The Ever Present Threat of a Disability Discrimination Lawsuit

By John Mavros Attorney at Law, Partner, Fisher & Phillips, LLP | September 24, 2017

Given the increasing number of disability discrimination lawsuits, it is imperative that employers know and understand an employee's rights to leave and reasonable accommodation when injured or disabled. A workers compensation injury is not only covered by rules in the workers compensation system, but is typically also governed by requirements, obligations, and limitations under other important statutes.

There are three distinct areas of law that have very different purposes. Under the Family Medical Leave Act, an employee is afforded 12 weeks of job protected leave for a "serious health condition." The Americans with Disabilities Act prohibits disability discrimination requiring an employer to reasonably accommodate a "disability." In addition, an employer is obligated to maintain workers compensation insurance to compensate employees for work related injuries. Of course, an employer must not give any impression that they are retaliating against an employee for exercising any of the above rights. Know the Rules:

1. Family Medical Leave Act ("FMLA")

The FMLA is concerned with providing a minimum level of unpaid,job-protected leave to eligible employees. It protects those employees from adverse treatment because of the need for leave. The FMLA is largely known for permitting an employee to take leave for the birth or adoption of, and in order to care for, a child. However, the FMLA also permits leave for the employee's own "serious health condition."

An employee is eligible for leave under the FMLA if he or she has worked for the employer for at least 12 months, has worked for the employer at least 1,250 hours during the 12 consecutive preceding months, and works at a work-site where there are at least 50 employees within a 75-mile radius. The FMLA provides up to 12 weeks of unpaid leave when the leave is due to an employee's health condition.

The FMLA also requires a covered employer to grant an employee intermittent leave or a reduced work schedule when such leave is "medically necessary" for the employee's own serious health condition. In this situation, the employer can temporarily switch the employee to an alternative position, butonly if the employer can clearly demonstrate that recurring temporary leaves are not feasible. The employer cannot reduce the employee's pay or benefits under the FMLA. When an employee returns from FMLA leave, he or she must be reinstated to the same or an "equivalent position" with equivalent benefits.

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Guest Service: A Culture of YES

In a recent global consumers report, 97% of the participants said that customer service is a major factor in their loyalty to a brand, and 76% said they view customer service as the true test of how much a company values them. And since there is no industry more reliant on customer satisfaction than the hotel industry, managers must be unrelenting in their determination to hire, train and empower the very best people, and to create a culture of exceptional customer service within their organization. Of course, this begins with hiring the right people. There are people who are naturally service-oriented; people who are warm, empathetic, enthusiastic, pleasant, thoughtful and optimistic; people who take pride in their ability to solve problems for the hotel guests they are serving. Then, those same employees must be empowered to solve problems using their own judgment, without having to track down a manager to do it. This is how seamless problem solving and conflict resolution are achieved in guest service. This willingness to empower employees is part of creating a Culture of Yes within an organization.  The goal is to create an environment in which everyone is striving to say “Yes”, rather than figuring out ways to say, “No”. It is essential that this attitude be instilled in all frontline, customer-facing, employees. Finally, in order to ensure that the hotel can generate a consistent level of performance across a wide variety of situations, management must also put in place well-defined systems and standards, and then educate their employees about them. Every employee must be aware of and responsible for every standard that applies in their department. The April issue of the Hotel Business Review will document what some leading hotels are doing to cultivate and manage guest satisfaction in their operations.