HR consultants – HR Consulting Network

Do Not Use a Progressive Discipline Policy, by Cliff Malone

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.

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

February 19, 2023 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.

SB 606: New CAL/OHSA Penalties

September 30, 2021 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:

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.

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.

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.

When an Employee Tests Positive for Coronavirus–Informing Other Employees

June 19, 2020 by hrconsulting14

The question posed is whether a company has the obligation to inform other employees if a particular employee has tested positive.

The CDC advises that if an employee tests positive, other employees should be informed of their possible exposure:

“Inform employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”

This author has been unable to find any contrary authority to his duty to inform. Additionally, the failure to do so could very well impose liability.

One of the first cases on this subject is the Walmart case. It demonstrated the significance of warning other employees. In that matter, the estate of an Illinois Walmart employee sued for wrongful death in the case of Toney Evans v. Walmart, Inc. (Cook County Illinois Circuit Court, filed April 6, 2020, Case Number 2020L003938). The estate alleged management knew several other employees exhibited symptoms of the Coronavirus, allowed these employees to continue working and did not warn the deceased or others of the possible risk.

But it is significant to note the case also alleged the failure to maintain a safe working environment due to:

Not disinfecting the store or providing employees with masks/latex gloves;

Not enforcing social distancing guidelines;

Failing to evaluate employees for symptoms (for example, not using non-touch thermometers or otherwise monitoring employees for sickness);

Not inspecting, cleaning or sterilizing facilities or equipment; and

Not implementing any infectious prevention program.

Hopefully, a company will have implemented reasonable safety measures across the board–exactly what did not occur with Walmart. The take away: As long as a Company implements safety procedures before and after, and notifies other employees, it should have a relatively safe harbor from liability.

Steps to Take:

The first step is to meet with the affected employee. This should be done in a confidential setting; behind closed doors or by phone. Explain the importance of a healthy job environment and a requirement of the person to self-quarantine at home. Tell him/her to stay home until one is free of a fever for at least 72 hours and at least 10 days have passed since the symptoms first appeared.

Then inform other employees. When doing so, it is crucial to preserve confidentiality (per ADA) and not disclose the identity of the affected employee. Never do any of the following:

Disclosure of the infected person’s name or job title;

Disclosure of any of the person’s symptoms;

Disclosure of how long a person may have exhibited symptoms;

Disclosure of the medical condition of the employee;

Disclosure of what medical procedures the person will undergo;

Any other details of the illness.

By informing the other employees, the conversation can be verbal, informal and for each individual employee who may be exposed. The conversation can be as follows:

“Hi John. I’d like to briefly discuss a matter in private with you. There is no reason to be alarmed, but I wanted to discuss something with you briefly.

As you know, your Department consists of approximately ______ employees. One of those employees has just tested positive for the Coronavirus. That employee was last at the Club on __________ and is now at home under self- quarantine. We bring this to your attention because you worked in the same Department as that individual. Because of confidentiality, we cannot disclose that person’s name.

We will continue taking steps to make the work environment clean and healthy. This consists of ____________________________. We are hopeful these measures will be adequate for your safety.

For this reason, it is important that you self-monitor for any symptoms and let us know if any appear.

Feel free to seek medical advice if you wish. We honor all doctor’s notes. If your doctor has a particular recommendation, please get a note from him or her and give it to our HR department.”

The real question is how far should you go. For example, the CDC which is exorbitantly conservative, recommends that employees self-quarantine at home if they had been in close contact with an infected person. “Close contact” is defined as “being within approximately 6 feet of a COVID-19 case for a prolonged period of time.” But enforcing that to the letter of the law, would mean many of employees would stay home and the company would have a hard time operating.

In many ways, telling other employees who were in contact to stay home would be an overkill as long as the following prerequisites have or will be met:

Historically in the past, protective measures have been implemented, including cleaning, sterilization, masks, gloves, etc.

Cleaning and sterilizing any of the equipment this employee may have been in contact with.

Note as a practical matter, telling other employees they may have been exposed to someone who was tested positive means they will put 2+2 together and know exactly what employee. Especially when the employee has been sent home. But that realization does not mean the employer would be found liable–it is simply the inevitable result of making the disclosure.

