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Feb06

Managing Sick Time Usage

We are a small staff of 4 working full time for a nonprofit. We serve a huge geographical region and each employee’s job responsibilities are specialized and vital to the organization’s success. We currently have an employee who has been absent a lot and is missing project deadlines. He is using his sick time. We cannot tell him what to use his sick time for, but when he is gone he does not get his work done and has put the organizations timeline for deadlines in jeopardy. How do you discipline someone who is following policy by appropriately using their sick time but not getting any work done? Then on days when he’s back he leaves right at 5pm as a salaried employee? Also, sometimes when he’s “sick” he’s working so he wants us to not use his sick time but consider it working. Is that a thing?

Excessive absenteeism is a common and costly problem but the impact on a small business can be especially severe.

You don’t want to discipline the employee for using a benefit that you provide to him. But, you can still address your concerns regarding his absenteeism and the affect it’s having on his job performance.

It’s important to clearly communicate your concerns to the employee. Remember to focus on the employee’s reliability and work performance not necessarily his absences.

If the employee is otherwise a good worker, start the conversation by providing positive feedback. Then explain that his excessive absences prohibit him from consistently performing well and being a reliable member of the team. Express your understanding that everyone gets sick or has personal matters that must be addressed from time to time. But, the frequency of his absences is excessive and negatively impacts his work performance and the work environment.

Inform the employee that you need a reliable, committed employee in his position. Explain that being a small business each employee is essential to the company’s success. You need someone who can be present at work every day, can perform the specialty nature of his job, and can be an active member of the team. Ask him straight out if he’s willing to make that commitment.

Hopefully his answer is yes and he gets the point. Inform him what is expected of him in a very clear and specific manner.

End the conversation on a positive note. State that you’re hopeful he will fulfill his commitment.

Of course, we all hope that employees like this will turn around and be great performers. Unfortunately, that doesn’t always happen. So, if the employee continues with excessive absences, remind him of his commitment to you and the team.

Feel free to mention the consequences of failing to perform his work duties. Though his sick time may be permitted under your paid time off policy, it doesn’t mean that employees can underperform in their job. If the employee continues to miss project deadlines, or just simply isn’t meeting company expectations, termination may be warranted.

Also, being an employer with only four employees, federal (and most state) leave laws don’t apply. Thus, once the employee has exhausted his sick time and continues to call out sick, termination may again be warranted.
Whether an employee is permitted to work from home while sick is completely at the discretion of the employer.

An employer can prohibit an employee from working at home while sick. The idea being if you’re too sick to come in to work, then you’re too sick to work at all. However, some employers will allow employees to work at home while sick without having to use their accrued sick time. This practice permits employees to continue performing their job responsibilities and keep up to date on their projects. Again, this is completely at your discretion. You must consider the best practice for your company and the precedent you want to set.

HTH!

February 6th, 2016, 10:09 PM |  Posted in: Attendance Management |
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Feb06

PTO Use For Exempt Employees

We use a PTO accrual system and there is a cap set for each seniority level. Is it correct that if they work any time during the week, they are not to use PTO, because they would get paid regardless? Would they only use the PTO if they were to not be working during a whole week? I would think this would keep all exempt people always at PTO cap? Is that okay?

Paid time off (PTO) benefits are considered a matter of agreement between employer and employee. Thus, employers are generally able to adopt policies regarding the administration of PTO at their discretion. There are some states that have enacted legislation regarding PTO, specifically vacation time. Of those states, most simply require employers to abide by the terms of their own policies or practices.

Employers can require employees, either exempt or non-exempt, to use PTO when they miss even a half hour of work. It’s up to the employer to set the policy on PTO usage.

Exempt employees must receive their full predetermined salary for any workweek during which work is performed with limited exceptions. Because an exempt employee cannot have their salary reduced for partial day absences, employers often require exempt employees to use their PTO to cover these absences. The PTO substitutes the salary; thus, the employee would still receive their full day’s pay. If an exempt employee exhausts his PTO accruals and only works a partial day, no deduction can be made from his salary and he must still be paid his full salary for the workday.

HTH!

February 6th, 2016, 9:00 PM |  Posted in: Benefits, Compensation |
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Feb06

Nicotine Testing

We put into place a tobacco/smokeless tobacco surcharge for hospital employees that are enrolled on our insurance. In the state of WV, can we perform random testing to be certain they are still in compliance and honoring their affidavit claiming to not be a smoker?

West Virginia does have a law prohibiting the discrimination in any aspect of employment of an employee who uses tobacco products during non-work hours and off employer premises. However, employers are permitted to impose distinctions on types of coverage and price of coverage based on an employee’s use of tobacco products. The different coverage and rates must be disclosed to employees.

