Up North--April-May 2009

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April-May 2009

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

When is an employee entitled to a QRC and vocational rehabilitation services?
Time to start thinking about Drug-Free Work Week, Oct 19-25, 2009
Employer policies affecting workers with caregiving responsibilities

When is an employee entitled to a QRC and vocational rehabilitation services?

A Qualified Rehabilitation Consultant (QRC) is an individual approved by the Minnesota Department of Labor and Industry to provide vocational rehabilitation services to an injured employee. A rehabilitation consultation is the evaluation by the QRC used to determine whether an injured employee is qualified for rehabilitation services. The employer may select the QRC to perform the rehabilitation consult; however, the employee has the right to select or change QRCs once before the rehabilitation consultation or within the first 60 days following the filing of the rehabilitation plan.

The standard for determining whether an employee is qualified to receive rehabilitation services is liberal. Minnesota Statutes defines the scope of rehabilitation as:

Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee's former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.

Minn. Stat. sec. 176.102(1)(b).

If the employee is unable to return to his or her pre-injury job, the employer is unable to offer suitable work, and/or the employee would otherwise benefit from rehabilitation services, the employee typically is qualified to receive rehabilitation services. Rehabilitation services may include medical management, facilitation of return-to-work with the date-of-injury employer, job placement with a different employer, or retraining.

Time to start thinking about Drug-Free Work Week, Oct 19-25, 2009

The United States Department of Labor (U.S. DOL) has numerous resources to help employers create drug-free workplace programs, with the assistance of the Working Partners initiative. The week of Oct 19 -25, 2009 is the U.S. DOL's Drug-Free Work Week, which encourages employers to organize activities highlighting the benefits of a drug-free workplace.

Research has shown drug-free workplaces to prevent accidents and make workplaces safer, and improve productivity and reduce costs. By enhancing awareness of the problems of drug and alcohol abuse in the workplace, the programs also encourage people with alcohol and drug problems to seek help. The website features resources to help create a drug-free workplace by implementing a drug-free workplace policy, but also by supporting that policy with proper education, training and ongoing support.

SFM's policyholder resources also provide assistance for employers seeking to implement or update their drug-free workplace policies. An SFM CompTalk handout for Minnesota employers discusses alcohol and drug policies. As the handout discusses, there are potential benefits, but also some challenges for employers with formal substance abuse programs.

Potential benefits of a substance abuse program include:

Safer workplace and fewer accidents
Less chance that an abuser will apply for a job or be hired
Ability to respond quickly when problems with substances arise
Fewer disciplinary actions
Reduced losses due to absenteeism, theft and fraud
Improved employee morale and productivity
Lower costs due to fewer losses and errors
Greater employee awareness about alcohol and other drug abuse
Earlier identification and resolution of performance problems

The challenges of implementing a program include:

Decreased employee retention if substance abusers work for your organization
Legal risks associated with personnel actions and drug testing, if you use it
Costs for lab drug-testing, if you use it
Time and money required to develop a program, train supervisors and educate employees

Drug testing may be one of the strategies an employer uses to implement a drug-free workplace program, but it requires its own set of policies and procedures, as required by Minnesota statutes.

It is important for an employer to evaluate the scope and extent of drug-free workplace programs and policies, to determine what type of program is appropriate for the employer. Having some level of drug-free workplace programming is an important component to an employer's safety program.

Employer policies affecting workers with caregiving responsibilities

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued "best practices" guidelines regarding employers' treatment of employees with caregiving responsibilities. Employees are increasingly faced with caregiving responsibilities not only for immediate family, such as children or spouses, but also aging parents or other relatives with disabilities.

While the "best practices" document goes beyond unlawful activity, in a companion document, "Enforcement Guidance: Unlawful Disparate Treatment of Employees with Caretaking Responsibilities," the EEOC reminds employers that some discrimination against caregivers may constitute unlawful disparate treatment. Because caregivers often are disproportionately women, and may further disproportionately affect women of color, an employer's policies that adversely impact caregivers may have a disparate impact on these protected classes of employees.

The Enforcement Guidance provides several summary case studies to help illustrate different policies that may result in disparate impact concerns. One of the case illustrations reminds employers that treating either sex unfavorably in a disparate way is unlawful treatment. Therefore, if an employer denies a male employee's request for part-time scheduling due to caretaking responsibilities, but grants a female employee's request for the same, based on stereotypes of the female as caregiver, the employer may face an unlawful discrimination claim.

The EEOC's Guidance also provides examples of unlawful "benevolent stereotyping"--adverse employment actions that are done with good intentions, but may be unlawful sex or gender stereotyping. For example, an employer passes over a working mother for a promotion because it would require relocating, and the employer assumes that the employee would not want to relocate her young family. The employer may have the employee's best interests at heart, but such stereotyping and assumptions based on stereotyped gender or family roles would be considered unlawful discrimination.

Consistency in policy and enforcement is one of the best ways for an employer to protect itself against discrimination claims. However, an employer also should periodically review the profile of employees affected adversely by disciplinary policies, promotion policies, attendance policies, and other policies affecting the terms and conditions of an employee's employment. If a certain category of employee seems to be disproportionately affected by any one policy, an employer may want to further evaluate the situation to proactively address any potential disparate impact concerns.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.