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Welcome to
the SAHRA's Legal & Legislative Group Q & A!
Here, we provide fresh content on a regular basis by responding to
frequently asked or hot questions submitted by our members through
this Web site. The SAHRA Legal & Legislative Team will select
several questions to respond to each month. The responses from the
selected questions will be posted by the first of the month for
questions received by the 15th of the previous month. Please limit
your questions to employment related issues.
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Recent Q & A
Question:
I am familiar with the requirements, processes, medical
certification, etc. regarding the FMLA/CFRA. Intermittent leave is
harder to administer. One of my employees has provided medical
certification for intermittent leave. However, it does not include
an intermittent leave schedule in order to identify anticipated time
off. Without a schedule of planned absences, how would we know if
they are in fact related to the FMLA/CFRA or simply abuse?
Answer:
Intermittent leave is a special type of family and medical leave
taken in separate blocks of time due to a single qualifying reason.
Intermittent leave may be based on the birth/placement of a child or
for “medical necessity” as determined by the employee’s health care
provider and described in a medical certification. For example,
intermittent leave may apply where an employee takes off two days
per week over a period of several months in order to undergo
chemotherapy treatments. Alternatively, it may be used where the
employee is incapacitated or unable to perform the essential
functions of the position because of a chronic serious health
condition even if he or she does not receive treatment by a health
care provider. In such instances, there may not be a planned
schedule for the leave.
Either way, all employees requesting
family and medical leave, including those requesting intermittent
leave, must provide some advance notice regarding the anticipated
timing and duration of the leave. The amount of notice depends on
how foreseeable the need for leave is. Where medically permissible,
employees requesting intermittent leave must attempt to schedule
their leave so as not to disrupt the employer’s operations. Courts
are reluctant to allow significant unscheduled and unpredictable
absences taken at a moment’s notice. The course of action to take
will depend upon the certification provided by your employee. In
order to ensure the employee’s understanding of his or her
obligations, you should provide the employee with documentation
regarding notice requirements. This should help assist in providing
some advance notice of the employee’s change of schedule and
reducing the disruption on your operations.
Question:
Due to the economic downturn, we are considering closing
operations at one of our facilities. Do we have any requirement to
provide notice to our employees?
Answer:
Both federal and state laws require certain businesses to
provide at least 60 days’ written notice to affected employees,
public officials and union representatives prior to executing a mass
layoff, plant closing, relocation or termination. Whether this
obligation exists depends upon the number of employees working for
the employer and the number of employees affected by the closure.
For additional information, consult the Employment Development
Department’s Worker Adjustment and Retraining Notification (“WARN”)
link at
http://158.96.229.240/eddwarn.htm and the Department of Labor’s
WARN link at
http://www.dol.gov/compliance/laws/comp-warn.htm.
Question:
We have a problem with employees who are verbally spreading
negativity (including comments about the company, management, its
practices, etc) to their co-workers. This is damaging morale,
attitude and performance. What can we do?
Answer:
Conduct in the workplace that adversely impacts job performance
should at least be carefully documented, i.e. date(s), person(s),
relevant facts. If the “verbally spreading negativity” results in
provable unsatisfactory job performance, then counseling and/or
discipline (depending upon the circumstances) would be appropriate.
However, if the comments are justifiable
criticism of management and/or its practices, perhaps the employees
making the comments should be given an opportunity to propose
solutions (consistent with the organization's mission statement and
values), but should also be advised not to play the destructive
“blame game” anymore.
Question:
I am in the construction industry. If we require an employee to
drive 2 hours away for a project, can we pay "travel time/Min Wage"
for the time spent in the vehicle? In addition, if they drive 2
hours away, work on-site for 8 hours and then drive home 2 more
hours, how will we record the overtime hours...on the min wage or
based on regular wage?
Answer:
Travel time from home to work and back is generally not “hours
worked” for pay purposes. However, most other travel time* is work
time. Pay for other travel time that does not require the employee
to use job skills may be at a rate less than the employee’s normal
rate of pay, e.g. minimum wage, but is still subject to overtime
rules. Travel time counted as work time for less than employee’s
normal earnings must also be clearly outlined in writing for all
employees in advance.
