Vax Madness

“I want to stick my head in the sand and ignore all the craziness I’m hearing about vaccination mandates. How do I know what actually affects my employees?”

Your HR Survival Tip

The vaccination (“vax”) madness has only begun, it seems. Vaccination mandates are being introduced and they have a seemingly short compliance period. If a mandate affects your company, you must comply or be fined thousands of dollars. If your company mandates vaccinations, employees terminated for not complying with your policy will not be eligible for unemployment. No lawsuits trying to fight the mandates have been successful… and many have tried.

The following provides just a few highlights of regulations in place or coming soon:

  • Federal contractors and subs — If you are a Federal contractor, subcontractor, or other service provider touching employees working on Federal contracts, you are required to have ALL your employees fully vaccinated by 12/8/2021. This mandate will even affect HR Jungle because we work remotely with the employees of a few Federal subcontractors.

  • Organizations with 100+ employees — If you’re a California company with at least 100 employees (full- or part-time), you will be required to either mandate vaccinations or conduct weekly testing of all unvaccinated employees. You’ll pay for the cost and time involved for the testing so budget for this expense because, so far, we haven’t heard if there is an end date. We expect to hear from Cal/OSHA before the end of this year and be given a deadline for implementation. Plan to be ready to implement fairly quickly after the regulations are approved.

  • Organizations with <100 employees — At this time there are no new rules. You are expected to have a written COVID-19 policy and enforce it, including wearing masks when working around others.

One phrase to remember is “fully vaccinated.” You are fully vaccinated if two weeks have passed since you completed all your vaccination shots. Companies are being required to obtain proof of vaccination but to keep the documentation confidential, as you would any other medical document. We are also recommending having employees sign a certification form stating the vaccination card and information is true and valid. Although the government is tracking down false vaccinations cards and the doctors issuing them, some employees may try to use a fake card rather than be vaccinated.

SHRM (the Society for Human Resource Management) did a survey in September. They found 85% of responding companies expect these mandates to make it harder to retain employees, 72% said the vaccine-or-testing version will be disruptive to their regular business operations, and 78% feel it will make hiring more difficult. While some employees may threaten to leave a company if forced to vaccinate, they must remember that unemployment will not be available to them, and finding work with smaller companies may result in them earning less and receiving fewer benefits. You need to start making decisions and plans now for what your company will need to do to be compliant.

Sharing Personnel Files

“I’ve received a request by an attorney for a copy of an employee file. They included a very long list of things they’d like us to send them but they did provide authorization by the employee. Do I just copy the whole file and send it?”

Your HR Survival Tip

Absolutely not! A request by an attorney is not the same thing as a subpoena so different things might be allowed, plus looking through that file might result in a few surprises. If this was a court order or subpoena, you must provide everything they ask for but nothing more. You don’t have the same requirement when it’s the employee or the employee’s attorney requesting the file.

In California, most attorneys refer to DIR (Department of Industrial Relations) guidance regarding personnel files and what is considered personnel records that must be shared upon authorization or request by the employee. This list is not all-inclusive but provides the highlights:

  • Anything the employee has signed because, after all, they’ve already seen it.
  • The application for employment, if you use one.
  • Payroll authorization forms, such as the direct deposit form, garnishments, raises, etc.
  • Written documents to the employee regarding performance reviews, warnings, discipline, promotions or commendations, and termination.
  • Paperwork regarding a layoff, requests for time off, and leaves of absence.
  • Any documentation about the employee’s additional education, training, etc. while working for you.
  • Attendance records, such as a tracking report of days off.
  • If also requested, you must provide payroll records. However, this does not mean individual timecards. What you provide is a report from payroll showing the details of each check the employee has received. This is the same information found on wage statements (pay stubs) and nothing more.

Employees, or their representatives, may request to see or get a copy of their personnel or payroll records. Ask for the request in writing, especially if the employee isn’t asking you in person. You have 21 days to comply so there is no need to rush to your file cabinet. You want to review what is in that employee’s file and remove any paperwork that shouldn’t be part of the copy. Do not leave the employee alone with their file or allow them to copy it themselves… you need and want to keep control of the file.

You must retain their documentation for at least three years after termination and we’d recommend even longer. If you are keeping or storing the documentation digitally, there’s really no reason to delete old files as long as the business is in operation. Some claims can take a while to show up so having that old information may be of help someday.

While You Were Busy

It seems that COVID conversations continue to knock every other topic aside. But, while you were busy, other things have happened that need a bit of your attention. This article is to draw your attention to them so you are better informed.

