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Sep18

Employee Smells like Smoke

What recourse does an employer have to get a smoking employee to clean up so that he doesn’t smell like smoke in Colorado? The other employees are complaining.

Whether it’s smoke, perfume, or body odor, dealing with employee odors in the workplace is a common problem.

The first step is to talk to the employee about the odor. Don’t focus on the fact that it’s smoke. Focus on how the odor is disrupting the workplace (i.e. strong offensive odors can aggravate allergies or linger in enclosed areas). Ask the employee if they have any ideas about how to reduce the smell. For example, electronic cigarettes, smoking in open areas, changing clothes, or chewing gum all can help reduce the smell of smoke. Usually, when the employee helps to come up with a solution they are more willing to abide by it.

Hopefully, after one conversation the employee will make the necessary adjustments to reduce his odor. But, if the issue persists follow up with the employee. Ask if he’s doing the recommendations that were suggested. Discuss further suggestions and make sure the employee agrees with them. Again, focus on how the odor is disrupting the workplace not the odor itself.

Some states have laws protecting employees from discrimination based on off-site conduct during non-work hours and Colorado is one of them. Though the courts have sided with employers who enforce disciplinary action against employees’ use of legal marijuana during non-work hours, disciplining the employee in question for smelling like smoke (whether the odor is from cigarettes or marijuana) may still violate Colorado’s Anti-Discrimination Act.

September 18th, 2017, 7:07 PM |  Posted in: Workplace Health & Safety |
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Sep14

Pre-Existing Workman’s Compensation Claim and Current Job

I have an employee who had a pre-existing workman’s comp claim from a previous employer. On August 28th and 29th he did not report to work. On August 30th he went to his doctor and later contacted my boss stating his doctor had not cleared him to return to work. I called him to follow up and check on the report but his answer to me was that the doctor’s office was making a correction on the form. Today, he was contacted by our boss requesting him to bring in the note. When he came in he handed me a work status report indicating he was allowed to return to work with restrictions (no use of right arm). I told him he had to request a LOA and he seemed concerned about not receiving benefits. My question to you is, should we as the employer ask him to take a leave of absence or should we accommodate to his restrictions and practically pay him to come in a do nothing? Thank you!

If the employee is requesting accommodations that you’ve provided to other employees in similar situations in the past, then you should treat this employee in the same manner. Otherwise, whether an accommodation is legally required depends on if the employee’s condition is covered under the federal Americans with Disabilities Act (ADA).

The ADA prohibits discrimination on the basis of disability in any aspect of employment. Under the ADA, employers are required to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA regardless of his or her tenure with a company.

It’s the employer’s responsibility to determine if an employee has a covered disability under the ADA. There is no all inclusive list of covered disabilities. Thus, employers must make a disability determination on a case by case basis.

An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.

Basically, a covered individual is one who has substantial impairments that limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, a substantial hearing or visual impairment, mental retardation, or a learning disability would be covered, but an individual with a minor, non chronic condition of short duration, such as a sprain, infection, or broken limb, generally would not be covered.

The ADA requires employers to engage in an interactive communication process that involves a good faith effort by both parties to determine limitations imposed by the disability and possible reasonable accommodations. Reasonable accommodations often include job restructuring, modified work schedule, acquiring or modifying equipment, short term leave of absence, or job reassignment.

If the employee is determined to have a covered disability under the ADA, then make sure to follow the interactive exchange of information process to determine reasonable accommodations. Remember to document any conversations and the agreed upon accommodations.

If the employee’s condition is not covered under the ADA, then providing accommodations is ultimately up to you. Consider what accommodations you’ve provided to other similarly situated employees in the past. It’s best to treat employees in a fair and consistent manner. In the absence of past practice, consider what you can provide to the employee. What work can the employee perform? Is there enough of such work to warrant the employee working even just a few hours a day? Can the employee be temporarily reassigned to alternate work duties? Point being, don’t be quick to force the employee to take a leave of absence when there may be other duties he can perform.

HTH!

September 14th, 2017, 12:40 PM |  Posted in: Workplace Health & Safety, Workplace Management |
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Sep14

15 Minute Breaks Required in NYS?

My company offers ½ hour lunch breaks but we have a few employees who smoke and would like 2 additional 15 minute breaks. Do we have to give it to them?

NYS employers are required to provide a 30 minute meal period to employees who work a shift of six hours or more. Though many employers provide additional rest breaks throughout the day, it’s not required by law.

So, no, you don’t have to provide employees additional breaks to smoke. But, consider whether you allow other employees to take additional breaks for any other reasons. It’s best to treat all employees in a fair and consistent manner.

September 14th, 2017, 12:01 PM |  Posted in: Labor Laws |
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Sep14

Pay for State of Emergency in Georgia

The state of Georgia declared a state of emergency for Hurricane Irma. Do hourly employees have to be paid any wages for the company being closed?

There is no obligation under either federal or Georgia law for employers to compensate non-exempt (hourly paid) employees for time not actually worked. Though some states have adopted call in or reporting pay laws, Georgia is not one of them. Thus, even when a company is closed due to an impending hurricane and a state of emergency has been declared, employers are not required to pay non-exempt employees for any time not worked.

Employers may mandate or permit employees to use paid time off accruals for the time the business was closed.

September 14th, 2017, 11:50 AM |  Posted in: Compensation |
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Sep14

Workweek

Are employee workweeks 40 or 37.5 hours?

The federal Fair Labor Standards Act (FLSA) establishes compensation requirements affecting employees in the private sector and in Federal, State, and local governments. Under the FLSA, non-exempt employees must be paid at least minimum wage for each hour worked and overtime pay for any hours worked over 40 in a given week.

It’s a commonly assumed that workweeks are 40 hours. But, workweeks and schedules are established by the employer. Employers set employees’ schedules and the parameters for full time and part time classifications.

September 14th, 2017, 11:37 AM |  Posted in: Workplace Management |
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