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‘Labor Laws’ Category


Required hours between shifts

I have heard 2 different stories as to the amount of time employees must be given between shifts. One version is that legally there must be 8 hrs from the end of one shift to the beginning of the next shift. The other, that 10 hrs. is the requirement. What does the state law in Washington state require?

There is neither federal nor Washington state law establishing a set amount of time required between shifts. The Washington State Department of Labor & Industries specifically states that there are no regulations regarding when and how workers are scheduled.

There are certain industries that require a set amount of time between shifts. Such industries generally have safety sensitive positions, like airline pilots or commercial drivers. These standards are established by industry appropriate administrations.

Allowing employees eight hours of time off between shifts is a commonly used standard; however, there is no legislation requiring it for all workers.

Employers must consider the benefits of adequate time off between shifts. Employees need sufficient rest in order to avoid fatigue. Excessive fatigue can lead to health problems or workplace accidents, which will only increase employees’ time away from work. Not allowing employees ample time to rest will pose a safety risk as well as decrease productivity and employee morale.


California Post Job Offer Med History Questionnaire

Can I ask employees to complete a Post Job Offer Medical History Questionnaire if employed in the state of California and/or Nevada?

A post job offer medical questionnaire is used to determine if the entering employee has the physical qualifications necessary to perform the job or is in need of any accommodations in order to perform the job. Also, depending upon the nature of the job, the questionnaire will be used to provide baseline information for future comparisons of medical information. Such questionnaires are lawful, with some restrictions, and are often required by regulations administered by the Occupational Health & Safety Administration (OSHA).
According to the federal Equal Employment Opportunity Commission (EEOC), once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category.

California’s Fair Employment and Housing Act (FEHA) prohibits any non-job-related inquiries of applicants or employees, either verbally or through the use of an application form, that express, directly or indirectly, a limitation, specification or discrimination as to physical disability, mental disability, or medical condition, among other things. Under the FEHA, once an employment offer has been made to an applicant, but prior to the commencement of employment duties, an employer may require a medical or psychological examination provided that the examination or inquiry is job-related and consistent with business necessity and; that all entering employees in the same job classification are subject to the same examination or inquiry.

Nevada Law, specifically Chapter 613, Employment Practices, doesn’t specifically state whether post job offer medical history questionnaires are lawful or not. It is unlawful to discriminate on the basis of disability or interference with aid or appliance for disability. Since no state law exists, the federal law as administered by the EEOC applies.

It’s important to review medical questionnaires to ensure their lawfulness. Post job offer medical questionnaires should be required of all employees in the same job category with no exceptions. Such questionnaires should be job related and consistent with business needs. Employers may not request information regarding an employee’s family medical history or genetic information since doing so would violate the federal Genetic Information Nondiscrimination Act (GINA). If a job offer is rescinded based on the information provided on the questionnaire, make certain it can be proven that the impairment makes the individual unqualified to perform the essential functions of the job or that the individual poses a direct safety risk due to the impairment.

Lastly, keep the medical information separate from employees’ files. Best practice would be to maintain the information with a third party outside of Human Resources or Management.

March 25th, 2014, 8:07 PM |  Posted in: Labor Laws |
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FMLA information

I have an safety sensitive employee who failed a DOT physical for medical reason. My question is, do I offer that employee FMLA time while they are working on correcting their medical issue.

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks within a 12-month period of job protected, unpaid leave for a serious health condition that makes the employee unable to perform the essential functions of his job. The FMLA regulations define a serious health condition as an illness, injury, impairment, or physical or mental condition that involves:
• any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
• a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
• any period of incapacity due to pregnancy, or for prenatal care; or
• any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
• a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
• any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

If passing the physical is necessary in order to perform essential functions of the employee’s job and the employee failed the required physical due to a serious health condition as defined above then, yes, the employee should be informed of his FMLA rights, assuming the employee is otherwise eligible.

The federal DOT requires successful completion of its return-to-duty process prior to a covered employee returning to safety-sensitive duties. Additionally, the FMLA allows for employers to adopt a uniformly applied policy requiring employee’s prior to returning from leave to submit a fitness for duty certification from a health care provider stating that the employee is able to resume his job functions. Under the FMLA, the employer must inform the employee at the time of leave designation that a fitness for duty certification and what, if any, supporting documentation will be required. If no such notice is given the employer cannot require the certification at the time the employee is ready to return to work.