(*For example, if an employee reports to
regular workplace and is then required to travel to another
construction site for the day, travel time to the assigned project
site must be paid. Visit
http://www.dol.gov/DOL/allcfr/ESA/Title_29/Part_785/29CFR785.35.htm
for details.)
Note also: party making inquiry may want
to seek the advice of own legal counsel to review detailed
circumstances before deciding action to be taken.
Question:
Does paying someone 1099 wages, does that mean they are a contractor
and should not be treated as an employee or is the difference of a
1099 only that taxes aren't taken out of the worker's paycheck? How
long can a company keep the worker as a 1099 before there is a
conflict between contractor and employee (if 1099 means contractor)?
Answer:
For federal tax purposes, businesses are required to annually
file Form 1099 for workers who are properly classified as
independent contractors – as opposed to “employees” – paid $600 or
more for their services. Employment taxes do not have to be deducted
from earnings of an independent contractor, sometimes referred to as
a “1099 worker”.
There is a significant difference
between an independent contractor and an “employee”. Many factors
are used in determining independent contractor status, and there are
major penalties for misclassification. (Visit
www.irs.ustreas.gov and
www.edd.cahwnet.gov for details.)
Note also: party making inquiry may want
to seek the advice of own legal counsel to review detailed
circumstnaces before deciding action to be taken.
Question:
Upon notifying an employee that they are being terminated after
a due process disciplinary action, does a public agency have to
present the employee's paycheck at the time of the formal letter of
notification? Or are we allowed to cut the final check at the time
of our usual payroll cycle? I need an answer as soon as possible.
Answer:
California Labor Code §201
requires that all wages and accrued vacation earned but unpaid are
due and payable immediately to a California Employee at the time of
discharge from employment (or layoff) . Generally, a public agency
employer would be subject to a “waiting time penalty” if such
employee is made to wait until the next regular payday/cycle. (See
also Campos v EDD, 132 Cal. App. 3d 961 (1982). )
Note: party making inquiry may still
want to seek the advice of own legal counsel to review detailed
circumstances and for industry specific information.
Question:
I am a vocational counselor and testify in disability hearings
at Social Security. One of the questions that comes up pertains to
the level of absenteeism that will be tolerated by an employer. I
know the statistics regarding the average number of absences by
industry; however, there are no references to what will be
tolerated. I thought I would write and ask if your organiztion has
information regarding how absenteeism is managed or a "rule of
thumb".
What I understand to be the case is that
many employers have paid sick leave of 6 days per year while others
have personal leave and combine sick time with vacation/holiday pay
so that a person has access to paid days for being away from work
for whatever reason.
My question becomes one of how many days
will an employer tolerate between paid and unpaid time off from work
before an emplyee will be terminated?
For instance, if a person averages 2
days per month absence for sick leave and is an otherwise good
employee - will that be tolerated or is it too excessive and
termination a sure thing?
Please help me clarify this point. If
you are unable to answer can you refer me to another source?
Answer:
I am not aware of any "rule of thumb" in terms of employer
tolerance for absences, and I am not aware of any resources for such
information. The answer depends on each employer's policy(ies) and
many other relevant factors, such as reason for absence, length of
service, etc.
Question:
We are considering instituting an employee directory with
employees photo's displayed. Our initial intent is to have this
available to management, HR and labor relations only. We will be
utilizing our company security photo and using them for internal
purposes only. Do you see any legal issues with this scenario? Are
you aware of any other companies that have a similar system? Any
insight you can provide would be greatly appreciated.
Answer:
I do not see any legal problems with this from an employment law
perspective. Many companies use employee photos for company websites
and/or internal employee intranet use. Your intended use appears
even more limited and should not present a problem.
Question:
If a person has a medical condition that would qualify as a
disability and has intermittent absences - will that person be able
to avoid termination by claiming unpaid time off under the Fair
Employment and Housing Act for the unplanned absences?
