One of the defining characteristics of employment law is that in many respects it is sometimes hard to have the unambiguous answers business people want – entirely reasonably – in order to make decisions and plan their affairs.
Exhibit A: How long do I need to let an employee who has used up all of his available leave for a medical issue remain employed in order to be in compliance with the Americans with Disabilities Act? Well, that … depends. Your legal obligation is to “reasonably accommodate,” and “reasonable” is a word that inherently is going to depend on the particular circumstances. How long has the employee been out? How does his particular absence affect your ability to do business? Have communications from the employee’s doctor given you any ability to determine when the employee would be likely to be back? Do you have reason to question the validity of the need for leave? And so forth …
Probably every employment law has at least one “reasonable” or other inherently fuzzy term in it that is going to be what lawyers call “fact specific.” You just can’t legislate what is “reasonable” and answer every possible question in advance. (Though you probably can be reasonable, and that goes a long way to avoiding liability.)
It’s easy to blame Congress or some other legislature or court for fuzzy words like that. Or just blame lawyers generally. But the fuzzy terms just reflect the fact that life is messy.
Another classic employment law grey area is which jobs are exempt under the wage and hour laws, meaning that the employees do not need to be paid overtime for hours worked over 40 in a week. There are legal tests for which employees are exempt and which are not. One part of the test for one of the exemptions is a requirement that the employee exercise “discretion and independent judgment with respect to matters of significance.” That’s multiple grey words! But how can you possibly write a rule that will cover all of the jobs, people, and workplaces this regulation applies to? You have to establish parameters, then leave it to employers, employees, their lawyers, and courts – i.e. life – to fine tune those parameters over time.
This greyness manifests itself in various ways when advising employers. For example, when employers send me employee handbooks to review, I find myself scaling back very well thought out and detailed policies, reminding the employer that it needs to leave itself the discretion to deal with individual situations as they arise in real life. No matter how smart we are, we cannot predict every employment situation that will confront us in the months and years ahead, and experience tells us it is counterproductive to try. When we do, we may find ourselves inadvertently violating our own rules, because those rules were written in a way we can’t apply to this unanticipated situation.
And when those particular situations that arise, I need to disappoint employers who – again, entirely reasonably – want to know exactly what are steps A, B, and C. Sometimes it is that simple, but often it is not. Take that employee health situation requiring a reasonable accommodation, for example. I can give you a broad sense of how these situations tend to play out. I can certainly tell you what the rules are that we are going to need to follow.
But in what the law says needs to be an interactive process (another grey term), and a process that involves at least a few iterations of the employer and employee communicating about the situation, I cannot tell you what the employee’s sixth “move” will be, so that means I also can’t tell what our seventh move should be. More good news: it may be a chess game where we cannot say what our seventh move will be, but we do know that we have played a lot of chess and will make a good decision on that seventh move.
Well, what could be messier than the year 2020? Accordingly, employers’ and employees’ needs to work through grey areas has been in overdrive. For starters, the federal legislation about emergency paid sick leave and related COVID-19 issues applicable to many employers was on the front pages moving very quickly, and changing as it went through the legislative process, as legislation does. Employers could see its impact coming fast along with everything else starting in late March, and they wanted to plan for it. As they should. But on top of the usual employment law challenges, both the law and the factual background just have moved at unprecedented speed. (Case in point, the Department of Labor has issued 93 FAQs on the law. They are very helpful but just underscore the many moving parts.)
Another example: It is not uncommon for our employees to take to social media to voice their opinions about how the employee is handling COVID-19, or whether the employee is supporting Black Lives Matter enough (or too much – depends on which employee is posting). Employees have a legal right to express their views about the terms and conditions of employment to their colleagues, including on social media. But they do not have a right to, among a number of other things, make threats or disclose confidential information. Again, you cannot write a regulation or a policy that simply lists which exact communications are permissible, and which are not, because we cannot anticipate every communication. So, more grey.
I could go on, but suffice it to say that employers are wrestling with more moving parts than ever, which means more grey.
As I say, while the occasional uncertainty can be frustrating, this is not all bad news, because employers, you can handle this. As noted above, sometimes it would be nice to have a nice, clear YES/NO answer spit out from the employment law machine, but reasonable accommodation? That is a standard we can meet, because we will act reasonably – communicating expectations from the start and along the way, acting consistently and thoughtfully, and articulating (in writing, most of the time) the sound bases for the decisions we are making. That’s not law, that’s just good management, which other than taking the time to maximize the likelihood you are hiring really good people, is the greatest employment liability prevention tip.
So, embrace the grey, have and nurture a great team, and you will be as well positioned as you can be. Almost certainly better than if you don’t.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.