Non-Compete Agreements — You can still use non-compete language in agreements but it can only control your employee while they are still an employee. Once they leave your employment, you no longer have control. This means you need to eliminate the “after termination” language because it won’t be valid. This is just one more step making it harder to keep ex-employees from becoming your competition.

Remote I-9 Review — We have always had to physically review the identification provided by employees for the Federal I-9 Form. Since the pandemic began, the U.S. Immigration and Customs Enforcement (ICE) agency has allowed us to review that ID remotely by looking at copies. ICE has now extended our remote reviewing through the end of 2021. At that time they will consider allowing virtual inspections of the ID permanently… something we all would love to happen.

Employment Law Posters — A new law that goes into effect on 1/1/2022 will add to the Labor Code that electronic distribution of required employment law posters will now be allowed. However, they are clear to state that this law does not alter the fact that you must also have the physical posters posted. More companies than ever before now have remote or field employees. These employees must have access to the information provided on these posters. If you haven’t already found ways to ensure you are compliant, work on it. The posters in California that need this visibility include the usual employment law poster (both State and Federal), local sick leave law posters, and the IWC (Industrial Welfare Commission) wage order for your industry.

COVID Pay Ended — Just a reminder that, as of 9/30/2021, there are no programs paying employees for their COVID-related leave. Your company may still be required to pay any employee who must quarantine due to workplace exposure because the presumed workers’ comp regulation is still out there. Otherwise, if an employee has symptoms, they need to use any of their personal sick time available or, perhaps, apply for state disability.

Special Unemployment Ended — Having employees receive extra unemployment has been problematic for so many businesses trying to hire people. Perhaps now (as of 9/30/2021) we can start filling positions and work on moving forward.

Mandated Vaccinations — We are waiting for Federal OSHA to create a ruling requiring companies of 100 or more employees to mandate vaccinations or to provide weekly testing of those who are not vaccinated. OSHA is expected to confirm this within a couple of months and then state OSHAs, like Cal/OSHA, will have 15-30 days to create their own version. Once Cal/OSHA does, there will be a deadline for implementation. Now is the time to start thinking about what you plan to do.

Employment law doesn’t stop just because we’re distracted by the pandemic. No matter what else is happening, it’s always a good policy to schedule quarterly reviews of any legal changes and how they might affect your company. Let us know if you need help.

Cost of Doing Business

“A few of my employees have to drive to client sites as part of their job. One employee consistently receives parking violations because he doesn’t want to walk an extra block but then forgets to put money in the meter. Can I make him pay for those parking tickets?”

Your HR Survival Tip

What do these parking tickets, lost company keys, company laptops stolen from an employee’s vehicle, and business use of an employee’s cell phone have in common? They are expenses and your company’s cost of doing business.

Both California and the IRS (Federal Internal Revenue Service) are firm on the fact that it should not cost your employees anything to work for you or to keep their job. When you charge $5 to replace an employee’s lost key or make them pay for their parking or traffic tickets, it’s costing them to work for you. As you know, the courts already decided you need to reimburse employees for the business use of their personal cell phone… even if they are on an unlimited plan so it doesn’t actually cost them anything.

All these things fall under the category of the “cost of doing business.” There is nothing you can have them sign that will take that burden away from you. People lose things, break things, and have things stolen from vehicles. None of us are perfect so why do you expect employees to be better or different with company property than they are with their own property? You can’t.

So what can you do when employees show no respect in their handling of company property or care if they are costing the company money? You bring it back home to them in another way. You write them up for failing to follow company policy of keeping company property out of sight and locked into the vehicle; for loss of company property; for failing to follow traffic rules; for failing to park somewhere that won’t result in a ticket; etc. The write-up is a notice that you don’t condone the behavior and rarely is it immediately followed by a termination of their employment.

Remember their behaviors when doing performance reviews. When considering raises, ask why you would increase this employee’s pay when they are costing you money? If the behavior continues long enough, you might lower their wage or eventually terminate their employment. However, do keep documenting so your reasons are clear and to ensure the employee has plenty of advance notice of these possible outcomes.

People aren’t perfect so don’t ask more of your employees than you could do yourself. When you see these things, determine if you could create a clearer policy or explanation that might help. Most of all, be sure you are applying the same standards to every employee so discrimination doesn’t become another issue. Employers pay for many things to be in business and employee expenses are just one of those items.

