June 3, 2019

Picture it: Sicily, 1922. No wait, sorry. Wrong post! Picture it. You are the HR manager and you’ve noticed lately that one of your employees seems to be down, unusually sad, has changed their eating habits or just seems to be generally suffering from “the blues”. Are you able to approach this employee to find out what’s been going on? Probably not, as the EEOC has said that employees may keep information about their medical conditions private.  There are, however, exceptions to this rule.  Employers may ask questions about mental health if an employee asks for a reasonable accommodation, if you made a conditional offer of employment and ask all applicants for the same medical information, if your company is governed by an affirmative action policy and you are tracking disability status for all, or there is evidence that the employee may not be able to perform the functions of their job or may be a safety risk. Outside of these four exceptions, an employer should not inquire after an employee’s mental wellness. If you have questions about this or want help analyzing a current situation you are experiencing with an employee, contact one of our attorneys at myHRcounsel for expert guidance. 

May 6, 2019

When an employee calls in sick, does your company have a policy that requires the employee find their own replacement to cover the missed shift?  If so, you should check whether your city or state has a paid sick leave law.  If it does, dig further to see if this is something that is acceptable under that law.  Many of the paid sick leave laws across the country prohibit an employer from requiring that their employee find a replacement worker if they call in sick.  In one such lawsuit involving this issue, a Minnesota gas station was ordered to pay an employee $11,000 for violating the paid sick leave law by requiring the employee to find a replacement worker when he called in.  To avoid this same fate and get some help digging through the confusing labyrinth of paid sick leave laws, consult your experts at myHRcounsel.  

April 22, 2019

If regular, consistent attendance is an essential function of an employee’s role, be sure that you are clearly indicating how and why that regular attendance is so important.  This is crucially important for a number reasons, but chief among them is when an employee requests leave as a reasonable accommodation under the Americans with Disabilities Act.  If an employee requests an accommodation of intermittent, unpaid leave under the ADA, but an employer has a clearly defined job description citing regular attendance as a major part of that employee’s job, it may be possible for an employer to deny that request.  Remember, though, it is always wise to engage in the interactive process to find another accommodation that may allow the employee to continue meeting the expectations of their role.  For help deciphering the ADA, the interactive process, or possible accommodations, consult one of our knowledgeable attorneys today.

April 15, 2019

Have you ever been in a situation where you needed to change an employee’s schedule, hours, pay or benefits and you worried about whether you could (especially if the change negatively impacts the employee)?  We here at myHRcounsel have seen this question many times.  An employer will write in and say that they want to cut an employee’s pay based on a variety of factors such as business necessity or poor performance.  However, the employer worries because that employee is in a protected class and so they wonder if they can make that change.  First, as long as the employee is an at-will employee and there is no written document in place that states otherwise, employers are free to modify the terms and conditions of a worker’s employment (including hours, pay, benefits, etc.).  Second, if you want or need to make the change, be sure that the reasoning behind the change is well-documented and is non-discriminatory.  In the case of reducing an employee’s pay for poor performance, as an example, be sure that you have documented the poor performance and attempts to improve it prior to making this decision.  This way if the employee does perceive a discriminatory intent, you as the employer have documentation to prove a legitimate, non-discriminatory intent to justify the change in the worker’s pay.  If you find yourself in the unfortunate position of having to make unfavorable changes to an employee’s terms and conditions of employment and you would like some legal guidance on how to effect that change, please consult one of myHRcounsel’s attorneys today!

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