Checklist for Certifications from Healthcare Providers

March 31, 2014

When employees request a medical leave of absence, employers can request that the employee submit a certification from the healthcare provider that has recommended that the employee be off from work. The problem is employers do not know what the certification should entail and get into trouble by calling the healthcare provider seeking additional information. Here is what a typical certification should cover.

1. Employee’s name.

2. Patient’s name (if the patient is not the employee).

3. Date that the medical condition or need for treatment commenced (do NOT request disclosure of the underlying diagnosis).

4. Probable duration of medical condition or need for treatment.

5. Do not get “hung up” over the definition of what constitutes a “serious health condition.” There are definitions under State and Federal guidelines however considering the constant barrage of litigation associated with leaves of absences and reasonable accommodation, it is not worth it. If the employee needs to be off, so be it.

6. If the certification is for the care of an employee’s family member, the employer can request that the doctor provide an additional statement that the condition of the patient warrants the participation of the employee. Use common sense here! If the patient is an “immediate” family member (spouse, child, etc.) then do not press the issue.

7. You can ask for an estimate of the period of time care is needed or during which the employee’s presence would be beneficial. They may be able to work a reduced schedule but may not have to be off entirely.

8. The signature of the healthcare provider.

This list is not intended to be all inclusive but does provide enough information that substantiates the need for the leave of absence. Do not go on a “witch hunt” to determine if the certification submitted is fake. We receive those calls. If you are in doubt, and feel the need to call, keep the call to the healthcare provider simple. Just ask if the doctor provided the certification to the employee and nothing more.

As a final reminder please take into account to be flexible when a leave of absence expires. A reasonable accommodation can also be determined by extending the leave even if the employee has used all available leave. Do NOT be quick to sever the relationship because an employee does not return at the expiration of the leave.

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7 Tips on How to Avoid Employment and Immigration Crossover Issues.

March 24, 2014

1. Don’t include the I-9 with the job application. You can only request that the I-9 be filled out once the applicant has accepted a job offer.

2. Make sure you have a completed I-9 on file for every employee at your company including the owner and family members (does not apply to anyone who has now been employed for longer than three years).

3. Keep the I-9’s in binders rather than the employee’s HR file. Have one set of binders for active employees and one set for terminated employees.

4. Employers have begun to see more instances where an employee has recently legalized their status and presented a work permit and new social security number. When the employee was originally hired they presented what were presumed to be valid work authorization documents. Now the employee comes forward and informs you that his/her real name is different, and offers a new SSN and work permit. In such a case, fill out a new I-9, attach a memo explaining the situation and a copy of the new work permit and social security card, and staple all of this to a copy of the old I-9. Usually, the employer must terminate the old name in their HR information system and process the new one as a new hire. In such a case, the original old I-9 can go into the termination binder along with a copy of the memo as well.

5. Anytime you are presented with a discrepancy in the employee’s SSN (i.e. a mismatch letter from any government agency), call the employee in to verify there isn’t a simple typographical error on the original hire paperwork. If not, send them to the Social Security Administration and ask them to bring back verification of their SSN. If no verification is forthcoming within 30 to 60 days, contact legal counsel before making any further decision.

6. If an undocumented employee files a labor/employment claim against you, and you subsequently discover that the employee is undocumented, the employee can be terminated since they are not work authorized and they have falsified their original documents. However, the employer will be liable for the employment claim that led to the discovery of the undocumented status. NOTE: Do not threaten to report an undocumented worker in exchange for dropping the claim. It is now “criminal extortion” in California. Out of state clients should avoid this practice as well.

7. When making a job offer to an H-1B or similar non-immigrant visa holder, indicate on the job offer letter that the job is still terminable at will despite the fact that you are petitioning for them for x number of years on the visa petition. Also indicate that you are under no obligation to sponsor the employee for permanent residency, but even if you decide to do so in the future, it won’t alter the terminable at will relationship.


