HR News & Updates

Do Not Use a Progressive Discipline Policy, by Cliff Malone

Featured by hrconsulting14

Such a policy, might be expressed in an employee handbook, specifying certain stages of discipline, up to and including termination. For example, it may begin by an informal interview, followed by a verbal warning, followed by a written warning, followed by a final warning, and then culminating in the actual termination. This protracted procedure operates as a straitjacket–it prevents the expeditious termination of an employee, especially as to serious violations.

For example, assume one of your employees seriously violates company policy and you have a strong desire to terminate right away. You may now have to wait for months, until you go through all the stages. And if the employee complies after the initial warning, you may not be able to terminate him or her at all. This is because you cannot “skip ahead” through the stages of discipline and go right into termination.

Since this is a condition of employment, the courts will hold you to those procedures and if not followed, there will be wrongful termination. There may even be an argument by the employee’s attorney that such a procedure requires implied just cause.

On the other hand, without these procedures, you have complete flexibility. You can act informally on a case-by-case basis. You may decide to give a warning before termination–but this is totally in your discretion and you are not hampered by strict procedural steps.

Note in some cases, including union contracts and public employees, there may be a requirement of such progressive discipline.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

Arbitration of labor code violations– is a waiver valid?

Featured by hrconsulting14

In 2018, the US Supreme Court issued its case in Epic. It involved 3 Consolidated federal circuit court cases on the question whether arbitration agreements signed by employees allowed waiver of class action lawsuits. Epic decided that employers nationwide, can now prevent its employees in employment disputes from litigating class-action lawsuits if there is an arbitration agreement prohibiting same.

That was a decided victory for employers. But what about individual employee claims? For example, wage and hour, discrimination, sexual harassment, retaliation, over time, missed meal and rest breaks, FEHA claims, or in the California context, the provisions of the labor code? In essence, can all employee disputes now be forced into arbitration? In other words, does this now allowing employer to make a motion to compel all state claims? If that is the case, it would have an almost monumental effect: essentially barring employees from ever going to court to litigate all their claims—instead, only through such tribunals as the American arbitration Association and JAMS.

To answer this question, a more detailed analysis of Epic is in order. It began with the acknowledgment of the “liberal federal policy favoring arbitration agreements . . . the plain meaning of the statute and the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, the speedy and not subject to delay and obstruction in the courts”.

In light of this unwavering public policy in favor of arbitration, the court then queried whether there were any exceptions after parties voluntarily entered into an arbitration agreement. It cited to what is called the “saving clause” which “allows courts to refuse to enforce arbitration agreements upon such grounds as exist at law or in equity for the revocation of any contract” (section 2 of the FAA). In turn, the court held that clause “permits agreements to arbitrate to be invalidated by generally act applicable contract offenses, such as fraud, duress, or unconscionability” citing Conception.

In most cases, it would be hard to prove fraud or coercion. But an unconscionable contract would be a different matter. California courts are very liberal in this regard and lean toward this if they find a contract is one of adhesion. Namely, forcing an employee, as a condition for employment, to sign the arbitration provision or else. So it can be expected the California courts, even in light of epic, will still invalidate these provisions.

In Epic, as to its specific facts, found that the contract was not unconscionable. But it did so without much analysis. It might be possible for it to change its mind if other facts are presented in a later matter. But based upon the other language of epic, this will probably not be the case.

This is because epic found in the battle between voiding a contract for unconscionability and the public policy in favor of arbitration, the latter will win out: “This fundamental change to the traditional arbitration process, the court said, would sacrifice the principal advantage of arbitration– it’s informality– and make the process slower, more costly, and more likely to generate procedural morass than final judgment.”

Going even further, the court emphasized being wary for state courts invalidating arbitration on general public policy grounds: “Just as judicial antagonism toward arbitration before the arbitration Act’s enactment manifested itself variety of devices and formulas declaring arbitration against public policy, Conception teaches that we must be alert to new devices and formulas that would achieve much the same result today.” Ergo, California’s decided, almost uncontrolled bias to protect employee rights and place them in a jury trial.

