that would fit the definition of a disability under the law.

In this case, the police officer in question removed his firearm prior to a meeting with his superiors, making a comment that he should not have his gun with him when he went upstairs to talk to people.  Upon learning of this, the employer became concerned with the employee’s ability to safely perform the duties of a police officer, and referred him for a psychological Fitness for Duty Evaluation.  The evaluation found no psychological impairment that would prevent him from safely performing his duties, but concluded that he should continue to see a therapist to process anger, frustrations and suspicions.  Based on this assessment, the employer directed him to participate in therapy for these purposes and to provide Human Resources with periodic written progress reports from his therapist.  Additionally, based on the opinion of another psychologist who suggested that he take part in stress management or counseling before returning to duty, the employer placed him on home duty.

The court found that these actions did not show that the employer regarded the employee as disabled; they just showed that the employer questioned whether he was too angry or erratic to carry a firearm or patrol the streets.  However, whether or not the employee was disabled or regarded as disabled, employers can only require medical examinations to make inquiries as to whether an employee has a disability or the nature and severity of a disability, if the examination or inquiry is “job-related and consistent with business necessity.”  In this case, the court found that the requirements to undergo a psychological evaluation and to continue with therapy and provide progress reports were job-related and consistent with business necessity, because of his troubling behavior and the assessments of the therapists, combined with the rigors of the job of a police officer. 

This is a very nuanced area of the law that often trips up even the most diligent employers and Human Resources professionals.  For assistance in dealing with an employee who has exhibited red flags regarding fitness for duty, contact Christine Beggan at (952) 746-1700 or chbeggan@wesselssherman.com to arrange a discussion with one of our experienced attorneys.

Minnesota Federal Court Rules That Employer Did Not Have to Accommodate Disabled Employee by Excusing Him from Mandatory Overtime Requirements of CBA

August 2015

By: James B. Sherman, Esq.

The Americans with Disabilities Act (ADA) and Minnesota state law require employers to reasonably accommodate disabled applicants and employees. However, many employers overlook the fact that the accommodations to which an employee may by law be entitled, ultimately must enable the employee to adequately perform all of the essential functions of the job in question. In a recent decision a federal court judge in Minnesota dismissed a disability case based on finding that working overtime was an essential function of the job.

EEOC guidelines clearly provide that reasonable accommodations may include restructuring an employee’s work schedule. Sometimes employers misinterpret this to mean that they must always, absent a showing of “undue hardship,” permit a disabled employee to work hours as directed by the employee’s doctor. However, as this particular case demonstrates where an essential function of the job in question requires a particular work schedule, it need not be altered as an accommodation.

Requests for altered work schedules are very common. Whether such accommodations are required for any disabled employee or applicant can depend on details of the particular job and work environment. So before writing a blank pass for a disabled individual to pencil in his or her own work schedule, seek experienced advice on whether it is necessary under the law to do so.

Questions? Call Attorney James Sherman at 952-746-1700 or email jasherman@wesselssherman.com. 

EEOC Releases Proposed Rule Governing Workplace Wellness Programs

April 2015

By: James B. Sherman, Esq.

On April 16^th the Equal Employment Opportunity Commission issued proposed amendments to its ADA regulations to address the growing use of workplace wellness programs. The EEOC will now entertain comments submitted by any interested parties, before issuing its final rule on the subject.  Therefore, employers currently using such programs to promote employee health while reducing insurance costs, as well as anyone contemplating the use of a wellness program in the future, should familiarize themselves with the proposed rule and take issue with them through timely submitted comments. 

A typical wellness program can include things such as nutrition classes, gym access, and weight loss or smoking cessation programs.  Some of these programs include health risk and biometric screening.  Additionally, some employers provide incentives to encourage participation, or for reaching certain health goals.  Although many employers who provide these programs are mindful of the Affordable Care Act when designing them, they may overlook other laws that can be implicated. In particular the Americans with Disabilities Act (ADA) generally prohibits employers from making disability-related inquiries or requiring medical examinations.  However, there is an exception for voluntary medical examinations and medical histories that are part of an employee health program available to employees at the work site.  The proposed regulations assume that at a certain point employer incentives for participating in a wellness program may be so substantial that they render an employee’s submission to disability-related inquiries or medical examinations as part of the program, involuntary and therefore unlawful under the ADA.

The EEOC states that its proposed regulations attempt to strike a balance between allowing some employee incentives for participating in their employer’s wellness program, while limiting the extent of the incentives so as to prevent what it terms “economic coercion” that could essentially force employees to disclose medical information involuntarily:

·         Incentives for voluntary participation in a wellness program that includes disability-related inquiries or medical examinations are capped at a maximum of 30% of the total cost of employee-only coverage (as a reward or a penalty).

·         “Voluntary” means that (1) employees are not required to participate; (2) coverage under any group health plan will not be denied or limited for non-participation; and (3) no adverse action or retaliation will be taken.

·         Notice regarding the medical information must be given to employees.

·         Medical information can only be disclosed to employers in the aggregate, except as needed to administer the health plan.

This proposed rule will be published officially in the Federal Register on Monday, April 20, and public comments will be accepted for 60 days, until June 19, 2015.

For a copy of this proposed rule, or for assistance with assessing any impact these regulations would have on an existing or planned wellness program, contact Attorney James Sherman, at (952) 746-1700, or email jasherman@wesselssherman.com.

Attendance Still Matters – Even When Working At Home!

January 2015

By: Alan E. Seneczko, Esq.

The interaction between the duty to accommodate under the ADA, intermittent leave under the FMLA and an employee’s obligation to occasionally attend work has been a source of frustration for employers for many years. Just how much is too much? At what point does an employee’s continued intermittent unavailability for work render her unqualified for work? What about employees who work from home? Do they also have an obligation to “report for work” on a regular and reliable basis?  

The Seventh Circuit recently addressed this issue in Taylor-Novotny v. Health Alliance Med. Plans, Inc., Case No. 13-3652 (7^th Cir. 2014), where it examined an employer’s attendance expectations of an employee who worked out of her home as an accommodation of her multiple sclerosis. The employee had a long history of attendance problems for which she was repeatedly disciplined. Her condition eventually prevented her from reporting to work and her employer allowed her to work from home as an accommodation – but still required to log in to her computer and be available during an agreed-upon work schedule, and to notify her supervisor if she failed or was unable to do so. Not surprisingly, the employee’s “attendance” issues continued and eventually resulted in her termination. Not surprisingly, the employee then sued her employer alleging discrimination on the basis of her disability and failure to accommodate, among other alleged violations.

The Seventh Circuit dismissed her claim, finding, contrary to the employee’s assertion, that regular attendance and punctuality are essential job functions even for an individual who works out of her home, and that it was reasonable for her employer to have such expectations. As a result, since she was unable to meet them, she was not considered “qualified” for the position and therefore unable to pursue her claim under the ADA.

Although a large dose of tolerance is generally required before an employer can ever successfully argue that an employee’s continued, erratic unavailability for work has rendered him/her unqualified for the position; that option still remains. And . . . we have all dealt with a select few individuals who have gotten very close to, if not crossed, that line.

Questions? Please contact WS Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com .