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Unsure about your accommodations obligations? Find out fast–or risk personal liability

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

It can be tough working as an HR professional. The laws seem to evolve constantly, which makes it hard to know just what to do when facing a workplace crisis. But you must make a real effort to stay on top of the latest developments.

The consequences of ignorance, especially in a state like Pennsylvania, can be quite serious.

Consider, for example, the Pennsylvania Human Rights Act (PHRA), which is the commonwealth’s companion to federal employment laws such as the ADA and Title VII. The PHRA goes beyond most federal laws because it authorizes personal liability for those who “aid and abet” an act of discrimination. And as one recent case shows, aiding and abetting can include making a serious mistake about a reasonable accommodation request.

Recent case: Larry Bernhard worked as a salesman for Brown & Brown of Lehigh Valley, an insurance agency.

He was diagnosed with a life-threatening case of neck and throat cancer. He had to have surgery, followed by an extended period of radiation treatments. Bernhard returned to work shortly after surgery, but then took 12 weeks of FMLA leave for the radiation treatments.

When his FMLA leave was about to expire, he asked for an additional leave of about three months so he could finish the radiation treatments and return to work.

Brown & Brown denied his request. Then the HR manager recommended that the agency treat everyone returning from FMLA leave the same—by uniformly denying additional leave.

Essentially, she said that once an employee had used up 12 weeks of FMLA leave, that was it. Following that advice, Brown & Brown fired Bernhard. He sued, alleging failure to accommodate under both the ADA and the PHRA.

In addition, he sued the HR manager personally, on the theory that she had aided and abetted her employer in committing disability discrimination.

The court said Bernhard had a case. It reasoned that the ADA and the PHRA both contemplate additional leave as a reasonable accommodation and require employers to at least discuss the possibility. In this case, the court noted that no such discussions took place.

It also suggested that many untried accommodations might have worked in Bernhard’s case, including allowing him to work part time from home and having his many co-workers help out with his workload. But because no one even considered such possibilities, the court concluded the employer had acted callously and in almost willful ignorance of its obligations under state and federal laws.

That was enough to warrant personal liability for the HR manager, who should have known that Brown & Brown at least had to consider additional leave as a reasonable accommodation. (Bernhard v. Brown & Brown of Lehigh, No. 08-4335, ED PA, 2010)

Final note: Why is personal liability such a big deal? Because the employee can go after your personal assets if he wins the case. Plus, he doesn’t have to pursue the employer’s contribution first.

Advice: Check with your insurance carrier to see if you can cover this potential liability. If not, check with upper management to see if they’ll cover any judgment against you.

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