Below are actual HR questions that businesses just like yours have asked our HR Advisors. We provide the most up-to-date compliance answers at the time the question is asked. Due to the frequency of regulation changes, the following is not intended to be used as legal or compliance advice.
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- Mandate appropriate personal protective equipment (PPE), sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications in workplaces across the Commonwealth.
- Ensure ready access to hand sanitizer and the regular cleaning of common workspaces.
- Require employers to train employees on COVID-19 safety and to develop infectious disease and preparedness response plans. Implementation is required of employers by March 26, 2021.
- Include guidelines for returning to work and communicating about employees who test positive and potential exposures.
According to the Equal Employment Opportunity Commission (EEOC), yes. Simply requiring proof of vaccination by itself does not violate either the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).
However, employers should be aware that the ADA limits their ability to make “disability-related inquiries,” and GINA generally prohibits employers from requesting employees’ genetic information. While neither of these laws prevents employers from asking for proof of vaccination, employers are wise to explicitly tell employees not to provide related medical or genetic information as part of the proof. For example, employees should be advised not to provide their full medical history or extraneous information about their medical visit when providing proof of vaccination. See above for a sample GINA blurb.
I have employees that are parents working from home and they seem stressed to meet deadlines at times. What can I do to make their workday easier and help alleviate that pressure?
If you’re managing employees who are parents or caregivers, be compassionate and flexible. You’re in this together for the long haul, and you’ll get better engagement, focus, and commitment by trusting them to manage the demands on their time and attention.
Advise your employees to do the following when working from home:
- Let go of the conventional wisdom of keeping the “normal” office day structure.
- Don’t wait for children to wander in during calls or meetings. Find the right opportunity to invite them in, so you can describe what you’re doing and why. It’s great learning for them and sensitizes them to how their behavior might affect you.
- Schedule extra breaks to be with children (on both your schedule and theirs), whether it be for lunch, walks, or helping with their schoolwork.
A racially insensitive comment could be considered harassment — and it would be unlawful harassment if putting up with such comments became a condition of continued employment (essentially, management was unwilling to put a stop to it) or if the conduct was severe or pervasive enough to create a work environment that a reasonable person would consider hostile.
Since you have a duty as an employer to stop unlawful harassment, we recommend that you investigate the alleged comment and, if you find evidence to support that your harassment or other conduct policies have been violated, discipline the employee who made it. Make sure that the punishment fits the crime. For instance, something that was, in fact, just insensitive may warrant a verbal warning, whereas calling someone by a racial slur may warrant a final warning or even termination, depending on the circumstances. Be sure to document your findings and any disciplinary actions taken.
Although some employers will be comfortable sending everyone home with their laptop and saying “go forth and be productive,” most will want to be a little more specific. A good telecommuting policy will generally address productivity standards, hours of work, how and when employees should be in contact with their manager or subordinates, and office expenses.
For instance, your policy might require that employees are available by phone and messaging app during their regular in-office hours, that they meet all deadlines and maintain client contacts per usual, and that they check in with their manager at the close of each workday to report what they have accomplished. Be sure to let employees know whom to contact if they run into technical difficulties at home.
You’ll also want to specify how expenses related to working from home will be dealt with. If you don’t expect there to be any additional expenses involved, communicate this. You don’t want employees thinking this is their chance to purchase a standing desk and fancy ergonomic chair on your dime. That said, you should consider whether employees will incur reasonable and necessary expenses while working from home. Some states mandate reimbursement for these kinds of expenses, but it’s a good practice to cover such costs even if it’s not required by law.[Updated June 9, 2020 in relation to the COVID-19 outbreak. See Coronavirus (COVID-19) Resources Resources for the most up-to-date information.]
Yes, we recommend you investigate. A company always has some inherent liability in relation to discriminatory or harassing comments or behavior. The level of liability usually correlates to the nature, severity, and context of the comments, the position of the employee who made them, and what the employer does or does not do about it.
