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HR Q&A

Disclosure

Below are actual HR compliance 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.

If you have a specific HR compliance question, contact us to receive professional support.

Our HR Advisors not only answer your question and provide the proper resources for reference, they also record the conversations and send you an email translation after the call so you can reference their answer anytime.

Below is an overview of the federal Fair Labor Standards Act (FLSA) classifications. Each of your employees must be classified as exempt or non-exempt and I’ll provide the steps for proper classification and what each classification means below.

Exempt vs. Non-Exempt
“Exempt” and “non-exempt” are employee classifications under the Fair Labor Standards Act (FLSA)—a federal law dating back to 1938 that requires certain employees to receive minimum wage and overtime pay. An exempt employee is exempt from these requirements.

The FLSA lists several exemption categories. The most commonly used are the executive, administrative, professional, computer, outside sales, and highly compensated employee exemptions. These are collectively known as the “white collar” exemptions.

Exempt Classification Criteria
Most of these exemptions require that the job pass a three-part test:

Step #1: An exempt employee’s salary must be at/above a minimum salary threshold as defined by the FLSA, and, where state law differs, at/above that amount. The current federal salary threshold, which became effective on 1/1/20, is $684 per week ($35,568 annually).

Up to 10% of this minimum may come from non-discretionary bonuses, incentive payments, and commissions (collectively, “incentive pay”), so long as these payments are received on at least an annual basis. If an employee does not earn enough incentive pay to meet the minimum by the end of the year, the employer has two options: pay the difference with a “catch-up” payment within one pay period after the end of the 52-week year or retroactively remove the exemption and pay the employee for any overtime worked during that same year.

Notably, teachers, practicing lawyers, practicing doctors, and outside salespeople are exempt from these minimums under federal law, though may be subject to state minimums.

Step #2: To be classified as exempt, an employee’s job duties must meet very specific criteria such as the use of independent judgment or management of at least two employees. Each exemption has its own duties tests. I have attached a Federal FLSA White Collar Exemption Guide that reviews the duty criteria and includes a useful job duty flowchart to the right of this response.

Step #3: The employee must be paid on a salary basis. In other words, the employee is paid the same each week, regardless of the number of hours worked or the quantity or quality of the employee’s work except in very narrow and specific situations when a reduction in salary pay is permissible.

If an employee meets all of the criteria under at least one of the exemptions, the employee qualifies to be classified as “exempt”, at your discretion, and if so, is not eligible for overtime pay. If the employee does not meet all of the criteria under one of these specific exemptions, they must be classified as “non-exempt,” and provided overtime pay when applicable.

Method of Pay: Exempt Employees
As stated above, an exempt employee must receive a fixed, predetermined salary for each workweek that is not adjusted except for very limited situations.

Method of Pay: Non-Exempt Employees
Pay may be issued to a non-exempt employee in any legal way such as by the hour, by the piece rate (e.g. widgets produced), by a weekly salary, or commission. Non-exempt employees must receive at least the applicable minimum wage per hour worked, regardless of the method of pay issued. And, regardless of how pay is issued, the employee is eligible for overtime. Thus, all hours worked must be carefully tracked and reviewed for each 7-day work week to ensure that overtime is paid properly. Each workweek is viewed in isolation with regard to overtime calculations.

Since it sounds like the incident may have taken place on company premises, it is possible that it could potentially be covered under workers’ compensation so we would recommend that you reach out to your third-party workers’ compensation insurance carrier for guidance.

In general, injuries that arise out of or in the course of an employee’s employment are considered to be work-related. For the determination of workers’ compensation eligibility, an employer’s premises, including parking lots, would be considered within the zone of employment. If an employee was injured at work in the course of a heart attack while at work (such as falling and hitting their head) then it may be covered, An employee would have to apply for such a benefit and your third party insurance provider would then determine their eligibility.

We would recommend that you follow the procedures for an injury at work and let your third-party workers’ compensation insurance carrier determine whether or not it would be determined to be workers’ compensation. Even if an employee has not missed time for an injury the company may potentially need to cover the initial medical expenses.

Yes, in two circumstances. First, you can discipline the employee if their other job violates your outside employment (aka moonlighting) policy. Second, you can discipline an employee who obtained FMLA leave fraudulently. If, however, you do not have a policy that specifically prohibits employees from working for other employers or if the employee’s work for the other employer is compatible with their health condition, then the fact that they are employed elsewhere during a leave is not cause for discipline. For instance, if the employee works a physically demanding job at Company A that they can’t perform because of a medical condition, they may still be able to work a desk job for Company B during leave.