Answer:
It is difficult to answer this question based on the limited
information provided. Generally, however, the Fair Employment and
Housing Act protects disabled employees (with disability being
defined very broadly) from discrimination in employment. The Act
also requires covered employers to reasonably accommodate disabled
employees and to engage in an interactive process with the employee
to determine a reasonable accommodation. A reasonable accommodation
can include leave time relating to the disability.
If you are an employer covered by the
California Family Rights Act (generally 50 or more employees), the
employee also may be eligible for leave, including intermittent
leave, if his/her condition qualifies as a serious health condition
and the employee otherwise satisfies the conditions for eligibility.
You would need to take certain steps to obtain medical documentation
and advise the employee of his/her leave rights and then count all
of the intermittent leave towards the employee's total leave
entitlement. Again, to determine whether the CFRA applies requires
additional information.
In short, you should be aware of
potential obligations and risks under these two laws, and you may
want to consult with an employment attorney on how best to proceed
in the circumstances. Other pertinent considerations would be
whether you have written policies regarding attendance and absences,
how these policies have been applied both generally and specifically
to this employee in the past, whether the employee is providing
adequate advance notice of his absences, whether he/she has provided
medical documentation to you, etc. Even if you determine that you
need to take steps to be sure you are in compliance with the FEHA/CFRA,
you should be able to do so in a way designed to minimize disruption
to your business.
In sum, it is quite possible that the
laws discussed above would protect this employee from termination
for disability-related absences. It is a fact-specific analysis,
however, and you should discuss it in more detail with experienced
counsel to determine the best course of action.
Question:
What if an employee who works on one of our state contracts is
terminated and the employee refuses to turn in government office
keys? I understand we cannot withhold paychecks, but is there
something we can do to retrieve the keys because it is a government
office?
Answer:
You should send the employee a letter explaining that the
employee has a duty to return all company property immediately upon
termination of employment, citing to any applicable written policies
that were provided to the employee upon hire. Then, explain that the
employee has improperly failed to return keys to the location where
he/she was assigned to work and that this location was a government
facility. Make a final demand that the keys be returned immediately
and provide a specific manner and deadline for the return. Tell the
employee that if the keys are not returned in the manner and by the
deadline provided, you will have no choice but to pursue legal
avenues for relief against the employee. I would send the letter
certified mail. Hopefully this will secure return of the keys and
you will not need to take any further action.
Question:
Please provide reference material (ie..CLC) regarding
disciplinary meetings in which an employee in a non-union
environment requests that a neutral third party attend
(non-employee). Who can this third party person be? What is required
on employees and employers behalf?
Answer:
The NLRB has flip-flopped over the years on the issue of whether
non-union employees have a right to request the presence of a third
party in investigatory meetings that may lead to discipline (known
as Weingarten rights). The most recent NLRB position on this issue
(based on the NLRB's decision in IBM Corp. in 2004) is that only
unionized employees have this right; non-unionized employees do not
have the right to have a third party present during such interviews
and the employer may refuse such a request. The employer may choose
to grant the request for other reasons, but it is not required to do
so.
Question:
I have an employee who works in Washington, but reports to our
California offices. How far can we go to collect money paid to this
employee for relocation if she terminates before our 1 year policy?
Answer:
Whether you can deduct relocation expenses from the employee’s
paycheck, and how those deductions may be made, will depend largely
upon the agreement between the parties. California Labor Code
section 224 prohibits employers from making deductions from an
employee’s wages except for statutorily required deductions, such as
withholding taxes, or in some cases when a deduction is expressly
authorized in writing by the employee. Absent a written agreement,
the general rule is that employers cannot deduct debts, including
relocation expenses, from an employee’s wages and instead must seek
relief through a separate civil action against the employee. Even
when a written agreement exists, Barnhill v. Robert Saunders & Co.
and several Labor Code provisions substantially limit the
circumstances in which wage deductions are permitted, particularly
when debts are accelerated and deducted from an employee’s final
paycheck. As a result, employers should always consult legal
counsel before making non-statutory deductions from an employee’s
wages.