Obama’s New Proposed Overtime Law

March 17, 2014

News media are widely reporting that President Obama intends this week to direct the Department of Labor to materially revise the Fair Labor Standards Act (FLSA) regulations pertaining to overtime exemptions so that fewer employees will qualify for an exemption from overtime. Obama’s move relies on his executive authority to revise the rules that carry out the FLSA. Obama is relying on this executive authority to carry out his pro-worker agenda, as a means of sidestepping the need to pass actual legislation that likely would be blocked by Republicans in Congress.

While the details of the intended revisions have not yet been announced, it is reported that Obama will be urging at least two significant changes: (1) an increase in the amount of minimum compensation that must be paid to an employee in order for the employee to qualify for exempt status (the minimum currently is $455 per week under the FLSA, and Obama is expected to direct that the minimum be substantially increased, with some urging that it be doubled); and (2) replacing the FLSA “primary duty” test with a more quantitative test that requires an employee to spend a certain percentage of his or her time (likely at least 50%) on exempt duties in order to qualify for exempt status. These changes would substantially decrease the number of employees who qualify for overtime exemption under the FLSA, and would also likely substantially increase the number of wage and hour lawsuits (already soaring) filed against employers to challenge exempt status and seek unpaid overtime compensation. Business groups are expected to vigorously oppose the intended overhaul of the regulations.

So what does this mean for California employers? The good news is those clients/employers are already subject to more narrow overtime exemption laws under California law. To qualify for exemption in California, an employee (among other things) must be paid a guaranteed salary of at least $640 per week (rising to $800 per week in 2016) and must spend more than 50% of his or her weekly work time on exempt duties. Thus, the changes being contemplated by the White House are already in effect in California, and the Obama administration appears to be looking to California’s laws as guidance in revising the FLSA’s overtime exemptions. This is not good news for employers outside of California. I will keep you posted!


Proposed Changes to Leaves of Absence

March 10, 2014

In February, 2014, California’s Department of Fair Employment and Housing Council (FEHC) published proposed amendments to the California Family Rights Act (CFRA) regulations. These regulations are intended to clarify some aspects of the existing regulations and also to adopt many of the recent amendments to the federal FMLA regulations to make the two acts more consistent. The proposed amended regulations touch on almost every aspect of the CFRA process, addressing, among other things:

1. Employee length of service/eligibility issues,
2. The certification process and timeframes for responding to employee requests for CFRA leave
3. Computation of amount of leave entitlements,
4. Key employee issues,
5. Clarification of reinstatement rights,
6. maintenance of health and other benefits during leave,
7. Retroactive designation of leave, and the interplay between CFRA leave and California pregnancy disability leave.

The proposed regulations make clear that same-sex spouses are covered under CFRA and make clear that the FMLA regulations apply to CFRA leave “to the extent not inconsistent” with the CFRA regulations. Importantly, there remain some areas where CFRA administration will continue to differ from FMLA administration. Among other things, pregnancy disability is not covered under CFRA and, therefore, a California employee who is otherwise eligible for leave under CFRA/FMLA will be eligible for up to four months of leave for pregnancy disability AND up to twelve weeks of additional leave for baby-bonding under CFRA. The proposed regulations make clear that a California employer is required to maintain the employee’s group health benefits for this whole time period (and not just up to 12 weeks). Some other notable differences between CFRA and FMLA are that the medical certification and scope of permissible medical inquiry are narrower under California law than under FMLA, and the circumstances under which an employer can seek re-certification are narrower under California law. The proposed regulations provide a sample medical certification that California employers can use.

Employers covered by CFRA should carefully review the proposed regulations and consider whether to submit comments and/or proposed revisions. The full text of the proposed amended regulations is available http://www.dfeh.ca.gov. Comments can be submitted via email to FEHCouncil@dfeh.ca.gov. There will also be two public hearings on the proposed amended regulations: 10:00 a.m. on April 7, 2014 at UC Irvine School of Law, and 10:00 a.m. on June 2, 2014 at the California Public Utilities Commission Main Auditorium in San Francisco. I will be attending the event on April 7, 2014.