If the court continues to emphasize this public policy, then it will strike down California’s future attempts to invalidate based upon unconscionability.

In fact, a head-on collision between California’s liberality and Epic will shortly be the case. This is based on the recent California Supreme Court case of Lawson v. ZB N.A., 18 Cal.App.5th 705 (2017) which held an employee does have the right to ignore an arbitration provision and go directly into court to enforce lost wages and civil penalties under the labor code.

In the meantime, arguments can be made by both sides and we will have to await not only the California Supreme Court decision, but a follow-up US Supreme Court decision.

HR Consulting Network can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

Employer‘s Quick Guide to COVID-19

Featured by hrconsulting14

This is a short guide of the steps to be taken by an employer as a result of the Coronavirus. In the categories below, it depends upon the extent to which an employee has contracted the virus or been exposed to it.

GENERALIZED FEAR ONLY

Has no Symptoms and no Prolonged Exposure to Someone with COVID-19, But Still Has a Generalized Fear of Going to Work:

In the absence of a State closure of the business and/or stay-at-home order, and assuming it is not necessary to stay home to take care of a child whose school is closed, the person must return to work. If not, it is job abandonment. Of course, this assumes the company has maintained a clean and safe working environment.

STATE SHUTDOWN

The State Has Ordered Businesses to Shut Down or Issued Stay-At-Home Orders:

Whether or not an employee has symptoms or has tested negative, and whether or not an employee wishes to work, there must be compliance with these orders.

However, in the author’s opinion, the company may maintain a skeleton crew as necessary to preserve the very essence of the business and if it would be an undue hardship otherwise.

STAY OPEN BUT WITH CONDITIONS

Needless to say, a company is to observe all mandatory conditions imposed at the state and federal level. Remember OSHA’s “General Duty Clause” which requires the maintenance of safe working conditions. If there is noncompliance with even one of these mandatory rules, it will be Exhibit 1 in a lawsuit.

TESTED NEGATIVE AND HAS NEVER BEEN TESTED POSITIVE

Many persons are simply curious and have gone out and received a test of COVID-19. It came back negative. Assuming they have not had symptoms or prolonged exposure to persons with the virus, nothing prevents them from continuing to work.

Although there is no definitive guidelines from the CDC, it is recommended they receive a one-half day off for the testing and be paid.

NOT BEEN TESTED

Has Symptoms (10-day Rule):

Send home immediately. Then 2 options:

  • Return to work after: a) at least 24 hours have passed since last fever without the use of fever reducing medication, b) improvement of symptoms and c) at least 10 days since symptoms first appeared with COVID-19.

                                                     OR

  • Get tested. This is optional but not required. Thus, the CDC makes it voluntary with the following language: “Depending on your healthcare provider’s advice and availability of testing, you might get tested . . . if you will be tested . . . 

This means the employee may either wait-it-out for the symptoms to subside or decide to be tested. If there is testing, the employee must have no fever or respiratory symptoms and receive two negative tests results in a row, at least 24 hours apart.

For example, an employee might be free of symptoms of COVID-19 within a few days and not want to wait the 10 full days. That person can then take the two tests that are negative and return to work earlier. But remember, if the first test is positive, you have to start all over.

Been Exposed (14-day Rule):

Close contact is defined as being within 6 feet of an infected person for approximately 15 minutes. “Infected person” is defined as one with symptoms in the last 14 days or who has tested positive. In other words, prolonged exposure. Brief interactions do not count.

Examples of COVID-19 exposure: 1) Sneezed or coughed-upon even for a few seconds, 2) Face-to-face encounters where an infected person is talking directly to you for a substantial period of time, 3) Close quarters in confined spaces or 4) Living with a roommate or spouse who has symptoms or has tested positive.