The FMLA specifically allows employers to hold an employee on leave accountable to their uniformly applied moonlighting or outside employment policy. On the flip side, employers without such a policy can’t deny FMLA leave, including job protection and benefits continuation, to an employee just because they’re working elsewhere while on leave—unless you’ve got a case of FMLA fraud.

If you don’t have a moonlighting policy (or do but it’s not uniformly enforced), then the only other way to discipline an employee for working for another employer during their FMLA leave would be if their second job indicates that the employee lied to you about their serious health condition. For example, if the employee’s FMLA certification states that they need to be on bed rest to recover from surgery, and the employee is performing physical labor at the other place, you’ve got a case of FMLA fraud. Fire away! In grayer situations, however, proceed with caution. The safest approach would be to require a recertification in light of the new information that casts doubt on the employee’s stated reason for leave or continuing validity of their original certification. Disciplining an employee on FMLA leave without knowing all the facts can easily give rise to an FMLA interference claim.

Whether you need to offer benefits depends on your health plan eligibility terms. However, offering benefits to interns can enhance your employment brand and reputation in college placement offices and within the labor marketplace overall.

Summer interns by nature are “temporary” employees as their duration of employment is expected to last not more than the summer (e.g., 90-120 days). While you can classify these employees as temporary, their eligibility for benefits will be determined by the terms of your group health insurance plan and the terms of any other company-provided benefits policies.

With respect to healthcare benefits, temporary or seasonal workers don’t qualify under many plans. Employees who work less than six months are often excluded from the plan and not offered coverage per the plan’s guidelines. However, if the temporary work period exceeds six months, they would usually be treated as a regular employee, even if they are being classified as ”temporary” in the employer’s internal systems. We recommend you check with your insurance broker to see if there is specific wording that would make temporary or seasonal workers eligible under your plan.

If your summer interns are eligible, you should provide them with access to this benefit per your usual waiting periods. We recommend you confirm your plan’s exact rules with your carrier or benefits broker to ensure you’re following your plan’s expectations.

Note: Applicable large employers (ALEs) may be required to offer group health insurance benefits to avoid potential penalties under the Affordable Care Act (ACA). ALEs are employers that had an average of 50 or more full-time equivalent employees in the prior calendar year. Under the ACA rules, interns can be defined as seasonal employees when hired into positions for which the customary annual employment is six months or less. The ACA requirement to offer health insurance may be triggered for seasonal employees (interns) depending upon a complex set of rules. Employers with fewer than 50 full-time equivalent employees are exempt from the ACA requirement to offer health insurance to avoid potential tax penalties.

Online Employee Training can be a useful tool for developing talent, but they can also end up being a waste of time and resources, even if the content and presentation are good. The difference between effective and ineffective training often comes down to whether employees are able to absorb and retain the information they receive.

There are obstacles to absorption and retention of training. Busy employees may listen to a webinar while they work on other things, catching only tidbits here and there; or they may put a training video off until they’ve finished a project and are too exhausted to give it due attention.

To avoid these training pitfalls, consider these three tips:

The Neuro Leadership Institute argues that we learn quickly and retain information best when:

  • we focus on one topic (attention),
  • we actively connect what we learn to what we already know (generation)
  • we experience positive feelings while learning (emotion)
  • space our intake of information (spacing)
 

For example, cramming training on multiples topics into a tight two-day workshop would be much less effective than spreading that training out over a few weeks. Give employees time to reflect and practice the skills they’ve learned.

In some professions, like music and athletics, you spend most of your work time learning, building, and reinforcing skills before the big performance. Whether it’s a concert, game, or race, good performance necessitates constant practice. In most professions, practice seems like a luxury you can’t afford because you’re expected to be performing during your work time. This is one reason training fails to deliver desired results. To master new skills, employees need time to focus on building those skills. This means some work time needs to be set aside post-training for them to engage and practice what they’ve learned.

Align training with the present needs and future goals of both the company and the employee. When assessing online employee training goals, consider what additional knowledge and skills will enable them to do their jobs better now, but also set them up for success in their future career. Employees are more likely to be excited by and personally invested in their training if they see there is a personal return on their investment. It is the perceived personal value of training, that encourages its success.

AllMyHR’s Online Employee Training system has hundreds of quality, pertinent and effective modules. And our training consultants are available to help you design a customized package specifically for your company, for less than the cost of a Latte a Day! Schedule a quick call today 540-373-2121 or Schedule a Demo.

It depends. You can certainly share a copy of the original complaint with the person who filed it. You can also tell them about the general results and let them know whom they should speak to if the harassment continues.