OSHA: At the present time, OSHA does not have specific guidelines as to the Coronavirus. For example, in March of this year, OSHA has prepared its “Guidance On Preparing Workplaces For COVID-19”. It has elaborate details of protective measures to ensure a safe work place, but there is no specific mention of having to inform other employees (for example, in a section titled “Steps All Employers Can Take To Reduce Workers Risk Of Exposure”).

This means if there is any enforcement, it will have to be under the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1)), which requires employers to furnish to each worker “. . . a place of employment, which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

The OSHA guidelines dovetail back into the CDC, because the Agency is allowed to utilize outside nationally recognized standards.

Worker’s Compensation:

Many experts predict there will be a rash of lawsuits by employees who allege contacting Coronavirus because of exposure at work. But there is some good news.

A typical Superior Court lawsuit sues, among other damages, pain and suffering, emotional distress and even punitive damages. And if death occurs, a wrongful death action. But if the Coronavirus is considered an occupational disease or injury, those damages are not available and the employees only recovery is for workers’ compensation wage loss and permanent disability ratings.

But be careful. A creative lawyer will allege the worker has suffered a mental or psychic trauma, no different than physical injury, because of exposure to the virus.

Disgruntled Employees:

What if an employee refuses to return to work, claiming the facilities contain some of the Coronavirus germs? If they take that position, it would be unjustified.

If the Company takes ongoing efforts to clean and sterilize such equipment, this fear would be misplaced. Certainly, the employee can decide to use some of his or her accrued PTO. But I cannot stay away indefinitely or even utilize the new federal paid sick leave protections. Those protections are under the Families First Coronavirus Response Act (HR 6201), but do not allow absences for a generalized fear of contracting the virus without any substantiation.

There is some credence however, to the argument that an employee can sue for mental distress for fear of being exposed to the virus. This is exactly the basis of the new lawsuit as to what occurred to the guests on the Grand Princess cruise ship as recently reported by the media. Some of the guests sued, even though they did not test positive; it was based on the mental distress of being fearful they might contract the virus. Archer v. Carnival Corp., No. 3:20-cv-02381 (N.D. Cal. filed Apr. 8, 2020)[Of the nine named plaintiffs, the Complaint identifies only one who was diagnosed and treated for COVID-19].

But that cruise ship presented a totally different environment for most companies. Not to mention the fact that few employees would have the resources to find an attorney to bring such an action, especially since it would not be a class action.

Employer’s Offer to Return-to-Work–What if an Employee Says No? HR Consulting Guidelines

May 3, 2020 by hrconsulting14

How to Handle Employees Who Refuse to Return to Work After a Furlough?

Thankfully, businesses in California are slowly reopening. A number of questions have arisen to be addressed by HR Consultants as to what is expected for the returning employees. The following are some of the common questions posed with guidelines.

Obviously, few issues are involved if an employee readily returns to work after a temporary layoff for furlough. This Memo concerns employees who, for various reasons, do not want to return and insist on remaining on furlough for an indefinite period of time. In large part, this may be because they are enjoying the ample benefits of unemployment insurance.

Remember this guidance must be viewed with the background of various state laws. For example, in California’s recent Executive Order N-33-20. Gov. Newsom has ordered all employees of non-essential businesses to stay home until further notice. It is anyone’s guess the extent to which this will be enforced in the future. If you are performing HR Consulting, you know this may also be true in other states

A word to the wise: more and more non-essential businesses are opening up even though self-quarantine laws are still in effect. Most legal advisors opine that police officers will probably not enforce these rules. However, if you do reopen, it is absolutely necessary to implement serious hygiene and protective measures. This will hopefully lessen the blow if there is a lawsuit due to one of your employees becoming sick or dying because of the virus.

FAQ

If someone refuses to return to work from furlough due to making more money via UE what are the appropriate steps here? I know we can alert the EDD as to their refusal. Is it a quit?

Denial of Unemployment Benefits:

As a general rule before the onslaught of the Coronavirus, to receive unemployment benefits, the employee must be: a) totally or partially unemployed, b) unemployed through no fault of their own; c) physically able to work; d) available for work and e) ready and willing to accept work immediately if offered.

