In my last post, I discussed three circumstances when an employer can avoid Family and Medical Leave Act (FMLA) violations by ignoring its instincts and asking personal questions of employees. Today, I will discuss three exceptions to perhaps the most sacred of all human resources rules: Treat all employees the same.

 1.      The Americans with Disabilities Act may require preferential treatment

The Americans with Disabilities Act (ADA) is frequently thought of as an anti-discrimination law, but it has an “affirmative action” component as well. Specifically, the ADA requires covered employers to offer reasonable accommodation to qualified individuals with disabilities to enable them to perform essential job functions, unless doing so would create an undue hardship. This requirement may require companies to “bend their rules” from time to time to satisfy their reasonable accommodation obligation.

Consider a company that requires employees to work from its office. The company has consistently rejected requests from employees to telecommute over the years, citing the need for regular personal contact with those employees and the difficulties in supervising an employee who is not physically present at the office. Now assume an applicant with a disability, who has satisfied all of the pre-hiring criteria, makes a request to work from home.

The fact that the company has rejected all other requests to work from home does not mean the company can automatically reject this applicant’s request. Instead, the company must consider this request on its own merits, including factors such as whether the applicant does require an accommodation to perform the essential functions of the job, whether working from home will allow this applicant to perform the essential functions of the job and whether another accommodation is available that will achieve the same ends.

 2.      Grooming policies can be problematic

Now consider a company whose president has just finished a George Steinbrenner biography and has decided to implement a “no facial hair” policy, inspired by the New York Yankees. Lots of employees gripe, but eventually everyone complies. Everyone, that is, except for one employee who tells you his religion requires him to wear a beard and an African-American employee who tells you he cannot shave for health reasons.

Like the ADA, Title VII of the Civil Rights Act of 1964 (Title VII) requires employers to provide “religious accommodation” to employees, which may prevent employers from enforcing certain policies against employees whose religion forbids them from complying with those policies. And, the Equal Employment Opportunity Commission specifically has stated that a “no beards” policy may violate Title VII if its effect is to adversely impact the employment opportunities of African-American men, who are more prone to a skin condition that causes severe razor bumps.

 3.      The escalator reinstatement principle of military leave

By now, most employers are familiar with the FMLA’s requirement that employees returning from an FMLA leave generally must be reinstated to their same position or an “equivalent” position. However, many employers mistakenly believe this same requirement applies to employees returning from a military leave.

In fact, reinstatement rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are more favorable than reinstatement rights under the FMLA. Under the USERRA, an employee returning from military leave generally is entitled to be restored to one of the following positions, in the following order of priority:

  • The job the employee would have held had he/she remained continuously employed
  • The employee’s position at the time military leave began or—if the employee cannot become qualified for one of the first two positions—any other position that is the nearest approximation to one of those two positions, and for which the employee is qualified

To take an extreme example, if all employees in a particular position (e.g., accountant I) are automatically promoted after one year to another position (e.g., accountant II) unless those employees have been placed on probation, an employee in that position is entitled to be reinstated to the higher position if he/she is on military leave at the employee’s one-year anniversary, even if the employer does not allow employees on leaves of absence for other reasons to be promoted immediately upon their return.