Perspectives

Taking the time to develop a proper hiring process can save you the trouble of a “bad hire” in the long run. The Society for Human Resource Management estimates the cost to replace an employee is six to nine months of the employee’s salary. And that’s just the cost if that employee simply leaves. If you are found to have used discriminatory interview tactics, it could cost you much more. That’s why our employment law attorneys recommend companies adopt a standard procedure for all new hires.

A few things to consider:

Define the Position

• Make sure that you know what the job actually is
• Create a job description. Or if one exists, make sure that it is up-to-date
• What qualifications are required?
• What are the essential functions?
• What are the non-essential functions?
• Are there physical requirements?
• Where do they fit in the org chart?
• Determine salary range and any special benefits package the position qualifies or doesn’t qualify for
• Determine hiring team
• Who is the hiring manager?
• Who will be involved from HR?

Post the Opening

• If affirmative action is applicable, the employer should be sure to include appropriate targeted recruitment sources

Narrow Down Job Applications

• Apply consistent rules to completion of application form
• Determine if pre-interview testing is needed (e.g., typing words per minute, specific aptitude or personality tests)
• Document selection process
• Identify criteria used
• Identify who was involved in decision making process
• Keep records
• Extend interview invitations

Interviewing

• Choose interview types, and determine the number of interviews you will conduct
• Who will conduct them?
• Ensure interviewers are aware of proper interviewing technique (e.g., not asking impermissible questions)
• Questions should be:
  • Job related
  • Narrowly-tailored
  • Consistent
• Each candidate should receive the same questions
• Avoid making any promises or statements that could be construed as promises
• These later could be interpreted as offers of employment or promises of employment for a specific period
• Document each interview candidate right after the interview
• Retain records (application and interview notes) for at least 12 months

Offer Position

• Send offer letter after informing candidate on the phone
• Ensure that the offer letter does not undermine at-will status of the position
• Provide wage, start date and key terms of employment
• Communicate with other conditions the offer is contingent on, if any (e.g., background check, drug test, I-9 verification)

Complete Background Check (if necessary)

• Comply with any FCRA requirements on background checks
• Provide written disclosures
• Obtain signature of candidate

Being intentional, and most importantly, consistent in your hiring practices is an important way to mitigate risk for your company and ensure your new hire is the right fit. For more insight on perfecting the hiring process, check out another recent blog from our Employment Law team The Art of Hiring Slow and Firing Fast: A Guide for Building a Successful Team .

Intestate:

If you die without a will, it is called “dying intestate” or “intestate succession”. Without proper estate planning, state law and statutes will determine how your estate is distributed. Even if you don’t have many assets, dying without a will can leave behind issues for your spouse or children. If you have minor children, it will not address who you want to care for them or handle their financial affairs. It can also impact benefits of a special needs child. And if your estate needs to go through the probate process? Without a will, you will not be able to choose who administers your estate. Which could leave your assets in the hands of someone who may not be equipped to take on that responsibility.

Power of Attorney:

A power of attorney is a legal document that allows someone else to act on your behalf to handle your financial and property matters. Putting a Power of Attorney in place proactively can save you headaches, hassle and money in the future. A financial POA helps you put a plan in place for your finances should you become incapacitated due to dementia, traumatic brain injury, or other impairment that could affect your mental function. Financial POA’s can be “durable” (made in advance as part of your larger estate planning efforts) or temporary. For example, a servicemember being deployed can create a POA to pay their bills, manage their property or handle other financial business in their absence. If you don’t create a POA in advance, a friend of family member might have to go to court to have a guardian appointed if you become incapacitated and are no longer able to make decisions for yourself. That can be very costly and public.

Health Care Directive:

A Health Care Directive can work hand-in-hand with a POA. This document will let you determine who you would like to make medical decisions on your behalf when you are unable to do so. It designates someone to work with your healthcare team when you cannot. Choosing someone to act as your health care agent is important. Even if you have other legal documents in place regarding your care, not all situations can be anticipated, and some situations may still require someone to make a judgment about your care wishes. It is important to choose someone who can be trusted to be your advocate if there are disagreements about your care.

