Leaving Defenses On The Table In Drafting Employee Handbooks And Posting Notices
While off-the-shelf employee handbooks can be cost-efficient in the short-term, sometimes they leave important employer defenses on the table. This is particularly true for state-specific defenses. For example, while most Michigan employers know it is best to include a reporting procedure for harassment in their employee handbook, many do not know that Michigan’s Persons with Disabilities Civil Rights Act can provide a statutory defense to failure to accommodate claims, if key language is included in the handbook or a posted workplace notice.
Under Section 210(18) of Michigan’s Persons with Disabilities Civil Rights Act, an employee or applicant with a disability may allege a failure to accommodate claim only if the individual notifies the employer in writing of the need for accommodation within 182 days after the date the individual knew or reasonably should have known that an accommodation was needed. However, for this restriction on Michigan failure to accommodate claims to apply, the employer must post notices or use “other appropriate means” to provide all employees and job applicants with notice of the time limit and the requirement of a writing (See MCL 37.1210(19)).
Including required language in an employer handbook or policy can go a long way to safeguarding this defense. Additionally, the Michigan Department of Civil Rights (MDCR) has also decided to assist employers this year in that the most recent version of Michigan’s Discrimination Law poster includes a note to employees and applicants with disabilities regarding the 182-day time limit and required writing. This version of Michigan’s poster is not required because a business does not have to include the information in its anti-discrimination posting. However, as the MDCR’s website states, “[w]hether the notice is included in this poster or not, a business that fails to provide adequate notice to its employees may waive the ability to use the time limit as a defense.”
This example emphasizes why it is important for employers to have an attorney review employee handbooks, and keep up to date with posters that are either required or recommended under state and federal law. For multi-state employers, it is particularly important to review handbooks and policies for compliance with the laws of every state in which they have employees. As an aside, however, note that for compliance with the Americans with Disabilities Act and employee relations, an employer should still engage in the interactive process with any employee who needs an accommodation, even if the employee did not comply with the required procedure. The example above only creates a defense under Michigan law, as this blog post suggests.