HR Hotline: Five Employees of 50 Are Offsite–Does FMLA Apply?

By Mark Soycher
CBIA HR Counsel

Q: We have more than 50 employees overall, but only 45 in Connecticut. The others are sales reps responsible for defined geographic regions of the U.S., working from their homes throughout the country. How does the FMLA apply to us, if at all?

A: The federal FMLA applies to companies that employ 50 or more employees during 20 or more weeks in the current or preceding calendar year. All your employees, including your sales reps, would be counted for determining if your total employee count meets the 50 or more threshold triggering the application of the FMLA to your company, regardless of where they work.

That’s not the whole story, however. You must determine if an individual employee is entitled to FMLA benefits, including protected leave time. Among other criteria, he or she must work at a “worksite” where 50 or more employees are employed by the employer within 75 miles of that worksite.

What is the worksite for a salesperson who works from home and whose job is performed at any number of customer locations dispersed across hundreds of miles? Federal regulations address the case of employees with no fixed worksite as follows: “…An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.”

So, although your sales reps may live hundreds of miles from your main office, if that is their home base from which their work is assigned or to which they report, your main office is considered to be their worksite, and they are entitled to FMLA leave if they are faced with an FMLA qualifying need for time off.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Can You Offer FMLA Leave with Fewer Than 50 Employees?

By Mark Soycher
CBIA HR Counsel

Q: Even though we don’t employ enough workers to be subject to the FMLA, we would like to offer FMLA leave to our employees. Is that OK?

A: You may offer employees as much leave time as you choose, and for all the reasons (and more, if desirable) that would otherwise be FMLA qualifying, but calling it FMLA is not advisable.

Federal and state Family Medical Leave Act (FMLA) laws have specific jurisdictional standards defining which businesses, workers, and situations are covered. Those standards are also the criteria that federal and state labor departments and courts apply in determining whether a complaint may be accepted and processed. If the facts and allegations of a complaint do not meet the jurisdictional requirements of the law, the labor department or court lacks legal authority to address the matter.

In labeling a leave program or an employee’s absence as FMLA leave in a situation where the jurisdictional standards are not met, you may be creating unfounded employee expectations that certain rights apply and certain remedies are available. This could lead to a situation where an employee files a complaint that lacks legal status but that, nonetheless, costs your business considerable time and money in preliminary court or administrative proceedings. In other words, you don’t want to hear “case dismissed,” when the need for that conclusion could have been avoided with more careful packaging of your time-off program.

If you are inclined to offer leave that tracks FMLA in whole or in part, we suggest what might be characterized as an “FMLA-lite” policy. Call it something other than FMLA leave (perhaps, “Leave of Absence for Family/Medical Needs”) and include some specific disclaimer language clearly noting that the company does not employ a sufficient number of employees to be covered by the federal or state FMLA leave laws. (If you would like a sample of such a policy, email me at mark.soycher@cbia.com or call CBIA at 860.244.1900.)

If your employment levels increase to the point where your company is covered under the federal or state FMLA laws, you will need to notify employees and revise your leave policy accordingly.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: How Far Can You Go to Keep Infections from Spreading at Work?

By Mark Soycher
CBIA HR Counsel

Q: As we enter the flu season, and given all the frightening illnesses in the news that always seem about to “go viral,” literally, we’d like to do our best to protect our workforce from contagious illnesses. How far can we go regarding infection control practices, ranging from mandatory vaccinations to less intrusive steps, such as requiring regular hand washing and use of personal protective equipment, such as face masks and gloves?

A: The extent of the steps you take will vary based on your industry; the nature of your work environment; tasks performed; and interaction among employees or between employees, customers, clients, and the public.

It is clearly within your rights, and in some contexts highly advisable, to mandate that employees adopt good personal and workspace hygiene practices, including regular hand washing; disinfection of work surfaces; keeping hands away from eyes, nose, and mouth; sneezing into sleeves rather than on hands or openly into the air; as well as possibly using masks, gloves, and/or gowns if necessary to avoid contaminating the atmosphere or a work product.

Be aware of possible allergies some workers may have to protective equipment, and be prepared to explore accommodations, such as non-latex gloves, alternate fabrics, or nontoxic cleansers.