Jointly Held Assets:

Jointly held assets are just what they sound like-assets held in the names of two or more people. Assets held under this agreement have a right of survivorship, which means the assets pass automatically to the survivor upon the death of the first person. These assets can avoid probate in some situations-when couples (married or not) acquire real estate, vehicles, bank accounts, securities, or other valuable property together for example. It’s important to mention that there are risks associated with this arrangement. If the person you are holding the assets with has outstanding debts, their creditors could seize an interest in your home or bank account. Holding a jointly held assets can complicate a divorce or other relationship problems. If you have a jointly held bank account, your co-owner could withdraw all the money without your consent. In all estate planning matters, it’s important to put people you trust in charge of your finance, business, and property matters.

Last Will & Testament:

One of the most common and well known documents available to you in Estate Planning is your last will and & testament.

A last will & testament will guarantee the following:

• You get to designate who you give your estate to
• Your choice of personal representative or executor
• An approved guardian of your minor children

A last will & testament will NOT help you avoid probate.

Living Trusts:

A living trust is a legal document you create during your lifetime to protect your assets and direct your distributions after your death. An appointed trustee works in tandem with you (the grantor) to distribute funds from the trust or control beneficiary assets during your lifetime and after. Unlike a will, a living trust takes effect while you (the grantor) are still living. The trust does not have to go through probate for assets to reach the intended beneficiaries.

There are two primary types of living trusts:

Revocable

The most common type of living trust, it is a trust whereby the person who creates it maintains control over the assets placed within the trust. You can change and amend trust rules at any time. You are also free to change beneficiaries, change the trustee, remove assets, or terminate the trust. Revocable trusts often become irrevocable upon the grantor’s death.

Irrevocable

With this trust, the trust itself owns the assets and the grantor can’t designate themselves as the trustee-giving up certain rights of control of the trust. The trustee effectively becomes the legal owner. The name speaks for itself, once an irrevocable living trust is created, the named beneficiaries are set and the grantor can do little to amend that agreement. Changes may need to be approved by the courts. In addition, you can never take back the assets assigned to an irrevocable living trust.

The benefits of a living trust are:

• Distributes your assets similar to a will
• Can help eliminate or reduce estate taxes
• Can avoid probate
• Can be helpful in certain family circumstances

Most people don’t create an estate plan because they feel like they don’t need one, or it’s too expensive. However, failing to plan now can create major headaches and expenses for your loved ones in the future. Let the attorneys at Wagner, Falconer and Judd assist you as you begin your estate planning journey! Give us a call today to learn more about getting started.

If you missed Part One of our 50 state Legal Update-you can find it here.

On top of pay transparency, cannabis, and paid leave state laws, the National Labor Relations Board ruled on regulations on a federal level.

McLaren Macomb Decision:

On February 21, 2023, the National Labor Relations Board held that a severance agreement that prohibited employees from making disparaging statements about the employer or disclosing the terms of their severance agreement violated Section 7.  The new standard is that a severance agreement violates the NLRA if “its terms have a reasonable tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.”

Employers should review their existing separation agreements and work with counsel to determine how to handle this:

• Remove the provisions all together
• Narrow the restrictions considering what information that the employer needs to protect
• Include disclaimer language, though mileage here can vary
• Do nothing? (and there is the very likely possibility that this decision will be challenged and overturned by the federal courts, but as of the time of publication, no such challenge has been filed.

Non-Competes:

On January 25, 2023 the FTC released a Notice of Proposed Rulemaking that would:

• prohibit employers from utilizing non-compete clauses
• This rule would apply to virtually all employers regardless of size
• And apply to all employees regardless of pay or position-includes independent contractors
• Nationwide in scope

The non-compete clause is defined as contractual term between an employer and a worker that prevents the worker from seeking or accepting employment or operating a business after the conclusion of the worker’s employment. It also requires that employer rescind existing non-competes with workers.

The propose rule:

• Does NOT apply to a person who is selling a business entity
• Does NOT apply to a franchisee-franchisor relationship
• Does NOT ban non-disclosure/confidentiality agreements or non-solicitation agreements
• However, if the non-disclosure agreement is so broad that it would effectively prevent a worker from working in the same field after employment that would be barred.)

Now what?

The original 60-day comment period was supposed to end on March 20, 2023, but the FTC extended that to April 19, 2023. The FTC will adopt a final rule with compliance required 180 days after April 19, 2023-meaning mid-October 2023. However, the FTC is expected to vote April 2024 on the final version of its proposal to ban non-competes. If the non-disclosure agreement is so broad that it would effectively prevent a worker from working in the same field after employment, that would be barred. During that 180-day period, companies would need to assess whether they need to make changes to their restrictive covenants and then negotiate, potentially offer separate consideration for, and enter into new agreements with workers.