Assuming you decide to recover the
relocation expenses by filing a separate civil action against the
employee, where that lawsuit can be filed is a jurisdictional
question that depends upon several factors such as the location of
the employee’s residence and the terms of the parties’ employment
agreement (if one exists). The claims you may assert, if any, will
be largely dictated by the terms of the policy concerning recovery
of relocation expenses within one year. To verify the appropriate
jurisdiction for your set of facts, and to determine the correct
claims to assert, consult legal counsel.
Question:
If an employee's pay is based on base salary AND commissions, do
employer's still need to pay the "minimum" exempt salary of 2X the
minimum wage if they are guaranteed commissions pay also? If not,
what is the minimum base salary they can pay?
Answer:
California Industrial Welfare Commission Wage Orders 4
(Professional, Technical, Clerical, Mechanical, and Similar
Occupations) and 7 (Mercantile Industry) provide an exemption from
overtime for employees whose earnings exceed one and one-half times
the minimum wage if more than half of that employee's compensation
represents commissions.
Pay structures vary from employer to
employer so for a complete evaluation of whether the employee in
question is exempt from overtime please contact your attorney.
Question:
Are time sheets confidential between employee and employer in the
state of California? Can multiple employees have one time sheet?
Answer:
Under both California and the Federal Labor Standards Act (FLSA) all
employee records regarding wages, hours and rate of pay are to be
kept individually for each employee.
California privacy laws regarding
employee information are broad. The right to privacy is guaranteed
by the California Constitution which protects employee personnel
files from improper and unreasonable disclosure. Consequently, an
employer should always error on the side of caution and keep all
employee information private to the extent possible. Generally,
employee time sheets contain the employee’s social security number
or employee ID number. Either of those personal identification
numbers could be used to gain additional information concerning the
employee and should be kept private.
Question:
As a HR Generalist for a
private corporation, who advises management of best practices but is
not necessarily the decision maker, what types of personal liability
am I exposed to in regards to employment actions?
Answer:
The issue of liability is
very fact specific and guided by the type of employment action
brought. With your reference to “decision maker” we will assume
that the question regards decisions to terminate an employee and
liability for wrongful termination.
Generally speaking, one who is not
involved in the process of deciding to terminate an employee cannot
be held liable for wrongful termination. With regard to a person
who is involved as a decision maker, their liability is determined
by the type of action brought by the employee. The California
Supreme Court held in Reno v. Baird (1998) 18 Cal. 4th 640
that non employer individuals are not personally liable for
discrimination under the Fair Employment and Housing Act (FEHA)
(Gov. Code § 12900 et. seq.) Just this year, the Supreme Court
determined in Jones v. The Lodge at Torrey Pines (2008) 42
Cal.4th 1158, that individual employees can not be held
liable for retaliation under the FEHA. However, the specific
statutory language in Gov. Code § 12940(j) provides that an employee
is personally liable for unlawful harassment perpetrated by the
employee. (Subd. (j)(3).
Question:
I am working with a non-profit organization and the issue of
dress code and tattoos has been brought up. Is there any laws
regarding wearing clothing to cover tattoos when dealing with
clients or the public?
Answer:
There are no laws granting
employees the right to dress in any manner they choose or to display
tattoos while at work. An employer may adopt any policies
regulating how employees dress at work and whether tattoos may be
exposed. However, the rules must equally apply to all similarly
situated employees.
Question:
It is my understanding that there is a California State Disability
Insurance brochure that all California employers are required to
give all new hires on their first day. If this is correct, can you
give me the document number on that brochure so that I can search
for it on EDD's website?
Answer:
The Employment Development Department (EDD) requires all employers
to provide pamphlet DE35, Notice to Employees, to all new employee.
Additionally, employers subject to Unemployment Insurance (UI) State
Disability Insurance (SDI) and Paid Family Leave (PFL) are required
to provide notice to their employees of the benefits they are
entitled to. New employees of employers subject to SDI must be
provided with pamphlet DE 2515 at the time of hire. Additionally,
an employer subject only to SDI must post Form DE1858, which
provides notice to employees of claim and benefit information for
SDI in a prominent location in plain view. If you are an employer
subject to UI, SDI and PFL you must use form DE1857A instead of
DE1858.
