Tag: HR Consulting–ADA

HR Consulting Update: Keeping a Job Open After Returning From ADA Leave

by hrconsulting14

Consider a case in which an employee is taking unpaid ADA leave per direction from his doctor. Because the position must be filled in order to operate the business, it was filled by a floater. The question is what job needs to be offered the disabled employee after returning from ADA leave.

The EEOC and many courts take the position that a company must hold the employee’s job open as a reasonable accommodation while under an ADA leave of absence, unless doing so would create an undue hardship. Thus, if it would cause such a hardship, the person’s position can be replaced by another during the ADA leave. But even if this is the case, upon the employee’s return, there must be a good faith attempt to find a vacant and equivalent position to which he is qualified. In other words, reassigning him to another job.

But there are other HR exceptions to the requirement of offering another job upon return from disability:

  • Absence for a significant amount of time. Most reported court cases deal with a 1 to 2-year period. However, there is a case similar to ours in which only a couple months was considered an undue hardship. For example, in Walton v. Mental Health Association of Southeastern Pennsylvania,168 F3d 661 (3rd Cir. 1999), a 2 ½ month ADA leave was considered excessive and caused undue hardship to the employer. There the employee’s presence was essential and there was fear the program the employee was heading would fail for lack of funding and leadership.

 

  • Erratic and unpredictable leave. This is when the employee frequently starts and stops his or her job. This can be especially difficult from HR consulting standpoint.

 

  • Indefinite leave. This is usually when the employee will not commit and say how long they will be out or even give an indication whether they want to come back or not.

To sum up, there is good and bad news. The good news is the company can hardly operate without having a current operator and it would be an undue hardship to leave this position vacant.  There is a good argument that having the floater take over this position is proper.

The bad news, if you want to describe it that way, is that upon the return of the employee, there has to be in a good faith effort by HR to find some other equivalents job. But he needs the experience or the desire to take another job. For this reason, it is suggested the employee be emailed that his job has been taken over by another through necessity and that upon his return, offering him a couple alternative jobs if he wishes. Then let him make the decision. The email can state:

 

Dear ______________:

Thank you for providing us your doctor’s note you will remain on disability leave through _______________, 2019. As you know, your position was that of ______________. In order to maintain operations and produce product, we need someone performing that position at all times. As result, we have hired an individual to take over that job and it is no longer available.

However, upon your return, and we would be happy to offer you the following positions if you wish: __________________________________________. Please let us know your desires in this regard.

 

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.

 

Reimbursing Employees for the Cost of Cell Phone Use

by hrconsulting14

An issue that is arising more and more lately for HR consultants, is the use of smart phones. It is common for employers through their HR Departments to either require or suggest that their employees have smart phones in use during the workday. There are a number of reasons for doing so, including scheduling, recording hours worked, ordering materials, coordinating with other employees and dealing with vendors. Additionally, apps are being provided to the cell phones to facilitate the work.

The question then arises as to what extent a company is required to reimburse the usage cost for such cell phones.

Fortunately, there is a case directly on point in California.  In Cochran v. Schwan’s Home Service (2014) 228 Cal.App.4th 1137, employees brought a class action against the employer after there had been a denial of reimbursement for the expenses to the use of their smart phones.

The first issue was whether the employer is required to pay employees for the initial cost of purchasing the cell phone itself. The case described no such requirement. In fact, it was not even mentioned as an issue in the case.

The next and final issue was to what extent is the reimbursement for the cell phones use. The case made it clear the company is only required to pay the monthly service or data plan, based upon the percentage of use for business by the employees. So for example, if the monthly plan is for $50 and the employees use the cell phone 50% of the time, the reimbursement would have to be $25 per month.

This is also in compliance with various labor code sections which require employees to be reimbursed for business expenses. For example, in California, this is codified in Labor Code Section 2802.

So be mindful of the fact there must be reimbursement. An alternative is to give a reasonable stipend each month for employees. Not the precise and actual cost of the cell phone usage, but a reasonable approximation that would apply to all employees. If you have any questions in this regard, please contact us as we provide HR consulting to employers.

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.