There will likely be legal challenges be the enforcement of this rule begins.

Workforce Mobility Act:

A bipartisan group of U.S. senators introduced the bill that would largely ban the use of non-competes under federal law.

It would codify non-compete arguments as an unfair trade practice.

Under the act’s definitions, a “noncompete agreement” mean an agreement entered into after the date of the enactment of the Act between a person and an individual performing work for the person that restricts such individual, after the working relationship between the person and the individual terminates, from performing:

• Any work for another person for a specified period of time;
• Any work in a specified geographical area;
• Any work for another person that is similar to such individual’s work for the person that is a party to such agreement.

AB 2223 would help ensure that no person in our state is ever investigated, prosecuted, or imprisoned for losing or ending their pregnancy. AB 2223 protects reproductive freedom by clarifying that the Reproductive Privacy Act prohibits pregnancy criminalization, removes outdated provisions requiring coroners to investigate certain pregnancy losses, and ensures that information collected about pregnancy outcomes is not used to target people through criminal or civil legal systems.

National Labor Relations Board (NLRB):

On May 30, 2023 the NLRB GC Jennifer Abruzzo issued a memo taking the position that non-compete agreements violate Section 7 rights (Sound familiar?) Per GC Abruzzo, non-competes limit an employee’s ability to find work elsewhere, therefore diminishing their bargaining power for the purpose of concerted action.

It is the job of the General Counsel to prosecute violations of the NLRA, and this statement from Abruzzo serves as a warning to employers that they may face an unfair labor practice charge if they require employees to sign non-competes. However, Abruzzo’s memo is only a statement of her interpretation of the NLRA.

State Non-Compete Limits/ Bans:

On May 24, 2023 Minnesota’s governor Walz signed into law a far-reaching omnibus jobs and economic development and labor funding bill that, among other things, bans employment non-compete agreements signed after July 1, 2023.

On May 4, 2023, Indiana Governor Eric Holcomb signed SB 7 into law, which will render unenforceable all non-compete agreements between employers and primary care physicians entered into on or after July 1, 2023.

Changes to I-9 Procedure:

ICE released early this week that they will not be extending the COVID-19 I-9 verification flexibility again and the flexibility rule is set to end on July 31, 2023 (as announced in October 2022 during the last extension end period.) Along with the flexibility ending, is also a requirement that all employers who took advantage of the COVID-19 related flexibility will have until August 30, 2023, to do in-person verification of employment documents that were only inspected virtually

The Employment Law attorneys at Wagner, Falconer & Judd stay up to date on these laws so you don’t have to. Please reach out to us for consultation if you have questions about how these new regulations effect your current policies. We always recommend ensuring your employment policies stay as up-to-date as possible to help eliminate risk for your business. And we’re here to help!

There are a number of new state and federal laws that are set to take effective this summer-and many effect employers all across the board. Let’s jump into it.

Minimum Wage Increase: (If you missed our last Minimum Wage Update-you can find it here.)

A number of cities and states amended their minimum wage regulations:

• Connecticut: $15.00 (Effective July 1, 2023)
• Florida: $12.00 (Effective July 1, 2023)
• City of Chicago: $15.00 for employers of 4-20 employees (Effective July 1, 2023)
• Montgomery County, MD: %15.00 for employers of 11-50 employees and $14.50 for employers of 10 or fewer (Effective July 1, 2023)
• Minneapolis, MN: $14.50 for employers of more than 100 employees (Effective July 1, 2023)
• St. Paul, MN: $15.00 for employers of 101-10,000 employees and $13.00 for employers of 6-100 employees and $11.50 for employers of 5 or fewer employees (Effective July 1, 203)
• Nevada: $10.25 for employers offering specified health benefits and $11.25 for all other employers (Effective July 1, 2023)

Marijuana Laws:

A few states have adjusted their cannabis laws, and some have decidedly NOT:

Kentucky: On March 31, 2023, Kentucky legalized medical marijuana use. There is no requirement that employers accommodate an employee’s use of medical cannabis and employers can still drug test their employees. (Effective January 1, 2023)

Washington: On May 9, 2023, WA signed a law prohibiting employers from making hiring decisions based on off-duty cannabis use or positive pre-employment drug tests. (Effective January 1, 2023)

Minnesota: On May 30, 2023, MN became the 23rd state to legalize recreational marijuana. This bill includes significant changes to MN’s Consumable Products Act and Drug testing law.

