It’s peak flu season. Here’s what employers should do now
Employers can expect to see an influx of coughing, sneezing, and germ passing at the office this time of year. Read this blog post to learn what proactive steps employers can take to keep the workplace healthy.
The U.S. is in the height of flu season, which means employers are likely to see an influx of employees coughing, sneezing and spreading germs in the office. Aside from passing a box of tissues, employers may be wondering what they are legally permitted to do when their workers get sick.
One benefit that is becoming increasingly relevant is paid sick leave. Several cities and states — including Arizona, California, Connecticut, Massachusetts, Chicago and others — have paid sick leave laws on the books. But while many companies offer paid sick leave as a benefit, there is no federal paid sick leave law. Paid sick leave laws may remove some incentive for sick workers to report to work, making the illness less likely to spread to the rest of the workforce.
But paid sick leave laws do place limitations on employers. For example, companies cannot make taking a paid sick leave day contingent upon the employee finding someone to cover their shift. Depending on the law, employees don’t always need to give notice of their absence before their shift begins, which could make scheduling difficult. Some laws limit an employer’s ability to ask for a doctor’s note.
Employers do, however, have some latitude when it comes to requiring employees to stay home from work or sending them home if they show signs of illness. Employers just need to be careful not to cross any lines set by the federal Americans with Disabilities Act or a state fair employment statute. This means steering clear of conducting medical examinations or making a disability-related inquiry.
According to the U.S. Equal Employment Opportunity Commission, employers should avoid taking an employee’s temperature. This is considered a medical examination by an employer, which is generally prohibited except in limited circumstances.
They should also avoid asking employees to disclose whether they have a medical condition that could make them especially vulnerable to complications from influenza or other common illnesses. Doing so would likely violate the ADA or state laws, even if the employer is asking with the best of intentions. Employers also cannot require workers to get a flu shot, according to the EEOC.
Employees could have a disability that prevents them from taking the influenza vaccine, which could compel them to disclose an underlying medical condition to their employer to avoid taking the shot. Additionally, some employees may observe religious practices that would prevent them from taking the flu vaccines. Thus, requiring an employee to take a vaccine could lead to a violation of Title VII of the federal Civil Rights Act of 1964 in addition to the ADA.
Beyond these limitations, employers can take these proactive steps to keep the workplace healthy.
Ask employees if they are symptomatic. In determining who should go home or not report to work, employers may ask workers if they are experiencing flu-like symptoms. This would not rise to the level of a medical exam or a disability-related inquiry, according to the EEOC.
Advise workers to go home. Employers can order an employee to go home if they are showing signs of the flu. The EEOC says that advising such workers to go home is not a disability-related action if the illness is like seasonal influenza.
Encourage workers to telecommute as an infection-control strategy. But keep in mind that the company could be establishing a precedent for telecommuting as a reasonable accommodation in other circumstances, such as for an employee recovering from major surgery who cannot come to the workplace.
Encourage flu shots. Employers may encourage — but not require — employees to get flu shots. For example, a company can invite a healthcare professional to the workplace to administer flu shots at a discounted rate or free.
Employers may require its employees to adopt certain infection-control strategies, such as regular hand washing, coughing and sneezing etiquette, proper tissue usage and disposal, and even wearing a mask.
The ADA, Title VII, state fair employment laws and paid sick leave statutes are also incredibly nuanced. Moreover, it’s important to balance the mandates of OSHA, which require employers to maintain a safe working environment. Before taking any significant actions, employers should consult with an employment attorney or HR professional for guidance.
SOURCE: Starkman, J.; Dominguez, R. (4 December 2018) "It’s peak flu season. Here’s what employers should do now" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/its-peak-flu-season-heres-what-employers-should-do-now?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001
4 mistakes to avoid at the intersection of FMLA and PTO
Administration of the Family and Medical Leave Act (FMLA) can become extremely complex, especially when other leave entitlements are added. Read this blog post to learn about the four mistakes employers should avoid when it comes to FMLA and PTO.
By now, many employers can recite the basic requirements of the federal Family and Medical Leave Act (FMLA) in their sleep. The law provides eligible employees (those who have at least one year of service and 1,250 hours under their belt) with up to 12 weeks of unpaid, job-protected leave over a 12-month period for qualifying family-related or medical reasons. FMLA covers companies with 50 or more employees located within 75 miles of each other.
While the law itself is conceptually straightforward, administration can become incredibly complex — especially when you throw other types of leave entitlements into the mix such as workers' comp, disability leave, and paid time off (PTO).
HR Dive recently spoke with three employment law attorneys about the most common — and costly — leave administration errors employers make when it comes to the intersection of FMLA and paid leave.
Mistake #1: Not running leaves concurrently
"I would say that the biggest issue that we see is a lot of employers do not have policies that provide for the use of paid time off concurrently with the FMLA," said attorney Molly Batsch, an officer at the St. Louis office of Greensfelder, Hemker & Gale, P.C. "[Because] the FMLA regulations allow employers to require employees to use any paid time off concurrently with unpaid FMLA leave, we really encourage employers to put that specifically in their policies."