If there is prolonged exposure, the person should be sent home for 14 days after last exposure. While at home, maintain social distancing and self-monitor for symptoms and check one’s temperature twice a day.

The CDC requires notification to other employees who may have been exposed. Maintain the confidentiality of the infected person.

For employees who have not had prolonged exposure (simply being in the general area or brief interactions), they should self-monitor for symptoms and if they develop, notify their supervisor and stay home.

Confused? Why does the CDC recommend 14 days in one instance and only 10 days in the other? This is because a person who has merely been exposed may take a longer to become infected (hence the need for 14 days). As stated by the CDC: “The CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.”

TESTED POSITIVE

Did not Have Symptoms for COVID-19:

This is a relatively rare situation. Applies to employees that had very minor symptoms, if any or were asymptomatic. Typically applies to younger and more healthy individuals who were readily able to fight-off the infection.

Option 1: If the employee continues to be symptom free, they can return to work if there has been at least 10 days after taking the initial test. In this circumstance, they are not required to retest.

                                                           OR

Option 2: Although not required, if the employee does not want to wait 10 days, he or she can retest. They can return to work after receiving two negative tests in a row, at least 24 hours apart.

Has Had Symptoms:

Applies to most employees—namely who have been seriously ill with past symptoms.

Option 1: Can return to work: a) after 3 days with no fever (without the use of medicine that reduces fevers), b) respiratory symptoms have improved (for example, cough and shortness of breath) and c) 10 days have passed since symptoms first appeared.

                                                            OR

Option 2: Re-testing optional. Return to work after receiving two negative tests in a row, at least 24 hours apart. Cannot take the test unless you are fever free and no longer have respiratory problems.

Caution: If your first re-test is positive, you have to start the re-testing all over again. It is best to wait a number of days because the virus may still be in your system.

                       WHEN IN DOUBT, USE A DOCTOR’S NOTE

An employer can always recommend an employee receive advice from a doctor. This is voluntary and cannot be required. But if the employee receives a note from the doctor that he or she may return to work, the company may honor same.

Just the opposite can occur. If a healthcare provider determines the employee is to be tested, then testing is required.

WHAT TO DO WHILE WAITING FOR THE TEST RESULTS?

Although there is some confusion in this area, if the employee has symptoms, traveled abroad or has been exposed, there should be self-quarantine while waiting for the results.

If not, the employee can work while waiting for the results as long as the usual precautions are met, including social distancing.

WHAT IF TAKES TOO LONG TO GET TESTED?

There can be various difficulties in getting tested. This may include: a) long lines, b) waiting days to get tested, c) trying to find a testing center or d) waiting a substantial period of time to get the results.

But these difficulties do not excuse the need for getting the test. For example, if there is a requirement of receiving two negative tests in a 24-hour period, an employee cannot forgo the second test just because it takes too long.

DON’T GET TESTED TOO SOON

Assume an employee has had symptoms, but within the last couple of days feels better. Or, they have cold-like symptoms and don’t think it is related to Coronavirus. Do not rush out and get tested. The virus can still, in a small degree, be in your system while you are asymptomatic. This is why the CDC recommends waiting 10 days after the onset of the symptoms and after three days of no fever.

As stated above, that can be a real “Catch 22”. If you jump the gun and test too early and it ends up being positive, you have to wait another 10 days and be tested negative twice within 24 hours.

REQUIRING A DOCTOR’S NOTE OR A TEST RESULT BEFORE GOING BACK TO WORK

According to the CDC, this cannot be required because “healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.”

For example, if an employee has symptoms and has self-quarantined for 14 days, but is feeling better, they can return without doctor’s note.

