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Feb22

Disability Leave

Hello, I am the employer of a small RV resort. We had our manager out on disability since December, it is now February. She claims she has high anxiety and applied for disability in January. She has been giving us unprofessional letters from her “psychologist” stating she is not well enough to work. Do we have to hold her position? Also, prior to her leaving, she got into a huge argument with the owner and left home early. The next day she called in sick and next thing we know she is seeing a psychologist and can’t work.I want to make sure to handle this delicately while also following proper protocol.

There are two federal laws that must be considered in this situation: the Family & Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

The federal Family & Medical Leave Act (FMLA) entitles eligible employees up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including to care for one’s own serious health condition.

The FMLA applies to public agencies, including State, local and Federal employers, and local education agencies (schools); and, private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers.

To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months, have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and, work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

Assuming the employee is eligible for FMLA leave, the reasons for her absences may qualify as a serious health condition. Under the FMLA, “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

Employers may require employees to submit a certification from a health care provider to support the employee’s need for FMLA leave to care for one’s own serious health condition. If the employee qualifies for FMLA, it’s best to require her (and all employees in similar situations) to submit a medical certification. Though there is no mandated form, the DOL provides a thorough one at https://www.dol.gov/whd/forms/WH-380-E.pdf.

Employers have a lot of responsibilities under the FMLA. So, if the FMLA applies in this case and you’re unsure of how to administer it, then it’s best to seek the guidance of a HR/LOA specialist or, of course, feel free to ask us more questions.

Let’s say the employee doesn’t qualify for FMLA. In this case, the federal Americans with Disabilities Act (ADA) must be considered.

Employers with 15 or more employees must comply with the ADA. The ADA requires employers to provide reasonable accommodations to employees with covered disabilities unless doing so would cause an undue hardship, meaning a significant difficulty or expense.

Generally, an individual is considered to have a covered disability if he has a physical or mental impairment that substantially limits one or more major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. Emotional or mental illnesses may be covered under the ADA, such as bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.

There is no all inclusive list of covered disabilities. Employers must communicate with employees to determine if a covered disability exists. Further, employers are able to request an employee to provide a medical certification verifying the need for an accommodation as long as doing so is also required of all employees requesting medical/disability leave. Though there is no mandated form employers must use, the Society for Human Resource Management provides a thorough one at https://www.shrm.org/resourcesandtools/tools-and-samples/hr-forms/pages/medicalinquiryform.aspx.

The medical certification/accommodation request form submitted by the employee’s physician will confirm an actual diagnosis helping you to determine if a covered disability truly exists, and will provide suggestions for accommodations.

Under the ADA, employers are obligated to engage in an interactive communication process with employees with covered disabilities to determine if any reasonable accommodations can be made to allow the employee to perform essential job functions. Accommodation assessments must be made on a case by case basis prior to taking adverse action against the employee (i.e. disciplinary actions/termination).

It’s important to meet with the employee (assuming you’re covered under the ADA) to go through the ADA interactive process. Document the meeting and follow up in writing with anything you’re requesting from the employee and then your ultimate decision.

Though the ADA interactive process may be tedious, hopefully it will work and a reasonable accommodation can be agreed upon or it will become clear that the employee is unable to perform the essential functions of her job.

Keep in mind there may be state leave and discrimination laws to consider as well.

Now, let’s assume the FMLA, ADA, and relevant state laws don’t apply. Being a small employer this may be the case. Then, allowing the employee to take leave is up to your leave policy and past practice.

You may have a personal leave of absence policy/practice that applies in the case. Follow your established procedures for such. Require medical documentation only if you do so normally. If you have reason to doubt the validity of the claim, which it sounds like you do, ask the employee to submit a second certification. Make sure you document why you’re doing this.

Let’s say the employee is on an employer-sponsored disability plan. It is then up to the insurance carrier to approve/deny benefits. Such plans typically don’t specifically entitle an employee to job reinstatement but by an employer offering such benefits job reinstatement is usually implied. Still, if the employee is denied benefits because her condition doesn’t meet eligibility criteria, then you’re back to following your leave of absence policy/practice.

You’re right to want to handle this carefully. You don’t want to discriminate against the employee if she has a legitimate condition but you also don’t want to get taken advantage of. Make sure you consider the aforementioned laws and your policies/past practice prior to terminating the employee. Document all communication.

HTH!

