Answers to workplace questions on rehiring, firing, and reasonable accommodations
Posted October 24, 2016
By Katie Loehrke, PHR, editor, J. J. Keller & Associates, Inc.
Running a business – or managing a single unit, department, or team within a business – is not easy. Questions that have legal and/or regulatory implications pop up on a regular basis. Answers to some of those questions aren’t always straightforward, and can require insight into various statutes as well as case law. This article shares several common scenarios and some interpretive guidance.
Question: When employees quit without providing notice, we deem them to be ineligible for rehire. However, one such individual recently applied for an open position, and we believe he would be a smart hire. Is it discriminatory if we allow this individual to enter the applicant pool but continue to restrict others who’ve been deemed ineligible for rehire?
Answer: When considering making an exception to a policy, employers must ensure they don’t make employment decisions based on protected characteristics. For instance, you can’t legally make an exception to your policy because of race, sex, religion, national origin, etc.
However, if you have a (nondiscriminatory) business-related reason for reconsidering one individual but not others, making an exception could be perfectly acceptable. If, for instance, the individual you wish to consider was an exceptional worker, that would be a nondiscriminatory reason to reconsider his/her eligibility for rehire. Likewise, if you were having a particularly difficult time finding a qualified candidate for a particular position, that might compel you to reconsider a qualified (previously excluded) candidate.
As another example, perhaps one individual didn’t give notice due to extenuating circumstances. That may also be a reason to single him/her out for a second chance.
Essentially, you would be within your rights to give any (or all) of these employees another chance, but make sure you aren’t allowing any protected characteristics to keep you from considering the other individuals.
Q: An employee quit and opened a business that competes with ours. Unfortunately, his wife still works for us, and she has access to quite a bit of information which, if passed to her husband, could give him a competitive edge. We feel that we have no choice but to terminate the wife’s employment. Is this an acceptable reason for termination?
A: In all states except Montana, employment is at will, which essentially means that you can terminate an employee for any reason (or for no reason at all), as long as the reason is not specifically illegal. In some states, marital status is a protected class. However, in this situation, you would not be terminating the employee for being married, but for the conflict of interest that has been created for her by her husband’s competing business. It is an unfortunate situation, but terminating the wife for the access she has to both businesses would not be an illegal reason for termination.
Q: An employee has asked for a reasonable accommodation under the Americans with Disabilities Act. However, this employee has routinely asked for exceptions to policies, and we’re not sure his request is legitimate. Can we ask for documentation of his disability?
A: As part of the interactive process, if the employee’s condition or need for an accommodation is not obvious, you may ask for reasonable documentation of the condition. The employee should provide you with enough information to show that the requested accommodation is necessary (such as a note from a doctor or another expert requesting the accommodation), but is not required to provide you with proof of a specific diagnosis from a doctor.
About the author:
Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr.