How to Deal with an Employee Who Attempted Suicide

Are individuals that make failed suicide attempts unfit to return to work? 

• A “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” … A “significant” risk is a high, and not just a slightly increased, risk. …

• The determination that an individual poses a “direct threat” must be based on an individualized assessment of the individual’s present ability to safely perform the functions of the job, considering a reasonable medical judgment from a qualified health care provider.

Discriminating and retaliating against employees that suffer from disabilities that lead to suicide attempts is unlawful under the Americans with Disabilities Act (“ADA”). 

According to the EEOC’s enforcement handbook relative to psychiatric disabilities states:

Under the ADA, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a “direct threat”.

Employers must apply the “direct threat” standard uniformly and may not use safety concerns to justify exclusion of persons with disabilities when persons without disabilities would not be excluded in similar circumstances.

An individual does not pose a “direct threat” simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability.

The EEOC’s enforcement guide also does not state that a suicide poses a “direct threat.” “An employer must base its determination on an individualized assessment of the person’s ability to safely perform job functions when s/he returns to work.

EEOC Enforcement Guide states, “Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee.” 

As with any ADA situation, it is important that employers engage in an interactive process with the employee regarding what, if any accommodations they are requesting and if those accommodations have a direct impact on the essential functions of their position. Prior to terminating an employee with potential ADA protection you should consult your HR professional and/or employment law attorney.

In addition, other employees who learn about an attempted suicide may voice concern or even fear. In these cases we recommend the employer engage a professional health care consultant for employee counseling.     

Lauren Sims, a Principal HR Consultant with eqHR Solutions, prepared this article.

Need assistance to create a strategy/policy to deal ADA compliance or navigating the ever-changing landscape of California Employment Law?  Call today for a no obligation consultation with an HR Professional.

eqHR Solutions provides tactical and strategic human resources support for businesses in Southern California and the San Francisco / Bay area.

Do You Know California’s New 2016 Workplace Smoking Rules?

Legislation was recently approved that changed some of the rules relating to smoking in the workplace

On May 4, 2016 Governor Brown signed a package of bills relating to smoking that become effective June 9, 2016.

The new legislation will:

• Treat the use of e-cigarettes and vaping devices that contain nicotine as “smoking” – thus extending existing smoking bans to cover such products.

• Expand smoke-free workplace protections by getting rid of most of the existing exemptions that permitted smoking in certain work environments, such as bars, hotel lobbies, warehouse facilities and employer-designated smoking break rooms.

• Expand the workplace smoking ban to include owner-operated businesses.

• Raise the minimum smoking age from 18 to 21, except for active military personnel.

We recommend you review your handbooks and Smoke-Free Workplace policies. Are they in compliance with the new regulation?

Lauren Sims, a Principal HR Consultant with eqHR Solutions, prepared this article.

For assistance navigating the ever-changing landscape of California Employment Law?  Call today for a no obligation consultation with an HR Professional.

eqHR Solutions provides tactical and strategic human resources support for businesses in Southern California and the San Francisco / Bay area.

How to Deal with the New Department of Labor (DOL) Overtime Rules for Exempt Employees

The U.S. Department of Labor final overtime rule increased the salary threshold for employees who are exempt—and therefore not eligible for overtime—from $23,660 to $47,476, effective 12/01/2016. 

Employers can either increase an exempt worker’s salary so the worker remains exempt, or reclassify him or her as nonexempt. Most companies are likely to do the latter.

Telling a worker who has long been salaried, never had to punch a time card and often worked after hours about the change can be difficult.

Many employees may feel under appreciated, or as if they are being demoted, as being an exempt salaried employee holds some prestige in some workplaces.

It is important for employers to emphasize that it is just a categorization of pay and not a reflection of importance or level of contribution.

Of course, for financial reasons, many employers will be forced to change some exempt employees to hourly (non-exempt).

The deadline to comply with the rule is December 1, 2016 and employers should begin talking with workers who will be affected as soon as possible. Don’t surprise them and explain why this is happening.

Reclassified employees will now have to track their start times, end times, break times and meal times. There may be some additional training involved to get these workers used to the new procedures that are expected of them as hourly non-exempt workers.