February 22nd, 2017, 8:45 PM |  Posted in: Benefits, Labor Laws |
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Feb22

PTO for Part-Timers in the State of Virginia

What is the labor law for PTO for part-timers in the State of Virginia?

There is neither federal nor Virginia State law requiring private employers to provide paid time off (PTO) benefits to employees. Per the Virginia Department of Labor & Industry, “Fringe benefits such as vacation, sick, holiday, and severance pay are not required to be given under the law, and employers may establish any or no policy regarding these fringe benefits.” Thus, employers are generally free to adopt PTO policies of their choosing including whether or not such policies apply to part-time employees.

February 22nd, 2017, 2:14 PM |  Posted in: Benefits |
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Feb22

Tracking Exempt Employees’ Hours

Can you tell me if I need to track exempt employees’ time in the following states: IL, PA, CA, OH, GA, Washington State, NJ, NY, CT?

The federal Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

Under the FLSA, employers are required to keep track of certain records for non-exempt employees including hours worked each day and hours worked each workweek. Though employers are permitted to record and track hours worked by exempt employees, there is no requirement to do so. However, some states have adopted their own wage and hours laws that require more recordkeeping than the federal law including some of the states you inquired about.

We couldn’t locate any laws requiring the tracking of exempt employees’ hours worked in PA, CA, OH, GA, WA, NJ. Such laws exist in IL and CT.

Section 300.63 of Illinois Labor Code expressly requires the tracking of exempt employees’ hours worked:

“Regardless of an employee’s status as either an exempt administrative employee, executive or professional, every employer shall make and maintain, for a period of not less than 3 years, the following true and accurate records for each employee: the name and address, the hours worked each day in each work week, the rate of pay, copies of all notices provided to the employee as required by subsection (d), the amount paid each pay period and all deductions made from wages or final compensation. Additionally, any employer that provides paid vacation to its employees must maintain, for a period of not less than 3 years, true and accurate records of the number of vacation days earned for each year and the dates on which vacation days were taken and paid.”

Under Section 31-60-12 of Connecticut’s Administrative Regulations, employers are required to maintain certain records for each employee including:

 (1) His name;
(2) his home address;
(3) the occupation in which he is employed;
(4) the total daily and total weekly hours worked, showing the beginning and ending time of each work period, computed to the nearest unit of 15 minutes;
(5) his total hourly, daily or weekly basic wage;
(6) his overtime wage as a separate item from his basic wage;
(7) additions to or deductions from his wages each pay period;
(8) his total wages paid each pay period;
(9) such other records as are stipulated in accordance with sections 31-60-1 through 31-60-16;
(10) working certificates for minor employees (sixteen to eighteen years).

 

Connecticut’s regulation doesn’t specifically state both non-exempt and exempt employees, but it doesn’t exclude exempt employees either. Thus, it may be best to err on side of caution. Otherwise, consider contacting the local DOL.

It’s worth noting that even though tracking exempt employees’ hours worked is permitted and sometimes required, deducting from exempt employees’ salaries is only allowed in limited circumstances under the FLSA and some state laws.

HTH!

February 22nd, 2017, 1:58 PM |  Posted in: Human Resources Management |
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Feb22

Church Musician and Salary

Is a church musician who gets a set amount for playing the organ each week considered a salaried worker. What if he does not work one Sunday, do we still have to pay him?

The federal Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

There are two ways an employee can be covered under the FLSA, enterprise coverage and individual coverage.

The DOL has opined that enterprise coverage does not apply to a private, non-profit enterprise where the eleemosynary, religious or educational activities of the non-profit enterprise are not in substantial competition with other businesses, unless it is operated in conjunction with a hospital, a residential care facility, a school or a commercial enterprise operated for a business purpose.

Employees of enterprises not covered under the FLSA may still be individually covered by the FLSA in any workweek in which they are engaged in interstate commerce, the production of goods for commerce or activities closely related and directly essential to the production of goods for commerce. Examples of such interstate commerce activities include making/receiving interstate telephone calls, shipping materials to another state and transporting persons or property to another state.

If the employee is not covered under the FLSA, compensation is a matter of agreement between you and the employee. If there is any doubt to the employee’s exemption from the FLSA, it’s best to either contact your local DOL or comply with the FLSA as if the employee is covered.

Let’s assume the employee is covered under the FLSA.