Question:
We have an employee who is a full-time employee, but is
currently working part-time, at 20 to 25 hours per week. On Monday,
she attended an all day seminar and dinner which amounted to 10.5
hours. She worked for approximately 4 hours on Tuesday, Wednesday,
and Thursday. On Friday she did not work at all. Do we have to pay
her for the 2.5 hours of overtime on Monday?
Answer:
Labor Code Section 510 provides that any work in excess of eight
hours in one workday and any work in excess of 40 hours in any one
workweek shall be compensated at the rate of no less than one and
one-half times the regular rate of pay for an employee. Thus, since
the employee worked more than 8 hours in one workday, regardless of
the total hours per week, she is entitled to the 2.5 hours
overtime. Section 510 has many exceptions and exemptions. There
are many Wage Orders which apply only to certain professions that
provide exceptions to the general rule. Thus, it may depend highly
on the type of work the employee performs and whether a collective
bargaining agreement governs the wage and hours the employee is
required to work.
The number of wage and hour lawsuits
being filed nationwide is increasing rapidly. In every case, where
you are unsure whether you are required to pay an employee for
overtime, you should contact an employment attorney or, at the very
least, err on the side of caution and pay the employee the
overtime.
Question:
Please provide the run down on PDL and FMLA. I have an employee
who is pregnant and within the first trimester and now has to go out
on PDL as per Dr.'s orders. I am unsure how to apply PDL, FMLS &
CFRA and how to combine them. If you could please remind me on how
to process this I would certainly appreciate it.
Answer:
Generally, CFRA does not recognize pregnancy as a serious
medical condition like the FMLA. As a result, CFRA does not run
concurrently with FMLA as it usually would for other serious health
conditions. However, PDL and FMLA do run concurrently. Thus an
employee disabled by pregnancy would be entitled to 4 months of PDL
to run concurrently with the 12 weeks of FMLA. Once FMLA and PDL
are used up, then, if the employee’s medical provider determines
that she continues to be disabled at the end of PDL, the employer
may, but is not required to, allow the employee to use CFRA leave
prior to the birth of her child. Otherwise the employee may take
CFRA leaved after the birth of her child for bonding with her
child. The maximum time the employee may take off work for FMLA/CFRA/PDL
is 4 months PDL/FMLA and 12 additional weeks of CFRA.
For more information, you may refer to
California Code of Regulations 7291 et. seq. which provides the
regulations and examples applying the regulations.
Question:
If an employer fails to withhold federal
and state income tax, FICA, and SDI on an employee's final paycheck,
what are the employer's obligations toward the employee and how
would the employer correct the situation?
What additional steps or actions are
needed if the error is not caught until the following tax year?
Answer:
What you have identified is a tax issue, and not really an
employment law issue. There are various steps that must be taken by
the employer and the employee to remedy this situation. In this
circumstance, the employer should consult with experience tax
counsel or an accountant to discuss the necessary procedures.
Question:
When addressing or creating a dress code
for clothing, (other than transgender) should discrimination between
male & female be considered?
Example: tank tops, short dress pants, sandals, etc.
Answer:
Employers must be careful when implementing dress codes to
ensure there is a legitimate business reason for any differential
treatment based on a protected characteristic, including sex. In
most situations, that will include transgender employees. In other
words, if a male employee is dressing as a female, the employee must
follow the guidelines for female employees. Of course, there may be
different dress code requirements for men and women depending on the
industry. For example, in a sales organization, men could be
required to wear a tie, and women obviously would not be bound by
the same rule. Employers also should be consistent regarding
tattoos and piercings. This can be a tricky area of the law,
particularly when religious accommodation issues arise.
Accordingly, you should work with an experienced human resources
professional or employment law attorney in drafting your dress
code.
Question:
My question relates to worker's
compensation. We have a staff person who left work at 9:20 am and
got into a motor vehicle accident at 10:00 am on her way home.
After reporting the accident to us, she claims she was going to work
from home, although she did not have permission to do so. I
understand that this will probably end up being a worker's
compensation claim. My question is can we institute a policy that
says if you choose to work from home, you are not covered by our
workers compensation insurance as we have the necessary tools to
work in our office.