EXAMPLES

Example 1. Joe is a sous chef in the kitchen of Company A. Like most other restaurants, this kitchen is in rather close quarters. Because of the heat generated by the kitchen, it is not always practical to wear one’s mask on a continuous basis. On one particular day, Frank a line cook, tells his supervisor he is experiencing COVID-19 symptoms and is sent home. Joe remembers the previous week, as normal, he walked by Frank within a couple of feet a number of occasions. For example, to talk to other employees, go back and forth to the storeroom, take things in and out of the commercial refrigerator, and also work at his station several yards away. His passing by Frank literally lasted only a few seconds at a time and he does not remember stopping near him or facing/ talking with him. Joe remembers some of the employees, including Frank, lowered their face masks. Otherwise, all kitchen staff have been observing social distancing of 6 feet. Joe would not necessarily have to be sent home. Remember also that if all employees within that same kitchen were sent home, the business would essentially be shut down.

Note how this might be different if any of the following occurred: a) Frank coughed in someone’s face, b) Frank was in close quarters, including touching and grabbing, during horse play with another employee, c) the employees frequently shared cooking utensils, or d) there was frequent brushing up against each other.

Example 2. John is the office manager for B Company. The office currently has approximately six employees. Desks and workstations have now been set up to be at least 6 feet apart.

On four separate occasions last week, John passed Bill in the hallway going to the restroom. There also were a few occasions when he passed Bill’s desk within 6 feet. They did not engage in any conversation.

It was then determined that Bill has just tested positive for COVID-19. This does not appear to be the type of persistent contacts that would require John to be sent home.

Notice how this would be different if: a) there was a sharing of files or office equipment, b) there were frequent close quarter meetings in the conference room or c) employees sat side-by-side in the break room.

Example 3.  C is a manufacturing company. Dozens and dozens of its workforce are spread out in long tables, workbenches and workstations. They work alongside each other, although at 6-foot intervals.

Linda and Sarah work next to each other for the full eight-hour shift. Although they are 6 feet away, on numerous occasions during the day they pass by each other to either pick up material or take finished products to the next department for packaging and shipping. In the past, they would talk with each other for hours on end and catch up on the latest news. However, they no longer do so.  While doing their work, there is no physical need to be within 6 feet. They also eat their lunch at separate locations.

It was then discovered Linda either has experienced COVID-19 symptoms or tested positive. It would not be mandatory to send Sarah home.

Example 4:  The same example above except on a frequent basis both Linda and Sarah are required to feed into a large machine raw material or product. They can literally be inches away from each other when this is done. Because of the close and prolonged contact, it would be recommended to send Sarah home.

The same would apply if employees are frequently receiving the product handled by other employees as part of the sequential manufacturing process.

Example 5:  D Company is a hotel. There is no longer valet parking, no room service directly to a patron’s room, no bellhop’s handling luggage, or opening doors for patrons. Check-in staff and receptionists all where masks.

One of the maintenance persons has tested positive. However, just because that person may have walked by patrons in the hallway or spent some time in the lobby/reception area, does not mean patrons would have to be alerted.

Example 6:  E Company has outdoor seating and picnic tables for employees during the lunch hour. Debbie and Joan are not only co-employees, but good friends. The company observes social distancing even during the lunch hour. In many cases persons at the picnic tables sit 6 feet apart.

Unfortunately, it is later determined Debbie tested positive for COVID-19. Even worse, many co-employees observed that during the lunch hour, they were literally inches away from each other when they looked at each other’s cell phone for pictures of their children, vacations, sporting events and shopping events.

Because of the close and prolonged contact, Joan must be sent home.

Example 7: F Company is a golf course. It has followed many of the attached guidelines, including no close person-to-person lessons, on line purchases, online reservation of tee times, only one person at a time at the pro shop and the back office, and a battery of other protective measures.

On one occasion, George gave a group golf lesson to members at the golf range. Sign-ups were limited to 10 people and using their own clubs. Members were to stay 6 feet apart. At the head of the class, George was over 10 feet away.

Unfortunately, it was later determined George tested positive. Because of the social distancing, there would be no need to quarantine the members.

Example 8: G Company is an exercise gym. It offers its members a number of classes. Participants observe social distancing and instructors are always at the front of the class, several yards away. Brenda in the last couple of weeks has given several such classes. But it was then determined she had symptoms and was sent home. Because of the social distancing, she it would not be necessary to direct self-quarantine of the members.

