July 2015 HR Advisor Newsletter

July starts out with a bang as California’s and Massachusetts’ new paid sick leave laws go into effect. This month we walk you through the basics of sick leave and offer tips on coaching an employee who has poor hygiene.

HR Alerts

Affordable Care Act Status Quo Maintained

The subsidies provision of the Affordable Care Act (ACA) has been upheld by the Supreme Court. If the Court had ruled that the ACA prohibits subsidies in federally established exchanges, the insurance coverage mandated by the ACA would have become unaffordable for many people in the 34 states with federally run exchanges. Most commentators agreed that without the availability of subsidies in all exchanges, the stability of the ACA, which is built on the assumption of widespread participation, would have been threatened. Although it removes some uncertainty regarding the ACA’s standing, the ruling allowing subsidies to continue will have little immediate impact on employers, as it maintains the ACA as it has been.

Same-Sex Marriage Allowed Nationwide

The Supreme Court has ruled that all states must allow and recognize same-sex marriages. The majority of the Court found that marriage is a fundamental right and that it would be a violation of equal protection if the right to marry was not extended to same-sex couples. For employers, this ruling may impact your employee benefits. You will need to ensure that benefits offered to or mentioning “spouses” are applied to the spouses of all legally married employees, including those in same-sex marriages. Most employer benefit policies already use the word “spouse,” so most of the changes will be procedural.

The Paid Sick Leave Trend

Earlier this year, President Obama called on Congress to enact a federal law requiring businesses to offer seven days of paid sick leave to workers, but the proposed law is unlikely to pass in the current political climate. Nevertheless, advocacy for paid sick leave has increased at the state level, and some of these efforts are proving successful.

Before last year, only Connecticut and several cities, such as New York City and San Francisco, had a paid sick leave laws. That’s about to change. Beginning on July 1, 2015, California and Massachusetts will require employers to offer paid sick leave. Many other states are likely to follow. In fact, Oregon’s governor just signed a bill into law that will require businesses in Oregon to offer sick leave beginning on January 1, 2016, making Oregon the fourth state to require paid sick leave.

According to our analysis, Hawaii, Vermont, Delaware, and Rhode Island are likely to enact paid sick leave laws next. Bills in those states have been introduced and are advancing with the potential to pass. New York, Illinois, and New Jersey may enact paid sick leave laws eventually. However, political gridlock and divided governments make paid sick leave laws in these states unlikely at the moment.

The paid sick leave laws passed so far share some common elements. Employers are typically required to offer an hour of paid sick leave for every thirty hours worked or an amount not less than 40 hours per year. Nearly every paid sick leave law requires employees to be able to use paid sick leave for family care. The various state laws also have their differences. Some states give employers multiple options to provide paid sick leave. California, for example, allows employers to choose between accrual and lump sum methods. If a paid sick leave law is enacted in your state, we recommend taking the following steps:

  • Review all current and new paid leave polices for compliance.
  • Decide whether lumping vacation, personal, and sick leave together would be better for your organization and, if applicable, for which specific employee groups.
  • Determine which employees work in places with paid sick leave laws and consider whether a one-size-fits-all policy or location specific policies would be better.
  • Confirm that usage terms, accrual, coverage, carry-over, and any vesting rules meet minimum requirements.
  • Review the employee notice requirements, e.g., paystubs and workplace posters.
  • Update your handbook and distribute it to employees.

Most states do not require paid sick leave to be separated from general time off, but existing paid time off policies must meet all the minimum requirements of the law. Given all these variables, some employers may find it easier to update their current sick leave policy while others may decide to create a new policy from scratch. Remember that combining vacation and paid sick leave together may  alter whether the time needs to be paid at termination. In other words, if you use “paid time off” to cover both sick and vacation leaves, regulations on both sick leave and vacation – whichever are most beneficial to the employee – will apply.