The Offer

“Is it okay to put a lot of details into my offer letter to a candidate? I like to add details about benefits, a description of job duties, and other information so I’m sure the candidate has all the information they need.”

Your HR Survival Tip

We have seen offer letters like yours that are several pages long and feel these are usually a bad idea. An offer letter is technically a legal contract and you want to keep it very simple for that reason. When you add a lot of other information, it’s very easy to end up with conflicting information between that employee’s letter and other documents. Those conflicts are where you could end up in trouble.

When creating an offer letter, don’t include anything that is written elsewhere. If your Employee Handbook outlines benefits, leave it there. If your job descriptions include job duties and responsibilities, leave them there. Ideally, the offer focuses on information that is specific to this person for this job, such as:

  • The job basics: Title, exempt or non-exempt, full- or part-time, start date, and manager’s name and position.

  • The pay: Be specific as an hourly rate for non-exempt or per period for exempt. “You will be paid a $2,500.00 salary per semi-monthly pay period (annualized at $60,000).” This wording is specific and there is no way a crafty attorney could say we promised the full $60,000 even if the employee quit.

  • The legal language: Always include at-will language stating either party can terminate the employment relationship for any reason, at any time, and with or without notice.

  • The deadline: If you don’t put a deadline on when you need the candidate to respond, you could be left waiting longer than you want. Usually, three business days is fair.

  • Their acceptance: Don’t forget to add a place for them to sign and accept your offer.

Overall, be very careful with your language. Using “will” is a promise, while using “may” gives you some wiggle room. Instead of stating “you will receive a bonus,” it’s much better to say “you will be eligible to participate in our bonus program.” Words have weight legally.

Rather than making the letter all-inclusive, add attachments. A page highlighting your “current” benefits, the job description, the bonus or commission plan, your procedures or policies, etc. make great attachments and ensures the information is the same for each person receiving it. Many companies have cut back on certain benefits in the past year or so. However, if you had those details in an offer letter rather than keeping the information in a company policy, you might legally still be held liable for continuing what you promised in that offer letter. Rethink what you’re truly offering in that letter.

A Shot in the Arm

President Biden has announced a plan that will affect companies with 100 or more employees. It appears those companies will either need to mandate vaccinations for employees or have unvaccinated employees tested weekly. This hasn’t taken effect yet and the final ruling or regulation will come from OSHA (the Federal Occupational Safety and Health Administration) or the state versions of OSHA, such as Cal/OSHA.

While it may be 2-3 months before Biden’s plan goes into effect, you need to start preparing now. Even if your company has fewer than 100 employees, we don’t know what the future will bring so you may want to pay attention.

As we’ve mentioned before, companies need to retain the proof of vaccination for any employee to go without a mask at work. Develop your system for obtaining that proof and ensuring the information is kept confidential as a medical document. Plus, once it’s considered an OSHA-related medical document, you’ll be required to keep that proof for 30 years after the employee is no longer employed by you. Obviously, some long-term planning will be needed.

Now is also the time to start talking about whether you will choose to mandate vaccinations or, instead, pay for employees to test weekly. Given that California law ensures the employee pays for nothing as your employee, it is expected you will be responsible for paying for both the cost of weekly testing and the employee’s time to be tested. Weekly.

If you are considering mandating vaccinations, you’ll need to prepare for religious and disability issues. Learn how to have those discussions with employees by speaking with your employment law attorney or HR consultant. While mandating vaccinations is completely legal and has been tested in court, the possible exemptions are trickier. You’ll need to be very careful to avoid making a decision based on asking the wrong questions.

Change is on the horizon and we all need to prepare. Biden’s plan is the next attempt to control this pandemic. However, as a business owner, you’ll be the one on the ground trying to implement the plan successfully and it’s unlikely to be easy.

Social Etiquette at Work

We have all spent time working next to a grumpy employee. They can make the day feel much longer and, frankly, also make you want to work elsewhere. While you can’t require someone to be smiling non-stop, you might suggest they maintain a pleasant attitude while at work. Of course, you also then need to remind employees of the best way to give you their complaints or concerns because no workplace is perfect for everyone.