It is noteworthy there should be company rules against the following: a) allowing unlimited numbers of members into the gym at one time, b) not sterilizing the equipment on a daily basis, c) one-on-one instructing or d) when showing a member how to use equipment, having close contact with them or touching.

Example 9:  H Company has an employee that shares an apartment with a roommate. That roommate has now tested positive. It is imperative that the employee self-quarantine and/or be tested as soon as possible.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

Intermittent Maternity Leave in California

by hrconsulting14

California family leave which covers pregnancy, is in Government Code Section 12945.2.  After 12 months of service, it allows as much as 12 weeks of maternity leave.  Under subsection (o), it states: “Leave provided for pursuant to this section may be taken in one or more periods.”

California pregnancy disability leave which also covers pregnancy, is in Government Code Section 12945.  It also allows up to 12 weeks of maternity leave due to disability.  It can be taken intermittently (“Pregnancy disability leave does not need to be taken in one continuous period of time”; Cal. Code Regs., tit. 2 Section 11042(a)).

These types of leave can be taken consecutively–for example, up to six months.  But the total amount of leave must be completed within one year of the child’s birth (Cal. Code Regs. Section 11090(d)).

There can conceivably be more if you have to accommodate the employee’s pregnancy related disability under Government Code Section 12940(m)[maximum seven months].

These types of leave are unpaid, which means the employee may not want to be out that long.

But is there any limit to this?  Could the employee take it excessively, for example a dozen times?  There is no definite answer.

However, courts do look at the undue influence on an employer.  Taking time off means other employees have to fill-in or you have to hire a substitute.  And because the employee has the right to reinstatement to her same position, it might be hard to get a substitute who is willing to work temporarily.  This could directly affect productivity.

Suggestion: limit the intermittent leave to three times and document the file as to the reason why.

ADA Accommodations

by hrconsulting14

Just for future reference as to this and other cases, it is important to understand a key concept for the ADA.  Once you have a disability, you must reasonably accommodate.  But not doing particular work or a task, including having others do it for you, is not an accommodation.  Instead, the way it works is simple: you first identify essential duties. You then have to perform them.  The accommodation is helping performance, as opposed to not having to do it in the first place. 

Here is a hypothetical example of a company office professional.  Judy has a visual disability and has trouble reading emails.  Company can give her access to software with ear phones, so text is read out loud to her.  She can also respond by voice recognition.  Once this is done, she must perform all essential duties and cannot pick and choose which ones.  She cannot later complain: “I wasn’t able to do collections last week because I had trouble reading the billing statements.  That’s why Gloria did them for me ”.

When Calculating the 10 Hours of Work for a Second Meal Break

by hrconsulting14

When Calculating the 10 Hours of Work for a Second Meal Break, Do You Deduct the One Hour Given in the First Break?

Is the break determined by: 1) the length of the employee’s shift or 2) the number of hours the employee actually works (net hours)? 

Assume the employer gives a first meal break of one hour.  The options are: 1) the second meal break would be at the 10th hour, regardless of how long first break was taken or 2) the second meal break would only be required after 11 hours.

California Labor Code Section 512(a) requires a second 30-minute meal break if an employee works at least 10 hours in a day.  In relevant part, it states:

An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, a second meal period may be waived . . .”

There are three phrases that seem to indicate net hours.  The phrase “may not employ” indicates hours actually working, as opposed to resting.

The phrase “work period” also seems to imply a period in which the employee would actually be working.

The phrase “except that if the total hours worked” also implies working as opposed to resting.

Sadly, there is no express language in the statute on this subject.  However, the three phrases above seem to indicate it is net hours.

Remember also the rationale for a meal break.  The idea is that employees can be more proficient and there are less accidents if they are well-nourished and rested.  After receiving a one-hour meal break (it would equally apply to a 30-minute break), the employee should be rested enough to work until the 11th hour.