Answer:
To achieve your goal, a better approach would be to institute a
policy that prohibits employees from working at home at all. If you
allow employees to work at home, then your open yourself up to
liability for workers' compensation claims. In other words,
employees cannot be required to "waive" their right to file a
workers' compensation claim in exchange for working at home.
Question:
Is there a California
Code which states to the effect that an employer can not count or
consider, absences to care for a ill child, as unapproved for
disciplinary purposes, other than the FMLA, CFRA? I believe I recall
reading this somewhere in the California labor code.
Answer:
Labor Code section 233 requires
employers to permit employees to use up to one-half of their annual
sick leave accrual to care for a covered family member. This is
referred to as "kin care." Labor Code section 234 provides that
employees cannot be disciplined for using "kin care." You should
carefully review both of these sections for additional information.
Question:
When an employee submits their resignation with two weeks notice and
intent, what is required in order to accept their resignation as of
the date they submitted it rather than two weeks from the date it
was submitted?
Answer:
If an employee resigns with notice, the
employer has the right to "accelerate" the resignation by not
allowing the employee to work through the notice period (assuming
the employee is at-will and not under some form of contract). One
consequence to consider is that the employee will be entitled to
unemployment insurance benefits for the period between the date of
termination (the employer converted the resignation into a
termination by accelerating the notice period) and the initial
notice date. In addition, the final paycheck and related
documentation is due at the time of termination. In this case, that
would be the point at which the employer informs the employee that
her services are no longer needed.
Question: What are the federal
and state of California Records Retention Laws for
Personnel Files and Medical Files?
Answer: There are a number of
different record retention requirements depending on the type of
record. While not an all inclusive list, here are the requirements
for some of the more common employment records:
-
Documents in a personnel file
generally must be kept for two years. Payroll records must be
kept for four years, and wage records for three years. I-9
forms must be kept for three years from the date of hire or one
year after termination.
-
Employers must keep certain health
records related to job injury or drug testing for five years and
family and medical leave related records for two or three years
(three years if documents relate to leave under the Family and
Medical Leave Act and two years if the documents relate to leave
under the California Family Rights Act).
-
There are a number of other document
types with different requirements including: child labor
documentation (three years), employee benefits information (six
years or at least one year following a plan termination), and
recruitment and hiring records (two years).
The information contained herein is
privileged and confidential. It is intended for the use of the
addressee only. If you are not the intended recipient, you are
hereby advised that any distribution, dissemination, or copying of
the contents of this transmittal is strictly prohibited. If you
have received this transmittal in error, please immediately notify
the sender by telephone and destroy this transmittal.
Question: Can an employee be
disciplined for continuously punching in 3-6 minutes late and
punching out 3-6 minutes early when the time clock rounds every 7
minutes to each quarter hour? The time records show the actual
minute of the punch but for payroll purposes hours are accounted for
on a quarterly hour basis. Due to this rounding, the time records
reflect the employee arriving and leaving on time. Can we discipline
under this scenario?
Answer: The short answer to your
question is "yes." The rounding practice you have adopted is merely
a timekeeping/payroll measure. It does not preclude you from taking
discipline against an employee for failing to report to work on
time. It would be a good idea to include an explanation of this
issue in your attendance policy. That way, employees will be on
notice that if they are late to work or leave work early without
approval, they will be subject to disciplinary action.
Question: Vacation pay
requirements for voluntary quit, what is the California law and
should we pay?
Answer: Because vacation is
considered a "vested wage," employees must be paid out on separation
of employment (whether voluntary or involuntary) for any accrued but
unused vacation, PTO or other vacation-type time off
(such as personal holidays). Employees who do not receive such
payment
in timely manner are entitled to receive "waiting time penalties"
equal to one day's wages for every day the payment is late, up to a
maximum of 30 days.
Question: Can an employee elect
additional leave under CFRA to bond with a child after exhausting
their FMLA/PDL leave of 12 weeks considering they qualify?