This has changed slightly because of the virus. For example, the California EDD states:

Qu: Are benefits available if my employer reduces my hours or shuts down operations due to the impacts of the coronavirus?

Ans: If your employer reduced your hours or shut down operations due to COVID-19, you are encouraged to file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able, available, and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria.

This means that for the first few weeks/months, there would be no need to seek work because the employers were not making positions available. During that period, unemployment could be paid.

This would all change soon as there is a return-to-work offer. If the employee refuses to work, one could hardly claim they are making themselves available or seeking work. At that point, one could argue unemployment benefits cease.

But this assumes the company is considered an essential business and has the right to continue operating. For non-essential businesses, there is no right per se to remain open nor to allow employees to return to work. In that case, the employee need not prove he or she is available to work–because that position is technically unavailable.

Because California favors employees, it will probably allow the employee to continue receiving unemployment even with an offer to return to work–under the theory the offer is not legally valid because the company has not yet been given the right to reopen.

But what if a non-essential business decides to open up anyway? It would be a technical violation of the Executive Order. Positions would now be available from a practical standpoint. But not from a strictly legal standpoint. Again, because of the per se violation, the employee could argue there never was a valid return to work offer and so continue to receive unemployment benefits.

A finding the Employee Has Quit:

Bottom line: As long as the Executive Order is in effect, do not consider the employee to have quit (i.e. if an offer to return is made and there is a refusal).

The safer approach is do the following:

Make at least two offers to return to work (see emails #1 and #2 below). If the employee refuses, state it is evidence the employee has decided not to come back to work. In other words, they have decided, not you, to terminate the relationship. An employee can do this voluntarily at any time.
State if they do not return to work, their position may be filled by another person (see Email #2 below).

Email #1:

Dear Joe. This is an update as to our operations in light of the Coronavirus. For a limited number of positions, we are giving some of our employees the right to return to work. As to your previous position of ________, we are happy to report you can now return to that job effective ______________. Your hours and rate of pay will be: _________________.

So we can properly schedule, please indicate within 48 hours as to whether you wish to return to work under those conditions. Feel free to contact me for more details (Phone: ________; Email: ________).

Email #2:

Dear Joe. On _________ we emailed you with an offer to return to work with your previous position. We have not heard from you –OR– We have yet to receive your written consent –OR– You have not yet informed us of your desire to return. It is important we receive your decision, either way, so we can schedule work hours.

If we do not receive word from you within 48 hours, we will assume you are no longer interested in the position and accordingly reserve our right to have it filled by someone else.

You can call/email at any time if you have further questions (Phone _________; Email: __________). If we do not hear from you, the best of luck in your future job endeavors.

If someone refuses to return to work from furlough due to fear of the virus what are the appropriate steps here? I know we can try to explain the safeguards in place and the fact that the venues have no known cases of COVID-19. Should we just keep them out on furlough and leave them alone or can that be a quit?

Assume an employee has not tested positive, does not have the virus, has none of the symptoms, has not sought or received medical attention and there is no information of contacts with others having the Coronavirus. Notwithstanding, the person has a generalized suspicion it would not be safe to return to work. It is merely a personal belief.

At the Federal level, there is the Families First Coronavirus Response Act. This is the new federal paid sick leave, so technically it does not apply to our situation. But by analogy, it may provide some guidelines. There are only six reasons to receive benefits:

(1) Subject to a federal, state or local quarantine or isolation order due to the Coronavirus.
(2) Has been advised by a healthcare provider to self-quarantine due to concerns related to Coronavirus.
(3) Experiencing symptoms of the Coronavirus and is seeking a medical diagnosis.
(4) Caring for an individual who is subject to a self-quarantine order as directed by a governmental authority or healthcare provider.
(5) Caring for a son or daughter if the school or place of care has been closed or is unavailable due to the virus.
(6) Experiencing any other substantially similar condition specified by the Sec. of Health and Human Services.

Factor (1) does apply in California because of its stay-at-home quarantine order.