Since you have knowledge of a potential situation, we recommend you investigate the matter and take appropriate disciplinary action if it turns out your anti-harassment policy was violated. As you conduct the investigation, document the discussions you have as well as your findings, and reassure those you interview that their participation will not result in retaliation.
Are we required to restore employees returning to work after a furlough to their original positions?
Unless an employee was out on job-protected leave, such as FMLA or EFMLA, you are not required to return them to their original position or to an equivalent one (or bring them back at all). Given the impact of COVID-19 on business operations across the country, it’s not surprising that organizations may need to restructure their teams to stay afloat or remain competitive. That said, if employees who were furloughed or laid off are asked to come back to a job that feels to them like a demotion, they may be less inclined to accept the offer or may be less engaged in the new role than they were in their previous job.
If you need to restructure their position, it will be helpful to explain why that was necessary. People are generally much more accepting of change if they understand it, and less likely to claim discrimination if you’ve given them your business-related reason for the decision.
We are in an "at will" state. I believe a few of our employees have been acting irresponsibly and getting together in groups on their time off. Can we terminate for this to keep our other staff and customers safe?
While your state does not have any specific statutory provisions that would protect an employee who engages in lawful off-duty conduct, I would recommend caution in using such information as the basis for discipline or other harmful employment actions such as restricting their ability to work.
Certain elements of employees’ off-duty conduct (such as attending church for example) may be tied to protected characteristics that could make such actions discriminatory.
Additionally, if engaging in such activities is permissible under state public health ordinances then it may be inconsistent to object to their off-duty conduct as being a threat to workplace safety. If there are not activities prohibited by the state law/executive order that you could point to then you could point to the general CDC guidance recommending that individuals socially distance themselves and avoid gathering in large groups
You would also want to provide some type of advance notice to employees that make it clear that their engaging in certain off duty activities could result in their access to the workplace being limited. You would want to distribute the CDC guidance (found here) to make employees aware that if you find evidence that they are not following such guidance in or out of work that they may be asked to remain outside of the workplace for a specified period of time in the interest of providing a safe work environment under OSHA’s general duty clause.
However, taking action on off-duty behavior can be complicated unless an employee is self-reporting it as your awareness of it would otherwise be coming from third party reports which may not be reliable. You would generally want to have some other type of evidence other than a report by others before taking harmful employment action against an employee.
Again, it may be fine to communicate your expectations and to ask employees about whether they are complying with social distancing recommendations outside of work. Such inquiries may not be viewed as invading an employee’s privacy too much, where it’s a public health recommendation. It may be more complicated to take action if an employee admits to violating CDC guidance or trying to prove it if the employee denies it.
If you have ongoing concerns about workplace safety, then you may first consider using screening procedures (asking employees if they are experiencing symptoms or even temperature checks) and perhaps require employees to wear cloth face coverings as an alternative to potentially disciplining for off-duty conduct.
We recommend extreme caution when deciding to replace an employee who refuses to work because of concerns about COVID-19. Generally, employees do not have a right to refuse to work based only on a generalized fear of becoming ill if their fear is not based on objective evidence of possible exposure. However, under the current circumstances, where COVID-19 continues to be a threat across the country, we think it would be difficult to show that employees have no reason to fear coming in to work, particularly but not exclusively in a location with a shelter-in-place rule. Returning employees may also have certain rights under state and federal law. Here are few things to keep in mind:
• Recalled employees may have a right to job-protected leave under a city ordinance, state law, or the federal Families First Coronavirus Response Act (FFCRA). See our overview of the FFCRA. (Clients Only)
• Employees who are in a high-risk category — either because they are immunocompromised or have an underlying condition that makes them more susceptible to the disease — may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) or state law if their situation doesn’t qualify them for leave under the FFCRA (or if they have run out of that leave). It would be a reasonable accommodation under the circumstances to allow the employee to work from home or take an unpaid leave, if working from home is not possible.
• Employees who live with someone who is high risk are not entitled to a reasonable accommodation under federal law, but we strongly recommend allowing them to work from home if possible or take an unpaid leave. Otherwise, they may decide to quit and collect unemployment insurance. If you want to keep them as an employee, being compassionate and flexible is your best bet.
