Tag: reasonable accommodations

June 27, 2024

Conducting Legally Sound Employee Performance Reviews

Performance reviews are a cornerstone of effective employee management. They provide a structured opportunity for managers and employees to discuss achievements, address challenges, and set future goals. When conducted effectively, performance reviews can drive employee development, enhance productivity, and strengthen the overall organizational culture. However, to achieve these benefits, it’s crucial to approach performance reviews with a clear strategy and a commitment to fairness and transparency.

Whether you are refining an existing performance review process or establishing a new one, this guide offers practical insights and actionable steps to ensure your reviews are effective, fair, and supportive of your organization’s goals. Plus, you’ll be in a better position to justify promotional and disciplinary decisions and defend against employee discrimination claims.

Structuring and Scheduling Performance Reviews

Conducting effective performance reviews requires careful planning and structuring to ensure a fair, comprehensive, and productive process. Here’s how to structure and schedule your performance reviews for maximum impact:

Frequency of Reviews

Annual vs. Semi-Annual vs. Quarterly Reviews

Annual Reviews: These are traditional and often align with the fiscal year. They provide a comprehensive overview of an employee’s performance over the year but can be overwhelming if not managed properly.
Semi-Annual Reviews: Conducting reviews twice a year helps in providing more timely feedback and adjustments. This frequency allows for mid-year corrections and better alignment with business goals.
Quarterly Reviews: More frequent reviews ensure continuous feedback and quicker adjustments. This approach can be particularly beneficial in fast-paced environments where roles and expectations evolve rapidly.

Pros and Cons of Review Frequencies

Annual Reviews: Pro – Comprehensive analysis; Con – Delayed feedback.
Semi-Annual Reviews: Pro – Timely feedback; Con – Requires more managerial time.
Quarterly Reviews: Pro – Continuous feedback; Con – Can be time-consuming and potentially overwhelming for both managers and employees.

Preparing for the Review

Gathering Performance Data and Feedback

Collect data from various sources, including self-assessments, peer reviews, customer feedback, and performance metrics.
Ensure that the data is accurate, up-to-date, and relevant to the employee’s role and responsibilities.

Reviewing Job Descriptions and Performance Standards

Revisit the employee’s job description to ensure clarity about their responsibilities.
Compare the employee’s performance against predefined performance standards and goals.

Setting the Agenda and Objectives for the Review Meeting

Define clear objectives for the review meeting. This might include discussing accomplishments, identifying areas for improvement, and setting future goals.
Prepare an agenda that outlines the key points to be discussed, ensuring a structured and focused conversation.

Scheduling the Review

Choosing an Appropriate Time and Setting

Schedule the review at a time that is convenient for both the manager and the employee, avoiding busy or high-stress periods.
Select a private and comfortable setting to ensure an open and honest discussion without interruptions.

Providing Advance Notice to the Employee

Give the employee sufficient notice of the review meeting, typically at least one to two weeks in advance.
Encourage the employee to prepare for the review by reflecting on their performance, achievements, and any challenges they have faced.

By carefully structuring and scheduling performance reviews, you can create a more effective and meaningful process that supports employee development and enhances overall organizational performance. Ensuring that the reviews are regular, well-prepared, and thoughtfully conducted will lead to better outcomes and a more engaged workforce.

Providing Constructive Feedback and Setting Goals

The heart of any performance review lies in the feedback provided and the goals set for future development. Constructive feedback helps employees understand their strengths and areas for improvement, while clear goals provide a roadmap for their growth and success. Here’s how to effectively provide feedback and set goals during performance reviews:

Techniques for Delivering Feedback

Using the “SBI” (Situation-Behavior-Impact) Model

Situation: Describe the specific situation in which the behavior occurred. Be clear and concise about when and where the incident took place.
- Example: “During the team meeting last Thursday . . .”
Behavior: Focus on the actual behavior observed, avoiding generalizations and personal judgments.
- Example: “you interrupted several colleagues while they were speaking . . .”
Impact: Explain the impact of the behavior on the team, project, or organization.
- Example: “which disrupted the flow of the meeting and made it difficult for others to contribute.”

