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Nov12

Maternity Leave extension

Hi, We are a small business in Florida with 9 employees. One employee is currently out on maternity leave. Her 3 months will be up soon. I have reached out to her multiple times asking her when she will return with no response. I finally received an answer just this week. Since I stated that her leave was coming to a close, she is now telling us that she will need additional time off. And when she comes back she would like to work part time for a few months. How should this be handled ?

Florida doesn’t have any leave entitlement laws that apply in this situation and the federal Family and Medical Leave Act (FMLA) only applies to employers with at least 50 employees.

A small business not covered under leave entitlement laws is able to establish its own policies on leave of absences. Granting the employee three months of maternity leave was generous and shows your commitment to your employees. Whether the employee is entitled to additional leave time depends on the reason for the extension; specifically if the extension is due to a disability as defined by the Americans with Disabilities Act (ADA).

If the employee is in need of an extended leave for baby bonding or to find childcare, then the ADA doesn’t apply. In this case, it’s up to you, as the employer, to approve/deny the additional time off. In making the decision, consider the leave time offered to other employees in similar situations, the impact additional time off will have on business operations and the precedent it will set for future employees.

If the employee is requesting the leave due to a medical condition than it’s important to ascertain if the condition is covered under the ADA as a disability. The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities or a person who has a history or record of such an impairment. For an impairment to be a legal disability, it must be long term.

For example, gestational diabetes may continue after the birth of the baby and, if the above criteria are met, may be considered a disability under the ADA. If so, the employer is required to consider reasonable accommodations, such as time away from work. Employers aren’t required to provide an accommodation that would impose an undue hardship on the operation of the business. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources. In this situation, an employer could argue that a three month leave has already been provided and any additional leave would significantly disrupt the operation of the business. This may be a far-fetched example but it’s important to be aware of the legalities involved before denying the leave extension.

Whichever option you choose, it’s important to clearly communicate the decision with the employee. Remember to document your reason for the decision and any communications with the employee.

November 12th, 2014, 3:26 PM |  Posted in: Benefits, Human Resources Management, Labor Laws |
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Nov12

Pre-existing medical disability

My part-time employee worked for 5 weeks and now claims he wants to file for disability for a preexisting medical condition. He claims he needs at least 6 months off. Can I hire a replacement and what financial obligations will I have due to his pre-existing disability? Do I have to keep his position open?

Leave entitlement and job reinstatement is not guaranteed to an employee unless the employee is protected under a state or federal leave entitlement law, such as the federal Family and Medical Leave Act (FMLA), or the disability is covered under the Americans with Disabilities Act (ADA).

The FMLA applies to employees who have worked for a covered employer for at least 12 months. Since the employee in question has only been employed for 5 weeks, the FMLA doesn’t apply in this situation.

Whether the need for time away from work is due to an ADA protected disability must be considered. Private employers, state or local governments, labor unions, and employment agencies with at least 15 employees must comply with the ADA.

The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities or a person who has a history or record of such an impairment. For an impairment to be a legal disability, it must be long term. The definition is intended to be interpreted broadly to cover a wide range of individuals. Common protected medical conditions include diabetes, cancer and post-traumatic stress disorder.

Though the ADA doesn’t explicitly entitle employees to time away from work, it does require employers to make reasonable accommodations to allow employees with disabilities to do their jobs. Depending upon the circumstances, time off from work may be considered a reasonable accommodation.

Employers aren’t required to provide an accommodation that would impose an undue hardship on the operation of the business. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources. If a particular accommodation, such as a leave of absence, would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. For example, if a six month leave of absence would cause significant hardship, maybe consider offering a two month leave of absence.

Employers have an obligation to participate in discussions with employees once the disability becomes known. The discussions must include an interactive exchange of information which specifically addresses reasonable accommodations.

If the employee’s condition is not covered under the ADA or there are no possible reasonable accommodations then there is no requirement to continue the individual’s employment or hold his position. Be careful in concluding that a reasonable accommodation is impossible. You may have to prove your decision in court one day.

November 12th, 2014, 2:35 PM |  Posted in: Human Resources Management, Labor Laws |
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Nov12

Vacation Days Calculation

How do I calculate how many days of vacation an employee is entitled to if he was hired on April 20th?

Calculating vacation time is a common issue. Let’s say Tom was hired on April 20th and employees receive 2 weeks (80 hours) of vacation time per calendar year. Since he was hired four months into the year he wouldn’t receive the full 80 hours; thus, it must be determined how many hours he should receive to cover him until January 1st, assuming a calendar year method is used. An employee receiving 80 vacation hours per year accrues 1.54 hours per week. He would be eligible for 37 weeks worth of accruals (April 20th to December 31st) or 56.98 hours. (37 weeks x 1.54 hours accrued per week = 56.98 hours). HTH!

November 12th, 2014, 1:43 PM |  Posted in: Benefits, Human Resources Management |
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Nov11

Contractors sharing employee supplies

Hello. We are a small company based in Vermont with around 150 people in our office location. 80% of our work force is full timers and the other 20% are contractors. Recently our employees have been complaining that the contractors shouldn’t get to use the break room and office supplies. What is the right thing to do here? If we make it full time only are we discriminating against the contractors?

The IRS provides common law principles that define an independent contractor. The guidelines focus on the level of control the employer has over the service or product and how their produced.

Generally, an employee works the hours set by the employer at the employer’s place of business with the employer’s supplies. Work is conducted under the direction of the employer. Also, an employee tends not to incur costs associated with work.

Conversely, an independent contractor usually sets his own hours and works out of his own office or home. Generally, an independent contractor controls his work and supplies his own equipment, materials and tools. An independent contractor incurs the majority of the costs associated with the job.

It’s important that workers are classified correctly since misclassifications can have costly legal consequences including back wages, back taxes and penalties.

Assuming the independent contractors are classified appropriately, allowing them to use a break room and basic office supplies is acceptable. Prohibiting them from using such amenities wouldn’t be unlawful discrimination; however, it may not be in the best interest of the business. Even independent contractors who work at the employer’s premises need a break from the work day or need a pen once in a while.

Consider why the employees are not happy with the situation. Are the independent contractors an identifiable group that is not assimilating well with the regular employees? Are they leaving a mess in the break room or stealing supplies? Determining the reasons for the complaints will better help you to address them specifically instead of implementing a blanket no-amenities rule for the independent contractors.

Nov11

Child Support – FL

One of our employees asked for his vacation to be paid out to him in advance (before he actually took the time off) and, as a courtesy, the owner agreed. The employee also worked the week his vacation was paid to him. The vacation time was paid on a separate paycheck, treating it as a separate weeks pay (as it would normally be). Child support was automatically deducted from both his regular paycheck and from his vacation paycheck. The employee is disputing the child support deduction from his vacation check. His argument is he received both paychecks in the same week therefore his child support payment should only be deducted from one check. It is our understanding that even though he received the vacation pay early it is still technically considered a separate week’s pay and child support must be taken regardless of when the check was issued. Were we incorrect to take the child support out of both checks? Should he be reimbursed one of those deductions?

A Florida law either requiring or prohibiting the deduction of child support from a paycheck for vacation payout couldn’t be located. Most child support orders require a set amount of money owed each month, regardless if the employee actually worked or used vacation time. Any advance payments or payments for time not worked such as vacation, sick, or holiday pay are subject to child support deductions. I agree with your argument that even though the vacation payout check was cut the same week that the employee worked, the payment is for a separate week’s pay and subject to child support deductions.

November 11th, 2014, 9:02 PM |  Posted in: Compensation, Human Resources Management |
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