Employment Law Basics for the
Employee Assistance Professional
Rhonda Triana, LCSW, CEAP, SPHR
Rhonda Triana is not an attorney. Nothing in this presentation should be construed as legal
advise. Employment law is a complex field, and the concepts in this presentation should not be
used as a sole basis for decision-making. Nor should the concepts in this presentation be
interpreted as memorialized by this document, as changes in law occur regularly.
#1 in our core technology
 Consultation with, training of,
and assistance to work
organization leadership
(managers, supervisors, and
union officials) seeking to
Manage troubled employees…..
 What things go hand in hand with
a troubled employee?
 Attempting to manage the
troubled employee includes a
need to be aware of relevant
employment law concerns
What kind of expertise is needed?
 Employee relations best practices, basic
employment law, management principles,
organizational dynamics
&
 Substance abuse assessment and treatment,
mental health diagnosis and treatment,
family dynamics, social systems, knowledge of
resources
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Attorneys? No.
Therapists? No.
HR Managers? No.
EAP Professionals? Yes!
So that means……..
Employers
Employee
Assistance
Professionals
Employees
But I’m not a lawyer…..
 No, but you can know just
enough to be an issue
spotter when it comes
to…..
 Accepting mandatory
referrals
 Participating in the return to
work process
 Consulting on performance
management issues
What issues are you most likely to
spot
 ADA
 FMLA
 EEOC discrimination claims
Which Areas of Employment Law
Currently Give Employers the Most
Headaches?
A survey by Manpower Group revealed the top 3 are
 FMLA
 ADA
 Terminations/Discrimination Claims
If I spot an issue, how do I point it
out without giving “Legal Advice?”
 Start by saying you are not an attorney and the
information you are sharing is not legal advice
 The information you share is intended to prompt the
employer to give a little further thought to the matter
 For example: “You may want to consider looking into
the Americans With Disabilities Act Requirements for
the Interactive Process”, “You may want to look into
it a little further before making your final decision”
ADA
Among other things, ADA
prohibits employment
discrimination or
harassment towards
individuals with disabilities
Who qualifies for protection
 A person who has physical or mental
impairment that substantially limits one or
more life activities
 History of the above
 Regarded as having a disability
 Alcoholism and past drug addiction are
protected
 Current/illegal drug use and being under the
influence of alcohol or drugs on the job are not
protected
The “Final Rules”/Amendments of
2008
 The emphasis should be on non-discrimination,
not on determining who is/is not covered as
having a “disability”
Employee Obligations
 Must let the employer know he or she requires
an accommodation due to a disability
 Doesn’t have to be in writing
 Can be in “plain language”, don’t have to use the
words accommodation or disability
 Can be made by a representative
The Interactive Process
 Not doing it is the best way
Employers get in trouble. Do
it even if you cant’ imagine
any way to accommodate. Do
it even if the person gets on
your nerves. Do it even if you
feel like you’ve already done
it “more or less”
 Must not be adversarial
 Employee should have
opportunity to present ideas
 Reasonable accommodations
should be granted unless they
pose an “undue hardship.”
Employer Obligations
 Examples of Reasonable
Accommodations
 Modifying the work environment
 Changing the way the work is
performed (ergonomics,
dictation, etc.)
 Allowing leaves of absence
 Time off for Dr. appointments
 Changing work hours
 Maybe work from home?
 Tolerate certain “disruptive
behavior”
 Not Required
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Eliminating essential job functions
Lowering production standards
Reassignment to another job
Accepting behaviors that are
unlawful (harassment, threats,
theft)
 Excusing issues falling under
“direct threat”
 Providing personal items such as
wheel chairs, prosthetics, etc. if
employee would need to use off
the job site
Big No-No’s
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Inflexible Leave and Attendance Policies
“Must be 100% cleared”
“No Work from home because we don’t like it”
Automatic terminations/denying interactive process
Scenario #1
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A Plumbing Supply Company calls to talk to you
about a mandatory referral they are planning
for Joe, for a drug and alcohol assessment
because lately co-workers have noticed Joe
staggers when he walks, slurs his words at
times, and seems lethargic after lunch. He has
been dropping things in the warehouse and
yesterday he forgot to process a purchase
order. The company took him for a reasonable
suspicion drug and alcohol test, which he
passed. However, they believe he must be
abusing a substance that’s not included on the
drug test.