Termination of Employment–What Not to do, Part 1

by hrconsulting14

DO NOT TERMINATE IF AN EMPLOYEE IF HE OR SHE HAS JUST MADE A LEGAL COMPLAINT AGAINST THE COMPANY. For example, as an HR consultant, if any of the following has occurred recently: a workers’ compensation claim; time off for disability; pregnancy leave; exercising leave under the FMLA; whistleblowing; claim of sexual harassment; claim of retaliation; any acts of discrimination; request for accommodation under the ADA; or the similar exercise of legitimate or statutory employee rights. But does that mean you can never terminate the person if this occurs? No, this is not the case.

Prudent employers wait for the “taint to be dissipated” (a period of time after the claim is made). This means waiting a reasonable time after the assertion of these claims; followed by having another bona fide reason for the termination.

For example, assume your employee has just made a claim with workers’ compensation. But his performance has been substandard and you want to terminate. Let the employee make the workers’ comp claim and start the process for compensation. Then do an internal write-up in the personnel file for nonperformance and decide to terminate. Wrongful discharge only applies if the motivating factor is retaliation for the exercise of statutory rights. If you have allowed that exercise and there are other reasons, you have a much better chance in court or arbitration. Remember, just because an employee exercises their rights, does not mean you can never terminate him or her.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (925) 899-8449. Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

ADA accommodation: Can you ask for a doctor’s note? By Cliff Malone

by hrconsulting14

This is a question that we receive an ongoing basis. .

As HR consultants, we are asked how to provide a reasonable accommodation issues with the ADA. In many cases, the employee comes right out and divulges nature of their disability. Other times they do not directly discloses, but is apparent from reasonable observation that they may have particular impairment. Although you cannot inquire as to their particular diagnosis which is confidential, you can still ask the person what they can and cannot do in relation to their specific work duties.

But what you really want is some specific direction from their healthcare practitioner, especially a physician. Can you insist that they furnish a doctor’s note? The answer is “Yes”..

You certainly cannot secure the confidential medical records of the employee, but you can still get direction from his or her doctor at a minimum. Here is a sample email you may send the person from your HR department:

Thank you for your recent email with an update of your medical condition.  In order for us to move forward and give you adequate accommodation, please have your doctor state in detail what accommodation, if any, you need while working for us. As such, please have a doctor’s note which explains the following:

  • The hours you will be able to work per day.
  • The days you will be able to work per week.
  • Are you able to work part-time or full-time?
  • We have attached a description of your work duties. Please indicate what you can and cannot do as to each of those enumerated duties.
  • What special accommodation, if any, you will need. Note that an employer is only required to provide reasonable accommodation.
  • Whether you will be able to work on a regular basis.
  • The date you can start working.

If you would like a free initial consultation on this issue or any other HR matter, or would like a written print-out of this subject, feel free to contact the HR Consulting Network at 925-899-8449 or email us at info.NationalLlienLlaw@gmail.com, attention Cliff..

You can also read other HR articles on our website of www.HRconsulting.network.wordpress.com.

Thanks again for joining us and good luck. Cliff Malone.

Employee leave as ADA accommodation

by hrconsulting14

Here is another issue for those providing HR Consulting. Giving employees unpaid leave can be a form of accommodation. But the leave must be directly related to the disability. Take for example an employee who is complaining of bouts of anxiety. This would have to be necessary to alleviate or help manage the anxiety (Bailey v Amsted Industries, Inc., 172 F3d 1041 (8th Cir 1999) (where employee’s absenteeism not related to disability).

On the other hand, the employee cannot insist on indefinite leave. As certain point, if the employee takes too much time, it would be tantamount to job abandonment.

For example, in Gantt v Wilson Sporting Goods Co., 143 F3d 1042 (6th Cir 1998), the employee was terminated for failure to return to employment after a 1-year leave of absence. The court ruled the employee was not discriminated against because reasonable accommodation does not require to employer to wait indefinitely for an employee’s medical condition to be corrected.

