Can HR pinch this on-the-job habit?

Workforce, May, 2002 by Matthew T. Miklave, A. Jonathan Trafimow

Q: We have an employee who uses chewing tobacco on the job. While it's not odorous or sloppy--yet--we're in the customer-service business. And we have a policy requiring employees to use designated smoking areas. Does tobacco use/smoking law address or include the use of chewing tobacco?

A: There are some states that make the use of tobacco a protected characteristic for employment-discrimination purposes. Even if your state has such a law, it may or may not apply to chewing tobacco.

Further, these kinds of laws usually apply to off-duty conduct. Here, apparently, you just want to keep your employee from chewing tobacco in front of customers. It seems unlikely that you would run into problems with a consistently enforced policy forbidding this, but you would have to check applicable state and local laws to be sure.

Termination And Disabilities

Q: We have an employee who has numerous notes in her file about her inability to do the job, reluctance to get along with others, etc., but no formal written notices or discussions documented. The medical director wants her to be terminated but now she is out of work due to a flare up of an ulcer. Can I terminate her?

A: Of course! You can terminate the employee. The question really is, will you get sued for doing it, and what will happen if you do get sued. There, the answer is not so easy. Indeed, you query presents many questions.

1. Why is the "medical director" recommending termination? If you are a hospital and the medical director is the boss, that is one thing. If, however, you are a manufacturing facility with a medical unit (for purposes of OSHA compliance or whatever), then a whole set of different questions comes into play.

2. Why does the company want to terminate the employee? Is the reason for the termination supported by objective, documented evidence? If not, then the termination may present a greater risk of lawsuit and loss.

3. Does the employee qualify for and has the company complied with FMLA (and any state equivalent)? An ulcer may (or may not) constitute a serious health condition that would result in the employee qualifying for leave under FMLA. If "absenteeism" plays any part in the decision to terminate and the absence was an FMLA qualifying absence, then the employer MUST disregard that period of absence in making the decision.

4. Does the employee have a disability under the Americans with Disabilities Act? If so, then the employer must provide a reasonable accommodation to a disabled person who can otherwise perform the essential functions of the position. The EEOC has taken the position that a reasonable accommodation under such circumstances may constitute an unpaid leave of absence. Once again, if absenteeism plays any role in the decision to discharge, then there could be an issue. Now, we cannot tell from what you have written whether this employee's ulcer constitutes a "disability." While an ulcer sounds pretty routine, such a condition might be severe enough to amount to a disability. Indeed, whether an employee has a "disability" under the ADA is a highly individualized inquiry; simply having a medical diagnosis does not end the inquiry.

You should probably consult with your employment counsel for more information.

Same-Sex FMLA

Q: Can an employer require the employee to furnish the medical certification of the serious health condition of a Same-sex domestic partner? Everything I read states only that we may request it for the employee's own serious health condition or that of a family member, or a child's illness.

A: FMLA covers one's "spouse?' In virtually every state, except perhaps Vermont, a domestic partner is not a "spouse." Unless your state recognizes a domestic partner as a "spouse," the employee is not eligible for FMLA leave to care for a domestic partner with a serious medical condition.

An employer can grant an employee who is not eligible for FMLA leave any additional (paid or unpaid) leave it wishes so long as it does so on a nondiscriminatory basis. We would never call such a leave FMLA leave because it exposes the employer to possible legal liability. Thus, we routinely draft policies that provide for "unpaid leave" on some basis, assuming that all other leave (including FMLA leave) has been exhausted. If your company is going to adopt an unpaid leave policy providing for unpaid leave to care for domestic partners, then your company can impose reasonable restrictions on the application for that leave. Make sure, however, that the restrictions do not subject the employer to legal challenge from other quarters. For example, disclosure of a domestic partner's medical condition could give the employer knowledge that sets the stage for a claim by the employee.

Midday Layoff

Q: We performed a layoff of a branch office at midday. Am I obligated to pay exempt employees for a full day's work? Or may I pay them a half day's work since they were terminated at midday? I'd like to trust my gut instinct on these things, but my gut has never been to law school.