Balancing Positive and Negative Feedback

Start with positive feedback to acknowledge the employee’s achievements and strengths.
- Example: “You’ve done an excellent job managing the new client accounts, and your attention to detail is impressive.”
Follow with constructive feedback on areas that need improvement.
- Example: “However, there have been instances where project deadlines were missed, and we need to work on improving time management.”

Avoiding Common Pitfalls

Generalizations: Avoid vague statements like “You always” or “You never”. Be specific and focus on particular instances.
Personal Attacks: Critique behaviors, not the person. Ensure that feedback is objective and non-personal.
Overloading: Limit the amount of feedback to a few key points to avoid overwhelming the employee.

Creating an Open Dialogue

Encouraging Employee Self-Assessment and Input

Ask the employee to self-assess their performance before the review. This helps in aligning perspectives and identifying areas of agreement or discrepancy.
Example: “How do you feel you performed on the recent project?”

Asking Open-Ended Questions

Use open-ended questions to understand the employee’s viewpoint and encourage a two-way conversation.
Example: “What challenges did you face during the last quarter?”

Addressing Concerns and Challenges

Listen actively to the employee’s concerns and challenges. Show empathy and provide support where possible.
Example: “I understand that balancing multiple projects can be challenging. How can we better support you in managing your workload?”

Setting SMART Goals

Specific, Measurable, Achievable, Relevant, Time-bound

Specific: Define clear and specific goals.
- Example: “Increase sales by 10% in the next quarter.”
Measurable: Ensure that progress can be tracked and measured.
- Example: “Conduct weekly sales reviews to monitor progress.”
Achievable: Set realistic goals that are within the employee’s capacity.
- Example: “Given your current workload, focus on the top three priority clients.”
Relevant: Align goals with the employee’s role and the organization’s objectives.
- Example: “Enhance your presentation skills to improve client pitches.”
Time-bound: Set deadlines for achieving the goals.
- Example: “Complete the sales training course by the end of the month.”

Aligning Individual Goals with Organizational Objectives

Ensure that the goals support broader company objectives and contribute to overall business success.
Example: “Your goal to enhance client engagement aligns with our strategy to increase customer retention.”

Establishing Clear Action Plans and Timelines

Outline specific actions and timelines for achieving the goals.
Example: “Attend a sales training workshop next month and apply new techniques in client meetings starting immediately after.”

By providing constructive feedback and setting SMART goals, you create a structured and supportive environment for employee development. This approach not only clarifies expectations but also motivates employees to achieve their best, contributing to both their personal growth and the success of the organization.

Legal Considerations and Avoiding Discrimination Claims

Ensuring that your employee performance reviews are legally compliant is critical to protecting your organization from potential legal claims and fostering a fair workplace. Here are some detailed considerations and best practices to help you navigate the complexities of legal compliance in performance reviews:

Consistency and Fairness

Standardized Evaluation Criteria

Develop clear, objective criteria for evaluating performance.
These criteria should be uniformly applied to all employees in similar roles to avoid claims of bias or discrimination.

Regular and Documented Reviews

Conduct performance reviews on a regular schedule (e.g., annually, semi-annually, or quarterly) and document each review thoroughly. This documentation should include the date of the review, the participants, the topics discussed, and any agreed-upon goals or action plans.
Use a standardized performance review form to ensure that all reviews cover the same key areas and are documented in a consistent manner.

Avoiding Discrimination Claims

Objective and Evidence-Based Assessments

Base performance evaluations on factual, job-related criteria rather than subjective opinions. Utilize measurable data and specific examples to support your assessments.
Avoid making assumptions or comments that could be perceived as discriminatory.
Example: Instead of saying “You are not a team player,” provide specific instances where the employee did not collaborate effectively, such as missing team meetings or failing to communicate project updates.