Other things employers should think about as they make this change:

1. Do you have different levels of benefits (for example, paid time or or vacation accruals, disability or life insurance) for exempt and nonexempt workers? If so, that will have to be communicated as well.
2. Managers should be clear about the schedules that reclassified employees will work. If the department or company does not allow OT, reclassified workers may need additional direction in adjusting their work hours so all of their is completed.
3. What is your policy for non-exempt workers to take company phones and laptops home? Managers should be very clear about what types of work are authorized outside of normal working hours; how much time is authorized; and the necessity of recording all time worked.
4. Companies will also have to consider whether to allow reclassified employees to travel, and how to pay workers for travel time.

With HR staff planning, employee productivity and morale need not suffer as you communicate these changes to your reclassified employees.

For additional information, please view our Special Alert and the DOL New release  

Lauren Sims, a Principal HR Consultant with eqHR Solutions, prepared this article.

For transition assistance with the new DOL regulation or navigating the ever-changing landscape of California Employment Law?  Call today for a no obligation consultation with an HR Professional.

eqHR Solutions provides tactical and strategic human resources support for businesses in Southern California and the San Francisco / Bay area.

Are Employee Job Descriptions Really Necessary?

Even though California nor federal law requires companies to have job descriptions, they are still helpful tools for both practical and legal reasons. 

Important reasons for you to create and update your job descriptions:

• Determine and Justify an Employee’s Exempt Status

A job description must accurately reflect the duties of a particular position. An exempt status requires the employee fall within an applicable exemption and the burden is on the employer to demonstrate the position qualifies as exempt.

For example, if you claim a person is exempt from minimum wage, timekeeping and overtime requirements under the “administrative” exemption, the job description should state that the employee “regularly exercises independent judgment and discretion about matters of significance” or words to that effect. Again, describing duties that involve such independent judgment and discretion, such as “negotiates” or “decides,” would also be helpful.

• Help in the Interactive Process in ADA situations

California and federal laws require reasonable accommodations for qualified individuals with disabilities. Job descriptions can help with the interactive process to satisfy those requirements.

A job description is the starting point for what are the essential job duties of a position. The applicant or employee must identify which of the listed duties he or she cannot perform or requires reasonable accommodation.

A job description can also be helpful in soliciting the advice of professionals, such as physicians, chiropractors, counselors or rehabilitation therapists about whether the individual can actually perform a particular job.

• Job Descriptions are a Communication Tool

Job descriptions should articulate to an employee exactly what tasks they are expected to perform. Setting clear guidelines helps employees perform to your expectations.

• Find the Right Employees for a Job

You can use a well-written job description in the recruitment process because it tells the applicant what the position may involve or require. In addition, those particular skills or abilities that are required.

• To Describe Minimum Qualifications

If a job requires a particular certification, such as a commercial driver’s license, a particular degree, or professional designation, list it in a job description.

Similarly, if a negative drug test is required before starting or continuing work that should be clearly stated in the job description.

Other objective and minimum qualifications should be listed, such as the need for good attendance and the ability to work well with others.

Then, if a person seeks a position and does not possess the required certification or qualifications, you have a nondiscriminatory reason for not placing the person in the job.

The above material illustrates why every company should have current, complete and accurate job descriptions for each position. Creating and updating job descriptions is a task that few managers and HR professionals enjoy, but hopefully we have provided sufficient reasons to revisit & update your job descriptions.

Still not sure, just ask your employment law attorney for their opinion.  In California, employers should always be concerned with defending employment claims

Lauren Sims, a Principal HR Consultant with eqHR Solutions, prepared this article.

Need help updating your employees’ job descriptions or navigating the ever-changing landscape of California Employment Law?  Call today for a no obligation consultation with an HR Professional.

eqHR Solutions provides tactical and strategic human resources support for businesses in Southern California and the San Francisco / Bay area.

Employers Guide to Understanding Gender Identity & Expression in the California Workplace

Are Your Policies and Procedures Regarding Gender Identity and Gender Expression in Compliance? 

