"The Best Available
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
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.
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
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.
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.
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.
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 dont walk by the
problem. Taking action to interrupt the problem and deal with
it is a very critical characteristic for a managers
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.
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
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 consultants full employment decision,
but the reality is that it doesnt hurt to be particularly
concerned and diligent when the stakes are high.
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
physicians concern for the patient, but on the doctors
concern about the plaintiffs 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.
Doctor wishes you the best available career!
The HR Doctor