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!

Coronavirus Confidential

Yesterday, Charlie in Accounting had the sniffles.  He hasn’t come into work today.  Tomorrow, he calls you in HR and tells you that he tested positive for coronavirus.  Does this bit of information change what you’ve been doing?  I posted a poll on Twitter yesterday, and here’s the result:

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Over the past couple of weeks, we’ve learned a lot more about the coronavirus and how to prepare for a possible pandemic.  We know we should be washing our hands, not touching our faces, preparing for folks to work from home when they can, researching business interruption insurance to see if it will cover payroll if coronavirus requires us to shutdown, reevaluating if we can afford giving pay increases in light of financial outlooks, and communicating to employees how to prepare.  All of these are important steps to take.

It’s awesome to be prepared.  It is also important to look at our obligations as an employer.  As a worry-wart employment lawyer, one obligation leaps out when we start talking about coronavirus – the obligation to keep medical information confidential.  In a normal, non-pandemic situation, we would not be able to share that Charlie has cancer, arthritis, or any other medical condition.  A pandemic doesn’t change this.  If Charlie tests positive, we can’t share that with employees.  The fact that we know shouldn’t change what we’re doing.  Prepare as though it will hit your neighborhood so that when it does, you don’t violate the ADA.

Now, you might be thinking about moral obligations.  Shouldn’t we be able to tell Suzy because her elderly mother lives with her or Jamal because his kid gets sick a lot?  The answer is still no.  We should tell employees now that when coronavirus gets to our area, they will need to make decisions, like working from home or taking increased PTO, as they are necessary and that we’ll be doing everything we can to keep our workplace safe and healthy, like telling people not to come to work when they’re sick.  Yes, this is hard.

Review the EEOC’s pandemic guidance.  It’s from 2009 but recently re-upped given coronavirus.  Here are some key takeaways for you:

  • You can and SHOULD increase infection-control practices like handwashing and increased cleanings of offices and surfaces
  • You can’t take every employee’s temperature as they enter your offices unless the CDC tells you to
  • You can’t ask employees if they have a disease that makes them more susceptible to the virus
  • You can’t require employees to get a vaccine as religion and disability may prevent it for some employees
  • You can tell employees not to come to work when they’re sick and you can send them home

Instead of waiting for Charlie to get tested, let’s get prepared.  Here are some great resources that may be helpful for you:

  • Check out the University of Minnesota’s CIDRAP center for all the news and maps that you might need
  • Check out Dan Schwartz’s blog for updates on how to prepare
  • Joey Price has a webinar on Tuesday (3/10) for HR on how to prepare
  • HR Bartender posted some tips
  • Listen to Heather Kinzie and I talk about practical tips on how to handle coronavirus on Thursday (3/12) at 4 pm CDT/1 pm AK – no registration necessary!
  • Jeff Nowak has a webinar on Thursday (3/12) on preparedness, the ADA, and FMLA

Now, go get some more soap!

Tired of Bubbly

The feedback I get from people I meet is often “I love your energy, “you’re so bubbly,” and “why are you so happy?”  I am, by no means, a Debbie Downer.  That said, I don’t ever want people to think that HR has to be happy or has to be cheerful all the time. You get to be NOT bubbly.  It’s totally okay.

We deal with some dark stuff.  People come to us when their kids or parents are sick.  We organize FMLA for them in these cases.  When they get a horrible diagnosis for themselves, we figure out the reasonable accommodation to allow them to earn a paycheck while going through grueling procedures.  Some of my hardest days an HRO were trying to find ways to get people home to dying parents. Tears – including some of mine – were shed in my office.  A bubbly response would be insensitive and inappropriate.

We deal with hard problems.  When someone comes to us with an allegation of harassment, we investigate, sometimes hear about horrific behavior, and then try to navigate the difficult waters to rebuild in the aftermath to make things right.  We do pay audits that may uncover discrepancies, we have to beg and plead to find money to rectify the situation.  We advocate for a minority candidate when the hiring manager is concerned about “fit.”  (Ugh.)  We put our credibility on the line to solve these problems.

We do hard things.  It is not easy to do a layoff.  It is really not easy to discipline someone who we like personally.  It is not easy to walk a production floor when there’s a unionizing campaign in progress.  Nevertheless, we do these things, because we’re in HR and sometimes we have to.  We don’t get to hire and promote all the time.