He was recently being considered for a
promotion to a supervisor role but since the
company now believes he has developed
substance abuse problem they are going to pass
him over for the promotion.
Issues you spot!
 Potential for an ADA
“perceived disability
claim”, liability for this
could increase with the
tangible employment
action of passing him
over for the promotion
What you might advise
It’s ok to discuss the behaviors and how they may be
impacting performance, but very risky to speculate
about the cause. Lots of things can cause these
symptoms. Let’s take this one step at a time and try to
find out what’s going on with Joe, how it’s impacting
his performance, and what interventions might be
appropriate. It might be a good idea to consult with
your attorneys before you make a decision about his
promotion at this time.
Result of Joe’s Assessment
 Joe denied abusing any substances, and was also
puzzled and concerned about the symptoms he had
developed. He agreed to go get a physical and was
referred for a sleep study. It turns out Joe did not
know he had sleep apnea. He had been incredibly
sleep deprived. He is now receiving treatment, is
sleeping better, and is fully functional. He got the
promotion and is doing a great job.
So employers have to accommodate
medical marijuana right?
 23 States and the District of
Colombia have now legalized
marijuana in some form.
 Marijuana use is still illegal
under federal law
 Only a few states’ medical
marijuana laws contain any
degree of protection for
employees
 In general courts have sided
with employers
So, Employers are in the clear right???
 The ADA does not protect
current illegal drug use. ADA is
a Federal Law and Marijuana is
illegal under Federal Law
 Under the ADA, illegal drug use
does NOT include use of drugs
“taken under supervision by a
licensed health care
professional, or other uses
authorized by the Controlled
Substances Act or other
provision of Federal law.”
 United States Supreme
Court may ultimately be
asked to decide whether
medical marijuana use is
permitted under the ADA.
EEOC
Equal Opportunity based on the following (employers can’t
discriminate or harass)
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Age (over 40)
Disability-ADA
National Origin
Pregnancy-Pregnancy Anti-Discrimination Act
Race (includes color)
Religion
Sex (gender-based discrimination, also covers sexual
orientation, and gender identity, sometimes pregnancy
issues, sexual harassment)
 Genetic Information
 And absolutely cannot retaliate!!!
What do people claim with EEOC
claims?
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35% Race
29% Sex
10% National Origin
4% Religion (100% increase over
last 20 years)
3% Color
42% Retaliation
23% Age (rose for the 6th
straight year)
28% Disability
1% Equal Pay
FMLA
 Public employers
 Private employers with 50 or more employees in a 75 mile
radius
 Employee has worked at least 1250 hours in past 12 months
 Eligible for up to 12 weeks of job and benefits protection
(may be continuous or intermittent) while on leave for
qualifying medical condition for self or immediate family
member, or for birth or adoption of a child
 Additional benefits for military situations (up to 12 weeks
for qualified exigency leave & up to 26 weeks to provide
caregiver responsibilities for service member)
FMLA RTW Issues
 Must be re-instated to the
same or equivalent job.
 Standards for equivalency
are very high: same pay,
duties, status, working
conditions, opportunities
for promotion (same
amount of sunshine coming
in the window as when the
employee left )
Scenario 2
 You have been providing EAP services for Suzie who has been on an FMLA leave
of absence from her Clerical position with the County to address her depression.
Suzie’s FMLA time period expires next week and she wants to go back to work.
She still has some symptoms such as moments of tearfulness and trouble getting
out of bed on time about 2X per month, but she has made tremendous progress.
 Her employer has asked you for a letter saying that Suzie is fully released to
return to work (her employer won’t accept her back unless she is 100% cleared).
They plan to return her to a Clerical position in a different department from the
one she left. Suzie is not happy about this.
 The person who filled in for her while she was away has done such an amazing
job, the employer doesn’t want to disrupt the new arrangement. The new job
pays the same, but she will no longer have the responsibility to supervise anyone
(she had two people reporting to her when she left). The County feels that
supervising people would be a burden to her anyway since she struggles with
depression.
Issues You Spot
 Potential for ADA violation due to the requirement
for a “full release”
 Potential FMLA violation due to not returning her to
the same or equivalent job
 Potential disability discrimination issue due to
assuming her depression makes her less fit to
supervise others
So, what would you do?
Another type of leave: Workers’
Compensation
 The basic purpose of
Workers’ Compensation is
to provide the employee
with wage loss
replacement benefits and
medical coverage
resulting from a workrelated injury.
