Spring has most definitely sprung. It’s almost summer! We don’t need extra blankets on our beds anymore! While blankets keep us warm and make us feel safe in a cold world, blanket policies are dangerous and in at least three occasions, they’re downright unlawful. So while we’re packing up the extra down comforter, let’s look at packing up these three blanket policies too.
- All employees with XYZ medical conditions can’t do XYZ job. A heart attack is a big deal, but not all heart attacks are the same. Some mean stents that do not stop driving while others require open heart surgery that lay the victim up for months. Having a blanket policy that prohibits all heart attack victims from doing a certain job denies employees the opportunity to explain their own condition and engage in the interactive process the ADA demands. While it’s true that some conditions will disqualify employees every time, do the individualized process for each employee who presents with the condition.
- We don’t employ felons. Employers conduct criminal background checks for all sorts of reasons – reducing workplace violence, reducing the risk of negligent hiring, etc. The temptation exists to not hire anyone with a felony. However, the EEOC takes issue with this given the number of incarcerated minorities. Just like the medical conditions, the EEOC requires employers to do an individualized assessment of whether an individual with a felony conviction should be hired. This analysis involves the Green factors: 1) the nature of the job, 2) the nature of the conviction, and 3) the time between the crime (or end of incarceration) and application. While it may be true that you’re never going to hire an accountant with an embezzlement conviction, deal with this on a case-by-case basis.
- We can never accommodate a level beyond the FMLA-mandated 12 weeks. The EEOC has litigated this issue several times. With the ValleyLife case and guidance issued last May, the EEOC has tried to make the point that employers must engage in the interactive process after FMLA to determine if the employee needs even more leave. Employees have to show a need for the leave, but a hardline cutoff will get an employer in trouble.
The EEOC wants employers to treat employees and applicants like the individuals they are, talking with them about their individual circumstances and needs before dismissing those circumstances and needs summarily. Dealing directly with these is sometimes hard, it may mean an employer takes a chance on someone in close cases, and it means we leave the comfort of that blanket policy. But, it’s spring now. We don’t need the blanket.