An Employee Handbook usually tells employees what conduct is considered unacceptable. However, less is said about proper or preferred conduct. There are a lot of little things employees (and managers) can do to make your company a more enjoyable place to work, such as:

  • Say please and thank you, even to coworkers and direct reports.
  • Smile at coworkers and management, even if they don’t smile back.
  • Wait to answer your phone until you have excused yourself so others don’t feel unimportant.
  • Look at the person you are speaking to or who is speaking to you.
  • Remember people’s names and use them.
  • Handwrite a thank-you note to a coworker or direct report who has gone out of their way for you.
  • Unless you are using it for work, keep your phone on mute.
  • Be punctual so you are not keeping others waiting.
  • Respond quickly to call and meeting requests so they can be finalized easily.
  • Be considerate of those working close to you and keep the noise level down when working.
  • Dress for the type of work you do and that fits the company’s culture.
  • Clean up after yourself when using any shared area, such as a conference room or kitchen.
  • When upset or angry, wait a day before saying anything or sending that email or text in response.
  • Knock before entering someone’s office.
  • Whenever you have time, help a coworker who is struggling to finish a project.
  • Save grooming (hair, makeup, etc.) for the restrooms.
  • Bring up controversial topics on your personal time, not at work.
  • Say you’re sorry when warranted.
  • When in a group, don’t ignore or leave out someone during conversations.
  • Take the time to return calls.
  • Be a congenial coworker, not someone who brings down the mood of others.

We are often so rushed throughout the day that we forget basic courtesy when dealing with our coworkers. Consider how much you’d enjoy working in an environment that included the above behaviors, then decide how best to implement at least some of these in your workplace.

Working with Sick Leave

“I continue to be confused about all the things I can’t control when someone is sick. Are there better ways to deal with sick leave?”

Your HR Survival Tip

California first implemented the state paid sick leave law in 2015. Since then, at least 30 local laws have also been passed and implemented. While most people are in agreement that employees should receive some paid sick leave, the way most of these laws were written has made life difficult for employers.

The laws allow employees to take advantage of the time off but prevent the employer from fully managing their workforce. Over the years we have heard from companies facing abuse of sick leave by their employees… with no way to stop it. There are protections for the employee provided in these laws but you can try a few things to maintain more control.

Although we can’t require employees to call in sick prior to their start time, you can request it. Typically, in a policy, this would be “please contact your supervisor at least 30 minutes prior to your start time or as soon as practicable.” The law actually uses “as soon as practicable” as the notice but most people don’t quite understand what they mean so it may help to also express what you’d like to have employees do.

The laws prohibit you from requiring a medical note from the employee unless (a) the employee has been out for 3 consecutive days or (b) the employee has used all their allowed sick leave for the year. If someone is out for a couple of days, you want to get in touch with them to find out if they will be returning to work soon or if their absence is cause for Leave of Absence paperwork. If the employee tells you they’ll be back to work on day 3, you’re done. If the employee says they will also be taking off day 3 but expect to be better and at work on day 4, this is the time to let them know you’ll need a doctor’s note to ensure the 3 days are an excused absence qualified for sick pay. If they return to work on day 4 without the doctor’s note, give them until the end of day 4 to contact the doctor’s office and get a note sent to you.

Once the employee has used all their allowed sick leave for the year, each subsequent absence can be counted against attendance. You may also request a doctor’s note for any future sick days that year. Be careful when you ask for a doctor’s note at this point to ensure you aren’t being discriminatory and it looks like you’re picking on one employee. Even with a doctor’s note, they are no longer protected by the sick leave laws and too many absences could now result in disciplinary action. Hopefully you already have a policy that defines excessive absenteeism for your company.

The sick leave laws require employees to notify you in advance of the need for sick time off for appointments. Make it clear you expect to be notified as soon as they make the appointment, not the day of the appointment. Some businesses cannot have an employee working only a partial day due to the type of job the employee has. For example, if a delivery person is responsible for completing a route that day, going to an appointment in the middle of their route is not really feasible. You can request employees make appointments for days off or outside of work hours. This may not always be possible but you can try. An incentive might help, such as still paying two hours of sick pay when they schedule that appointment on a day off. This way they still receive their sick pay and you don’t have a broken shift. Another possibility is to rearrange the employee’s shift that week so the time off is less disruptive. Perhaps having other work the employee could do that day is another option.

When you have field or remote employees, you really need to review their locations. Employment laws are valid based on where the employee is working. If you have employees working remotely, you need to confirm their home location isn’t subject to a local sick leave ordinance that requires more or different handling of their sick leave. If remote employees work outside California, you also need to be aware of the sick leave laws in those states.

Paid sick leave isn’t going away. If anything, we are seeing more time off laws that intersect each other, such as leaves of absence. Even the smallest companies are now subject to these laws so it’s time to figure out what you can do to keep your business flowing while managing the time off.

Yes, It’s Possible

“I’m never sure what I can and can’t do regarding my employees. I feel like they have more options than I do as a business owner.”