Workers’ Compensation
 Benefits While on Leave: Not required to be
continued unless the benefits run concurrently with
FMLA leave (sometimes ADA, FMLA, and WC
interact).
 Reinstatement: No reinstatement rights under most
state laws, except for retaliatory discharges.
Scenario 3
 You work in an EAP Call Center. A manager calls and wants to
discuss an insubordinate employee. He thinks his employee Juan
“must be crazy” because he is refusing to comply with a new
company rule that employees must have their picture taken for
their employee ID badge. Juan believes having his picture taken
promotes pride and vanity which he believes are sins. As far as
the manger knows, Juan attends a “regular Christian Church”
and this seems like a bogus objection. Juan offers to let the
company copy his driver’s license picture and use that one, but
the company refuses. The manager points out that Juan
obviously complied with getting his photo taken for his driver’s
license but Juan says that’s because he also has a deeply held
religious belief that he is to follow laws.
Religious Discrimination
 Basic Rules - • Employers may not
discriminate against
employees or applicants
based on their religious
beliefs or practices, or their
lack of religion
 • This applies to hiring,
promotion, termination,
other conditions of
employment
Religious Accommodation
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Basic Rules -• Employers must reasonably
accommodate an employee’s
religious beliefs or practices,
unless an undue hardship would
result
• “Undue hardship” has a different
meaning under Title VII than
under the ADA
But I never heard of that Religion!
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According to the EEOC -• Religious beliefs that are “new,
uncommon, not part of a formal
church or sect, only subscribed to
by a small number of people, or
that seem illogical or
unreasonable to others” are also
protected.
Juan’s Request
 Is it a sincerely held
religious belief?
 Can the employer
accommodate it without
undue hardship?
Religious Discrimination
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Don’t assume a religion unknown to you is not a religion.
Don’t discriminate on the basis of religion.
Don’t harass employees based on religion.
Absent undo hardship,
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Reasonably accommodate an employee’s religious beliefs.
Be careful enforcing dress codes.
Be careful enforcing grooming standards.
Allow employees to participate in religious observances.
Provide a time and place for employees to pray, if requested.
Treat religious displays in the workplace equally among religions.
Scenario #4
 A Retail employee has been mandatorily referred to you for
anger issues. What prompted the referral was an “outburst” the
employee had on Facebook when she discovered that her rate of
pay is lower than two of the men in her same workgroup, who
have less experience than she does. She is Facebook Friends
with several co-workers and she posted “Apparently my
employer thinks it’s OK to pay men more than women who do
the same work! This place sucks!!!” Her company logo is part of
her profile. In lieu of immediate termination for making
derogatory remarks about the company on social media, the
Retailer decided to give her an EAP referral to learn coping skills
for her anger, but first she had to agree to delete the post.
Protected Concerted Activity
 An employer rule will be
found unlawful when it
“reasonably tends to chill
employees in the exercise of
their Section 7 rights” to
form, join, or assist unions
or engage in other
concerted activity for
mutual aid or protection.
Protected Concerted Activity
 Confidentiality Protection
Employees have a Section 7
right to discuss wages,
hours, and other terms and
conditions of employment
with fellow employees, as
well as with nonemployees
Protected Concerted Activity
Common employer rules have been or
may be found to be unfair labor practices
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Employee Rules of Conduct Towards the Employer
Towards Co-Workers
Regarding Third Party Communications
Restricting Use of Company Logos, Copyrights and Trademarks
Restricting Photography and Recording
Leaving Work
Social Media Policy
Solicitation and Distribution Policies
Employer E-mail System
One to Watch
Abusive Conduct
 Done with malice/ongoing/repeatedly
 A reasonable person would find offensive
 Abusive conduct may include
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Repeated instances of verbal abuse
Derogatory remarks
Insults
Threatening, intimidating, humiliating
Sabotaging/undermining performance
Ignoring/excluding
False rumors
Moving belongings
Examples of State-based activity
 California: AB 2053 ( Supervisors must be trained)
 Tennessee: Healthy Workplace Act (a model policy for
public employers to follow)
 On March 11, 2015 a Texas Legislator introduced the
Healthy Workplace Bill (HWB). HB 3226, the first-ever
introduction in Texas (pending)
Thank You!
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Resources to learn more…
SHRM.org
NLRB.gov
DOL.gov
ADA.gov
EEOC.gov