Maryland: MD also passed recreational marijuana legislation. Adults 21 and older can possess up to 1.5 ounces of cannabis flower (Effective July 1, 2023)

But NOT Oklahoma. OK voters rejected a ballot initiative that would have legalized recreational marijuana for adults over 21 years old. It was rejected by a margin of over 20%.

Paid Family and Medical Leave:

Maryland: Regulations regarding Time to Care Act (Contributions begin on October 1, 2023)

Minnesota: MN’s Family and Medical Benefit Insurance Program is effective July 1, 2023 with contributions and benefits available beginning January 1, 2023.

Sunsetting of Paid Sick Leave and COVID-19 Related Leave:

Georgia: Kin Care Law was going to sunset on July 1, 2023 but the governor signed it into law-which will remove the sunset provision.

Los Angeles County: LA County’s Emergency COVID-19 Leave expired on April 14, 2023. The City of LA’s expired on February 15, 2023.

Colorado: COVID-19 related leave provisions expire June 8, 2023.

Minneapolis: New employer waiver sunsets June 30, 2023

Nevada: COVID-19 vaccination leave expires on December 31, 2023

New York: COVID-19 vaccination leave expires on December 31, 2023

Philadelphia: COVID-19 leave and vaccination leave sunsets on December 31, 2023.

Anti-Discrimination Laws:

Minnesota: February 1, 2023 MN governor signed a law to prohibit discriminations based on hair texture and hair styles, commonly referred to as the CROWN Act.

Michigan: House and senate have passed a bill that expands the language of the Elliott-Larsen Civil Rights Act protected categories to include sexual orientation and gender identity or expression. The bill defines gender identity or expression as “having or being perceived as having a gender-related-self-identity or expression whether or not associated with an individual’s assigned sex at birth.” “Sexual orientation” means having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such orientation or being identified with such an orientation.

New York City: On May 25, 2023 enacted an ordinance amending the New York City Human Rights Law to ban discrimination based on a person’s height and weight in employment (as well as housing and public accommodations.)

Texas: On May 27, 2023, Texas Governor Abbott signed into law the CROWN Act, banning racial discrimination based on hair texture or hairstyle in employment, as well as in schools and housing.)

Pay Transparency Laws:

New York State– March 3, 2023 amended its existing pay transparency provisions. This requires employees to disclose compensation or range of compensation for a job, promotion or transfer opportunity that will physically be performed in New York, including for any employee physically located outside the state who reports to someone in New York.  (Effective September 17,2023)

Minnesota– Now prohibits employers from inquiring into an applicant’s salary history (effective January 1, 2024)

The Employment Law attorneys at Wagner, Falconer & Judd stay up to date on these laws so you don’t have to. Please reach out to us for consultation if you have questions about how these new regulations effect your current policies. We always recommend ensuring your employment policies stay as up-to-date as possible to help eliminate risk for your business. And we’re here to help!

Check out Part Two for more information!

Effective August 1^st, 2023, Minnesota becomes the 23^rd state to legalize recreational marijuana. Minnesota already offered a medical marijuana program for patients with qualifying conditions-and as of March 2022, Minnesota permitted consumption by liquid, pills, and smoking dried, raw hemp-derived cannabis.

With the new law, an Office of Cannabis Management was created to oversee the program. And while the law goes into effect in August 2023, it is expected to take about 18 months for the first dispensaries to open.

So what is permitted under the new law?

Adults 21 and older may:

• Use, possess, or transport cannabis paraphernalia
• Possess or transport two ounces or less of adult-use cannabis flower in a public place
• Possess two pounds or less of adult-use cannabis flower in individual’s private residence
• Possess or transport eight grams or less of adult-use cannabis concentrate
• Possess or transport edible cannabis products or lower-potency hemp edibles infused with a combined total of 800 mg or less of tetrahydrocannabinol

Marijuana may be used:

• In a private residence, including the yard and area immediately surrounding the house
• On private property that is not generally accessible by the public, unless explicitly banned
• On the premises of an establishment licensed to permit on-site consumption

Notice anything missing? The workplace! How should employers react to this new law?