Your HR Survival Tip

We often hear from companies, and smaller businesses in particular, that they just don’t know what rights they have versus the multitude of protections California provides to employees. In most cases, it’s safer to ask someone who knows the laws. Here are a few tips for you:

Reduced Pay — You already know you may give pay raises to employees but many people don’t know they can also reduce an employee’s pay. A word of warning, though… you want to give plenty of advance notice when it comes to money. A few examples of when a pay reduction may occur include a demotion in title and pay because the employee isn’t able to perform well at their current level, or a company-wide decrease due to poor revenues, or as part of a disciplinary process where the usual write-ups haven’t been effective. Reductions must be in writing and, as mentioned, with a future effective date.

Deny or Choose Vacation — Vacation time off is a true benefit and the employer has a lot of say, as long as you’re not being discriminatory. Your policy should be clear about how much advance notice you want (and it can vary based on the length of time off requested). The policy should also state that pre-approval is required and approval is subject to business needs and the policy itself. Some companies only allow one person per department to be off at the same time, others may require a vacation to be taken at a specific time, and others may have black-out dates where no vacation time is allowed during busy times of the year. If you have a PTO policy instead of just vacation, you have these same options only when the time off is not medically related because then you must follow the sick leave laws.

Deny Job Changes After a Leave — When an employee goes on a leave of absence, the law usually requires you to return that employee to the same or similar job when their leave ends. You are not required to offer the employee anything different, such as part-time or remote work if that wasn’t what they had when the leave began. If an employee asks about changing or adjusting their job, first have the employee put in writing that they are not interested in having exactly the same job as when they left. That will remove their protection for that job and allows you to negotiate their new role. If you must have them back in the same role, you can just tell them that. You are not required to alter their job to fit their personal preferences.

First 90 Days of Employment — Many employers feel the first 90 days of employment for a new employee is the same as a “get out of jail free” card. You are no more legally protected at day 35 as you are at year five. You are still subject to all the employment laws and can be sued if you fail to follow those laws. The 90-day period is intended to make you and the employee pay attention and to use that time to determine if this relationship is a good fit from both sides. That’s it, that’s all. Don’t assume you don’t need a valid, legal reason to terminate just because the employment period hasn’t lasted very long.

Offer Employees Different Benefits — Some benefits are more flexible than others, based on whether a law adds any protections. The easiest to flex are holidays and vacations. You can decide whether you’ll provide any paid holidays or vacation, how long the eligibility period might be, who gets that benefit, etc. You must not be discriminatory so focus on groups of employees rather than a single employee and on specific levels you can define. Examples include employment longevity, title, exempt versus non-exempt, full- versus part-time, office staff versus field, and so forth.

While the employment laws may tie our hands in some ways, it’s important to learn how to be compliant while still managing your employees as you want and need. It helps to find a sounding board so you can express your ideas and get feedback on what is and isn’t possible… and learn about possible workarounds.

Revised Workplace Rules

The COVID merry-go-round keeps spinning and we’re getting dizzy. Thanks to the increasing number of positive cases we’re getting with the Delta variant, we’re now going retro.

OSHA (Occupational Safety and Health Administration) and the CDC (Centers for Disease Control) have both updated their recommendations. In the workplace, OSHA carries more weight for us legally. So, spin your calendar backward to remember the safeguards you thought were over:

  • Employees (vaccinated and unvaccinated) should wear masks in the workplace when around others.

  • Social distancing is needed whenever you are around others at work.

  • Unvaccinated workers (and anyone else) with symptoms need to stay home from work and get tested.

  • Vaccinated workers who are exposed to a positive COVID case should get tested 3-5 days after the exposure and continue to wear a mask for 14 days (or until they get a negative test result).

  • Strongly encourage unvaccinated employees to get vaccinated. Offer incentives, if needed.

  • Bring back the frequent cleaning and disinfecting of items that are touched often by employees.

  • Continue to record and report positive, work-related cases.

  • Inform employees of a way they can make suggestions or express concerns about COVID hazards… and don’t retaliate when they do.

Several companies have expressed to us a desire to just ignore the requirement for a COVID safety plan and, instead, let their employees choose what they want to do. However, this is a slippery slope and the reprisals might be harsh if you end up with an outbreak or a death among your employees. As a company, you are legally required to have a COVID safety plan in place that meets state guidelines. While you might not want to become the mask police, you should at least want to provide the guidance legally required to help keep your employees safe.