You shouldn’t hand over investigation notes, witness statements, or other documentation. That information was shared with an expectation of confidentiality (at least whenever possible). Sharing would violate that trust and potentially deter employees from participating in future investigations. Likewise, the employee’s complaint shouldn’t be shared with anyone else. This, of course, includes the accused party. Aside from breaking confidence, it could lead to retaliation.

On a related note, since under state law personnel files may have to be provided to employees upon request, it’s best to keep investigation files separate from personnel files. It’s reasonable to include a copy of the general results of an investigation in the personnel file, but don’t include any complaints, investigation notes, or witness statements. 

Yes, investigate the allegations even though the accusing employee has left the organization. If your investigation shows that harassment occurred, you should take the appropriate disciplinary action.

Federal law obligates employers to prevent or stop unlawful harassment. Harassment happens when behavior is unwelcome and based on a protected class such as race, gender, age, religion, national origin, or disability. It becomes unlawful when it is severe or pervasive enough to create a hostile work environment. In this case, since you’ve been made aware of alleged sexual harassment, failing to investigate the allegations could invite risk, especially if additional complaints are made against the same individual.

When an employer receives a harassment claim, they have a legal obligation to examine the claim by conducting a thorough investigation. This includes the following steps:

  1. Select an interviewer. Typically, this person would be an impartial manager, company officer, or HR representative. They should approach the investigation process without a presumption of guilt or innocence and with the commitment to treat the situation as fairly as possible. Typically, the investigation can and should be conducted and closed within three days.
  2. Speak with the employee who made the complaint (if you know who they are), the accused employee, and any witnesses they name. The questions asked during the interview should not lead an interviewee toward a particular response and should not be accusatory in nature. They should be unbiased, open-ended, and prepared in advance. It’s also important not to promise a particular outcome to employees participating in the investigation.
  3. Once the investigation interviews are complete, document your conclusions and actions taken. If the company determines that the accused employee did in fact violate its harassment or other workplace policy, appropriate disciplinary measures may be administered. What qualifies as appropriate would depend on the severity of behavior; it may include termination of employment. A summary of the findings should be placed in the accused employee’s file.
  4. Inform both the accused employee and the accuser about the conclusions of the investigation and any disciplinary measures taken. The complaining employee doesn’t need to know the specific disciplinary action, just that appropriate corrective action has been taken. Remind both employees that you will not tolerate retaliation.
  5. In some situations, it is advisable to separate employees to limit the potential for future incidents, but care should be taken so this step doesn’t have a negative impact on the employee who raised the complaint.

Yes. Here are a few things you can do to make this time run as smoothly and stress-free as possible:

Remove nonessential work duties: For the positions that seem most stretched, make a list of tasks that could be put on hold (or perhaps reassigned). You can invite input from employees, too, but I’d recommend acknowledging that they’re overwhelmed and saying that you’ll do your best to alleviate some of the pressure. Then hold off on nonessential tasks until business slows down or you’ve increased your headcount.

Allow for flexible scheduling: If employees need to work longer hours on some days during the week, consider allowing them to work fewer hours on other days of the week. Note that some states have daily overtime, spread-of-hours, or split-shift laws.

Ultimately, that’s your decision. Some companies are forgoing an in-person holiday party again this year, while others feel like it’s safe enough to celebrate in person. Unfortunately, COVID cases and hospitalizations due to the virus are rising again in many places across the country. Also, the CDC continues to recommend that anyone who isn’t fully vaccinated, as well as fully vaccinated people in areas with substantial to high transmission, wear masks in public indoor spaces.

If you decide to host a party this year, here are some measures you may want to consider:

• Look for outdoor spaces or well-ventilated indoor venues with enough room for people to spread out.

• Require employees to be vaccinated or tested before attending the party. Pay for testing if you require it.

• Require anyone who is under the weather (for any reason) to stay home. If there are raffles or gifts at the party, ensure those who stay home for their own safety or the safety of others are included.

• Make sure employees know that the holiday party is completely voluntary. No work or company business should be conducted during this time.

• Employees who are uncomfortable attending should not be pressured in any way to attend.

Host a virtual party instead or as an alternative for those who can’t or don’t want to attend in person. You could provide gift cards to local eateries or food delivery services, organize a home decorating or ugly sweater contest, and facilitate interactive games.

In general, the HIPAA Rules do not apply to employers or employment records. HIPAA only applies to HIPAA-covered entities – health care providers, health plans, and health care clearinghouses – and, to some extent, to their business associates. If an employer asks an employee if they are vaccinated or to provide proof that they have been vaccinated, that is not a HIPAA violation, and employees may decide whether to provide that information to their employer.