Then there are regulations at the State level. As mentioned, California currently has in effect a stay-at-home order which would apply to non-essential businesses. It applies even if an employee has no symptoms. And by definition, it would apply to mere generalized suspicions–since it applies to all persons in all circumstances as to these non-essential businesses. Further, the Federal Act does not preempt state law.

So as stated above, the company would technically have to continue the furlough.

The answer could also depend upon the relationship with the employee. If the Company really likes the employee or that person is indispensable, by all means you can allow him or her to continue on furlough.

For these reasons, the best solution is not to force a “Quit”, but send out the attached emails and let the employee make the decision.

If someone refuses to return to work from furlough due to underlying medical condition? I assume we keep them out on furlough and maybe have them complete an accommodation request?

The usual ADA rule has been the employer can ask an employee if they are able to perform work duties, but cannot ask about the disability itself. But the EEOC has changed this rule with the Coronavirus. Under new guidelines, if an employee does not want to come back to work for fear of contracting the virus due to an underlying medical condition, the company can actually ask the nature of the disability and even request medical documentation (while the same time keeping this information confidential) . Supposedly, this will better help the Company institute accommodations and prevent the spread of the virus those individuals.

Thus, effective April 23, 2020 the EEOC has stated:

What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?

A: The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.

There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.

For this reason, if an employee states they have an underlying condition, you can follow up with the following email:

Thank you for your recent reply. To summarize, on our Company offers you the opportunity to return to work in your position as ____________. You indicated you would not be comfortable doing so and wanted to continue on furlough because of an underlying health condition.

We want to make sure you are safe at work and accommodate any disability. For this reason, please indicate the nature of your disability. Also provide medical documentation or a doctor’s note. This is in accordance with the recent guidelines of the EEOC on April 23, 2020.

In the meantime, we reserve the right to fill your position with someone else so we can productively operate our business. So, your prompt response would be very helpful.

This would not apply to obvious conditions such as age (over 65) which would not require medical confirmation.

If someone refuses to return to work from furlough due to lack of childcare should we just leave them out on furlough? Are they then entitled to the FFCRA 2/3 pay?

You have to be very careful here. Two recent laws give employees large entitlements in cases in which their child’s school has been closed. In California, all schools are closed through the end of the school year. This includes the following:

Families First Coronavirus Response Act–New Federal paid sick leave: up to 80 hours of paid sick leave at the regular rate of pay. Maximum is $511 per day or a total of $5,110.

Families First Coronavirus Response Act–New extended FMLA: If an employee stays home to take care of a child with a closed school, a person receives no benefits the first 10 days. But on the 11^th day forward, there is paid leave at the rate of two-thirds of their regular rate of pay, not to exceed $200 per day and $10,000 total.

Obviously, this could be a financial drain on the Company if large numbers of employees insist upon these benefits. You want to avoid this as much as possible. For this reason, it is better to allow the employee to remain on unemployment and continued furlough. If you refuse the furlough (declare job abandonment or they have quit), you run the risk they will immediately apply for these benefits.

If we just don’t hear back from someone who we try to call back from furlough, I presume this will be considered a quit?

Yes, you can presume this is a “quit”. You would send the above emails, and if no response, confirm they have voluntarily quit.

Conclusion

To be safe, if an employee refuses to return to work while on furlough, let them continue in that status and do not force a termination or quit status. What does the company have to lose? The employee continues to receive unemployment and is happy with the situation. There is less danger the employee will be asking for the payout of additional paid sick leave.

As an HR professional, you can always inform the employee that you reserve the right to fill that position with someone else if they continue to be on furlough.

HR Consulting Network can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. 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 independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

Taking Employee Temperatures for Coronavirus

April 28, 2020 by hrconsulting14

This is a guide for HR consultants before they make a decision as to whether to take employee temperatures before going to work. Here are FAQs on the subject:

Is it Permissible for HR to Take Employee Temperatures Before Start of Work? As a result of CDC recommendations, it is now permissible per the EEOC to do so. As of March 17, 2020, the EEOC issued the following guidelines:

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

However, a Company is not required to take temperatures.

What is Considered a High Temperature? Per CDC guidelines, 100.4 F/38 C or above.

How do you Give the Results? The actual temperature should be kept confidential and placed in a file separate from the personnel file and not broadcast others. If the employee has a high temperature, take the person aside to notify them of the reading. Also privately state the details, if any, of your decision to send the person home.