Under the FLSA, employees are classified as either non-exempt or exempt.

Hourly and salary paid are compensation terms.

Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements prescribed by the FLSA. Most employees are considered non-exempt.

Conversely, exempt employees receive a fixed predetermined salary for any week during which work is performed regardless of the quantity or quality of such work. Exempt employees are excluded from overtime pay provisions.

It’s up to employers to determine an employee’s classification based on FLSA guidelines.

To be exempt, an employee must pass all three “tests”, salary level, salary basis, and duties, as outlined by the FLSA.

The salary level test: Employees who are paid less than $455 per week are non-exempt. It’s worth noting that the federal Department of Labor’s new overtime rule that increased the salary level to $913 per week as of December 1, 2016 has been blocked. The new rule could still be implemented in the future but as of now it’s on hold.

The salary basis test: An exempt employee must receive a regular, predetermined amount of compensation each pay period on a weekly, or less frequent, basis. Aside from a few exceptions, an employee must receive the full salary for any workweek during which the employee performs any work, regardless of the number of days or hours worked.

The duties test: An employee who meets the salary level and salary basis tests is exempt only if he/she also performs exempt job duties. The actual tasks of the job are to be evaluated, not the job title. Exempt employees are employed as bona fide executive, administrative, professional and outside sales employees.

Job duties are exempt “executive” job duties if the employee regularly supervises two or more other employees, has management as the primary duty of the position, and has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

“Professionally” exempt work is predominantly intellectual, requires specialized education, and involves the exercise of discretion and judgment. Advanced degrees are the most common measure of this but are not absolutely necessary if an employee has attained a similar level of advanced education through other means and performs essentially the same kind of work as similar employees who do have advanced degrees.

Further, the creative professional employee exemption applies to an employee whose primary duty is the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor, like musicans.

“Administratively” exempt employees provide support to the operational or production employees and have a major impact on the overall business. An administratively exempt employee has the authority to create or interpret company policies, has responsibilities that directly relate to the overall business operation, has the decision making ability to make significant financial impacts, and has the authority to deviate from company policy without prior approval.

An employee who doesn’t pass all three tests is considered non-exempt under the FLSA.

A musician may be considered exempt under the creative professional exemption as long as he meets all the other criteria. Otherwise, he’s non-exempt.

It’s worth noting that it’s always safer to classify an employee as non-exempt. This way you ensure the employee is being paid for every hour worked and you don’t risk violating the FLSA.

As a non-exempt employee, the musician need only be paid for time worked. So, if he didn’t work a Sunday there would be no requirement to compensate him for the day.

Now, a non-exempt employee can still be paid a salary. The employee is just treated as non-exempt as prescribed under the FLSA but receives a set salary each week based on a predetermined number of hours. If a non-exempt salaried employee works beyond his set hours then he must be compensated for the time worked. And, if he works below the set hours his salary can be reduced as appropriate. But, this can become an administrative headache if the employee’s hours will fluctuate each week.

HTH!

February 22nd, 2017, 11:17 AM |  Posted in: Compensation, Labor Laws |
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Feb22

PTO prior to Annual Hire Date

Hi! First, thank you for this resource. I am a volunteer President of a Condo Association. We have 3 employees. We find it a bit harsh that they cannot get any PTO until after working a full year. Is there a standard about how to pay some PTO prior to the anniversary date of their being hired?

Paid time off (PTO) is considered a matter of agreement between employers and employees. Thus, employers are generally free to adopt PTO policies of their choosing, in accordance with applicable state/municipality laws and/or employment contracts.

Requiring employees to wait a full year until using their PTO is fairly common, 6-12 months is the norm. If you find your policy a bit extreme for employees, consider lowering the waiting period to 6 months.

If for some reason the policy can’t be changed, then allowing an employee to use his PTO prior to actually being entitled to it is at the employer’s discretion. The employee would have a negative PTO balance and the PTO bank would be replenished when the employee meets the eligibility requirement. But, by doing this you’re just negating your own policy. What’s the point of a policy if you’re not going to adhere to it? Plus, you’re setting a practice of disregarding your own policies.

You may consider allowing employees to take unpaid time off prior to their anniversary date. Since the time is unpaid, you’re not going against your PTO policy and employees still have the opportunity to take time off if need be.

Glad you like our blog! HTH!

February 22nd, 2017, 10:49 AM |  Posted in: Benefits |
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