Not at this time. Currently, if employers mandate vaccines and an employee has an adverse reaction, they could potentially have a worker’s compensation claim. That’s not to say that this stance might change or that with the release of the new Emergency Temporary Standards that this particular question could be addressed. It seems that if it isn’t directly addressed, it will likely be tested in court as the vaccine mandate for large private employers goes into effect later this year.

While employers may be able to make vaccinations a condition of employment absent medical and religious accommodations, some employees may have general objections to receiving a COVID-19 vaccination and employers need to decide how they will proceed in these circumstances. Terminating employees might not be the desired approach, but allowing for a leave of absence, transfer to another position, telework or other modifications might be acceptable solutions.

While employers are allowed to ask employees about their vaccination status, employers should treat this information as confidential unless they have a legitimate business reason to disclose it. For example, employers whose employees are in-home caregivers for elderly clients can most likely confirm to their clients that their employees are vaccinated. The best practice would be to have employees voluntarily consent to the disclosure to avoid potential privacy issues under state law (if applicable). Employers may be prohibited from disclosing additional information, however, such as the fact that an employee didn’t get vaccinated because of a disability.

Alternatively, it is likely acceptable for employers to share a more general statement about their employee vaccination status, e.g. “All employees are vaccinated” or “X% of employees are vaccinated.”  

If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do so is up to you, unless state or local law has imposed recordkeeping requirements. You may want to keep something simple like an excel spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to take a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file. Alternatively, you could have employees complete our sample Verification of Vaccination Form.

If state or local law requires recordkeeping, then follow those requirements, including how long the records should be kept. If no law is in play, we recommend keeping the information for as long as you keep other information in employee medical files.

Finally, make sure that you don’t discriminate against employees who aren’t vaccinated because of their religious beliefs or disabilities. Title VII of the Civil Rights Act protects these characteristics and requires that you make reasonable accommodations for employees whose religious beliefs or disabilities prevent them from complying with your policies.

The answer will depend on a number of factors, such as how many employees are misclassified, how much extra money they would have been paid if properly classified, and whether or not lawyers or regulatory agencies get involved.

Generally, if an employee goes to the federal Department of Labor (DOL) and claims that they’ve been misclassified, the DOL will investigate. If the DOL determines that an employee—or entire group of employees—should have been paid overtime but wasn’t, the employee will be owed up to two years’ worth of unpaid wages (or up to three if the misclassification was “willful”). The organization may also owe the employee or employees liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization may owe them $4,000. The organization would also owe the government taxes on those wages, as well as interest on the taxes.

Most states also have their own minimum wage and overtime laws, and often an organization can be held liable under both federal and state law, meaning the employee would be owed additional damages for violations of state wage law. And if you are in a state with late payment penalties, the organization could owe additional damages for not having paid all wages by the time they were due. There’s also a very good chance that the organization will be held liable for attorney’s fees—both the organization’s and the employee’s.

On top of the costs mentioned above, there are potential federal civil penalties of $2,074 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. Finally, statutory interest may immediately begin to accrue on the amount owed.

Unfortunately, we live in an environment that requires all employers to think about, prepare for, and take appropriate actions to ensure the safety of all employees in active shooter or other emergency situations. Therefore, it is important for employers to offer employees both training and action plans. Most security experts, including the Federal Bureau of Investigation (FBI) and U.S. Department of Homeland Security (DHS) stress the following key points in response to active shooter preparedness:

  • Have evacuation and emergency plans in place in all locations.
  • Conduct drills and ensure that all employees are trained to be aware of the environments in which they work and to react quickly to evacuate the area in the event of an active shooter situation.
  • Ensure that all employees know the locations of the exits nearest to their work areas.
  • If evacuation is not possible, employees should know the locations of the best shelter areas and what to do, such as closing and locking the doors and windows immediately, turning off lights and silencing cell phones, establishing sturdy barricades that could possibly withstand gunshots, etc.
  • If the situation allows, employees may be trained to take necessary steps to incapacitate the shooter (tackle the shooter or otherwise attempt to incapacitate).
  • The simple advice is to run, hide, and as a last resort, fight.

 

Whenever possible, create your emergency action plans with assistance from local law enforcement authorities. The plan should include all of the following:

  • Preferred method of contacting 911.
  • Lockdown and evacuation plan.
  • Contact information for local hospitals.
  • Contact information for, and responsibilities of, individuals to be contacted under your employee assistance plan, if applicable.

 

In all cases, preparing and having a plan for an active shooter or other emergency will help both employees and managers better prepare for dealing with such a high-stress situation. We also recommend preparing your plan in coordination with law enforcement to ensure best practices.

