A recent amendment to the Americans with Disabilities Act has lowered the threshold of who qualifies as disabled ― former distinctions are gone between a person with a disability who was recovering well and one who was not.
“The amendment has classified both as disabled under the statute,” says Jim Boutrous, attorney with McDonald Hopkins LLC in Detroit.
“Companies need to look at accommodation requests to see that if you are making an employment decision, you are doing it for legitimate bases, independent from the protected classification,” he says.
Other concerns for companies: making back-to-work polices more flexible and using care with criminal background and credit checks in the hiring process.
“Courts and the Equal Employment Opportunity Commission are taking hard looks at policies that call for termination of an employee on disability who has not returned to work after a prescribed period of time,” Boutrous says.
“Make it more flexible ― understand that an accommodation can include more additional time of leave if that period will allow the individual to successfully return to work,” he says.
Criminal background and credit checks may have a disproportionate impact on minorities, and the EEOC has been cracking down on some business policies regarding the checks.
“It is imperative that employers who rely on those background checks distinguish candidates on the basis of qualifications of the job so they are not relying too heavily on those findings,” Boutrous says.
In another area, companies need to recognize the risk and exposure they have as a result of the information they possess.
“Every employee should sign at least a confidentiality agreement,” says Jim Giszczak, attorney with McDonald Hopkins. “Companies need policies and procedures on how to handle and protect data, who actually owns the customer relationship, and they need nonsolicited, noncompete agreements with the appropriate personnel so that if they leave, they are not in a position to take the company’s business or employees and unfairly compete against them.
“And then, companies obviously need to have appropriate checklists in place to respond immediately if an employee leaves and steals information, clients or if there is a data breach.”
Jim Boutrous is co-chair of McDonald Hopkins’ Labor and Employment Practice Group. He focuses on noncompete and trade secret matters, which includes counseling, auditing and drafting agreements. He is also a skilled employment litigator.
Jim Giszczak advises clients regarding data security measures and responding to security breaches involving sensitive personal information and protected health information. He also works with clients to assess and implement appropriate data security safeguards.