A CA 2014 lawsuit filed by a transgender individual, who sought employment at a company in Sacramento, was recently settled against the company after the DEFH join the lawsuit.

The company allegedly made an offer of employment on the condition that the applicant use the women’s restroom and locker room pending completion of female to male sex reassignment surgery.

The case was settled and the company agreed to change their policies because the CA Fair Employment & Housing Act (FEHA) prohibits employers from requiring transgender workers to use restrooms and locker rooms based on their sex at birth.

California state law prohibits discrimination based on both gender identity and gender expression regardless of the person’s assigned sex at birth.

California law additionally protects an employee’s right to appear or dress regularly with his/her gender identity or gender expression.

The California Department of Fair Employment and Housing (DFEH) recently issued new guidance for employers with suggestions on how to comply with the law.

Their guidance makes the following guidance - recommendations:

• Employers should not ask questions designed to detect a person’s sexual orientation or gender identity, such as marital status, about a person’s body or whether they plan to have sex reassignment surgery or other procedures.
• Employers who do have a dress code should apply it consistently in a non-discriminatory manner. For example, a transgender person identifying as a woman must be allowed to dress in the same manner as non-transgender women and the employee’s compliance with the policy cannot be judged more harshly than non-transgender women.
• All employees have the right to use a restroom or locker room that corresponds to the employee’s gender identity — regardless of the employee’s assigned sex at birth.
• To provide options for workers and enhance privacy for all employees, employers, where possible, should create single-user or unisex restroom facilities, but should never force a transgender employee to exclusively use that facility.
• Regardless of the underlying reason, a unisex or single stall bathroom can be used by any employee and the use of a unisex single stall restroom should always be a matter of choice.

The DFEH guidance notes that a transgender person does not need to have completed any particular transition in order to be protected by the law.

An employer cannot condition its treatment or accommodation of a transitioning employee on completion of a particular step in the transition.

Lauren Sims, a Principal HR Consultant with eqHR Solutions, prepared this article.

Companies should ensure that their policies and practices are compliant with this recent guidance. Need help navigating the ever-changing landscape of California Employment Law?  Call today for a no obligation consultation with an HR Professional.

eqHR Solutions provides tactical and strategic human resources support for businesses in Southern California and the San Francisco / Bay area.

How Do You Ask - Tell Me About Your Criminal Record?

Be Careful What you ask Applicants about Their Criminal Records

Your company could be hit with big damages for asking illegal questions about an applicant’s criminal record.

Although it is permitted to ask about most convictions, employers can get into trouble under anti-discrimination laws if they have a policy of automatically denying employment to anyone ever convicted of a crime. This policy could have the effect of eliminating applicants from protected groups that in some instances may have statistically higher conviction rates.

Employers must never treat people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).

Title VII also prohibits employers from using policies or practices that screen individuals based on criminal history information if:

• They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND

• They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

Rather than having a blanket no-hire policy, consider whether a direct relationship exists between the person’s offense and the responsibilities of the job.

The fact that an individual was arrested is not proof that he or she engaged in criminal conduct. Therefore, an individual's arrest record standing alone may not be used by an employer to take a negative employment action (e.g., not hiring, firing or suspending an applicant or employee). However, an arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.

In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

What you can Ask

• Have you ever been convicted of a crime? (Exclude convictions for marijuana-related offenses more than two years old; and convictions that have been sealed, expunged or legally eradicated)

• Briefly describe the nature of the crime(s), the date and place of conviction and the legal disposition of the case.

Note that the company should not deny employment to any applicant solely because the person has been convicted of a crime. The company should always consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.

What you can’t Ask

• Have you ever been arrested?

• What is your arrest record?

Employers should tread carefully whenever making employment decisions based on criminal background information. For more guidance, call eqHR Solutions today!

Lauren Sims, a Senior HR Generalist, prepared this article.

Need help navigating the ever-changing landscape of California Employment Law?  Call  today for a no obligation consultation?

eqHR Solutions is a leading HR consulting firm providing tactical and strategic human resources support for all size businesses in Southern California and the San Francisco / Bay area.