You can generally ask employees to provide more information when they indicate that their vacation or PTO request is for personal reasons, but we don’t recommend it. The specific reasons for the day off shouldn’t affect whether you grant the request, and you don’t want to give the impression that you’re accepting or denying requests based on the reasons that are given. It may also be information an employee doesn’t want to share.

If the time off requested is problematic for scheduling and you’re trying to assess whether the employee could take off a different day or time (or if the company should grant the request despite the inconvenience), we recommend having a conversation with the employee rather than digging for details without telling them why you’re asking.

This advice applies only to time off that you offer as a company benefit; time off that is required by federal, state, or local law will have its own requirements about what you can or cannot ask.

This employee may just need to talk through their concerns and get your help prioritizing or delegating. They may, for example, feel like every single thing on their to-do list is life-or-death by Friday at close of business, when that’s not really the case. Some manager guidance can go a long way, especially for your employees who are usually self-directed.

On the other hand, the stress and mental health effects the employee describes may rise to the level of a disability under the Americans with Disabilities Act (ADA). In this case, we would recommend beginning the interactive process to determine what, if anything, can be done to accommodate them so that the essential functions of the job get done to your standards and the employee is able to keep working. As part of this conversation, you can request a doctor’s note to substantiate the disability.

If you have more general concerns about the effects of stress in your workplace, you might consider ways to help your employees reduce and manage their stress. Tried and true methods include offering health benefits so employees can access health care professionals and paid time off so they can take a day here and there to rest and recharge. Simply encouraging employees to support one another and allowing them breaks during the day can also be a great help.

Many states have imposed regulations requiring employers to provide COVID-19 training to their employees. But not every state has. However, even when not mandated by state law, employers have the obligation under federal OSHA regulations to provide information to their employees regarding the COVID-19 pandemic and how to mitigate the spread of the virus at work.
 
Unfortunately, we have found no charts that outline which states require employers to provide COVID training to their employees.
 
Many states that require training do not implement a defined training course. Rather, each employer is required to educate and train their employees on the workplace safety protocols unique to their work environment related to the spread of the virus. The state of Virginia requires employers to do the following:
  • 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.  

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.

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.

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:

  1. Where possible, the employee asked the employer to eliminate the danger, and the employer failed to do so;
  2. The employee refused to work in “good faith,” which means that the employee must genuinely believe that an imminent danger exists;
  3. A reasonable person would agree that there is a real danger of death or serious injury; and
  4. 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:

  1. Job description for the employment position and job advertisements.
  2. Offer of employment.
  3. Employment contract (if applicable).
  4. Job application.
  5. Employee’s resume.
  6. Signed employee handbook acknowledgement.
  7. Forms providing next of kin and emergency contacts.
  8. Documents acknowledging receipt and review of other employer policies, such as nondisclosure, arbitration of employment disputes, safety practices, or other company-specific rules.
  9. Performance reviews and other performance-related documentation.
  10. Certifications, training taken, awards, etc.

Types of separate confidential files:

  1. Pre-employment file, including background checks, interview notes, assessment results, work samples, and other information used in the selection process.
  2. Payroll file, including Form W-4 and other payroll-related information.
  3. Benefits file, including benefits enrollment, beneficiary designations, leave of absence forms, or other confidential medical information.
  4. Forms I-9 verifying employment eligibility.
  5. Investigation files (if applicable).
  6. EEO records.

If you still have concerns about how to file documents, consider the following questions:

  1. Will a supervisor or manager have access to the document?
  2. Is the information contained in the document relevant to an employment decision?
  3. 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.

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]

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.

See additional guidance here or at: https://www.irs.gov/taxtopics/tc753.html

(January 2020)

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.

(January 2020)

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:

  1. Is worded concisely.
  2. Outlines the reasoning behind the policy.
  3. Is applied consistently. (Managers who enforce it should be trained on the policy and how to handle requests for exemptions.)
  4. 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.

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.

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. 

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:

  1. Prevent employers from enforcing policies that prohibit employees from performing their job duties while impaired by a controlled substance.
  2. Require employers to take actions that would violate federal law or cause them to lose federal contracts or funding.
  3. Require health insurance plans to provide coverage for medical marijuana.
  4. 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:

  1. As police officers or peace officers, or any law enforcement or investigative function.
  2. As construction or demolition workers.
  3. As commercial drivers.
  4. In any position requiring the supervision or care of children, medical patients, or vulnerable persons.
  5. 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:

  1. Any regulation promulgated by the federal Department of Transportation that requires testing of a prospective employee.
  2. 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.
  3. Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security.
  4. 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.

Resources:

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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