It is important for employers and supervisors to be prepared for a variety of issues related to employee management, even those that arise infrequently.
Have you faced any of the five uncommon workplace scenarios outlined below?
ISSUE # 1: FRAGRANCE SENSITIVITY
What should you do if an employee tells you that he or she is sensitive to synthetic fragrances and has trouble breathing when near them?
Whether the employee realizes it or not, the employee may be putting you on notice that they may have a disability that may require a reasonable accommodation. The employee, however, need not use those exact terms. Once the employee informs you of their sensitivity, you should plan to engage in a dialogue with them to determine what, if any, accommodation you may want to consider providing to the employee.
The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide a reasonable accommodation to qualified applicants and employees with a disability, as defined under the law, absent an undue hardship to the employer. In general, the determination of whether an impairment is a disability should be made on a case-by-case basis and in consultation with legal counsel. When a reasonable accommodation is required, the accommodation should be effective in enabling the employee to perform the essential functions of the job.
The Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s Office of Disability Employment Policy, suggests a number of possible actions employers could take to accommodate an employee with fragrance sensitivities, including but not limited to:
- Maintaining good indoor air quality.
- Discontinuing the use of fragranced products.
- Modifying workstation location or work schedules.
- Providing an air purification system.
- Encouraging use of teleconferencing or other forms of technology instead of face-to-face meetings.
- Creating a policy. Some employers simply ask that employees voluntarily avoid wearing fragrances in the workplace. Others require employees to refrain from wearing fragrances all together.
ISSUE # 2: ACCOMMODATING RELIGIOUS BELIEFS AND PRACTICES
What should you do if your company’s dress code policy prohibits employees from wearing hats in the office, but an employee wears a head scarf as part of their religious beliefs? Do you have to make an exception? What about if an employee comes to you and asks for additional break time for daily prayers?
Under federal and many state laws, employers must provide reasonable accommodations for employees’ sincerely held religious beliefs and practices, absent undue hardship. This may include making exceptions to dress codes or modifying work schedules. Once an employer becomes aware that an employee’s religious beliefs or practices conflict with an employer’s policy, or require an exception to the employer’s typical workplace procedures, the employer should talk with the employee. Together, they should discuss whether an accommodation is available that would meet the employee’s needs without posing an undue hardship on the employer’s operations. Employers should consult with legal counsel to determine how best to handle accommodations for religious beliefs and practices.
ISSUE # 3: RECORDING TELEPHONE CONVERSATIONS
What should you do if an employee informs you that a co-worker is using her smartphone to record her telephone conversations with others?
Federal and state laws prohibit recording telephone conversations without consent. In some states, consent is required from both parties to the telephone conversation. This type of complaint from an employee should prompt a thorough and fair investigation into whether any law or company policy has been violated. Consider consulting legal counsel throughout the investigation process.
ISSUE # 4: EMPLOYEE VS. INDEPENDENT CONTRACTOR STATUS
What should you do if you have an employee who requests that they be classified as an independent contractor instead of an employee? Can you change their status?
Workers are presumed to be employees, and changing the status of an employee to an independent contractor should be considered thoroughly. Employers should apply federal and state tests, such as the IRS’s common law test, to evaluate whether a worker should be classified as an employee or independent contractor. Employers should periodically review the status of their employees to make sure they are properly classified. Employers who knowingly misclassify employees as independent contractors may face fines, loss of business licenses, and other sanctions.
ISSUE #5: TRANSGENDER EMPLOYEES AND DRESS CODES
If an employee informs you that he or she is transgender, must you allow him or her to dress consistent with their gender identity? The Equal Employment Opportunity Commission (EEOC) has taken the position that discrimination on the basis of transgender status or gender identity is a form of prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. Many states and local jurisdictions have also banned gender identity discrimination and expressly require that an employer’s dress code allow employees to appear, groom, and dress consistent with the gender with which the employee identifies. Employers should review their dress codes to ensure compliance with federal, state, and local law and consider making such policies gender-neutral.
Employers must be prepared to address a wide variety of workplace issues, and when necessary, consult legal counsel with any questions on how to handle an uncommon situation in the workplace. Because employees often approach their supervisors with concerns or requests first, it is a best practice to train supervisors on how to handle various inquiries, and when to escalate issues to human resources, management or legal counsel.
This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice or other professional services. ADP does not give legal advice as part of its services. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the state or municipality. This material is made available for informational purposes only and is not a substitute for legal advice or your professional judgment. You should review applicable law in your jurisdiction and consult experienced counsel for legal advice.