Return to Work SAFELY Recording

Hello all!

Marc and I shared a bunch of information on returning to work in today’s webinar, including whether temperature checks and welcome back potlucks are good ideas, how cubicles can be spaced, and much, much more.

If you’re in the market to “open” back up and bring people back to the office, take a watch:

 

If you’d like to hear more of our banter, take a listen to the Hostile Work Environment Podcast wherever you get your podcasts.  AND, contact us if you have questions!

COVID-19 April 10 Webinar

Happy as it can be Friday!  Below, please find the recording of today’s webinar.  This webinar is different in that it goes through common scenarios for paid sick leave and expanded FMLA under the Families First Coronavirus Response Act with tips on how to document and track the leaves.  It also contains checklists to use for documentation purposes. If you’d like the slides, please email me directly at kbischoff@thrivelawconsulting.com.

Also, here is the info sheet for employers:  PSL eFMLA One Pager  Feel free to add your own contact information to it to use with your employees.

Now, for the love of all things holy (regardless of denomination or not), go wash your hands and stay safe out there!

Checklists, Not Forms

You’ve met her.  Her name is Darlene.  She’s in HR.  She’s a stickler for rules.  She’s definitely not the party-planner HR-type.  Darlene denies requests that do not come on forms completed perfectly.  (She actually gets quite huffy about it.)  In fact, lawyers have taught Darlene that her way is the best way.  In the time of COVID-19, Darlene is about to experience an awakening.  She’s not gonna like it.

Under the Families First Coronavirus Response Act (FFCRA), employees can request paid sick leave and/or expanded FMLA in any way they can.  In its regulations, the Department of Labor has explicitly said that an employee can request leave orally.  Employees do not need to ask for a leave in writing.  (The IRS has some things to say about this, but…)

So, do you need a form?  No.  Should you have a form?  Not if you’ve got a Darlene working for you because she’s going to deny the leave if she doesn’t get the form filled out just the way she wants it.  Here are the reasons to say no to forms:

  • Not all employees have printers at home
  • Not all employees have computers at home to complete forms
  • Completing a form might be difficult for some employees
  • Requiring a form creates a hoop that an employee has to jump through to get the leave and therefore could be considered interference with the leave
  • If DOL says an oral request is sufficient, then you can’t require a form (worth repeating)

I know what you’re thinking, “But Kate, how am I going to have evidence if they ever sue me?”  Don’t worry.  I didn’t say you weren’t going to have evidence.  I said you shouldn’t have a form.  Instead, let’s have a checklist that HR or whoever is responsible for HR stuff to go through to make sure they have everything they need, like healthcare provider names, kids’ names and ages, and dates.  Having a conversation back and forth with an employee to get this information – whether it is over email or text message – is going to get you all the documentation you need.  You can even use your old faithful friend, Microsoft Excel, to track the information and document where the information is.  Really.  An email string or a text chain is going to be enough.

Tomorrow, April 10 at 10 AM CDT, I’m going to go through a bunch of scenarios where employees need leave.  I’ll walk you through my checklists, how to document the leave for IRS purposes, and even give you the tracking spreadsheet.  No registration necessary.  Just log in here: Kate’s COVID Webinar.  The password is 813056.

Until tomorrow, don’t be like Darlene.

Photo by Glenn Carstens-Peters on Unsplash

Preventing Panic

Knowing that anxiety is high among HR professionals and business owners, Heather Kinzie and I held a coronavirus/COVID-19 conversation about the following questions:

  • What should the employer communicate to its workforce?
  • What health information does the employer have the right to know regarding this issue?
  • What is the employer obligated to pay for?

The recording of a portion of the recording is below.

We’ll hold another one next week at 12 pm CDT/9 am AK.  Just click here at that time.

 

FMLA Screaming (Part II)

Have you pondered the question from yesterday’s post?  Agree with me that there are things you can do and things you should do?  That should do includes approaching FMLA with come compassion and not being super strict with FMLA’s limitations, right?

Yesterday’s post covered some of my tips for the start of FMLA.  Here are a few more for during leave.

Preparation for leave is essential.  Hopefully, the employee knew he needed to go on leave and was able to prepare by giving his manager his passwords, updating her on the status of projects, and plan to turn over work.  Sometimes, this isn’t the case.  An accident, premature delivery, or quick onset of a serious illness can take the employee out of the workplace leaving a manager without the benefit of the advanced notice.  What do you do in these emergency situations?  Leave the employee alone.  The employee is already ill or injured himself, worried about a family member, or facing the crushing reality of being a parent to a new baby.  The status of the sales agreement with customer XYZ is not top of mind.

Let technology help you with not knowing what’s going on.  Get access to email and other systems to help piece together the status of projects without bothering the employee.  Need a password?  Work with the software vendor or your own IT team to recover a password if necessary.  Change permissions so the manager or another team member can see things.  Again, don’t bother the employee.

If the leave is intermittent and the employee’s need for leave could come as a surprise on any given day, plan for what that looks like.  How will the employee handle the sudden need to be off?  Come to an agreement with the employee about his work when this happens.  Does this mean the employee spends the last 10 minutes of each day sending a quick email on the status of things?  Maybe.  (Would that be a nice thing to have anyway even if he didn’t need leave?  Yep!)  Setting expectations is a manager’s job.  If the manager laments every time Juan takes an intermittent day, well then it’s the manager’s problem for not preparing for this – not Juan’s.  (I know, I know, this isn’t a great one-liner to share with the manager, but you all are good coaches, you’ll soften the message.)

