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FMLA/STD Employee Job Elimination

Can the company eliminate a director position while the employee is on FMLA/STD?

The federal Family and Medical Leave Act (FMLA) entitles covered, eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Short term disability (STD) is a wage replacement program for injured employees. It doesn’t necessarily provide job reinstatement rights.

Though an employee has job protection during FMLA leave, the employee is not exempt from job elimination. Under the FMLA, an employee has the same rights, no greater, to job reinstatement as if the employee had been continuously employed. Meaning, if the employee would’ve been laid off if he was not on leave then he can be laid off while on leave.

The employer bears the burden of proving that the layoff would’ve occurred regardless of the leave. Thus, employers must have a valid business reason for the layoff and have clear documentation proving the decision.


Vacation Request Forms

My employee files have become very large. How long should vacation request forms be maintained? This would greatly cut down on the paperwork in the file if I could discard them.

There is no law or general guideline regarding the recordkeeping of vacation request forms. Some companies only keep them for a year while others keep them indefinitely. The purpose of employee files is to maintain an accurate record of an individual’s employment record with the company. Purging any information could impair the employer from defending a claim. The chances of a vacation request form being the sole reason an employer loses a lawsuit is slim. Thus, it’s really up to you to decide what recordkeeping guidelines to adopt in this case. I, personally, recommend keeping the forms as long as you maintain the file.

The amount of paper documentation we’re required to keep on file is enormous. In an effort to reduce the paperwork you may want to consider storing certain forms or the entire file electronically.

October 22nd, 2014, 8:09 PM |  Posted in: Human Resources Management |
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Vacation Policy Change to Accrual

We currently do not have an accrual procedure in place, but the GM in our Maryland office wants to change to an accrual basis for vacation time. Here is my question–Most of the employees have been with the company for quite some time and are earning 4 weeks at the beginning of each year. – For accrual do I give them the 160 hours on Jan 1 2015 and then accrue an amount biweekly for the 2015? I am not sure how to do this.

By giving employees both a lump sum and starting the accrual on January 1, 2015, the employees would receive double the amount of vacation time. Thus, it’s best to start the accrual on January 1, 2015.

Many accrual plans often include a maximum accrual amount or a cap. Meaning, employees can only accrue up to a specified number of PTO hours. A common accrual maximum is two times the amount of PTO time an employee will accrue in one year. Once an employee reaches the maximum he won’t earn anymore vacation time until he uses some of his accrued time. Adopting an accrual maximum encourages employees to use their vacation time instead of “banking” it.

Remember to update the company’s vacation policy. Now is the time to review the policy in its entirety and make any appropriate changes. Inform staff of the changes in a timely manner.

October 22nd, 2014, 7:31 PM |  Posted in: Benefits |
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I called an former employee that left the company the day prior about her schedule, All I asked was who was it you saw on Tuesday at a certain facility? Now, I didn’t mention any names but the person I asked did and that was basically the end of the conversation. Is there any violation?

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule protects from the unauthorized disclosure of personally identifiable health information that pertains to a consumer of health care services. The privacy rule applies to covered entities such as health plans, health care clearinghouses, and health care providers. Most employers are not covered entities; however, an employer with a health clinic of any kind or one who acts as the intermediary between its employees and health care providers is covered under the law.
Personally identifiable health information is information that specifically identifies an individual. Examples include health care claims, doctor’s notes, enrollment information, premium payments, and reports of injuries or illnesses.

Violations occur when personally identifiable health information is provided by a covered entity without the prior consent of the client. If your former worker now works for the medical facility that you asked her about then a violation occurred.

Keep in mind that even though you may not be the one who provided protected information, you solicited it. Though this may not violate HIPAA, it’s unethical and may possibly violate other legislation depending upon the information obtained and what it is used for.

October 22nd, 2014, 7:18 PM |  Posted in: Human Resources Management |
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Boil Order

What are the requirements if any, to provide potable water to workers in an office building that is in an area where a boil order is in effect during the work day? Is the employer responsible for providing bottled water until the boil order is lifted?

The Occupational Safety & Health Administration (OSHA) provides guidelines on sanitation including drinking water. Employers are required to provide potable water, i.e. water that meets the standards for drinking purposes, in all places of employment. If a boil order is in effect and the employees don’t have access to any potable water then, yes, the employer must provide drinking water. There is no specific requirement that bottled water be provided, just potable water. Thus, the employer can provide bottled water or a portable drinking water dispenser. The portable drinking water dispensers must be capable of being closed, equipped with a tap and sanitary conditions must be maintained.

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