It’s more important to be you. Being you means you have good days and bad days because you’re human. Some of the best HR people I have ever worked with are curmudgeonly – surly even – but they still showed people that they care about them, want what’s best for them, and will advocate for them. We can’t create connections with the people we work with if we’re putting on a forced smile or bubbliness.

My advice is this: work on you. Know you. Then, stay true to that. People will respond to that.

 

Photo by Alejandro Alvarez on Unsplash

Me & You Metrics

I wear an Apple Watch.  I have since they debuted in April 2015.  I love it even though I rarely use all of its functionality.  I track my calories burned, whether I work out, get all the notifications from Twitter to reminders to actually breathe.  (Little nugget – I have only missed my stand goal twice in nearly four years.)  I’ve metric-ed myself to death with Ive (my watch’s name).

Yet, I would never share all of this information with an employer.  You can tell where I’ve been, whether I went up a flight of stairs, or my heart rate at a particular time. You’d be able to figure out so much about me, my habits (good and bad), and could even use the information to determine if I’m a good employee.  (She sits too much when she should be chatting with customers or getting parts.)

My personal beliefs of biometrics are part of the reason I’m less-than-enthusiastic about recommending employers use them.  I love the idea of determining if there’s a better way to lay out a manufacturing floor, whether we could reduce real estate costs by encouraging hot-desking, and I’m even for handing out Apple Watches to employees for wellness purposes.  But I just can’t get endorse an employer gathering this data and then making employment decisions based on the data.

My biggest concerns surround privacy and the potential for misuse of personal health information.  Employers don’t get to know what I do off work provided it doesn’t affect the workplace.  If an employer knows, could I get terminated for spending too much time at a movie theater rather than reading business books?  What about not spending the night at my house but at a friend’s? Biometrics can allow data gatherers to be the Big Brother technology has often been portrayed as.

As for health information, biometrics are implicated by the Americans with Disabilities Act, Genetic Information Nondisclosure Act, and many state laws.  Imagine being an employee in a wheelchair where steps taken are not going to be tracked.  Does that mean that that employee is not going to be considered when the health data is aggregated into an analytic tool that determines who should be promoted?  Or imagine being an employee who struggles with his weight who has trouble meeting his step goals.  When his fitness goals are not met, does that mean he could be terminated, maybe even in an effort to reduce overall health costs. (This would likely be unlawful under ERISA, but that might not stop an overly cost-conscious employers.)

To this end, I recently went on XpertHR’s HR Podcast to discuss a new decision out of Illinois on biometric data collection and the possible impact on employers from coast-to-coast.  I encourage you to listen.  You can listen here.

Photo by Alvaro Reyes on Unsplash

Happy Birthday, tHRive!

Today is a big day!  Today, tHRive Law & Consulting turns one.  In just the past year:

Human resources and employment law are ever-changing and exciting.  Our work touches nearly everyone, making it incredibly meaningful and challenging.  This is why I love it.  I can’t think of another area of business or law I’d rather be in.

tHRive Law & Consulting made it through one of the most significant milestones of any start-up – the first year.  I could not have done it without the support of so many and the confidence of my HR tribe.  For that, I am eternally grateful.  Thank you!

Now, onto the challenges of year two!

Photo by Markus Spiske on Unsplash

Twin Cities Sick & Safe Time

For those of us HR and employment law nerds, the goings-on about paid sick leave in Minnesota has been fascinating and at times, nail-biting.  Minneapolis reached its ordinance first, St. Paul quickly followed suit, the Republican-controlled Legislature got really, really upset, and then Governor Dayton squashed the Legislature’s hopes.  Ah, the drama!  Now, that the legislative kerfuffle is over, it’s time to focus.  If you do business in the Twin Cities or you have employees who spend more than 80 hours a year working here, these ordinances require your attention.

What the Ordinances Do

The ordinances are called “Sick and Safe Time” ordinances, designed to give employees time off for illness (their own and their immediate family members), time off when an employee (or family member) has been the victim of domestic abuse or stalking, certain public health emergencies, inclement weather, and other closures due to loss of power or HVAC operations.  Minneapolis and Saint Paul want to employers to provide this time to promote employee well-being and improve the overall health of each city.

