In the course of my various readings this last month I have come across some good advice I’d like to pass along. Remember though that this is only the tip of the iceberg so if you have any concerns you should discuss them with professional counsel.
Require a Diagnosis?
Do you require a diagnosis from a physician after an employee absence? When an employee is out due to illness or hospitalization for five days or more our organization requires that they have a doctor’s note when they return. I just learned that we can’t ask the doctor for a diagnosis because a court recently ruled that this is an intrusive and unlawful medical inquiry under the Americans with Disabilities Act (ADA). We can, however, confirm the dates of the illness, the date they can return to work and that the absence was medically necessary. Just keep your inquiry to questions about whether they can perform the job.
Here’s a good reason not to allow off-the-clock work or look the other way when employees work extra hours that should be paid overtime – not only are supervisors’ actions illegal under the Fair Labor Standards Act, but they may be personably liable in a lawsuit. That means our assets are on the line, not just the employer’s! With technology what it is, I find it hard to be sure that employees don’t work during off hours. What are you doing to monitor this?
Domestic Violence and the ADA
Let’s say you have an employee who has no accrued sick leave/PTO, your organization is not subject to the Family Medical Leave Act (FMLA) and this employee requests unpaid leave to obtain treatment for depression and anxiety arising from a domestic violence act. If you deny the leave because it “applies leave and attendance policies the same way to all employees” the EEOC says you could be in violation of the ADA – so do your homework!
Independent Contractor or Employee?
This issue has been with us for quite some time but the IRS and Department of Labor (DOL) are tightening their scrutiny through the “Misclassification Initiative”. This distinction is addressed by the Fair Labor Standards Act (FLSA) which states that it’s not the job title or agreement with someone that they are a contractor that counts. If you set the hours and/or control how and when the work is to be done this person is likely an employee. This means eligibility for overtime pay and employer tax payments for the organization. This extra expense might make it seem worth the risk but back wages and taxes and associated interest and penalties can be substantial.
Do you have other tips to share?
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