"The Best Available …"

Recently, the 9th U.S. Circuit Court of Appeals decided the case of Echazabal vs. Chevron USA Inc. It concluded that the Americans with Disabilities Act (ADA) required more than just the "… advice of a generalist ..." Rather, the employer should seek out the "best available" medicine in determining whether an employee could perform essential work in a manner safe for the employee and others.

There are very important implications in this case that go beyond the particulars of disability-related issues. The case suggests that employers will be expected to make significant human resources decisions – such as responding to a critical workplace incident like violence, sexual harassment or termination – only after obtaining the best advice possible, perhaps from experts who may be experienced or knowledgeable in ways beyond the level of staff competence in the particular organization.

In the specific case that the 9th U.S. Circuit Court of Appeals reviewed, the idea was that threat assessment experts and medical specialists may be the best people to help an employer make an important ADA judgment, rather than the generalist company doctor who may have been used.

It is always helpful to have confident, experienced outside practitioners bring their expertise to bear when an agency faces serious decisions. Not only may they suggest the most likely best outcomes, but they can also help a manager successfully navigate through procedural land mines. Just having a specialist suggest alternatives and approaches, which may not have been thought of before, makes the ultimate decision more confident and defensible.

If we take the impact of this case beyond the borders of the ADA, it can be used as a foundation for thinking about how to make any major decision with potentially high liability. Seek advice and develop a network of personal contacts who can help you quickly identify readily available expertise.

The HR Doctor is often called by organizations to review scenarios involving HR troubles such as threatening or poor behavior or performance by employees, how to create strategic models, business plans or other complex HR matters. The managers calling know there is a problem and are frustrated because the solutions may not be as evident as the symptoms of the problem. These callers should be commended because they see something they think is wrong and they don’t walk by the problem. Taking action to interrupt the problem and deal with it is a very critical characteristic for a manager’s success.

The appellate court case suggests that following up by getting experienced practitioner help when you need it is an important part of a legal defense and a practical solution. Granted, this is the 9th U. S. Circuit Court of Appeals, which includes California. The 9th Circuit Court is generally regarded as the court you would least like to have invited to a meeting of the Conservative Coalition. Even so, it seems to the HR Doctor that the message from this case is reasonable and valuable for every manager to consider.

The lesson is that we have a special diligence obligation as managers to make reasoned and well thought-out judgments, especially about HR issues that are serious and compelling.

A very effective way to use special diligence is to invite other people to offer opinions and provide help. The court decision may be regarded as a consultant’s full employment decision, but the reality is that it doesn’t hurt to be particularly concerned and diligent when the stakes are high.

As individuals, when we feel ill and the pain just does not go away, we see a physician. The physician, in turn, may well refer us to a specialist. We are all familiar with this practice of "defensive medicine." It is based not on the physician’s concern for the patient, but on the doctor’s concern about the plaintiff’s attorney out in the waiting room as the patient/client comes out of the examining room. Nonetheless, getting an extra opinion from a skilled and experienced practitioner makes us feel better about a pain in our back or an HR pain in the neck.

The HR Doctor wishes you the best available career!

Phil Rosenberg
The HR Doctor
http://www.hrdr.net/