Employer Goes Above and Beyond Call of Duty
Everyone in the workplace should know and understand the Americans with Disabilities Act, or ADA, because even if a person doesn't have a disability now, no one knows what the future holds along life's journey. The ADA protects employees who work at companies with 15 or more employees. The ADA covers employees who have impairments, defined by the ADA as physical or mental impairments that substantially limit the employee in one or more major life activities. If an employee has such a disability, he or she may require an accommodation to perform his or her job. The accommodation request must be reasonable. If such a request is made, the parties are required to engage in a discussion to see if an accommodation can be made. The employer does not have to provide an accommodation if it poses an undue hardship upon the company. This legal definition provided by labor and employment attorney Eugene K. Hollander may seem straightforward, but the term "reasonable" is subject to interpretation.
Under the ADA, a company may have an executive who is suffering from mild cognitive decline; critical thinking has not yet been compromised, but short-term memory has. The company's leader says the executive provides excellent value through solid industry knowledge and problem-solving abilities, so he decided to accommodate the employee by hiring an assistant to help the executive stay in the position to continue providing value. The assistant was fully informed of the executive's disability and is tasked with the job of reminding the person of what needs to be done, conversations that need to be held and activities that have already been done. Luckily, the executive is aware of his failing memory and can signal the assistant when help is needed.
"Under these circumstances, it seems like the employer went above and beyond what would be required," says Hollander. Unless it had made such an accommodation in the past for a disabled employee, hiring an assistant would not be considered reasonable, or it could be thought to pose an undue hardship on the company.
If the company terminates the executive's employment, it should enter into a separation agreement with the employee, with a clause stating the payment in exchange for a complete release so a future lawsuit cannot be initiated.
Hollander says, "Going forward may present difficulties now that an accommodation has been made. Characterizing or defining the terms required for the condition to be worsening can pose difficulty. Dementia raises competency issues in the present and into the future. The question could then be, 'If the executive signs a separation agreement with a release, was she competent to execute it at that time?'"
But here is the heartwarming part of the story: Knowing all the variances that could take place and potential problems that could erupt in the situation, the company leader followed his heart and his conscience. He considered the human side of the employee. The executive was not an employee to be used and dumped because he or she could no longer operate at full capacity. He looked for a humane solution to help the employee move forward in life and continue contributing to the company. He considered the employee's request of needing help to remain in the job with dignity rather than devaluing the person further. Watching dementia advance in anyone is demoralizing for all. Seeing an employee reduced to less-than-competent when there is still a desire to contribute is not a simple termination. There would be no going back and no future to consider. And no one is exempt from this path.
Legalities can be explored, but helping the person to remain a positive, happy, contributing member of something greater could expand the executive's feeling of worthiness. Sometimes, even in business, the heart needs to rule. It's important to let all who work know that they count-- not only as employees but also as human beings who deserve a helping hand.
Email career and life coach: Lindsey@LindseyNovak.com with your workplace problems and issues. Ms. Novak responds to all emails. For more information, visit www.lindseynovak.com and for past columns, see www.creators.com/read/At-Work-Lindsey-Novak.