• Under Occupational Safety and Health Administration (OSHA) rules, an employee’s refusal to perform a task will be protected if all of the following conditions are met:
- Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so;
- The employee refused to work in “good faith,” which means that the employee must genuinely believe that an imminent danger exists;
- A reasonable person would agree that there is a real danger of death or serious injury; and
- There isn’t enough time, because of the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.
Check state and local law to see if additional protections may apply.
Instead of replacing employees who express fear at this time, we recommend that you consider methods to encourage employees to come to work and to help put their minds at ease.
Consider emphasizing all of the safety methods you have put in place (such as scheduled hand washing, frequent disinfection of surfaces, social distancing rules, reduced customer capacity, staggered shifts, or more extreme measures if warranted by your industry).
We recommend relying on the Centers for Disease Control and Prevention (CDC) and local health department guidance for establishing safe working conditions at this time. You might also consider offering premium pay (a.k.a. hazard pay) or additional paid time off for use in the future to employees who must come to work.
Retention of employee documents varies at both Federal and State levels. Employers must maintain I-9 records, W-4 forms, and any state tax allowance forms that may be applicable.
For privacy reasons, the personnel file has specific EEO and HIPAA requirements. Here is a comprehensive list of what to include or avoid in your personnel files.For privacy reasons, the personnel file has specific EEO and HIPAA requirements. Here is a comprehensive list of what to include or avoid in your personnel files.
The personnel file generally contains the following documents:
- Job description for the employment position and job advertisements.
- Offer of employment.
- Employment contract (if applicable).
- Job application.
- Employee’s resume.
- Signed employee handbook acknowledgement.
- Forms providing next of kin and emergency contacts.
- Documents acknowledging receipt and review of other employer policies, such as nondisclosure, arbitration of employment disputes, safety practices, or other company-specific rules.
- Performance reviews and other performance-related documentation.
- Certifications, training taken, awards, etc.
Types of separate confidential files:
- Pre-employment file, including background checks, interview notes, assessment results, work samples, and other information used in the selection process.
- Payroll file, including Form W-4 and other payroll-related information.
- Benefits file, including benefits enrollment, beneficiary designations, leave of absence forms, or other confidential medical information.
- Forms I-9 verifying employment eligibility.
- Investigation files (if applicable).
- EEO records.
If you still have concerns about how to file documents, consider the following questions:
- Will a supervisor or manager have access to the document?
- Is the information contained in the document relevant to an employment decision?
- Is it related to the employee’s performance, knowledge, skills, abilities, or behavior?
If the answer is yes to these questions, then the document likely belongs in the employee’s personnel file. If the answer is no to any of the questions, then it’s better to err on the side of caution and maintain the document in a confidential file.
Our management worries that offering the option to telework may negatively impact employee productivity. Any suggestions?
The concern is understandable, but working from home may actually increase productivity. For instance, Stanford Business School released a study of call center employees who volunteered to regularly work from home. The results bolstered the fact that working from home may increase productivity as they saw a 13 percent performance increase in the teleworking employees. Nine percent of the performance increase was attributed to working more minutes per shift, with fewer breaks and sick days, and 4 percent was attributed to the employee’s fielding more calls per minute due to quieter working environment. Home workers also reported improved work satisfaction and experienced less turnover. Learning more about telecommuting, establishing a clear and concise workplace policy that addresses employee and management concerns, and offering telecommuting as an option for positions where it is sensible would be a good way to begin implementing, or at least testing, this type of flexibility in your workplace.
See tools for implementing flexible workplace policies in [LINK FOR CLIENTS ONLY]
Besides for new employees hired after Jan 1 2020, what circumstances would require an employee to complete the new W-4 2020? Are there benefits for employees to fill it out voluntarily?
Other than at time of hire, the employer is to provide the new Form W-4 to any employee who wishes to make a change to his/her federal income tax withholding. The other required time is when the employee had claimed Exempt on their previous Form W-4. Under IRS regulations, when an employee has claimed Exempt from federal withholding, that exemption status is valid only for the tax year in which it was claimed. The employer must provide the employee with a new Form W-4 to complete no later than February 15 of the new calendar year.
