A gentleman used medical leave for the first time in his twelve year career. He had to work with his doctor to adjust some medications; then he was set to return to work and continue in his twelfth year with the company without a single bad appraisal.
“CAN I SCREAM DISCRIMINATION…”
Suddenly and without warning he receives a letter from the Human Resources Department that states:
“….if you will need accommodation(s) when you return, please contact the Office of Workplace Diversity before your return. They will assist you with that process……”
The letter doesn’t sound mean, but what does it assume about the employee? More importantly, how did it make the employee feel? Here’s what he said:
“What in the world? I am out on FMLA so that my meds can be adjusted. This is the first time in 12.5 years I have taken sick leave because of [a serious condition].
“Suddenly, I am an ADA case too? If 12 years doing the job does not demonstrate that I can perform the essential functions, with or without accommodations, I don’t know what does.
“Can I scream discrimination because they have decided that I need more ‘help?'”
I don’t think H.R. people even think about how letters like this are going to be received by employees. Maybe the H.R. people don’t even care.
HR DEPARTMENTS ARE DESPERATE
What H.R. people DO care about, however, is showing the company executives that “HR will defend the company at all costs and improve the bottom line.” HR people are desperate to prove that their department help the company’s bottom line. In tough times, which departments are the first to get cut? The ones that don’t help the bottom line.
So, this person’s HR professional probably sends out a letter like the above to every single person on FMLA leave. I doubt the letter had anything to do with this gentleman specifically; I’d bet money it’s a policy to always send such a letter.
Here’s why: Employers have gotten the smack-down by judges when an employee returns from medical leave and is having a hard time doing their job. It’s obvious to the employer that the person who was just out on leave is hurting, but the employer doesn’t say anything about it, or offer any help, or offer any accommodations at all.
Instead, the employer writes up the employee for “performance issues,” then fires the employee. When the employee sues, the employer says “Hey, we’re not discriminating against the disabled! We didn’t know he/she was disabled! And besides, the employee NEVER said the magic words “I need an accommodation for my disability.”
THE EMPLOYEE GETS $1 MILLION
This is where the court did the smackdown on the employer. The Court says, “B.S.! You DID know. You just approved his medical leave under the FMLA. Your disingenuous crap may fly in the corporate world, but you’re not hiding behind any “magic words” excuse in my courtroom you sonofabitch.”
Then the employer loses a million dollars.
After that, all the other employers in the nation wet their pants saying “We don’t want to lose a million dollars!” So in response “proactive” HR people start sending out letters to people who aren’t even back from leave yet — the letters say “if you need anything at all, just let us know! We even have a special full time Diversity Officer to take care of your special disability needs.”
Now, if an employee like the gent who wrote to me does return to work, does poorly, gets terminated, and sues the company — what’s going to happen? The HR Department is going to proudly pull out the “is there anything we can do for you” letter.
It’s a CYA letter, plain and simple.
Undercover Lawyer’s Take-Away Tip:
I coud tell that the fellow who wrote to me was, like most employees, a proud person and a thoughtful person. He just wanted to do well on the merits. So I suggested that he smack the “disability” issue right back down the HR Department’s throat.
Here’s the letter you can send to your HR Dept: “To the contrary, I’m absolutely fine and I do not want to be regarded as having a disability.”
Pow! Now they will really wet their pants. Because the ADA forbids an employer from treating an employee any worse because the employee is “regarded as” being disabled.
This simple letter totally sticks the employer and the HR person between a rock and a hard place. And they’ll be stuck there not because they are trying to be nice and help their employees, but because they (or at least the HR Dept that sent this letter) doesn’t give a crap about the employees and only wants to cover their own butt. That’s all they’re trying to do. And with the “I don’t want to be regarded as disabled” letter employees everywhere will throw it right back at them.