Note: This Saturday, March 15, 2014, I will be on my podcast discussing and taking calls regarding the certification information employers can require from the medical provider. Please call in between 9:15 a.m. and 10:15 a.m. (855-457-6887).


“Love Contracts.” An Emerging Workplace Agreement!

March 4, 2014

No matter how you try to avoid it, romantic workplace relationships will develop even though you have policies in place to prohibit them. These policies simply are unrealistic and ineffective. Policies that prohibit romantic relationships merely prompt employees to hide the relationship and lie to cover their tracks so, to avoid that awkward situation between a rock and a hard place, don’t flat out prohibit such relationships. Instead, recognize that these relationships happen, and put policies and procedures in place to deal with them when they do.

Relationships between co-workers are difficult enough for employers to handle, but when those relationships turn into sexual harassment claims, the employer has an affirmative defense and can only be liable if it was negligent either in discovering or remedying the harassment.

A more targeted policy that requires employees to disclose romantic relationships and provides that employees may not be in a romantic relationship with anyone they have supervisory authority over or with someone who has supervisory authority over them area advisable. In the event a supervisor/subordinate relationship is disclosed, the company can then review their workforce needs to determine if a transfer or schedule change would be appropriate to accommodate the relationship. If not, employees should be informed that they may be subject to termination.

A Consensual Relationship Agreement, a/k/a, a “love contract” establishes workplace guidelines for workplace dating or romantically involved coworkers. The purpose of the policy is to limit employer liability in the event that the romantic relationship ends.A love contract is kind of like a “pre-nup” agreement between the two employees involved in the relationship. Instead of dividing assets ahead of time though, it protects the employer and provides that if (when) the relationship fails, neither employee will blame (sue) the company. Although employers may be squeamish about approaching their employees about signing these contracts, the benefit to the employer is that the contract can require the employees to waive claims that may have already accrued prior to the signing of the agreement.

So what else should be in a love contract?

a. Statement of Consent: Typically, a love contract requires the two employees in a consensual dating relationship to sign it and declare that their romantic relationship is voluntarily and without any type of coercion or duress.

b. Prohibited Conduct. They should also outline what conduct in the workplace is and is not appropriate. This keeps all the “love” from spilling out into and distracting the workforce, which could make it uncomfortable for other employees.

c. Arbitration. Another helpful feature that can be included in a love contract is a binding arbitration clause. This type of clause makes arbitration the only grievance process available to the romantically-linked employees and eliminates the possibility of a later sexual harassment lawsuit if (when) the relationship ends.

When the employees sign their love contract, it is also a good opportunity for the employer to remind the employees of the company’s anti-harassment and anti-discrimination policies.
In the event a workplace relationship is disclosed, the employer can get ahead of it. Office romances don’t just create liability for employers dealing with the employees in the relationship. Lawsuits stemming from workplace romances can come from all sides, including from employees who feel they are being discriminated against or harassed because of an office relationship. This typically comes in the form of a discrimination suit from an employee believes an employee in the relationship is getting more favorable treatment. Just because an employer allows office relationships to happen does not mean the employer relinquishes control over its workplace. Employer policies also should explicitly indicate that employees have no expectation of privacy and define what conduct cannot occur in the workplace, i.e., no “public displays of affection.”

It is also important that employees know how to complain about harassing behavior and that managers are trained how to respond to it. This can mean the difference between an employer being liable or not. This also means that all complaints should be taken seriously and that a thorough investigation into all complaints must be done. By now, most employers know they have to have anti-harassment policies and reporting and investigation protocols. Just remember, they apply in workplace romance situations too. So, train, remind, enforce, investigate and take seriously!

Finally, the heart wants what the heart wants. Since you likely can’t stop them, an employer’s best defense is to deal with workplace romances head on. This means making your employees in those relationships deal with it head on too by disclosing their relationships and by signing agreements to deal with the potentially legal ramifications from the fallout. Most importantly, make sure your anti-harassment policies are up to date and that your complaint procedure protocols are up to date and strictly and fairly enforced.