We are auditing I-9s and found we are missing I-9 forms for some of our employees. What should we do?
If you discover that a Form I-9 is not on file for a current employee, you and the employee must work together to complete a new Form I-9 immediately. If the employee cannot produce acceptable documentation as required in Section 2 of the form, or refuses to complete Section 1, that employee cannot work for pay. A new Form I-9 must not be back-dated.
If an employee's hours are reduced below 30 hours per week, would the employee need to stay in the health plan even if they no longer meet the eligibility requirements?
In accordance with the Affordable Care Act’s (ACA’s) employer shared responsibility provision (so-called “play or pay” rules), there are two measurement methods to determine health coverage eligibility: the monthly method or the look-back method. Under the look-back method, employees who averaged at least 30 hours per week in the measurement period are deemed eligible for the subsequent stability period, even if their hours are reduced to fewer than 30 hours per week. In other words, if an employee chooses to enroll, their medical plan coverage will automatically continue for the entire stability period.
Further, if the coverage is part of a cafeteria plan (which allows employees to make pretax contributions), they would not be able to drop the coverage since their eligibility has not changed. Fortunately, the IRS recognized that employees in a stability period whose work hours are reduced could become stuck in a plan they no longer want or can afford. So, the IRS revised the cafeteria plan rules to give the employer the option of amending its plan to allow employees to drop coverage if certain criteria are met.
Specifically, an employee may elect to drop coverage due to the reduction in hours, provided the employee intends to enroll in another plan providing minimum essential coverage with the new coverage effective no later than the first day of the second month following the date the original coverage is dropped.
To recap, the employer’s cafeteria plan may allow an employee to drop medical coverage (but not dental/vision coverage or a health flexible spending account (HFSA)) during the stability period if:
- The employee has a change in employment status and will reasonably be expected to average less than 30 hours of service per week; and
- The employee intends to enroll in another medical plan (such as a spouse’s plan or a Marketplace plan) by the start of the second month after dropping this employer’s plan.
To allow this election change, the employer must amend its § 125 cafeteria plan and adopt the amendment by the end of the plan year in which the election change is allowed. The employer also must inform all cafeteria plan participants of the amendment.
While there is no law that prohibits employers from mandating flu shots — and in some states, the law requires all healthcare workers to get flu shots — you should carefully determine if the benefits to your business outweigh the risks. There has been a rise in litigation brought by employees who object to this requirement for medical, religious or personal reasons. The Equal Employment Opportunity Commission (EEOC) has filed or joined several lawsuits over claims that inflexible mandatory vaccination policies are discriminatory.
Employees may be entitled to exemptions from a flu shot policy for medical reasons under the Americans with Disabilities Act (ADA) or religious reasons under Title VII of the Civil Rights Act of 1964. Requests for exemptions must be evaluated individually yet treated consistently; a difficult task. You will need to engage in an interactive process with the employee, just as you would for any other request for accommodations, to determine if they can be granted without presenting undue hardship to your company.
The EEOC recommends against mandatory flu shot policies, instead suggesting employers encourage employees get vaccinated on their own. Offering no-cost flu shots on site can further improve workplace vaccination rates by making it more convenient for employees.
If you choose to enact a mandatory flu shot policy, write it carefully to protect your company from the risk of discrimination claims and be sure to run it by your legal counsel. Make sure the policy:
- Is worded concisely.
- Outlines the reasoning behind the policy.
- Is applied consistently. (Managers who enforce it should be trained on the policy and how to handle requests for exemptions.)
- Explains the process for requesting exemptions due to medical contraindications or sincerely held religious beliefs. Any medical information obtained as part of the request for an exemption should be kept confidential.
If our employee(s) do catch the flu, is the common flu considered a serious health condition under the Family and Medical Leave Act (FMLA)?
Most cases of the common flu do not meet the definition of “serious health condition” and would not be eligible for Family and Medical Leave Act (FMLA) leave.