What Kind of Devices are Used? Use only a no-contact, infrared digital thermometer (forehead scanner). Traditional oral thermometers are considered too intrusive.

Who Administers the Test? Recommendation: A trained nurse or other medical professional. If not available or too costly, a management level employee or someone from the HR department. Use PPE precautions, including gowns, facemasks and gloves.

What to do if the Employee has a Temperature? A temperature alone is not indicative of COVID-19. However, it is recommended the employee be sent home for a minimum of 24 hours to be fever free. If in addition to fever, there are symptoms of dry cough, shortness of breath and chills, the employee must be sent home for a 14-day quarantine.

Can the Employee be Required to Wait in Long Lines? There are no specific guidelines, but for productivity purposes and to eliminate employee inconvenience, HR should attempt to shorten the lines by: a) having more than one entry point or b) staggering with different shifts. Make sure there is social distance while waiting in line (placing markers with tape).

Are the Employee’s Paid For the Time Taking the Temperatures? It is best to have the employees punching in when they first arrive before getting in line. That way they will not be shorted for their hours. Although the argument can be made testing is so brief in time to be de minimis, it is best to consider these preparations indispensable to employees work activity (per the FLSA) and therefore compensable.

What Records Should be Kept? Temperatures need not be recorded, but if they are, they should be contained in a confidential file. As an alternative, you can be recording “No” or “Yes” as to the temperature thresholds.

What Questions Can You Ask the Employee? Per EEOC guidance, the employer may ask an employee if he or she is experiencing any symptoms of COVID-19 or if they have been tested. This applies even if the employee has not volunteered that he or she is feeling ill. As usual, you cannot be selective who you ask as this could be interpreted as discriminatory.

The perfect time to ask these questions is right before the temperature is taken. You can ask the employee: “Have you been experiencing any of the following symptoms recently? Fever; dry cough; shortness of breath or difficulty breathing; chills; repeated shaking and shivering; muscle pain; headache; sore throat; excessive sweating; sinus congestion or new loss of taste or smell (read from a card to show it is uniform)?

Because you will be asking personal medical information, this has to be out of the hearing range of others. Put the employees in a separate line. Then one by one take an employee to a separate room immediately adjacent which is private, for the questions and temperature taking.

Do These Rules Also Apply to Non-Employees Entering the Workplace? Yes. The same rules would apply to guests, customers, vendors, consultants and other third parties. Remember that OSHA requires an employer to maintain a safe workplace and protect others from direct threats as to recognize hazards, including the virus. Place the attached form at the entrance of the facility in a conspicuous location so all persons entering can see same.

Is Employee Written Consent Required? No, but employees must be given prior notice–please use the attached form.

What if the Employee Refuses to Take a Temperature? No employee can be forced to take a temperature. If they refuse, you can bar entrance to the facility. And technically it is a violation of company policy and they can be written-up. However, termination would not be recommended. Instead, instruct the employee to stay home until they bring in a certification of negative testing through a community testing center or when government authorities have given the “all clear” for all employees to return to work.

National Lien Law 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.

Coronavirus Fact Sheet for Employers to Post

March 5, 2020 by hrconsulting14

With the Coronavirus appearing more and more in the news, it is inevitable that employers will be asked to post a fact sheet for their employees to read. This can be posted By the HR Department in conspicuous spots, for example break rooms, bulletin boards or near time clocks.

Here is an example of a fact sheet HR professionals and employers can use for the Coronavirus:

Coronavirus Fact Sheet for Employees

What is Novel Coronavirus? COVID-19 is a new virus strain spreading from person-to-person in China and now other countries, including the United States. Little is known about this new virus and it has the potential to cause serious illness and pneumonia in some people.

How Severe? Reported cases have ranged from mild illness (like a common cold) to severe pneumonia that requires hospitalization. So far, deaths have been reported mainly in older adults who had other health conditions.

Risk of Infection: Currently, the risk you will contract the virus is low.

How is it Spread?

By respiratory droplets (moisture) produced when an infected person coughs or sneezes.
Between people who are in close contact with one another (within about 6 feet).