Recognizing and Mitigating Unconscious Biases

Provide training to managers and supervisors on recognizing and mitigating unconscious biases.
Use diverse review panels to provide multiple perspectives and reduce the impact of individual biases. Where practical, try to include managers from different departments in performance review discussions.

Understanding Employment Laws

Stay informed about relevant federal, state, and local employment laws that impact performance reviews.
Be sure that reviewers are aware of laws prohibiting discrimination in employment on the basis of race, gender, disability, age, religion, and other protected characteristics.
Comply with Americans with Disabilities Act (ADA) requirements, which may necessitate reasonable accommodations for employees with disabilities during the performance review process.

Confidentiality and Record Keeping

Maintain the confidentiality of performance review discussions and documentation.
Ensure that records are securely stored and only accessible to authorized personnel.

Dispute Resolution Process

Establish a formal process for employees to dispute their performance reviews if they believe the evaluation is unfair or inaccurate.
Communicate the process clearly to all employees.

Legal Counsel Involvement

In cases where performance reviews lead to significant employment actions (e.g., termination, demotion), consider involving legal counsel to ensure that all actions are legally sound and well-documented.
Before terminating an employee based on poor performance, consult with legal counsel to review the documentation and ensure compliance with employment laws.

By incorporating these detailed legal compliance strategies into your performance review process, you can create a fair, transparent, and legally sound framework that benefits both your employees and your organization.

Continuous Improvement and Follow-Up

Performance reviews should not be viewed as a one-time event but as part of an ongoing process of continuous improvement and development. Regular follow-up and support are essential to ensure that the feedback and goals discussed during the review lead to meaningful progress. Here’s how to maintain momentum and foster continuous improvement:

Monitoring Progress

Regular Check-Ins and Ongoing Feedback

Scheduled Check-Ins: Schedule regular follow-up meetings to discuss progress on goals and provide ongoing feedback.
Informal Feedback: Encourage managers to provide informal feedback consistently, outside of scheduled meetings.

Adjusting Goals and Plans as Needed

Flexibility: Be prepared to adjust goals and action plans based on the employee’s progress and any changes in their role or the organization’s needs.
Continuous Alignment: Ensure that the employee’s goals remain aligned with organizational objectives and priorities.

Providing Resources and Support

Identifying and Addressing Training and Development Needs

Skills Assessment: Identify any skills gaps or areas where the employee needs additional training or development. Use assessments or feedback from the review to pinpoint specific skills to improve.
Training Programs: Provide access to relevant training programs, workshops, or courses that can help the employee develop these skills.

Offering Coaching and Mentoring Opportunities

Coaching: Pair employees with experienced coaches (e.g., more senior team member) who can provide personalized guidance and support.
Mentoring Programs: Establish formal mentoring programs to foster long-term development and career growth.

Documenting and Tracking

Keeping Detailed Records of Performance Discussions and Agreements

Documentation: Maintain comprehensive records of all performance review discussions, agreements, and follow-up meetings. Document the specific feedback provided, goals set, and any agreed-upon action plans.
Accessibility: Ensure that these records are accessible to both managers and employees for reference and review.

Using Performance Management Software to Track Progress and Updates

Software Tools: Implement performance management software to streamline the tracking of goals, feedback, and progress.
Data Analytics: Utilize analytics to identify trends, measure the effectiveness of development plans, and make data-driven decisions.

By focusing on continuous improvement and regular follow-up, you ensure that performance reviews lead to real development and growth. This ongoing process helps employees stay engaged and motivated, fosters a culture of continuous learning, and ultimately contributes to the success and resilience of the organization.

Summary

Conducting effective performance reviews is a multifaceted process that requires careful planning, clear communication, and a commitment to continuous improvement. By structuring and scheduling reviews thoughtfully, providing constructive feedback, adhering to legal requirements, and ensuring ongoing follow-up, employers can create a supportive environment that promotes both individual and organizational growth.

