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Employee’s Mental State

I have a question in regards to an employee that I have that has recently been evaluated for poor performance in four different categories. During our performance improvement plan he mentioned that he contemplated suicide in 2014 due to the stress he was under therefore prompting poor performance. I am not sure if this mental state of mind should be a concern within the organization, or should I keep this information to myself? I somewhat understand the HIPPA law, but now that I know what he has been going through should I alert HR or my directors in case of concerns due to his mental state. This was a statement the employee made to me, I asked if he seek help and he said no. What is the ethical thing to do in this case? I want to honor the confidentiality of the employee relationship, but in a sense I have concerns for the well beings of my other members. Thanks

Your priority is the safety of both the employee and his coworkers. If you truly believe the employee’s state of mind places either himself or his coworkers at risk, then it’s your obligation to inform the necessary parties, i.e. HR or a Director.

The Health Insurance Portability and Accountability Act (HIPAA) mandates that covered entities must comply with requirements to protect the privacy and security of health information. A covered entity is an individual or organization that uses and/or exchanges confidential medical data. Common covered entities include doctors, clinics, company health plans and government programs that pay for healthcare.

Even if your company is not considered a covered entity under HIPPA, you still should keep the employee’s medical condition a private matter and disclose it only to necessary parties.

If you chose to bring the issue to HR, be ready to explain why you feel the employee poses a safety risk. Providing specific examples will allow HR to respond appropriately.

Depending upon the severity of the matter, the employee could be offered a leave absence until he is able to provide documentation certifying he is fit to perform his work duties. This discussion should be held only by HR.

It may be difficult to bring the matter to HR or a Director. However, it’s in everyone’s best interest for you to talk to HR sooner than later.

February 23rd, 2015, 8:38 PM |  Posted in: Workplace Management |
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Employer Liability for Employee Travel Safety

Hello, With inclement weather occurring, Is an employer liable if the office is open and an employee gets into an auto accident on their way to the office? We are located in Maryland

Generally, no, an employer is not liable if an employee has a car accident on the way to work. Unless there is a state of emergency or state imposed driving restrictions, private employers are within their rights to remain open during inclement weather. Requiring employees to report to work during inclement weather may be inconsiderate; however, it’s lawful.

Employers must consider the impact of requiring employees to report to work in inclement weather. Employees could face unsafe driving conditions and resent the employer. So, offering employees the option of coming in to work or closing the office all together shows an employer’s commitment to the safety of its employees.

Employer liability for accidents exists when the employee is performing work related duties.

February 21st, 2015, 2:23 PM |  Posted in: Human Resources Management |
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Bathroom Hygiene

We have a small office of 10 people, 3 women and 7 men. The bathroom has become an issue with regard to urine drops on the floor and toilet seat, water splattered on the mirror, pieces of toilet paper on the floor, and of course, the men do not put the toilet seat down. I have verbally asked the men to put it down, but they said no. We had a complaint from a client about the cleanliness of the bathroom. I need to formerly address the situation. Any suggestions?

Under OSHA (Occupational Safety & Health Administration), an employer with less than fifteen employees is permitted to have one unisex bathroom as long as there is a toilet and the door locks. With any workplace bathrooms the issue of bathroom etiquette comes up from time to time.

Inconsiderate employees who leave a mess in the bathroom often set off a chain reaction in which other coworkers won’t try as hard to keep the bathroom clean. Thus, it’s important to set standards of bathroom etiquette and communicate such standards to the workers.

Consider displaying signs encouraging employees to clean up after themselves. It may sound simple (and ridiculous that adults must be reminded to be considerate and clean) but it’s often all that’s needed. Make a sign that outlines standard bathroom etiquette i.e. throw trash in the receptacle, flush the toilet, wipe toilet/sink as needed, wash hands etc.

Also, consider a sign reminding employees that the bathroom is a shared space and keeping it clean is everyone’s responsibility.

Requesting male employees to put the toilet seat down is a stretch. Are female employees asked to put the seat up for the males? Though leaving the seat up is deemed inconsiderate, it shouldn’t be an issue to address. Focus more on the cleanliness of the area and the respect each employee owes to his/her coworkers.

