We know managers have a tough job balancing the demands of practice owners with the individual needs of their team members, let alone doing it all in a way that keeps the practice out of legal danger. Just the other week, we had a call with an office manager stuck between a rock (her doctor/boss) and a hard place (a pregnant employee). The employee was requesting changes to her work responsibilities to accommodate her pregnancy—but in the process, she was making some not-so-reasonable demands in a not-so-reasonable way.
Pregnancy accommodation rights in the workplace are covered by the Pregnancy Discrimination Act (PDA), the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act Amendments Act (ADAAA), as well as various state laws. These laws were recently expanded to cover more temporary and less severe conditions, including morning sickness and other minor conditions common in healthy pregnancies. That means that employers are required to engage with employees and make reasonable accommodations to help them perform their job duties, so long as doing so does not impose an undue hardship on the employer. Adjustments might include more frequent breaks, light duty, flexible work schedules, adjusted seating, different parking, or otherwise. The actual accommodation depends on your workplace and what’s reasonable. The interactive process is its own balancing act, which must be handled carefully and with HR support.
In a dental office, requests not to be around chemicals or x-rays are common and usually fairly easy to accommodate. However, occasionally some demands for accommodations may seem as if they go too far, take advantage, or have an unfairly detrimental impact on the rest of the team. In this particular case, the manager knew it was necessary to engage with the employee and to make a reasonable accommodation, but the extent of the changes this particular employee was requesting, which essentially would have required the practice to create an entirely new position and schedule just for her, seemed more about a power play than a question of what was reasonably necessary. To compound the issue, the employee, whose work performance had not been stellar, had been so aggressive in her demands that she had set the owner’s teeth on edge. Now the dentist was completely disinclined to make any accommodation, and he and the employee were spoiling for a fight.
After listening to the manager explain her conundrum, our advisor’s role was to break down the issue and develop a practical strategy to re-establish the peace. We explained not only what the law required in that state, but what the risks were in taking any adverse action against the employee—especially the doctor’s problematic plan to “ just put her on leave” or transfer her to a lower-paid position, even temporarily.
What really proved important in this case, however, was balancing the emotional power struggle playing out between the employee and the doctor. The guidance we gave first involved having a constructive yet empathetic conversation with the employee, which validated her requests and her right to make them, but from the standpoint of how to keep her contributing productively to the team without sacrificing the needs of the practice. The manager offered a few reasonable adjustments to her duties and enlisted the employee’s help in finding an effective compromise. This worked beautifully, with the employee going from acting aggressive and entitled to being enrolled and feeling heard.
That still left getting the owner’s buy-in. He was seeing this as a win-lose situation, and he was not about to give in. While empathy and cooperation were the best strategies to use with the employee, the manager needed to change tactics to get the owner to understand and agree not to act punitively, and ultimately, to do what was needed to protect the practice from a discrimination claim.
We suggested a new tactical approach, letting the dentist see how the strategic conversation with the employee had already worked to get her to back off her original demands. The manager explained to her boss that while it did seem like the employee initially was trying to take unfair advantage, if they refused her demands outright, they would win the battle but lose the war. Armed with information about what was required legally to avoid a claim, the manager was able to demonstrate her plan for how they could regain a position of power:
1. Acknowledge the employee’s right to make the request, within the framework of balancing interests;
2. Engage the employee to explore reasonable adjustments to her work duties;
3. Provide limited but reasonable accommodations that meet her physical restrictions; and
4. Document the practice’s efforts to comply with the law and meet the employee’s needs.
From both a management and a compliance standpoint, this was a big win. If, later, the employee stops cooperating, or starts asking for additional unreasonable changes, the practice is in a much better position to reject her requests and fend off any legal claim, having established that they already made reasonable accommodations. The owner, learning that he was back in control of the situation, got on board and committed to making the solution work.
On the HR support side, our last step was to provide the manager with a letter documenting the whole process, so the practice was better prepared to deal with anything else that might come up. While we often provide guidance on what the best HR practices and the compliance risks are, sometimes the manager already knows what to do, and they just need a little help implementing the best solution effectively and practically within a particular situation. In this case, kudos go out to the manager who kept her cool during a tough balancing act.
Ali Edwards is Chief Counsel and a co-owner at CEDR HR Solutions (www.cedrsolutions.com). A former litigator, Ali has been a practicing attorney for over 17 years in Arizona, specializing in employment law, management strategy, and litigation avoidance. Her passion is empowering doctors and managers to successfully navigate employee challenges. CEDR provides customized employment handbooks and critical employer guidance and support to thousands of dental and medical offices nationwide. She can be reached at [email protected].