Keep in mind upon return from FMLA leave, the employee must be restored to his original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Employers are also required to continue group health insurance coverage for the employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.

March 25th, 2014, 9:40 AM |  Posted in: Labor Laws |
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Time off not earned

We have a policy here at a company in RI that you need to be employed for a year before receiving time off. We have many repeat offenders who are looking to take time off in which they have not accrued time as of yet. Is it legal for us to present them at the end of the year with a negative balance of vacation even though we are not paying them for the time off that they requested? Also what kind of procedure would you place?

It’s important for companies to apply their policies consistently and fairly to all employees. Allowing some employees to violate company policy is not only unfair to those that follow the rules but also could lead to discrimination allegations. The employer must decide to either enforce the rules uniformly or edit the existing policy.

A negative leave balance occurs when an employee takes vacation time before actually accruing or earning it. The employer is intentionally overpaying the worker or giving the employee an advance on his salary.

The purpose of adopting a paid time off policy which allows a negative leave balance is to permit employees to take paid time off without actually accruing it yet. Thus, not paying the employees for the time off but deducting the time from their PTO accruals is double dipping on the employer’s part. The employer is essentially requiring the employees to “pay back” the time off which was never actually “paid” to them. The legality of the matter would come in to play if the employer chooses to attempt to recoup the negative balance. Regardless of when the situation becomes illegal, it’s not a fair practice.

One option is to allow employees to take unpaid time off prior to being eligible for PTO. PTO balances would not be affected. Time off requests would be evaluated on a case by case basis and up to the manager’s discretion. Keep in mind under the federal Fair Labor Standards Act (FLSA) non-exempt employees are only required to be paid for time actually worked; however, exempt employees are usually required to be paid their full salary for any work week in which work was performed regardless of the number of hours actually worked. We’ve discussed permissible deductions from exempt employees’ pay in recent posts.

Another option is to adopt a personal leave of absence policy. Sample personal leave policies can be found online and edited to meet company objectives. A personal leave is used when an employee’s absence is not covered by the company’s paid time off policies or federal or state law. Generally, such leaves are approved on a case by case basis depending upon employee tenure, the length of the leave needed, employee performance, and hardship to the company. A personal leave is often for a time period greater than a few days and is unpaid.

Whichever option is adopted, it’s in the employer’s best interest to implement updated policies and apply them consistently throughout the company.

One last note, neither the federal government nor Rhode Island mandate paid time off. However, some states, like Rhode Island, have adopted legislation concerning the administration of such benefits. Rhode Island considers accrued vacation time to be earned wages. A separated employee, after completing at least one year of service, is owed any vacation pay accrued with all other due wages on the next regular payday for the employee.

March 22nd, 2014, 12:05 PM |  Posted in: Benefits, Compensation, Labor Laws |
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An employee recently returned from FMLA leave for the birth of a child. She frequently misses work because her babysitter is ill or does not show up. Should this be considered leave under FMLA?

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks within a 12-month period of job protected unpaid leave for the care and bonding of a newborn, adopted, or foster child within the child’s first year after arrival. The act doesn’t require the care and bonding period to be due to a serious health condition or medical need. Nor does it require employers to grant intermittent leave or reduced schedule leave for the care and bonding with a healthy child. FMLA intermittent or reduced schedule leave is only mandated if it is medically necessarily. Thus, it is up to the employer to allow an employee to use FMLA leave for childcare for up to one year after the child’s birth or placement.

For example, Mary took 6 weeks FMLA leave for the birth of her child three months ago. She is having childcare issues, like in your example, the babysitter is either ill or forgets to show up. She is constantly coming in late or calling out from work in order to care for her child since she has no childcare backup. Since the time off is not consecutive it would be considered intermittent leave. Mary still has 6 weeks remaining of leave entitlement and the situation occurs within the child’s first year of arrival. The leave is not due to a medical necessity and is intermittent; thus, Mary is not guaranteed coverage under FMLA. It is up to the employer to allow the leave.

Once the employee has exhausted her leave entitlement, she could be disciplined in accordance with the company’s attendance policy.

It’s important to maintain the calculations of leave take under intermittent or reduced schedule leave. Doing so ensures the FMLA and company policy are consistently and fairly applied to all employees in similar situations. Remember when an employee takes intermittent or reduced schedule leave only the actual leave time taken is counted towards the total 12 week entitlement.

March 22nd, 2014, 10:47 AM |  Posted in: Benefits, Labor Laws |
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