Hold a staff meeting to discuss the issue. Focus on the importance of team work, treating coworkers with respect, and being considerate of one another, specifically is it relates to keeping the bathroom clean. Inform the employees of standard bathroom etiquette and their responsibility to maintain the cleanliness of the area. Inform the employees that you will be posting signs to remind them of their responsibilities and you expect them to fulfill their obligations as a team.

Remember to provide the necessary tools for the employees to keep the bathroom clean. Keep towels and toilet paper stocked. Provide appropriate trash receptacles and cleaning products including air spray.

If the issue persists it’s usually one employee who continues to be inconsiderate and messy. Try to identify the individual and speak with him/her personally. Again, focus on team work and respecting each other.

Hope this helps!


Unable to Accomodate to Modified Work

An employee has been cleared to return to work with a work restriction that we cannot accommodate. The restriction is that he must wear a “lightweight” respiratory mask. We have supplied him with such a mask but he complains that it is too heavy. Knowing that we cannot legally lay him off, what can the company do?

The federal Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees with physical or mental impairments that substantially limit a major life activity or major bodily function.

Private employers, state or local governments, labor unions, and employment agencies with at least fifteen employees must comply with the ADA.

The ADA requires employers to make reasonable accommodations to allow employees with covered disabilities to do their jobs. However, employers aren’t required to make any and all accommodations requested by the employee, especially if such accommodations would place the employee or his coworkers at a health/safety risk.

Under the ADA, an interactive exchange must be held between the employer and employee specifically addressing accommodations.

Since the employee is refusing to adhere to the initial accommodation of a lightweight mask, then a follow up discussion with him must be held. Reiterate to him that the request for a lightweight mask based on his work modification was approved. State that you’re aware he refuses to wear it because it’s still too heavy. Inform him that wearing a mask is required of the job (assuming it is). Ask him what other accommodations can be made to assist him.

There is no requirement to guarantee the accommodations; however, the possibility of other accommodations must be discussed. Keep in mind, 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 he proposes other reasonable accommodations, then you must consider them. Reasonable accommodations may include a short term unpaid leave, reassigning the employee to a different job/department that doesn’t require a mask, reducing his work schedule (maybe wearing a mask for less hours will help) or providing a different style of mask. Before denying an accommodation, make sure you’re willing and able to defend your decision in court one day.

If there are no other reasonable accommodations to be made then there is no reason to retain is employment (unless, of course, federal/state leave laws or company leave policies, or a collective bargaining agreement apply to this situation).

Prior to terminating the employee, make sure you have all the appropriate information documented, specifically the work restrictions and your attempts to accommodate them. Remember, the reason for termination is the employee’s inability to perform the functions of his job, not his medical condition.

February 21st, 2015, 1:13 PM |  Posted in: Labor Laws, Workplace Management |
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Inside Sales Reps

I understand the 3 conditions to qualify an Inside Sales Rep as exempt, but I had a question to clarify one: Does the 150% of minimum wage requirement have to come from salary or can this come from a combination of salary and commission? Also, we are a website provider for private clubs. This can be considered the service industry, correct?

The 150% of the minimum wage requirement is for total compensation, salary and commission. Remember, the employee’s compensation must exceed this amount for every hour worked in the week.

Employers are engaged in the retail and service industry if they derive at least 75% of their annual sales revenue from goods or services not for resale and are recognized as a retail or service establishment in their industry.

Just to note, classifying inside sales reps as exempt is risky. In fact, the federal Fair Labor Standards Act (FLSA) is clear that only outside sales employees are exempt. To qualify for the outside sales employee exemption the employee’s primary duty must be making sales and the employee must be customarily and regularly engaged away from the employer’s place of business. Unless the exemption is based on other criteria (i.e. administrative/professional duties), it may be worth enlisting the services of an experienced wage/hour attorney to ensure the classification is accurate. Violations of the FLSA can be costly.

February 18th, 2015, 8:10 PM |  Posted in: Compensation |
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