Regarding vaccinations, the EEOC says that an employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability—for example, an allergic condition similar to that described above—or under Title VII of the Civil Rights Act of 1964 if the employee has a “sincerely held” religious belief, practice, or observance that prevents him or her from taking the influenza vaccine.

In such cases, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Facts relevant to undue hardship in this context would presumably include, among other things, the assessment of the public risk posed at a particular time, the availability of effective alternative means of infection control, and (potentially) the number of employees who actually request accommodation.

Suitable medical documentation for an accommodation under the ADA could be as simple as a doctor’s note. Documenting a religious basis for an accommodation under Title VII can be a bit more subjective, as courts have defined religion very broadly—beyond the traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism—to include religious beliefs that are new, uncommon, not part of a formal church or sect, and only subscribed to by a small number of people.

Religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII. Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation.

For information about what employers need to know about Ebola, click here.

HR Hotline: Are You Subject to the Paid Sick Leave Law If Your Employee Count Drops Below 50?

By Mark Soycher
CBIA HR Counsel

Q: Until recently, we have had at least 50 employees and therefore followed Connecticut’s Paid Sick Leave Law. We are not a manufacturing business, and many of our employees fall within the law’s list of covered service workers. In December, however, we expect our employee count to drop below 50. Does that mean for 2015 we will not be subject to this law?

A: The law was changed this year, but the changes are not effective until Jan. 1, 2015. Under the current law, your employee count is based on the number of employees in any of the prior year’s calendar quarters. So, if you hit 50 employees in any one calendar quarter, as determined annually on Jan. 1, you are then subject to the law in that year, starting Jan. 1.

Under the revised law, effective Jan. 1, 2015, your employee count will be determined annually based on the number of employees on your payroll for the week containing Oct. 1, triggering application of the law to your company or exempting your firm from coverage as of January 1 in the following calendar year.

From your description, it appears that you have had 50 or more employees during one or more calendar quarters in 2014, as well as during the week of Oct. 1, 2014, which means that either under the current or revised law, you will have to provide paid sick leave in 2015

HR Hotline: Is an Employee Who Is Injured While Impaired Entitled to Workers’ Comp?

By Mark Soycher
CBIA HR Council

Q: If someone is injured at work due to impairment from drugs or alcohol, is that person eligible for workers’ compensation benefits? And if the injury results in lost time, is it an OSHA recordable incident?

A: The standards for compensability under workers’ compensation are based on state law, while injury recording requirements for OSHA are determined by federal laws and regulations. Many cases will be OSHA recordable and compensable under workers’ compensation, while others will be compensable but not OSHA recordable. Still others will be OSHA recordable but not compensable under workers’ compensation.

If it is determined that the employee’s injury was caused by his or her impairment, Connecticut workers’ compensation law provides an exclusion that states: “Compensation shall not be paid when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication.” You would need to be able to show to the satisfaction of the workers’ compensation commissioner that this was the case, a matter you should address through your workers’ compensation insurance representative, providing whatever relevant information you have. Generally it is not up to the employer to determine what matters are covered under workers’ compensation and what may be excluded and therefore handled under group medical coverage. Leave that to the workers’ compensation and group medical insurance carriers to sort out.

Regarding OSHA recordability, the injury must be recorded on the OSHA 300 Log based on how and where it occurred and its severity, as measured by lost time or other work restrictions. OSHA’s online Recordkeeping Handbook contains the following comments in rejecting suggestions that employers do not have to report injuries caused by employee misconduct:

Illegal activities and horseplay: OSHA has not adopted any of these recommended exceptions in the final recordkeeping rule because excluding these injuries and illnesses would be inconsistent with OSHA’s longstanding reliance on the geographic presumption to establish work-relatedness. Furthermore, the Agency believes that many of the working conditions pointed to in these comments involve occupational factors, such as the effectiveness of disciplinary policies and supervision. Thus, recording such incidents may serve to alert both the employer and employees to workplace safety and health issues.

You may have an affirmative defense against a citation, either an “unpreventable employee misconduct” or “isolated event” defense, but you must be able to show that the violative conduct was (a) unknown to the employer and (b) in violation of an adequate work rule which was effectively communicated and uniformly enforced.

