HR

Welcome to your virtual HR Department. At the Maine Corner Store, we understand how important each employee is to a small company—and how difficult it is to keep up with all the latest HR issues, from managing Millenials to hiring online to keeping payroll taxes straight. Our HR bloggers have experience in companies of all sizes, so they can answer your questions today and as you grow.

Monday, August 15, 2011

Alphabet Soup? Employing the Disabled (Part 2 of 5)

Posted by Sarah Conroy on 8/15/2011 10:37:00 AM

Basics of ADA and ADAAA

It is important to think of these together, since ADAAA really updates ADA law. It may also be beneficial to put this in context of other Equal Employment Opportunity (EEO) protections. The laws are designed to extend EEO to the disabled (please see our June blog for more on EEO) and recognize them as a protected class. Like the MRHA, these protections extend to applicants as well as employees so you must take them into consideration when hiring as well as to accommodate those you already employ. Disabilities can also be either temporary or permanent and be work-related or non-work-related. ADAAA and its regulations serve to significantly expand coverage under the ADA and shift the focus from whether a covered disability exists (as was the case with evolving case law mentioned previously) to whether the employer acted in a non-discriminatory manner. So, the federal law now more closely resembles MHRA and businesses must shift their approach from waiting for employees to request accommodation to proactively offering it. As the ADAAA regulations are new and quite broad, the small employer will want some assistance in complying. Employment and leave application processes, handbooks, job descriptions and related materials may all be in need of review.

Like MHRA, the ADA requires covered employers to ensure that people with disabilities:

• Have an equal opportunity to apply for jobs and to work in jobs for which they are qualified;
• Have an equal opportunity to be promoted once they are working;
• Have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training; and are,
• Not harassed because of disability.

• The ADA does not allow you to ask questions about disability or use medical examinations until after you make someone a conditional job offer.
• After making a job offer, you may ask any disability-related questions and conduct medical examinations as long as you do this for everybody in the same job category.
• The ADA strictly limits the circumstances under which you may ask questions about disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition. (EXTREME CAUTION HERE, there are special rules around how you arrived at the belief and what you must do before acting. You will need to also be sure that it’s the disability and not another performance issue.)
• You must keep confidential any medical information you learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. (Be sure to keep a separate medical file for your employees, do not keep this information in the “regular” employee file, be it electronic or paper.)

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Tuesday, August 02, 2011

Alphabet Soup? Employing the Disabled (Part 1 of 5)

Posted by Sarah Conroy on 8/2/2011 10:32:00 AM

Today we turn our attention to disability and how small businesses comply with the laws governing disabilities and successfully hire and retain great employees who happen to be temporarily or permanently disabled. As you might imagine, that’s a lot of ground to cover in a blog entry. As always, this in meant to pique your interest and encourage you to learn more! This is from the employer perspective, so we will not cover any of the Maine Human Rights Act (MHRA) or Americans with Disabilities Act (ADA) requirements pertaining to the general public or others, although your business may be subject to them. Many employers have gone down this road and found that the benefits of employing the disabled generally outweigh any burden, not only in the surprise that accommodation is usually easier and less costly than imagined, but that smart, dedicated, loyal and “differently-abled” employees often come from the ranks of the challenged. Oh, and did someone mention the tax incentives? More here: http://askjan.org/media/tax.html.

Since there is so much to this, we will focus on state and federal disability law, specifically the Maine Human Rights Act (MHRA), the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA) and cover the other laws that often dovetail with it in employment situations at another time. These laws include FMLA, GINA, FMLA and other leave entitlements – a true alphabet soup!

For starters, it’s helpful to know that MHRA applies to all employers whereas the ADA applies to employers with 15 or more employees. MHRA first came into effect in 1971 and the ADA was enacted in 1990. As you may have noted throughout the years since ADA became law a dance between the provisions of the MHRA and the evolving ADA as court cases shaped its intent. Because case law moved the interpretation far from Congress’ original intent, Congress enacted ADAAA in 2008 to correct for this. As the regulations become effective, this will finally put MHRA interpretation and ADA interpretation in the same wheelhouse with respect to what is considered a disability.

It may also be helpful to remember that ADA and MHRA provide other protections not covered here. For example, the Maine Human Rights Act does not allow for discrimination based on the exercising of rights under Workers’ Compensation or Whistleblower Protection laws; please see: http://www.maine.gov/mhrc/laws/index.html for more detail.

Basics of MHRA

Maine’s definition of disability, (including the 2007 updates):
A physical or mental impairment that:

1. Substantially limits one or more of a person's major life activities;
2. Significantly impairs physical or mental health for 6 months or more; or,
3. Requires special education, vocational rehabilitation or related services.

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