Implementing the best practices outlined in this guide can help transform performance reviews into meaningful, productive conversations that drive employee success. At the same time, you position your organization well to make beneficial personnel changes without undue legal risk. By fostering an open, fair, and transparent review process, you not only enhance employee satisfaction and retention but also build a stronger, more resilient organization.

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October 11, 2018

Mental Health Leave Under the ADA

Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to employees with mental disabilities to enable them to perform the essential functions of their jobs. Leaves of absence often qualify as a reasonable accommodation. This includes allowing employees to use either accrued paid leave or unpaid mental health leave to treat or manage their conditions.

Mental Health “Disabilities”

Federal law prohibits employment discrimination based on mental disability. The ADA broadly defines disability as a “physical or mental impairment that substantially limits one or more major life activities.” This definition also covers employees with a record of having a mental disability or a perception of having one.

Many state anti-discrimination statutes also prohibit discrimination based on mental health conditions. Definitions of “disability” may vary under state law, sometimes expanding on what conditions the ADA protects.

Mental health conditions that might qualify as disabilities under the ADA include depression, anxiety, and post-traumatic stress disorder (PTSD), among many others.

Click here to read more about “What Is a Disability Under the ADA?”

Employee Privacy

Under the ADA, employers cannot require applicants or employees to disclose a disability, with a few exceptions. Employees may need to disclose mental disabilities when they are requesting a reasonable accommodation. Then, employers can ask for medical records describing the disability and employee limitations. All information related to employee disabilities must be kept confidential.

Requesting Mental Health Leave

Employees can request an accommodation at any time during employment. The request can be in plain language and does not have to include the term “reasonable accommodation.” Requests need not be in writing. Employees typically provide notes from their doctors. Employers may also require employees to undergo evaluation from a health care provider of their choice as long as the employer covers the cost.

The U.S. Equal Employment Opportunity Commission (EEOC) oversees the enforcement of the ADA. In guidance documents, it gives an example of a situation where a secretarial employee requests time off “because of her medical condition.” This statement is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. But the employer can ask for medical documentation to learn the specifics of the employee’s condition and limitations.

Employers do not have to grant a leave of absence every time the employee requests one. But they must determine whether the employee has a disability, whether leave is a reasonable accommodation, and whether, even if reasonable, the leave would pose an undue hardship on the employer. All of these determinations depend on the circumstances.

Click here to read more about “Reasonable Accommodations of Disability in Employment.”

Return to Work

When returning from leave, employers can require employees to undergo a medical examination to determine fitness for duty. Employees often ask for extended leave or other accommodations upon return. Employers may honor these requests. But organizations are not required to provide accommodations that would create an undue hardship on the workplace. Nor must employers permit an employee to work if doing so would pose a direct threat to anyone’s health or safety.

The EEOC gives the example of an employee returning from a leave of absence after she underwent a hospital stay and adjusted her medication. The employer may request a fitness-for-duty evaluation to ensure the employee can still perform the essential functions of the position. But the medical examination must be limited to her mental condition.

What Do the Courts Say About Mental Health Leave?

Employers must evaluate every situation carefully to determine their obligations under the ADA.

Here are just some examples of what courts have said in specific cases:

In one case, a teacher with an anxiety disorder requested an extended leave of absence as an accommodation. The court upheld the employer’s refusal to grant the leave because there was no certainty that the teacher would be able to return to work at the end of the leave

In another case, a manufacturing employee returned from leave due to severe depression. Upon return, he requested the accommodation of having no contact with co-workers or supervisors. The court upheld the employer’s determination that this accommodation was unreasonable.

These are just two among numerous cases that have resulted in litigation. Obviously, employers would prefer to avoid litigation under the ADA, whether related to mental health leave or other employee disability issues.

No Retaliation

Employers (through supervisors and co-workers) may not retaliate against employees for requesting or taking mental health leave. This includes both taking tangible job actions (e.g., firing) or making the employee’s workday miserable (e.g., harassment).

Employer Takeaways

According to the National Institute of Mental Health, about 18.5% of the United States population report having a mental health condition during the past year. Thus, mental disabilities are among the most prevalent types of disability that the ADA covers.