Even if your state has no paid sick leave law, it never hurts to review your paid leave programs. Make sure that your policy makes sense to employees—and to you! If your paid leave program is confusing to you as a manager, then it will undoubtedly confuse your employees. If you lack a written paid leave policy for your paid leave benefits, put one into place.

Question & Answer

Q: How should we keep records for informal applicants?

A: No law requires you to accept or preserve resumes or applications when there are no available openings. As a best practice, we recommend deciding up front whether you will consider any unsolicited applications. You may choose to refuse unsolicited resumes entirely and refer applicants to your posted openings. If you choose to consider some unsolicited applications, however, you should keep all of them for two years after receipt. Cherry-picking and other forms of inconsistency can easily lead to disparate treatment claims with the EEOC or a state agency. And if a hiring decision was ever challenged, it would be hard to defend your position without any documentation.

How to Talk to an Employee Who Has Bad Hygiene

You’re at your desk, removing your jacket as the early afternoon sunshine pours into your office, when several employees knock on your door, requesting a brief meeting. You invite them in. The last to enter slowly shuts the door while peaking back at a corner cubicle. The group informs you that Jerry, a reliable and hard-working employee, has begun to exhibit bad hygiene and grooming. His hair is unkempt, his breath is foul, and his body odor is noticeably pungent to the employees seated around him.

You think that maybe Jerry hasn’t yet adjusted to the summer heat, but even as you consider this possibility, you know the problem is more serious and needs to be addressed. As the group exits your office, you thank them and ask for their discretion.

What do you say to an employee with bad breath and body odor? There’s no way the conversation can be anything shy of painfully awkward. Nevertheless, you should strive to minimize his embarrassment. Meet with Jerry in a private place, free of eyes and interruptions. Hold the meeting at the end of the day and allow him to leave the office immediately after your meeting.

You return to your desk, feeling anxious. Outside your window a bird chirps incessantly, but you hardly notice. After several minutes, you take a deep breath and check Jerry’s availability. Seeing he’s free, you pick up the phone, press his extension, and ask to see him a few minutes before he leaves.

So what do you say when Jerry arrives for the meeting? Begin the conversation by telling him that he is a valued member of the team and that his job is not in jeopardy—this may ease his mind a bit. When you bring up his hygiene, be compassionate and kind, but also direct and clear: Jerry’s bad hygiene is an issue and his behavior needs to change. Right now, you’re here to coach him, not discipline him. Focus on the company’s needs and expectations, and review the company policy with him.

During your coaching, Jerry seems receptive to what you’ve said, and the air of the room becomes less tense. You begin casually to speculate about the reasons for Jerry’s diminished hygiene. You’re on the verge of saying the words “health condition.” Stop! You have almost made a major blunder that could expose you to risk under the Americans with Disabilities Act (ADA).

The ADA prohibits discrimination not only against employees with an actual disability, but also against employees who are “regarded as” having a disability. By suggesting that Jerry’s breath and body odor may be due to some health problem, you may be regarding Jerry as having a disability. Consequently, Jerry could claim that any action you take in response to his perceived disability is discrimination.

When addressing an employee’s hygiene or grooming issues, make no speculations or assumptions. Keep your focus on your company’s needs, requirements, and expectations. Make sure you apply them consistently and leave it to the employees to determine how best to comply with them.

The next steps will depend on Jerry. He may feel ashamed and embarrassed, even angry. These feelings would be understandable. Remember, however, that most employees want to perform well and do what is expected of them. You will likely see Jerry take steps to improve his hygiene, but if he doesn’t make the necessary improvements, you may need to take disciplinary action.

In the following days and weeks, also keep an ear out for office gossip and look for signs that Jerry is being alienated from the employees. Jerry is responsible for improving his hygiene, but everyone is responsible for maintaining a healthy company culture.

This conversation probably wasn’t the highlight of your day, but by taking the right approach to it, you made it productive one—a win/win for your employee and your organization.

 

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Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.

 

Comments

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