Answer: Generally, yes. The
California Family Rights Act and Pregnancy Disability Leave do not
run concurrently. So, assuming the employee has not taken any CFRA
leave in the 12-month period (assuming the employer uses a rolling
12-month period), she will be entitled to 12 weeks of "bonding"
leave after her disability period ends. The disability period
usually end after six weeks for a regular delivery and after eight
weeks for a caesarean.
Question:
Communicable diseases and an employer's
responsibility: We were notified today that one of our team members
has viral meningitis. This is a highly contagious disease. What is
our responsibility as an employer? Is there any precedent or legal
requirement to provide medical care to any team member who may have
had contact with the infected individual?
Answer: An employer's
responsibility is to provide a healthy, safe working environment for
all of its employees, even if there are no current standards
governing the work area or the industry. The General Duty Clause of
the Occupational Safety and Health Act (OSHA) (Section 5(a)(1))
addresses this issue. It entitles an employee to "a place of
employment which is free from recognized hazards that cause or are
likely to cause death or serious physical harm." California law
imposes a similar duty on employers. California law also contains a
specific regulation addressing blood borne pathogens (section 5193
of Title 8 of the California Code of Regulations--available at
http://www.dir.ca.gov/title8/5193.html). Section 5193 has
different provisions depending on the employer's industry. It is
very important that you review section 5193 and the applicable FAQs
(available at
http://www.dir.ca.giv/dosh/BloodborneFAQ/html) to determine your
specific obligations.
Of course, all exposures do not result
from blood borne pathogens. Meningitis, for instance, is an
airborne pathogen. In addition, according to the Centers for
Disease Control and Prevention, viral meningitis is not considered
to be particularly contagious. That said, one of your key
responsibilities will be to reduce the possibility of the disease
spreading. This can be accomplished through training and educating
the workforce on precautionary methods. It is not clear from your
question whether your industry is at risk for this type of exposure
due to the nature of your work, or whether this was an unusual
occurrence. Your obligations may differ depending on your industry.
At this point, you should inform
employees of the corrective action that you decide to take. This
will help diminish any anxiety employees may be experiencing.
Training should be organization wide, and all employees should be
required to attend. The Centers for Disease Control and Prevention's
website (www.cdc.gov)
has information regarding communicable diseases--the types, symptoms
and precautions-- as well as resources on training.
For the future, you may want to consider
implementing a policy that requires employees to inform you if they
pose a direct threat to the safety of other employees. Of course,
you must keep employees' health information confidential and ensure
that any such policy is in compliance with the Americans with
Disabilities Act and California's Fair Employment and Housing Act.
Requiring employees to report communicable diseases allows for
immediate medical assistance, may stall the spread of the disease
and may enable you to track the origin. It also gives you an
opportunity to prevent future exposure.
In cases of blood-borne or air-borne
pathogen exposure, OSHA states that employers must offer any
employees that have been exposed free medical evaluation and
treatment by a licensed health care provider.
Question: Our employee suffered a
work related injury resulting in the loss of his foot. For nine
months the company has been paying him the difference between his
worker's comp pay and his previous amount. The company hoped that
the employee would have returned to limited duty by now. The
employee is now suing the company. The company has stopped paying
the additional money. The employee is still on the employer's
benefit plans. The company feels, since the employees is suing, he
is not coming back to work. Can the company issue COBRA paperwork
and take him off the benefit plans?
Answer: There are various issues
involved in this scenario. The answer to your specific question is
that employers are not required to continue paying health insurance
premiums for employees with open workers' compensation claims unless
they do so for other employees. For example, if you are subject to
the federal Family and Medical Leave Act and the California Family
Rights Act, you are required to continuing paying your portion of an
employee's health insurance premium for up to 12 weeks. That means
you must pay your portion of the premiums for employees off work due
to work-related injuries or illnesses for at least 12 weeks. You
could certainly implement a policy providing that the company will
not continue paying the premiums for employees on any leave of
absence for more than 12 weeks. You could not, however, single out
only those employees with open workers' compensation claims. In
your case, because you apparently do not have a current policy
cutting off benefits after a certain period of time, you should not
terminate the benefits of the employee who is suing you until you
have such a policy in place, and you apply it to everyone who is
similarly situated.
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