Selling Compliance

No one in HR wants to be considered a Peter from Peter and the Wolf.  But yet, when it comes to compliance issues, it is easy to fall into that trap.  We are often running around saying “we can’t do that!  We’ll get in trouble!”   After a while, leaders start to tune us out.  To be effective, we have to seize a case for compliance in terms of business.

Consider this:  What if we looked at employment laws and regulations like best practices with teeth?  Now, I get that this is controversial.  Very, very few people would design a diversity program like the OFCCP’s affirmative action regulations and other examples certainly exist, but bear with me.  What if we looked at the underlying reason for a particular law and compared that with a business goal?  Wouldn’t they be similar in most cases?  Would that make it easier to sell compliance?  The answer: You betcha!

Take for example, paid sick leave.  As of December 31, 2016, 37 jurisdictions (mostly cities, counties, and some states) had enacted paid sick leave laws.  While paid sick leave is certainly a trend at the local and state levels, many employers have understood that they needed to provide sick leave to employees for decades.  These businesses knew that if they didn’t offer the paid time, they would not get the talent they were looking for and employees might leave if they didn’t have the time to care for themselves and their families.  While paid sick leave is now law in some areas, it has long been a recruitment and retention tool for employers.

For an employer in a jurisdiction with a paid sick leave law who doesn’t offer it, HR is now in a position where it needs to sell the benefit as a legal requirement.   HR could package a proposal like this – paid sick leave is needed to get and keep the talent we need and the new ordinance provides a framework to do that.  Would that be an easier sell?

What about sexual harassment?  We know that anti-harassment laws were designed to protect women in the workplace so women could be productive, safe, and contribute our skills.  These laws also try to create workplaces built on the respect for all employees.  These are business goals.  When there is a culture rife with disrespect or disharmony, productivity comes to a near halt.  Turnover increases.  Employees are disengaged.  No business leader wants this to happen.  Preventing and then stopping harassment in its tracks protects the workplace and protects the business from legal claims and PR nightmares and keeps the focus on where it should be – the organization’s mission.

CEOs care about talent.  They care about finding the best talent the can and holding on to the great talent they have. According to PwC’s 2017 CEO survey, talent remains a top priority and as does diversity.  When we view employment laws and regulations as things that can be aligned with business goals, it becomes easier to get buy-in from the top.

This works for every employment law.  If you can’t come up with a business goal, try me.  I believe there is a business goal attached to nearly all employment laws.  I’ll accept the challenge to find one for your organization!

 

Photo by Redd Angelo available at unsplash.com

Fitness for Duty Warning Signs

Last week, I had the pleasure of speaking with hundreds of occupational health professionals – doctors, nurses, and administrators about return-to-work policies.  We had 90 minutes.  We could have chatted for three hours, we got so many questions!

These health care professionals were most concerned about the scope of their fitness for duty examinations for good reason.  They wanted to know that they were doing the right thing.  Some companies have fitness for duty examinations for all employees returning from leave.  Some rarely do unless they have a particular concern about a particular condition or particular employee.  Our message to them was this:  Fitness for duty exams are sticky legal wickets all the time.  Health care professionals and employers have to be careful when they require such exams and what they examine.  Below are some tips.  If you don’t have the Department of Labor’s

Below are some tips about fitness for duty exams.  If you don’t have the Department of Labor’s FMLA Employer Guide, get it, print it, put it where you can find it. Even if you’re not subject to the FMLA, this is a good resource when an employee returns to work.

When an employee is returning to work from leave, you only get to ask about what put the employee on leave. The return to work is not permission to examine everything about the employee.  You only get to look at what put the employee on leave and only if you have a reasonable belief that the employee’s current ability to perform the essential functions of the job are impaired by the medical condition or the employee poses a direct threat to the organization.

Here’s an example:  Jamal works as a laborer on a construction worksite.  He broke his arm a few weeks ago.  He is ready to return to work.  You can ask for medical documentation from his health care provider that Jamal can return to work with or without accommodations if you are concerned that Jamal may be weaker, could cause injury to his co-workers, and the position requires him to lift 50 pounds regularly.  You don’t get to require Jamal to undergo a blood and urine test.  The scope is limited to his ability to use his arm to perform the essential functions of his job.

One more example:  Jenny works as a marketing executive.  She has been out on FMLA after having a baby.  The birth did not go well, and the baby was in the hospital for several weeks.  You are concerned that Jenny might not be “all there” after this ordeal even though everyone is healthy now.  You cannot ask for a fitness for duty examination related to Jenny’s mental health unless you have some evidence – more than your gut feeling or even rumors – that Jenny is a direct threat or unable to do her job.   Of course, if you later get evidence when she returns, you can ask for such an examination.

If you do fitness for duty, do them consistently. Employers should give fitness for duty examinations on a consistent basis for similarly situated employees.  It makes sense to have a fitness for duty examination for everyone who has a heart attack who works on a production floor.  If you do such an exam for everyone who has a heart attack regardless of their position, this may be a bit more questionable.  Your receptionist who has a heart attack probably does not need a fitness for duty examination.

“Walking work comp claims” do exist, but this doesn’t mean you can always intervene or terminate. Most employers at some point in their business life have had an employee who is a danger to himself primarily because they are klutzy.  They break their arms, cause workplace accidents, and have racked up some hefty work comp benefits.  But these facts do not necessarily mean you get to put the employee through a thorough medical examination.  These facts don’t support extreme changes to his position because he is klutzy.  Your job is to try to make the worksite as safe as you can and train the employee and others to be safe.  Prescribing health care won’t do it.  You must have facts to support a reasonable belief that the employee is a direct threat to himself or others before you can force an examination.

Returning employees to work after an illness or injury can be a legal minefield.  At play are the Family Medical Leave Act, the Americans with Disabilities Act, workers’ compensation laws, and a myriad of state and local laws on top.  Certification forms, injury reports, calculating leave time, benefits – it all gets complicated.  It is downright frightening for the unwary trying to do the best thing for the employee and the organization.  When this happens to your organization, find the right resources and be sure to ask lots of questions.