First, it’s important to note what the Lawful Consumable Products Statute will say after August 1, 2023:

“If an employee uses cannabis outside of work hours and off the work premises, then an employer may not lawfully discipline an employee for that behavior. However, employers can still prohibit the use of marijuana if the use of it would violate federal or state law or cause the employer to lose money or a licensing benefit under federal law.”

Adjusting your drug testing policy is good place to start.

Cannabis testing is different from drug and alcohol testing. After the effective date of this law, employers may test under compliant policy for the following reasons:

• Reasonable suspicion
• Random testing for certain employees
• Treatment program testing

What about testing job applicants?

Nope, sorry. The new law prohibits testing job applicants for cannabis as a condition of employment. Going forward, an employer may not refuse to hire a job applicant solely because the applicant’s test results indicate the presence of cannabis. However, for certain positions, cannabis is still considered a drug and employers may test applicants for cannabis.

The positions are:

• Safety-sensitive positions (as defined by statute**)
• Peace officers
• Firefighters
• A position requiring face-to-face care, education, training, supervision, counseling, consultation, or medical assistance to children, vulnerable adults, or healthcare patients
• A position requiring a commercial drier’s license or require the employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of the applicant or an employee
• Any position funded by a federal grant
• Or any other position for which state or federal law requires testing of a job applicant or an employee for cannabis.

It’s also important to note that under new regulations, employers may no longer require routine physical examination cannabis testing for most positions, nor can they require cannabis testing on an arbitrary or capricious basis.

Can employees be subject to discipline?

Yes, if the employee uses, possess, sells, transfers, or is impaired while working, while on company property, or operating company equipment and if any of the following requirements are met:

• As a result of consuming a cannabis or hemp-derived product, the employee does not possess the clearness of intellect and control of self that the employee otherwise would have; or
• If testing verifies the presence of cannabis following a confirmatory retest; or
• If the employee’s written work rules for cannabis apply to such conduct and the policy meets the minimum requirements of the Minnesota Drug and Alcohol Testing in the Workplace Act (“DATWA”), Minn. Stat. § 181.952.
• If the employer is required to do so under state or federal law or if a failure to do so would cause an employer to lose a monetary or licensing benefit under federal law.

Other DATWA requirements:

If it’s the employee’s first positive drug test, MN employers must offer the employee the chance to go to rehab instead of terminating them.

DATWA’s Written Policy Requirements:

The consequences of not paying attention to these regulations can be costly for employers. Job applicants or employees can bring a civil action based on an employer’s or laboratory’s violation of the DATWA.

Available remedies include:

• Damages
• Attorney’s fees, if the violation is knowing or reckless
• Injunctions prohibiting the employer or laboratory from violating the DATWA
• Any other equitable relief the court deems appropriate, including:
  • Hiring
  • Reinstatement
  • Back pay

If an employer violates the Lawful Consumable Products Law, a job applicant or employee can bring a civil action, and fi the court finds a violation, can award damages (limited to wages and benefits lost due to the violation) and/or court costs and attorney fees.

So what now?

Employers with Minnesota employees should revise their drug and alcohol testing policies and consider whether testing for cannabis makes sense for their company in light of these changes. Reminder that the medical marijuana program will still exist. There will be additional medical cannabis licenses allowed under the new law. It is still unlawful for an employer to discriminate against a person who is enrolled in the medical cannabis program unless the employer would lose a monetary or licensing-related benefit under federal law or regulations. Patients enrolled on the medical cannabis registry may still present their medical cannabis registration verification to their employer in the event the patient tests positive on an employer’s drug or cannabis test. However, employers are not required to permit an employee enrolled in the medical cannabis program to be under the influence at work.​

​

**“Safety-sensitive position” means a job, including any supervisory or management position, in which an impairment caused by drugs, alcohol, or cannabis usage would threaten the health or safety of any person.

We recommend revising your current drug policy with the consultation of counsel-reach out today to consult with a member of our team-before the new law goes into effect.

The Employment Law attorneys at Wagner, Falconer and Judd stay up to date on these regulations so you don’t have to. As always, laws are continuously changing and evolving-the information provided in this blog is up to date as of the published date.