But even if you can show a sufficiently vibrant safety program, regular employee communications, and that you have disciplined employees for prior safety violations, you would still not be exempt from recording the incident.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Does a Work Accident Warrant a Drug Test?

By Mark Soycher
CBIA HR Counsel

Q: If there is an accident at work, can we send the injured employee for a drug test?

A: This question was answered in a 1996 federal court ruling in Connecticut, which held that under the state’s drug testing law, a current employee cannot be required to submit to a drug test based solely on the occurrence of a work accident, and that an accident, by itself, is not indicative of impairment.

If there are other observable signs of impairment, however, such as dizziness, slurred speech, bloodshot eyes, extreme nervousness, excited demeanor, or slowed reactions, then a drug test may be warranted based on those factors rather than the accident itself.

Connecticut’s drug testing law says that a current employee may be required to submit to a drug test only where “…the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect job performance…” Although the Connecticut law applies only to urinalysis testing, it may be prudent to follow its standards for other forms of testing (for example, Breathalyzer, blood sample, saliva, hair sample) to avoid legal challenges, which can be expensive even if you win.

The medical personnel examining and treating your employee for the work injury may observe signs of impairment related to drug or alcohol use. Whether or not a drug test in that context is warranted and/or permissible would be a very fact-specific determination and may require comparing the observations of a trained company manager and a medical provider.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

Can Unemployment Benefits Be Waived in a Separation and Release Agreement?

By Mark Soycher
CBIA HR Counsel

Q: We paid a terminated employee several weeks’ severance after he signed a separation and release agreement waiving any and all claims against the company. Before the severance ran out, however, he filed for and was awarded unemployment benefits. Did he violate the release agreement by filing an unemployment claim against our company? And by receiving severance along with unemployment benefits, isn’t he “double dipping”?

A: While a separation and release agreement is effective in foreclosing legal claims against a company, there are limits on the types of claims that can be waived. In particular, state law specifically prohibits waivers of unemployment claims by employees.

Connecticut General Statutes Section 31–272 states, “No agreement by an employee to waive, release, or commute his rights to benefits or any other rights under this chapter shall be valid.”

Some separation and release agreements distinguish among those claims that are being released and those that the separating employee may still pursue. Other agreements express the waiver provision in more global terms. But, the bottom line is that a release agreement cannot override statutory prohibitions against waiving certain rights.

Besides unemployment claims, employees cannot agree to waive state and federal labor law rights to be paid for time worked or receive minimum wage or overtime (unless the work falls within statutory exemptions from minimum wage and overtime).

In addition, final settlements of workers’ compensation rights or claims cannot be agreed to without approval of the Workers’ Compensation Commissioner. And since a worker, including a former employee, may file a workers’ compensation claim up to one year after the date of an injury—and up to three years from the date of the first manifestation of a symptom of an occupational disease—it would be both impractical and impermissible to seek release of such potential work injury claims at the time of separation.

As for your departed employee’s simultaneous receipt of severance and unemployment benefits, he’s not “double dipping.”

Ordinarily if an employee receiving unemployment benefits also receives wages in that same week as a result of new employment, part-time employment, or severance pay (with no strings attached), the weekly unemployment benefit amount is reduced by two-thirds of the amount of wages received.

However, if the severance pay is available only if the worker signs a release agreement “forfeit[ing] a right or claim independently established by statute or common law against the employer as a condition of receiving the payment,” the law ignores the severance, and there is no unemployment benefit reduction or disqualification based on the receipt of severance. In such cases, the severance is considered the payment in exchange for the worker’s promise not to sue the employer, rather than characterized as a form of continuing wages.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline

Can we make payment of wages via direct deposit mandatory?

Q: Can we require that employees be paid via direct deposit, or do we have to offer an actual paycheck as an option?

A: State law specifies that you must have an employee’s consent to pay him or her via direct deposit. But because the language of the statute refers to “employee” authorization, it has been interpreted to require agreement only from a worker who is already employed, meaning that technically you could inform applicants that if they wish to be employed, they must agree to direct deposit. (Admittedly that’s splitting hairs, but that’s what lawyers do.)