Don’t surveil the employee.  Seriously.  Don’t send someone out to watch the employee’s house to see if he is cleaning his gutters or fixing a deck.  Don’t monitor his social media accounts for signs of a vacation.  Assume the employee needed the leave and is using the leave within his or his family member’s health care provider’s instructions.  If something fishy starts happening, you’ll learn about it.  Don’t waste your time and resources beforehand.

When the employee is ready to come back to work, don’t forget the ADA.  Yes, the ADA can be an even bigger headache for employers.  Yes, the Seventh Circuit recently held employers might not have to give more leave than the FMLA requires.  However, the ADA places a reasonableness standard on employers.  Employers are required to consider reasonable accommodations, including leave, for each requesting employee on a case-by-case basis.  Don’t get consumed with “well if we give it to Larry, we’ll have to give it to everyone else.”  Remember, the ADA requires case-by-case analysis.  For more return-to-work tips, check here.

Lastly, remember that communication is really important at the end of leave.  You may want to know if any restrictions are necessary.  You may want more confirmation as to what day.  For requests like these, remember K8’s rule of three.  Ask at least three times in writing before you assume the employee is abandoning his job.

I get that the FMLA is tough.  I get that it can be frustrating for HR and managers.  However, it can be a godsend for employees.  It’s supposed to give them peace of mind that their job will wait for them if they need to be out for a bit.  Use this fact as a part of your compassion and empathy game. The employee will thank you for it.

 

 

Photo by frank mckenna on Unsplash (Great, happy picture, right?  Perfect for a Friday!)

FMLA Screaming (Part I)

The Family and Medical Leave Act.  A great idea that causes many HR pros to scream, pull out their hair, and/or outsource their frustration.  So much so, there’s even a blog dedicated to it.  (Read it, Jeff is both funny and smart.)  Even though can be incredibly frustrating, it’s a fact of life that can be made easier by approaching it with a sense of calm and a smidge of empathy. This post includes some basic advice when dealing with FMLA issues.

First off, by in large, employees are not out to “game the system.”  Yes, we’ve all heard of FMLA/ADA/Work Comp fraud.  It is a thing.  However, most employees do not ask for leave to pull one over on their employer.  With that, let’s assume an employee who requests FMLA actually needs leave for herself or her family.  The need for leave is already distressing to the employee.  She is likely worried about her job, and she is also worried about herself or her family.  Focusing only on the impact to the employer will not support her needs in this time of emotional chaos.  Be supportive.

The employee may not know exactly what to do when she needs a leave.  So, she’s going to look at your handbook to find some information.  She will likely do this before she talks with HR.  Make sure your handbook is up-to-date, complete, and explains who to talk to about leave.  If she does not look at your handbook, she is probably going to talk to a trusted co-worker.  Hopefully, this co-worker will know just enough to tell her to talk to her manager.

Next, she will probably say something to her manager.  She might not say “leave.”  She might say “time off” or other words that indicate that she may need a leave.  This requires managers to understand the signals of a leave request, and this requires manager training.  Managers – especially new managers – need to know enough to understand what these signals are and what to do when they see, hear, or otherwise get an inkling that leave is an issue.  If they do, they will send the employee to HR.

Now that she’s made the request, HR needs to use the Department of Labor forms.  I joke when I’m speaking on FMLA topics that HR pros are not graphic designers.  Department of Labor makes the best forms for FMLA.  Nobody creates better forms.  More than 10 of my clients have made the mistake of using a vendor’s forms and not the DOL’s only to come to learn that the vendor didn’t have a very important question on its form that resulted in a loss of sleep, thousands in more settlement dollars, or confusion on the part of the employer and the employee.  Here’s the link to the forms.  Bookmark it.  One more tip:  Always go back to this page.  The forms get updated from time-to-time so the most up-to-date forms will be at this link.  Please do not print off 10-100 copies and stick them in a file cabinet.  Print a new set every time an employee requests leave.

Remember the cadence of the forms.  FMLA regulations set out when forms must be doled out and returned.  Understand these timelines and make sure you – the employer – follows them closely.  The DOL’s FMLA Employer Guide does a great job outlining these.  Bookmark it as well.

If an employee doesn’t turn in the forms on time, use K8’s rule of three (trademark pending) – request the employee return the forms three different times and document each of those attempts over a period of several days.  Send an email to her personal email.  Send a letter.  Send a text message (and screenshot the text).  If she still does not respond and is capable of responding (isn’t in a coma or otherwise hospitalized), then talk to your friendly neighborhood employment attorney.

Next, calm the manager by being proactive.  Managers can freak out about losing an employee to a leave.  They get nervous about how work is going to get done.  They worry about how and if other employees will be able to pick up the slack.  Go to managers with a plan.  Ask if they will need temporary help, an employee from another team who could step in on a temporary basis, or if another hire will be needed since the team was already overworked.  Approaching a manager with some options will help calm some likely frazzled nerves.

Tomorrow’s post will have some more tips on the FMLA, including what to do during the leave and preparing for a return to work.  In the meantime, consider this:  There is a difference between strict FMLA compliance that follows the letter of the law and being a bit more flexible with employees.  Relying on the strict letter may not seem fair to the employee.

Photo by Gem & Lauris RK on Unsplash