When developing a credit application for your customers, it’s important to remember that not only will that document serve as a contractual agreement between you and your customers, but should also be used to obtain critical information that could prove crucial if the customer fails to pay. A detailed, but straight-forward application will be a valuable resource during collection activities.

As you build your application, remember to ask yourself the important “who?”, “what?”, “when?”, and “where?” questions to ensure you are collecting all the necessary information.

Who:

• Name of the business
• Doing Business As (DBA) name

What:

• Confirm the type of business entity
  • Corporation, LLC, Sole Proprietor, Partnership, Limited Partnership, Limited Liability Partnership

When:

• Date of business started
• Date formally created
  • Incorporated
  • Registered to do business

Where:

• State formed or organized
• Principal business address
• Check the state’s Secretary of State online
  • Could be “foreign” e.g. Delaware corporation operating in Minnesota
• Can learn more (registered agent, principal, other addresses, assumed/fictitious names (DBA)

Once you have gathered the information listed above, it’s time to dig a little deeper.

Specific Owner Information You Should Gather:

• Name (you might be able to confirm this with the Secretary of State office)
• Title
• Ownership interest
• Home address
• Phone (cell + home)
• Email address(s)
• Social security number

Now that you have all your customer’s information, it’s your turn to take over. By creating a credit application that clearly states the terms and conditions of the agreement between you and your customer, you’re laying the groundwork for your future relationship. A clear credit application doesn’t leave much room for disagreement. It’s vital to understand your rights and obligations as the creditor, to mitigate any future risk due to non-payment or other financial issues.

Terms & Conditions We Recommend Including in Your Application:

• Costs of collection (court fees, attorney fees, collection agency fees)
• Chose of law, venue, jurisdiction
• What law governs
• Choice of venue at your discretion
• Credit limit
• Security interest
• Security interest security interest
• May need to perfect UCC-1 filing
• Terms of Sale-e.g., Net 30
• Interest (usury laws differ state to state)

Are you Going to Include a Personal Guarantee Requirement?

Putting a personal guarantee in place creates another pocket of risk, as it can be relatively easy for an owner to walk away from an LLC and form another. It also elevates your priority as a creditor to your customer. If your loan contains a personal guarantee, and a different loan does not, it’s likely that your customer will pay you first.

If you are going to include the personal guarantee, the owner/principal should be the signer, or whomever made money from your advancement of credit. We recommend making the personal guarantee portion of your credit application as clear and unambiguous as possible. If you put the guarantee within the credit application, it should be set apart, and include a clear, separate line for the signature. You also have the option to add the personal guarantee as an addendum in a new document if or when the credit risk has increased.

A personal guarantee doesn’t have to be a lengthy undertaking. Here are some terms that should be included in your personal guarantee:

• Costs of collection-not dependent on success
  • court fees
  • attorney fees
  • collection agency fees
• Choice of law, venue, and jurisdiction
• Continuing
• Sign with home address and SSN
• Witness or notary

Taking the time to build your credit application in a way that supports your business and protects against risk should not only help you get paid on time, but also maintain a good relationship with your customers by eliminating the space for disagreement over repayment of loans. Make sure to keep good records of all signed copies of the credit application, personal guarantee, promissory notes, etc. We also recommend making yourself familiar with laws and statutes that impact creditors such as the Equal Credit Opportunity Act (ECOA) and the Fair Credit Reporting Act (FCRA).

Have questions about your credit application? Reach out to WFJ for a consultation today!

Many employers may be aware of the Americans with Disabilities Act (“ADA”), but may not understand what their specific responsibilities are when it comes to the ADA. For starters, the ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities, thus interfering with the employee’s ability to perform their job. Major life activities include walking, sitting, standing, lifting, speaking, seeing hearing, learning, etc. This also includes major bodily functions such as circulatory, endocrine, hematic, cellular, and reproduction, among others.

Whether an employee is injured at work or while engaging in activities outside of work, or is navigating a mental or emotional hardship, the employee may fall under this ADA definition of disability, even if temporarily. If an employee requests an accommodation, employers are then responsible for engaging in the interactive process (that’s legalese for an open and honest dialogue) with the employee to find a suitable accommodation to keep them working. The goal of the ADA is to keep employees productive in their roles without undue hardship on the employer. You achieve this by clear communication and following the interactive process which will help both you the employer, and the employee in question, find a reasonable accommodation.