The law in West Virginia is silent on the matter of random nicotine testing. Thus, one could assume that it’s lawful. However, there are other factors to consider before implementing random nicotine testing.

The federal Americans with Disabilities Act (ADA) prohibits discrimination in any aspect of employment on the basis of a disability. Employers with 15 or more employees are covered under the ADA.

The use of tobacco products, specifically nicotine addiction, is not considered a disability under the ADA. However, medical conditions that arise from the use of tobacco products may be covered disabilities such as cancer, asthma or emphysema.

Under the ADA, an individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities or functions, has a record of such an impairment, or is regarded as having such an impairment.

Even if an individual is found to have a covered disability, the responsibility of the employer is to provide reasonable accommodations that will allow the employee to perform his work functions and not to discriminate against the employee due to the disability. It doesn’t necessarily permit or restrict an employer from nicotine testing.

And that leads us to the next factor to consider. Is nicotine testing considered a medical examination under ADA regulations? Unfortunately, there is no clear answer to this.

Basically, the ADA considers any test that seeks medical information about an individual’s health or physical impairment to be a medical examination. Employers who have adopted nicotine testing practices argue that they’re only concerned with whether an employee has nicotine present in his body, not any health conditions related to a disability or impairment.

Medical examinations of employees must be job related and a business necessity under the ADA.

Again, whether nicotine testing is considered a medical exam is still under debate. But, one can assume that as long as the test strictly checks for the presence of nicotine only, it’s not considered a medical exam under current ADA regulations.

Another point to consider is whether nicotine testing is actually cost effective. Administering the test, reviewing the results and follow up actions can consume a lot of time and be expensive. Further, what happens if an employee lives with a person who uses tobacco? How will that show on the test? Will you further investigate an employee who has a reason for the presence of tobacco? That will take even more time and money. Will you allow the employee to re-apply to have the surcharge removed? If so, that will take even more administrative work. So, employers must conduct a cost-benefit analysis.

Also, many employees already consider medical questionnaires by employers to be invasive. Forcing employees to take a medical exam may cause further privacy concerns, potentially decreasing employee morale and trust.

In most cases, it’s more practical to simply take the employee’s word. You may consider having employees actually sign an affidavit stating they don’t use tobacco products. Employees may take the process more seriously if they physically have to sign their name to a contract instead of electronically clicking yes or no.

Wellness initiatives are meant to not only decrease an employer’s benefit cost but to improve employees’ well being. Employers should focus on the positive effects of wellness programs. A surcharge for smoking should be reworded as a wellness incentive for not smoking. Any attempt to watch over or criticize employees may only lead to further decreases in morale and trust.

February 6th, 2016, 3:53 PM |  Posted in: Human Resources Management |
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Feb06

Unpaid Time Off

What does unpaid time off mean?

Unpaid time off refers to an amount of time that an employer will allow an employee to take off without pay while still retaining employment.

There are many reasons for employers to adopt unpaid leaves of absence policies.
Many employers offer unpaid leaves of absence as a supplement to paid leave (i.e. vacation/sick time). So, when an employee exhausts his vacation or sick time but needs time off to tend to personal matters he can use his unpaid time off or apply for an unpaid leave of absence.

Also, if an employee is not entitled to leave under federal or state leave laws, generally speaking an employee who needs an extended amount of time off can be terminated for not being able to work. When an employee is provided unpaid time off or an unpaid leave of absence he retains his employment, and in most cases his benefits, but receives no compensation.

In some cases an employer may require an employee to take an unpaid leave of absence also referred to as a furlough. Furloughs are often used in place of downsizing or laying off employees.

February 6th, 2016, 2:14 PM |  Posted in: Benefits |
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Feb05

Rehire after Maternity Leave

An employee, in the state of California, took 12 weeks maternity disability and didn’t return at the end of the 12 weeks, but instead waited 10 months and now asks if there is any part time work available that fits her new schedule. Is that employee entitled to return at same compensation or is that at the discretion of the employer?

Depending upon the number of employees, employers in California are required to comply with several leaves of absence laws including the federal Family & Medical Leave Act (FMLA), the California Family Rights Act (CFRA) as well as Pregnancy Disability Leave (PDL).

Under these laws, employees are entitled to be reinstated to their former position or a comparable one with equivalent terms of employment including pay and benefits. However, an employee’s right to reinstatement isn’t indefinite. Such entitlement is granted upon return from leave.

So, an employee who doesn’t return from leave but is interested in returning to work 10 months later is not entitled to reinstatement rights that protected her while on leave. The terms and conditions of employment including the position, pay, benefits, schedule etc… are at the discretion of the employer. You still want to treat the employee in the same manner you would treat any other employee.

February 5th, 2016, 3:30 PM |  Posted in: Hiring and Staffing |
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