Attorney Jeff Nowak, a partner at the Chicago office of Franczek Radelet P.C., concurred via email: "A decent number of employers don't realize that they can run FMLA leave concurrently with paid leave benefits such as worker's compensation benefits — or they forget to run both at the same time."
Failing to run leaves concurrently, when permitted, can be costly for employers. A series of consecutive leaves strung together can mean longer absences and increased workplace disruption.
Mistake #2: Policy confusion
A similar mistake employers make is that they don't explicitly outline the concurrent rule to employees. Your FMLA policy should make clear that any paid time off will run concurrently with unpaid FMLA time, advised Batsch: "I think that employers have a few misconceptions about that.
"The first misconception would be that the employee gets to pick," she said. "If the employee doesn't want to run the two concurrently, then they can go ahead and take 12 weeks of unpaid FMLA and then they can take their five weeks of vacation after that, and that is not the case. It is permissible for an employer to require that time to run concurrently. So that's the first mistake I see."
Make sure your policy is abundantly obvious about that so employees don't get upset about that requirement when it's being administered.
Mistake #3: Missing an important caveat about FMLA and paid leave
There is an important exception to the general rule that employers may require an employee to use paid leave during unpaid FMLA leave, one that many employers miss, according to all three attorneys HR Dive spoke with.
"If an employee is on FMLA leave and simultaneously in receipt of a paid benefit, in any amount, FMLA leave is considered paid. When it's paid FMLA, an employer may not require that the employee substitute PTO — but it can permit that," said attorney David Mohl, a principal at the Atlanta office of Jackson Lewis PC.
For example, he said, if short-term disability provides 70% income replacement, an employer cannot require that the employee use PTO (or other paid leave) to make up the difference. If, however, there is a waiting period before that paid benefit kicks in — say, seven days — an employer may require the use of paid leave during that seven days.
Batsch noted that even if the employee is receiving paid time off via a third-party disability plan rather than an employer disability plan, "that's still a situation where you can't require an employee to run their paid time off concurrently with their FMLA time." This was clarified by the Seventh Circuit in a 2007 case (Repa v. Roadway Express, Inc., 477 F.3d 938).
Mistake #4: Forgetting to consider the patchwork of local laws
"The growing number of state and local laws heap a load of additional compliance concerns onto employers," said Nowak. "Not only are there additional considerations for accrual, carryover, and reasons for leave, but these new leave laws tend to provide job-protected leave in situations where the medical condition is not covered by the FMLA. As a result, employers cannot discipline an employee for an absence when he or she is utilizing leave covered by one of these leave laws."
Of course, those laws only make the interactions with FMLA management more complex.
"Paid parental leave policies interact with FMLA and gender discrimination laws," said Mohl. "PPL policies are, of course, a type of paid leave; some operate as a disability benefit."
Paid leave will likely continue to expand in scope in the coming months as more states and cities consider mandating it. Currently, 10 states and about 30 localities guarantee some type of paid sick leave. A number of federal policies have also been proposed, but no movement has been seen at that level yet.
SOURCE: Carsen, J. (27 November 2018) "4 mistakes to avoid at the intersection of FMLA and PTO" (Web Blog Post). Retrieved from https://www.hrdive.com/news/4-mistakes-to-avoid-at-the-intersection-of-fmla-and-pto/542962/
Have You Taken Any PTO Lately?
Original post benefitspro.com
Americans might be workaholics, but not necessarily because they’re in love with work. Studies show Americans yearn for vacation time, but some of them can’t bring themselves to take it.
A survey commissioned by Namely, a payroll and benefits company, finds that a majority of U.S. workers intend to take 15 days of vacation per year. It also found that 40 percent of employees have or would be willing to sacrifice pay to gain more paid time off. Similarly, more than two-thirds of workers said that vacation policies were at least somewhat critical when considering a new job.
But as a statement accompanying the survey from the company points out, another recent study found that the average American worker only take 11 days off per year.
The lower average is largely driven by the fact that many employees receive far less than three weeks of vacation a year, but there is some evidence to suggest that some workers who are entitled to generous PTO do not make use of it.
A quarter of workers in the Namely survey cited strict company policies as an obstacle to taking vacation, while a fifth cited “stress at the thought of missing time at work” and 16 percent reported a “negative perception” in their organization of taking time off.
“What this tells us is that despite the best intentions to take large chunks of time away from work and unplug from technology, employees are feeling confined and are using vacation time differently than previous generations,” said Matt Straz, founder and CEO of Namely.
In recent years, a number of major companies have made a point of offering generous vacation benefits. Some offer unlimited vacation, while others have put in place policies to encourage workers to make use of their vacation, including bonuses for taking time off.