After establishing there is a need, the next step in the interactive process is an official accommodation discussion, outlining what tasks or light duty expectations the employer has for the employee. This accommodation should be aligned with their doctors’ recommendations, to the extent possible.

We have created a checklist to get you on the path for a successful interactive process. We have additional resources that can help you navigate those steps if, or when, this situation arises for your company.

ADA Reasonable Accommodation Checklist:

When an employer has information that a disability may be interfering with an employee’s ability to perform their job, the following steps may be taken:

Identify the need for accommodation.

Unless there is an observable basis or other objective evidence that the employee has an impairment that is affecting job performance, do not inquire about the need for an accommodation.

• Ask the employee if there is any way the employer can assist the employee in the performance of job tasks. No reference to the Americans with Disabilities Act (ADA) is necessary at this point.
• If the employee declines the need for assistance, no further action is necessary. The employee may be held to the same performance and conduct standards as all other employees.

Engage in the Interactive Process.

If the employee discloses the need for assistance due to a disability, continue with the following steps:

• Determine whether there is a medical documentation or other reliable, objective information to conclude that the employee has a physical or mental impairment that substantially limits a major life activity.
• Review the employee’s job description and determine the essential functions of the job. Identify nonessential job tasks that may be reassigned to other employees for purposes of accommodation.
• Discuss possible accommodations with the employee, their health care providers, and supervisors who have knowledge of the worksite and the job. Engage other professionals, such as the employee assistance program (EAP) counselors or a vocational or rehabilitation counselor as appropriate.
• Determine whether the employee’s preferred accommodation creates an undue hardship for the employer. If so, suggest and discuss alternative accommodations.

Obtain Medical Information (if necessary).

When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about their disability and functional limitations.

• If documentation from a health care provider is necessary, have the employee sign a medical release form.
• Provide the employee with an ADA medical accommodation certification form to be completed by their health care provider.
• Provide a copy of the job description to the health care provider and have the provider indicate what major life activity or activities are limited.

Identify the Existence of a Direct Threat.

Direct threat under the ADA is “a significant risk of substantial harm.” An assessment of direct threat should be based on valid medical analyses and/or other objective evidence, not on speculation. This is a very narrow exception that may warrant denial of an accommodation and/or termination of employment.

• Determine whether the employee is a direct threat to themselves or to others in the performance of the job tasks.
• Document the direct threat by identifying the risk caused by the limitation, the potential harm that could result, and the medical or observable facts on which the risk is based.

Retain Documentation

• Identify and document the reasonable accommodation given, the reason no accommodation was needed or why the accommodation request was denied.
• Keep all medical information in a file that is separate from the employee’s personnel file.

Additional resources to assist employers in understanding their responsibilities under the ADA:

Job Accommodation Network (JAN)

www.askJAN.org    1-800-526-7234 (voice)

*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services. JAN is a free, confidential service from the U.S. Department of Labor’s Office of Disability Employment Policy that provides individualized accommodation solutions and technical assistance on the ADA. Among the areas that JAN can address are:

• Accommodation options and low-cost solutions
• Hiring, retaining and promoting qualified employees with disabilities
• Employer responsibilities under the ADA
• Addressing accessibility issues, including accessible technology

Equal Employment Opportunity Commission (EEOC)

www.eeoc.gov        1-800-669-4000 (voice)

*If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.

The EEOC enforces the ADA’s employment provisions. The section of its website titled “Disability Discrimination” provides access to numerous publications, including several specifically designed to answer employer questions and concerns.

U.S. Department of Justice (DOJ) ADA Homepage

www.ada.gov   1-800-514-0301 (voice):

If you are deaf, hard of hearing, or have a speech disability please dial 7-1-1 to access telecommunications relay services.

The ADA homepage includes many excellent resources for employers. The “ADA Business Connection” section of the site includes business briefs and tax incentive information.

Americans with Disabilities Act National Network

www.adata.org     1-800-949-4232 (voice)

The Americans with Disabilities Act National Network, sponsored by the U.S. Department of Education’s National Institute on Disability, Independent Living, and Rehabilitation Research, consists of 10 regional centers and an ADA Knowledge Translation Center which provide ADA information, training and technical assistance across the nation.

Failing to make reasonable accommodations for your employees can leave you open to unnecessary risk. Consulting with the Employment Law team at Wagner, Falconer & Judd can set you, and your team, up for success.