Voting Leave; OSHA Clarifies; Religious Accommodation; FMLA; & Upcoming Events!
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Voting Leave: Some, None, Paid or Unpaid?
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Do you have to give your employees time off from work to vote? If so, must you pay them for that time? You guessed it! "It depends."
- Advocate for advocacy. Urge your employees to vote. Advocacy is (should be) non-partisan; it is about shaping public policy that balances divergent views. The best debates are those that include a wide range of views...and are civil!
- Next, ensure you are providing at least the minimum amount of leave that is required by the state and local laws in which you do business. And, that's no easy task. There are currently at least 30 states with a voting leave law. A few others have no specific voting leave law but prohibit an employer from interfering with an employee engaging in certain political activity, like voting. There are many resources out there. Here are one or two sources you can use for a quick overview. Be sure to check with your company's legal counsel for the most current information. Remember, you can always provide your employees with a greater benefit than what the law requires. Check out this list of employers that do!
- Be sure to VOTE!
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What's Old is New Again: OSHA Reiterates - Tests & Enticements are OK
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In early 2017, I was presenting at a conference and was, shall we say, heckled from the audience. An attendee was rather vocal and adamant that OSHA's final rule, which took effect January 1, 2017 prohibited employers from have a mandatory, post-accident testing policy. We respectfully agreed to disagree.
The 2017 final rule expressly read,
"...this final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use."
Apparently, that audience participant was not the only person who interpreted that rule differently than I. On October 11th, OSHA published a
Memorandum
, reiterating that mandatory testing policies or programs, as well as those that offer incentives do not violate the law. "
The purpose of this memorandum is to
clarify
the Department’s position that 29 C.F.R. § 1904.35(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing.
"
(
emphasis added
)
So, if your team is accident free for a month or a quarter and you want to reward them, it's OK! If you want to enforce a post-accident testing program, it's OK. Just use reasonable discretion and ensure the testing and awards help avoid accidents, rather than avoid the reporting of accidents or safety hazards.
Another tip
: OSHA also recommends employers implement, "
a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy
."
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When Wearing a Beard is a Sign of Worship
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I love my job. One reason is I learn something new almost every day. Years ago, there was a case of religious accommodation involving facial piercings and the Church of Body Modification.
Another challenge
made the news. A few years later, I learned about the
Kemetic
religion stemming from another lawsuit involving visible tattoos. Now, it is about the Norse Pagan religion. A
recent article
reports that a security officer was fired when he refused to shave his beard as part of a newly implemented dress code requirement. He has now filed a charge with the U.S. EEOC and obtained legal counsel, alleging he was discriminated against and not provided a reasonable accommodation in violation of the Title VII of the Civil Rights Act of 1964.
Lessons Learned
? Whether it's hair style, facial piercings, visible tattoos, periodic breaks or time off from work (I am still waiting for a long fingernail case), when an employee tells you that s/he cannot comply with a policy because of the employee's religious observance, listen. Engage the employee in an interactive dialogue. If you are not familiar with the religion, learn about it. Do some research. Ask the employee for more information (Yes! You can ask!).
Tip
: Remember, these issues often go hand-in-hand with charges and claims of discrimination based on race and national origin. Forbes just ran
an article
on this very issue as it relates to hair styles. For more tips, check out, "What You Should Know About Workplace Religious Accommodation" from the U.S. EEOC's website
here
.
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Administering leave under the Family and Medical Leave Act (FMLA) can be challenging. But, it's not going anywhere so you may as well take the time and get it right the first time. Here are just a couple of "Oops" recently alleged.
- In a case from July, an employer gives its employee FMLA intermittent leave for two years for a variety of chronic health conditions. In the third year, the employer declines to recertify the leave as intermittent and puts the employee out on continuous FMLA leave. The employee alleges a Trifecta violation: FMLA interference, FMLA retaliation, and discrimination under the Americans with Disabilities Act (ADA). The judge lets all three claims proceed to trial. If nothing had significantly changed - doctor's limitations and the job were about the same - a just could infer a discriminatory motive when it denied the leave in year three.
- In another case earlier this year, an employer surveilled an employee while he was out on FMLA leave. Reportedly, because they doubted the validity of his need for leave. When the employee returned to work, he was written up and denied a promotion for which he was a top candidate. Regarding the claim of FMLA interference, the judge found, "There is a genuine issue of material fact as to whether the Defendants' invasive surveillance of Walker's private activities would 'chill' his use of FMLA, and whether they were negative consequences of Walker taking FMLA leave." As to the retaliation claim and the employer's defenses, the judge noted, "All of these explanations are fact intensive, and depend in large part on whether Defendants' reasons and motivations for their actions were reasonable and justified, or whether they were pretextual. This is particularly true regarding the surveillance of Walker, which is an extraordinary response to FMLA concerns" The judge denied the employer's request for summary judgement and submitted the claims to a jury.
Lessons learned? Timing might not be everything, but it sure can give the appearance of bad acts or motives. Look at your past practice. Generate options. Let business needs drive your employment decisions.
Resources: Did you know November is National Family Caregivers' Month?
Click here
for more information and FREE webinars & toolkits.
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A SHRMStore
Great 8 Best-Seller
8 Years in a Row
!
Thank YOU!
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Upcoming Events, Seminars & Presentations
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- Saturday, November 3rd, "Leadership & Advocacy: Shaping Public Policy," presented for students in Hood College's first cohort class, in the Organizational Leadership Doctoral (DOL) Program.
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any matter.
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