Some cases of the flu, however, are severe or result in complications, and these have the potential to meet the FMLA definition of “serious health condition.” This is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Continuing treatment means:
- The employee has been incapacitated for a period of more than three full days; and
- Consults with a doctor two or more times within 30 days, or
- Has one consult with a doctor and a regimen of continuing treatment.
If an employee is out sick with the flu for more than three days, consider whether the need for FMLA leave may exist. This doesn’t mean that you need to go through the whole FMLA process to determine eligibility for each flu absence; just that you shouldn’t automatically reject FMLA requests for the flu either.
Review each case based on the facts, keep the “serious health condition” definition in mind, and if the illness is severe, ask the employee to submit certification from a health care provider to support the their need for leave protection under the FMLA.
Do New York's new sexual harassment prevention laws apply to companies that are not based in New York?
Even if you’re not based in New York State or New York City, the new sexual harassment laws now beginning to take effect may apply to your organization. If an employer is located outside of New York and has employees working in New York, the regulation would apply to those employees working in the state of New York. The state and city have different provisions for employee communication and training along with various dates for compliance.
The state law applies to all employers, regardless of size, even if you only have one employee working in New York for one day. This includes remote employees who work from their homes. It also applies to all employees at out-of-state employers with New York State government contracts, even if no one steps foot in the state.
As a client, you have access to the New York Sexual Harassment Prevention Training that satisfies State and City Requirements.
What is the legal status of marijuana in NY? In NY we have a drug-free workplace and require employees to undergo pre-employment drug testing. Can we elect to not hire an applicant who tests positive for marijuana because of a positive test?
New York’s Compassionate Care Act (N.Y. Pub. Health Law §§ 3360 – 3369-e) permits limited use of medical marijuana by individuals suffering from covered medical conditions. Certified patients permitted to use medical marijuana are considered to be “disabled” under the state’s human rights laws. However, the law does not:
- Prevent employers from enforcing policies that prohibit employees from performing their job duties while impaired by a controlled substance.
- Require employers to take actions that would violate federal law or cause them to lose federal contracts or funding.
- Require health insurance plans to provide coverage for medical marijuana.
- Require employers to accommodate the use of medical marijuana in workplaces.
New York City: Pre-Employment Marijuana Testing Banned
Effective May 10, 2020, a New York City Charter Rule (Int. 1445-2019) prohibits New York City employers from conducting pre-employment drug testing of prospective employees for marijuana. Under the law, it is an unlawful discriminatory practice for a New York City employer, labor organization, employment agency, or agent thereof (employer) to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (THC) or marijuana in his or her system as a condition of employment.
However, this prohibition does not apply to those applying to work:
- As police officers or peace officers, or any law enforcement or investigative function.
- As construction or demolition workers.
- As commercial drivers.
- In any position requiring the supervision or care of children, medical patients, or vulnerable persons.
- In any position with the potential to significantly impact the health or safety of employees or members of the public.
Additionally, the law does not apply to drug testing required pursuant to:
- Any regulation promulgated by the federal Department of Transportation that requires testing of a prospective employee.
- Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant.
- Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security.
- Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
The New York City Human Rights Commission will create the rules for implementation of this law.
(May 29, 2019)
The Affordable Care Act (ACA) requires employers subject to the federal Fair Labor Standards Act (FLSA) to provide unpaid, reasonable break time for an employee to express breast milk for a year after the child’s birth. The frequency of breaks needed to express milk as well as the duration of each break will likely vary. Additionally, although employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. The FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time also applies.
Employers are not required to create a permanent, dedicated space for use by nursing mothers. However, employers are required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space follows these guidelines. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mothers’ use, it must be available when needed in order to meet the statutory requirement. Of course, employers may choose to create permanent, dedicated space if they determine that is best to meet their obligations under the law.
Yes. Nonexempt employees may be paid hourly, salary, commission or fee as long as they are compensated for all hours worked at a rate not less than the state (or local) minimum wage and are compensated at one and one half times their regular rate of pay for all hours worked beyond 40 in the work week (or eight hours in a day for some states).
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