Also, the employer is not required to grant long periods of leave it if it would cause undue hardship to the company. This is especially the case if the individual’s position is needed for normal operations. For example, see Walton v Mental Health Assn. of Southeastern Pennsylvania, 168 F3d 661 (3rd Cir 1999), the court found that a 2½-month leave was excessive and caused undue hardship where employee’s presence was essential at the time due to fear the program she headed would fail for lack of funding and leadership. Thus, where the employer can show the leave would create undue hardship, it will not be liable for failing to accommodate.

Then there is the issue of offering a similar job to the employee when they come off disability. The ADA does require this. The only exception is if it would cause an undue hardship to the business. In this case it would, because one can hardly expect to keep the management job open indefinitely when that is need for the operation of the business.

So if the individual comes off leave and still wants the job, as an HR consultant you would not necessarily have to give them the same job that has been replaced, but at least attempt something that is equivalent.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

SB 606: New CAL/OHSA Penalties

by hrconsulting14

Gov. Newsom has just signed new legislation under SB 606, laying out some rather stiff new rules for violation of Cal/OSHA requirements. Independent HR consultants should be wary of this. Here are the particulars:

Summary:

This Act does not create any new safety rules. Instead, under certain circumstances, it adds following:

  • A presumption that safety violations may be companywide, and
  • In some cases, giving Cal/OSHA subpoena power over multiple jobsites and overall company records.

This expansion can be quite burdensome for a company and HR consultant. For example, assume Mr. A is seriously injured at work. The company will have no problem divulging all the records related to this single individual and single incident. But the worst nightmare is if Cal/OSHA subpoenas companywide records; information on similar injuries; multiple employee records; multiple incident reports; companywide safety measures and amendments; and the like. In those cases, Cal/OSHA would essentially be conducting a “fishing expedition”: without any particular probable cause, looking through records in hopes of finding something.

Cal/OSHA can only do this if there is evidence of an overall “pattern and practice”. But this new law gives it more power in that regard. For example, assume there is an investigation of a safety violation as to Mr. B at Jobsite #1. In the process of the investigation, Mr. B remarks he has friends/heard through the company grape vine that Jobsite #2 has similar violations. On this rather skimpy evidence, based upon the rebuttable presumptions given in this legislation, it might empower Cal/OSHA to subpoena those other worksites.

Never underestimate the power of a rebuttable presumption. Upon the simple showing of some credible evidence, it is presumed there is a violation and requires the company to rebut same.

Effective Date: January 1, 2022.

Employers: All companies, regardless of the number of employees.

Enterprise-wide Violations:

Most Cal/OSHA violations relate to a single jobsite. But then there are companies that have multiple sites. The new law relates to the latter. If the violations involve more than one site, penalties and subpoenas may be issued companywide. This involves the following:

  1. The company has a written policy (for example, in an employee handbook, job posting, memo, notice or circular) that violates Health & Safety Code 25910 (spraying a substance containing asbestos) or any other Cal/OSHA regulation (i.e., the huge list of safety related regulations throughout California). Note that if a company has an invalid policy, is presumed to apply to all of its worksites and a Cal/ OSHA inspector does not have to go to each one to find a violation. In other words, if there is a written company policy, it will be considered applicable to all company premises.

However, excluded from a violation is a Cal/OSHA emergency policy made within the previous 30 days.

OR

  • Cal/OSHA finds a “pattern or practice” of the same violation at multiple worksites.

If 1) or 2) applies, there will be a rebuttable presumption of violation. This means Cal/OSHA can assume there has been improper conduct and you have to prove otherwise.

It would be relatively rare that a company would put in writing a directive that employees observe some unsafe work practices. If violations are allowed to occur, it would probably be because of inadvertence or lack of attention.

