You can’t just make this stuff up
once read that
Ripley’s Believe It or Not frequently contains items that were made
up. Apparently, the “or Not” part means that
sometimes Ripley reports oddities that are completely
fabricated. If that is not true, I apologize to Ripley.
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One of the laws I deal with as a
management labor attorney is the Americans with Disabilities
Act. Under the law, employees with disabilities must be given
reasonable accommodation, and employers may not discriminate
against employees because of their disabilities.
No one can quarrel with a law that says,
for example, that it is reasonable for an employer to allow a
wheelchair bound employee to work by making modifications to a
desk.
Unfortunately, the law has attained
Ripley’s status. It was reported today that a women
is being allowed to sue her employer for diabetes-related
discrimination, claiming that her need to monitor what she eats
makes her disabled.
There is no evidence that the woman cannot
chew, swallow, or digest her food, just that she needs to
monitor her blood sugar. Yet, the employer may be required to
accommodate the employee’s eating habits as dictated by
some doctor.
The Family and Medical Leave Act (FMLA),
which sometimes works in tandem with the Americans with
Disabilities Act (ADA), also creates weird consequences.
Not-so perfect attendance
For example, in companies where the FMLA
applies (50 or more employees), “perfect
attendance” bonuses must be paid to employees who miss
time under the FMLA if there is an attendance program with such
a bonus. So, employees who miss 60 work days are considered to
have had perfect attendance. Incredible.
Although the courts have been reluctant to
buy into the EEOC’s interpretation of the ADA on
attendance, it is the EEOC’s position that a reasonable
accommodation may be to allow the employee not to come to work.
Imagine this scenario. An employee takes a
stressful job, becomes depressed, and his doctor says that he
must be able to take a “mental health day” whenever
he feels he needs one.
Assuming the FMLA does not require the
employer to give those days off as “intermittent FMLA
leave,” does the employer have to accommodate the
employee by allowing him not to show up for work? The EEOC says
the employer does. Believe it or not.
The wage and hour laws are a constant
source of unusual decisions. As regular readers of this column
know, employees cannot agree to take less than they are
entitled to receive under the Fair Labor Standards Act. There
are plenty of cases where the employee asked the employer to
accommodate his personal schedule by allowing him to make up
time missed, then the court found that the employer owed the
employee overtime for those hours.
The pause that pays
With the increase in anti-smoking laws,
employers need to know that those outside smoke breaks during
the day must be compensated, even if the employee asks to be
taken off the clock. Employers can forbid smoke breaks, but if
they allow them, they must pay for them.
Arbitrations, especially in union shops,
provide the most incredible cases. I’ve seen employees
reinstated with back pay even though they were fired for
relieving themselves on the production floor.
Arbitration decisions, unlike court
decisions, are very difficult to appeal. So, they attain Ripley
quality without any ability to correct them. That’s one
of the reasons why I avoid arbitrations whenever possible.
Believe it or not, this is just the tip of
the absurd labor law iceberg. As long as elected officials and
judges keep trying to dictate how to operate the workplace,
there will be plenty of cases to report and shake your head at
in the coming years.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollmanlaw.com has
articles, sample policies, news and other information on
employee/employer relations.
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