When an employee needs to take time off or request an accommodation, be it for medical, religious or other reasons, her supervisor is a likely point of contact about the request.
And yet, in numerous lawsuits, the actions of supervisors can and have led to compliance issues for employers. Whether the cause is a lack of training, general unfamiliarity with employment laws or simple refusal to take a request seriously, employers can take action to mitigate legal risk.
Compliance experts who spoke with HR Dive offered three specific tips to help employers train their managers and supervisors to field employee requests.
#1: Be wary of a long leash
A common thread runs through each of these tips: when presented with an employee request, particularly anything that could invoke the protections of the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA), supervisors should notify HR, Karen Elliott, member at Eckert Seamans, told HR Dive in an interview.
This advice is not always heeded. A supervisor may decide, for example, to grant time off to an employee who asks for it without notifying HR. Giving that latitude may seem okay at first, Elliott said, but she's observed many instances in which supervisors sour on past agreements.
In other cases, an accommodation granted to an employee under a previous supervisor may be rescinded or otherwise disrupted by a new supervisor, as was the case in a 2019 jury decision against Walmart. This can be especially problematic in situations in which the supervisor has not informed HR of the accommodation beforehand, Clare Gallagher, also a member at Eckert Seamans, told HR Dive in an interview. HR may even find that such an accommodation erodes the essential functions of an employee's job.
"People are just trying to be nice, and without looking at the whole job description, an employer can get pretty far down the road of having given something, and it gets to be difficult to pull that back," Gallagher said.
It may seem obvious, but training on handling ADA, FMLA and other requests should make it clear to supervisors that they shouldn't be the ones making the final call on granting an accommodation. "You have to train your supervisors that it is not their job to make that decision," Elliott said. "Supervisors really should say, 'let me just double check with HR.'"
#2: Take accommodation requests seriously
The demeanor and attitude of a supervisor can also cause trouble for the employer, sources said. Elliott told HR Dive that she's seen many cases in which a supervisor simply does not hear what an employee presenting a possible accommodation request is saying. At times the supervisor does not make a record of the conversation and simply dismisses it.
But employment laws like the ADA require the exact opposite approach to get right. "I can't roll my eyes or talk about absences," Elliott said.
Supervisors need to be conscious that they are acting on behalf of their employer in such situations, Nancy Gunzenhauser Popper, associate at Epstein Becker Green, told HR Dive in an email. "It is always important for supervisors to remember that they are a representative of the employer, so when speaking to employees, they are speaking on behalf of the employer," she said. "In this regard, supervisors should be trained to make time when employees have requests or want to raise concerns."
This issue in particular can be a problem for smaller employers, or those with operations in remote locations, Gallagher said. She recommended that employers focus their training efforts for first-time supervisors on the basics of key employment laws. "It starts with that base," she said, adding that many clients also add a form of mentor for first-time supervisors.
Straightforward guidance on making a record of conversations with employees and taking those conversations seriously is also important. "They need to accept whatever the employee has said," Elliott said, "not make comments that are disparaging."
Supervisors may also be concerned about appearing as though they are giving preferential treatment to certain employees when they do grant accommodations, but training can address this, too.
"In response to questions about another employee's workplace accommodations, supervisors should be trained to acknowledge the employee's concern, while at the same time keep employee information confidential," Gunzenhauser Popper said. "Sometimes it is helpful for supervisors to remind the complaining employee that if he or she needed assistance at work, that that information would also remain confidential."
#3: When in doubt, talk to HR
A common thread throughout the above points is perhaps the most important takeaway for those in charge of training supervisors: HR needs to be made aware of the situation.
"Supervisors should also be trained to know that they are not solely responsible for handling all employee concerns," Gunzenhauser Popper said. "Rather, sometimes it is best to include Human Resources. In fact, many issues should be handled solely by Human Resources. Supervisors should be trained to understand which situations may be better handled by a neutral HR team, so that requests can be addressed consistently."
An example of compliance processes that should be handled primarily by HR is the ADA's interactive process, Elliott said. "Any request should be automatically sent to HR," she added.