What readily comes to mind is a COVID violation. This is particularly difficult because the CDC continues to change its recommendations. Do your best to keep up with the following health regulations that may be in effect or have been eliminated:

  • Masking.
  • Social distancing.
  • Whether an employee has been exposed to an infected person within 6 feet and for a continuous 15-minute period.
  • If and when a vaccination is mandatory.
  • Giving employees a Notice of Potential Exposure.
  • Reporting to the local Department of Health (for example, if there have been three or more employees infected within a two-week period).
  • Not sending an employee home if they have tested positive or have symptoms.
  • Refusing to abide by the 2021 California Supplemental Sick Leave Law as to COVID.

Egregious Violations:

The law also introduces a new concept called an “egregious violation”. This would include the following:

  • The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation. This typically applies well beyond simple carelessness; namely if the company has actual knowledge of the infraction and purposely does nothing to correct or report.
  • The violations resulted in worker fatalities or a worksite catastrophe (defined as inpatient hospitalization of three or more employees).
  • The violations resulted in persistently high rates of worker injuries or illnesses.
  • The employer has an extensive history of prior violations.
  • The employer has intentionally disregarded their health and safety responsibilities.
  • The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duty to provide a safe work environment.

Or

  • The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that might be in place.

This applies to serious injuries that may have occurred within five years. If found, Cal/OSHA may not issue the more lenient ”Notice in Lieu of Citation”. Instead, a formal citation will be issued.

Subpoena Power:

As an additional punch to the law, it now allows Cal/OSHA to subpoena, potentially companywide, records that the company fails to promptly, within a reasonable amount of time, provide.

Conclusion:

This certainly gives Cal/OSHA the potential for great power–if it wishes to use it. Remember: in already being spread thin, getting access to voluminous records means it will take much staff time to review, organize and analyze. For this reason, it appears the new law applies most readily to a minority of flagrant and abusive cases.  Notwithstanding, California employers should remain vigilant. And HR consultants should also be careful as well.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

Employee Paid Time for Workers’ Compensation Medical Appointments

by hrconsulting14

The question is whether an employee is entitled to hourly compensation or over time for the periods in which he goes to his/her workers’ compensation doctor for consultation or treatment. This is laid out federally through the Code of Federal Regulations as follows:

§ 785.43 Medical attention.

Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee‘s normal working hours on days when he is working constitutes hours worked.

In many cases, we can rule out medical attention at the premises, as most employees gos off-site for treatment.

But is the off-site treatment at the direction of the employer? The employer is typically aware of the workers compensation claim and the need for treatment. In fact, the employer may encourage employees to receive workers compensation benefits for job-related activities. This does not mean the employer is directing the employee to make the appointments on specific days or specific hours. They are simply allowing or acknowledging it.

In fact, the appointments are by and between the employee and the doctor who does the scheduling. If anything, it is at the direction of the doctor.

As such, the employee must clock in and out and cannot be paid for these visits under those circumstances. That employee would be entitled to use PTO for those hours.

Notice the difference if the employer directs the employee to seek medical attention. An example would be an annual medical examination for fitness. Another example is if there has been an accident and a reasonable suspicion of intoxication, requiring the employee to go to the company clinic for a blood test–that would be compensable.

Thank you for joining us on this important topic. If you would like a free initial consultation on this issue or any other HR matters, or would like a written print-out of this subject, feel free to contact the HR consulting network at 800 – 995, 9434, extension 1.

Or visit our website at www.HRconsulting.network.

We can act as your virtual HR consulting firm for all your consulting needs. We are equipped to conduct investigations, prepare the full gamut of HR documents, handle termination notices, respond to employee complaints, defend against EEOC and other administrative charges, help with language used in emails and communications with employees and prepare legal research memos interpreting new laws and regulations.

Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting.

We actually prefer talking to our potential clients in person by phone. Feel free to call for a free initial consultation at 800-995-9434, Extension 1. Or email us at info.National LienLaw@gmail.com, Attention Cliff.

Thanks again for joining us and good luck.