In any event, while it is permissible to urge that an applicant or current employee sign up for direct deposit (for example, in the interest of efficiency, security, and lower administrative costs), it’s still advisable to allow those who prefer a live check to be paid that way.

There may be situations where individuals dealing with a domestic dispute, financial trouble, or identify theft don’t want wages deposited directly into their bank accounts. You should avoid getting involved in those kinds of personal issues, other than to respect the individual’s preference and circumstances.

Generally few people will decline direct deposit, but for applicants that do, it would be unfair—and for current employees, illegal—to deny or terminate employment on that basis.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: When Is 50 Employees Not 50 Employees?

By Mark Soycher
CBIA HR Counsel

Q: Our employee count just exceeded the 50 threshold. Do we now have to offer FMLA leave? And what about Connecticut’s paid sick leave law, which we understand is also triggered by hitting the 50-employee mark?

A: It depends, since each law uses a different formula to get to 50 employees. Under the Federal Family and Medical Leave Act, a business is covered if it employs 50 or more employees during each of 20 or more workweeks in the current or preceding calendar year. Any employee whose name appears on an employer’s payroll will be considered employed each working day of the calendar week and must be counted whether or not any compensation is received for the week.

Employees on paid or unpaid leave, including FMLA leave, leaves of absence, and disciplinary suspension, are counted as long as the employer has a reasonable expectation that the employee will return to active employment. If there is no employer/employee relationship (as when an employee is laid off, whether temporarily or permanently), such an individual is not counted.

Part-time employees, like full-time employees, are considered to be employed each working day of the calendar week as long as they are maintained on the payroll. An employee who does not begin work for an employer until after the first working day of a calendar week, or who terminates employment before the last working day of a calendar week, is not considered employed on each working day of that calendar week.

Once a private employer meets the 50 employees/20 workweeks threshold, the employer remains covered by the law until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year.

As of Jan. 1, 2012, when Connecticut’s Paid Sick Leave Law took effect, and until Dec. 31, 2014, coverage is determined on January 1 of each year, based on reporting 50 or more employees in any one calendar quarter in the previous year on an employer’s quarterly unemployment reports filed with the Connecticut Department of Labor.

Because this arrangement led to coverage of some employers with significantly fewer than 50 employees over the course of a full year, but which may have temporarily bumped over 50 in one three-month period, a change in the law’s coverage terms was successfully sought by CBIA and others during the 2014 General Assembly session.

As a result, effective Jan. 1, 2015, employers will be subject to the paid sick leave law based on their employee count for the week containing Oct. 1, annually. Connecticut’s FMLA also works this way but is triggered at the 75-employee count.

Keep in mind that the paid sick leave law does not apply to manufacturers, and paid sick leave is required to be provided only to covered service workers as defined in the law. But, beware: The law also contains a provision forbidding temporary October dismissals, layoffs, or transfers in an attempt to duck the law’s application.

Another state law triggered at 50 employees is the Sexual Harassment Prevention training mandate for supervisors. Any employer with 50 or more employees for a minimum of 13 weeks during the period from Oct. 1 through Sept. 30 must provide this training to supervisors within six months of being hired or promoted to supervisor.

To enable you to satisfy this requirement, CBIA offers an in-depth, three-hour sexual harassment prevention training workshop that discusses prevention strategies for a range of inappropriate workplace behaviors, including conduct other than of a sexual nature. To learn more, call 860.244.1900 or email me at mark.soycher@cbia.com.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.

HR Hotline: Is Severance Pay Taxable Wages?

By Mark Soycher
CBIA HR Council

Q: We are paying a departing employee severance, and she is insisting that we shouldn’t take out regular payroll taxes. Is severance pay taxable wages?

A: For some time that question was up for grabs, as different courts issued contradictory opinions. That left employers and terminated employees uncertain about their tax obligations where severance packages were offered.

Finally, however, in a unanimous 8–0 decision handed down in March, the U.S. Supreme Court resolved the conflict among the courts. The ruling held that severance payments are taxable wages subject to FICA (Social Security and Medicare) taxes in cases where such payments are made to employees who are involuntarily terminated, the amount of severance varies based on seniority, and eligibility is not linked to the receipt of state unemployment benefits.

Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling 860.244.1900.