Managers and supervisors must accept that mental health conditions qualify for the same general protections as physical impairments. As with many disability accommodation issues, mental health leave is often not a straightforward subject. Accordingly, employers should consult with an experienced employment attorney when these issues arise.

July 5, 2018

Employee Drug Addiction and Alcoholism in New York

There are rising costs associated with employee substance abuse across all organizations. It can lead to serious safety issues, disruption of operations, more leave time, and lower productivity. It can also lead to greater use of healthcare and management resources. Nonetheless, employers cannot take adverse employment action against employees based on drug addiction or alcoholism. But employers can discipline these employees for misconduct involving alcohol or drug use.

Americans with Disabilities Act

Alcoholism can be a disability under the Americans with Disabilities Act (ADA). Under the ADA, the burden is on the employee to prove they have a current or past addiction to alcohol and their addiction “substantially limits one or more major life activities.”

Drug addiction can also qualify as a disability. To receive ADA protection, an employee must prove they previously had a drug addiction and they are currently in treatment, have completed treatment, or have recovered without treatment. The employee must also demonstrate their addiction limits a major life activity or they are regarded as a drug addict. The ADA also protects employees who are incorrectly assumed to be drug addicts from discrimination upon that assumption.

Major life activities include working and caring for oneself. If the ADA applies to an employee, their employer must provide, upon the employee’s request, a reasonable accommodation to help the employee perform their work. Allowing an employee to take leave to attend a rehabilitation program may be a reasonable accommodation. However, drinking on the job is not. And these addictions do not excuse an inability to perform the essential functions of the job. Both alcoholics and employees with drug addictions must be able to perform the essential functions of their position with or without a reasonable accommodation.

New York State Human Rights Law

Drug addiction and alcoholism are also disabilities under the NYS Human Rights Law. The law is similar to the ADA in that recovering and recovered alcoholics and drug users receive protection. However, the Human Rights Law does not require that drug addiction or alcoholism “substantially limits a major life activity.” Like the ADA, employees qualifying as disabled under the Human Rights Law based on drug addiction or alcoholism may seek reasonable accommodations from their employers.

When an Employer Can Discipline

Under New York law, employers cannot discipline for employees’ legal use of consumable products (such as tobacco or alcohol) outside of work hours when the employee is not in the workplace and not using the employer’s equipment. Yet, employers can discipline employees when they arrive at work under the influence or use drugs or alcohol while working.

The ADA distinguishes between addictions and the conduct resulting from these addictions. Although an employer cannot discipline an employee for the status of being an addict, an employer can discipline for behavior arising from addiction. If an employer disciplines an employee for a result of their addiction, such as arriving late to work, the employer must discipline the employee at the same level as they would discipline other employees for the same offense.

Both the Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights allow that employers may discipline employees for current illegal drug use, even while off duty. Although the term “current user” is not well defined, the EEOC defines it to mean that the employee used illegal drugs “recently enough” for an employer to reasonably believe that the drug use is an ongoing issue. Employers may drug test employees to determine recent use.

Although not required, the EEOC encourages employers to enter into “last chance” agreements with an employee whose addiction has deteriorated their job performance. Under these agreements, the employer might allow the employee to take leave for a rehabilitation program upon condition that the employee has an acceptable performance level and attendance rate upon their return. If the employee fails to meet their end of the agreement or refuses to sign the contract, the employer may terminate their employment.

Addressing Employee Drug Addiction and Alcoholism

As a general rule, employers should not ask employees about their past drug or alcohol use. Exceptions may apply if drug addiction or alcoholism create problems at work. However, employers must remember that drug addiction and alcoholism themselves are disabilities and may afford the employees some protections.

Current use of illegal drugs typically constitutes a valid basis for discipline. However, alcohol consumption, especially outside of work, is harder to regulate. But when alcoholism affects an employee’s attendance, productivity, or behavior at work, employers may take appropriate action.