The similarities between the ordinances are many, but both have their own quirks.  Here is a breakdown of each ordinance:

Minneapolis

Saint Paul

Employers with 5 or fewer employees need only provide time off, the time does not need to be paid Employers of all sizes must provide paid time off.  However, for employers with 23 or fewer employees, the ordinance does not go into effect until January 1, 2018
Employees accrue 1 hour of time off for every 30 hours worked Employees accrue 1 hour of time off for every 30 hours worked
Employers may impose a cap of 48 hours Employers may impose a cap of 48 hours
Employees can carry over time, but an employer can cap the amount of available time to 80 hours Employees can carry over time, but an employer can cap the amount of available time to 80 hours
Employers may grant the leave in advance (i.e. employers can front-load the time) Employer may grant the leave in advance (i.e. employers can front-load the time)
Employers can prohibit employees from using the time in the first 90 days of employment Employers can prohibit employees from using the time in the first 90 days of employment
Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time
Startups (under a year old) can provide unpaid time in their first year (until July 1, 2022) Startups (within six months of hiring employee number 1) can provide unpaid time.  After six months, the employer must provide paid time off.
Minneapolis has a notice provision and a poster Saint Paul has a notice provision and a poster
Employees can lodge complaints of violations with the City of Minneapolis Department of Civil Rights Employees may lodge complaints with the City of St. Paul or may bring a private action (litigation) in court

The Saint Paul ordinance’s private right of action provision is controversial and a big deal.  If the employee is successful in bringing a claim, the employee may also get attorneys’ fees and costs.  (Spoiler alert:  Attorneys are not cheap.)   Minneapolis’ ordinance does not provide for such a right and instead, employees can only lodge a complaint with the Minneapolis Department of Civil Rights, which can determine how to handle the complaint.  While the availability of a private lawsuit shouldn’t sway an employer to implement policies consistent with the ordinance, it should give an employer pause.

Some Challenges

The ordinances are a bit of a challenge to implement.  Many (if not most) employers grant time off based upon years of service, not on hours worked.  This presents the challenge of counting the hours, making sure the way the employer grants time is equal to or greater than the ordinance allotment.  Another challenge may require employers to revise or rewrite their policies.  Depending on the employer, this may involve drafting a detailed list of how an employee may use the time to be consistent with the ordinances.  A policy doesn’t have to list all the ways, leaving room for some flexibility, but that said, some employers may want to be more explicit to make compliance clear on the surface of the policy.

Here are a few scenarios that you may be facing:

  • If you offer paid time off (PTO) and your PTO policy allows employees to take time off for the same reasons the ordinances allow employees to take time off and in equal amounts or greater amounts than what the ordinances require, you don’t need to take any action. Your PTO policy is probably already compliant.
  • If you offer sick time separate from vacation, you will need to review your sick time to make sure you grant the same amount (or more) than the ordinances and you permit employees to use the time for the same reasons the ordinances allow employees to use the time.
  • If you offer unlimited time off, your program is probably in compliance provided you are providing payment for the time off and encourage employees to take the time.
  • If you don’t offer any sick time (or PTO), the ordinances provide a framework to offer time.

For more information, take a look at the resources available for employers from both Minneapolis and Saint Paul.

The Injunction

Both ordinances attempt to extend beyond their own borders by covering any employee who works more than 80 hours a year within the respective city.  For example, if an employer was headquartered in a suburb, but employees regularly work in the big city, the employer would have to provide paid leave to those employees too.  Businesses were really upset by this and the Minnesota Chamber of Commerce challenged the Minneapolis ordinance in court.  The Chamber was partially successful and obtained an injunction on this issue, which it is up on appeal.  The hearing on the injunction is scheduled for July 11, 2017 – ten days after the ordinance goes into effect.  While we probably will not get a decision until September or later, risk-adverse employers whose employees only occasionally work in the Twin Cities may want to still implement sick leave while the appeal is pending.

New laws are always a challenge for employers.  These ordinances are no different.  While Minneapolis promises not to “enforce” the ordinance for the first year, employers should be looking at their policies, updating where necessary, and identifying where we could offer more benefits where compliance would require it.  Your friendly neighborhood employment attorney is here to help.  Use us.