Symptoms: Symptoms may appear in as few as 2 days or as long as 14 days after exposure. Symptoms include fever, cough and difficulty breathing. If you experience any of these or have doubts, it is best to seek medical attention right away and stay home.

Steps to Take: The measures you can take to prevent the spread of flu and the common cold will also help prevent Coronavirus:

Wash hands often with soap and water (for at least 20 seconds). If not available, use a hand sanitizer.
Avoid touching your eyes, nose or mouth with unwashed hands.
Avoid contact with people who are sick. Stay at least 6 feet away.
Stay home while you are sick.
As much as practical, avoid close contact with others that appear to be sick.
Cover your mouth/nose with a tissue or upper sleeve when coughing or sneezing. Then throw the tissue away.
Don’t shake hands, rub elbows.
If you wish, carry wipes (use on doorknobs and other frequently touched areas).
Stand to the side when talking with someone.

Treatment: Currently there are no medications approved for Coronavirus. Most people with mild cases will recover on their own by drinking plenty of fluids, resting and taking pain or fever medications. However, some cases develop pneumonia and require medical care or hospitalization.

California Meal and Rest Break Law

February 18, 2020 by hrconsulting14

As a HR consultant, everyone would agree you must be mindful of the California Law for rest and meal breaks. These rules are laid out in California Labor Code Section 512. Not only must there be compliance, but there are severe penalties: for every rest or meal break that is not taken or allowed by an employer, there is a penalty of one hour of the employee’s regular rate of pay. So the HR consulting industry must be ever vigilant in this regard.

Here is an example of the wording HR can insert in employee handbooks on the subject of meal and rest breaks:

Employees who work 4 hours or more may take a paid 10-minute rest break for every 4 hours worked, with the rest period being in the middle of each 4-hour work period, as far as practicable. Employees may leave the premises during their paid 10-minute break, but are expected to return timely.

Employees who work more than 5 hours must take a minimum 30-minute unpaid meal break, during which he or she shall be relieved of all work-related duties. Meal breaks must be taken before the end of the 5th hour of work. The end of the 5th hour is defined as 5 hours and 59 minutes. Employees must clock out at the beginning of their meal break, and clock back in at the conclusion of their meal break.

If the total work period per day for an employee is no more than 6 hours, the employee may mutually agree with Company to waive their right to a non-paid meal period and may continue to work throughout their shift.

For employees who work more than 10 hours, a second uninterrupted 30-minute meal break must be provided no later than the end of the 9th hour (meaning by 9 hours and 59 minutes). However, if the total work period per day is more than 10 hours per day but less than 12 hours, a second meal period may be waived through mutual agreement between the employee and Company (assuming the first meal period has not been waived).

All waivers must be in writing and can be revoked at any time by the employee. All non-exempt employees must accurately account for their mandatory lunch breaks by recording their time taken.

These meal and rest break provisions are mandatory. Under no circumstances may an employee decide not to take them, as these breaks are mandated by California law. An employee need not consume a meal during the meal break and can instead decide to simply take a rest for other purposes. But employees who take breaks at their desk or workstation, should not be conducting any work activities.

Failure to take required rest or meal breaks may result in disciplinary action, up to and including termination.

Your HR Department to keep these rules in mind at all times.

Sick Leave payments for Commission Salespersons in California

October 7, 2019 by hrconsulting14

How do you calculate the hourly rate paid to commissioned salespersons when exercising their sick leave?

The California Department of Industrial Relations, Division of Labor Standards Enforcement, in its opinion letter of October 11, 2016, answers this question. The preferred method is to calculate all the earnings (hourly, commissions and bonuses) for the prior 90 days before taking sick leave and simply dividing by the total hours worked. Since we are talking about salespersons, the compensation would consist of commissions only. This is pursuant to California Labor Code Section 246(k)(2).

In order to make the calculation, salesperson must’s submit timecards of their hours. Unfortunately, many salespersons don’t submit them, because they are not paid an hourly rate. But you must explain to them such timecards are still required under California law.

Another reason is that salespersons must be paid commissions equaling at least 1 1/2 times the minimum wage. How can you make that calculation unless you have timesheets?