Election Day Over = Big Sigh of Relief

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Don't Pull A Michael - Keep Your Parties

Work Appropriate

Creating A Supportive Workplace

For First Responders

Dear POOL/PACT HR: FMLA Deferral

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When Wednesday, November 9, 2022, finally arrived, some supervisors and managers might have thought that the tension in their workplaces created by the differing political views of their employees would somehow disappear and life (work) would return to normal. This wishful thinking evaporated as the tension lingered and even intensified with the results of some races being final, and with the delayed results of other races. Though these managers and supervisors had no way of predicting the election results, there are things they could have done to prepare themselves and their employees to understand how events such as an election can disrupt the workplace and even divide the workforce within. Crossing fingers and holding breaths every election cycle are not the proactive actions of an effective leader; rather effective leaders educate themselves and their staff on how political affiliation biases and behaviors can negatively affect the workplace.

A good place to start is to look at the stats. The results of the Society for Human Resource Management (SHRM) “2022 Politics at Work Study” found:

• 26 percent of workers regularly discuss politics in the workplace.
• 45 percent of workers experienced political disagreements in the workplace.
• 24 percent of workers experienced differential treatment, both negative and positive, based on their political views (compared to 12 percent found in a 2019 study).

Effective leaders would not look at the three bulleted items above and respond with a knee-jerk reaction and simply prohibit all political discussion anytime/anywhere in the workplace. They realize that could generate greater tension within the workplace and could also violate protected employee activities. They would not over-analyze the first two bulleted items, knowing there will still be discussions and disagreements within their diverse workforce, but instead, they focus on the third bullet, knowing that is the area of concern that needs to be corrected for positive change to happen.

The differential treatment that some employees expressed experiencing can lead to claims of discrimination and/or harassment (per NRS 281.370, political affiliation is a protected class). If this adverse treatment is not addressed and continues, it not only creates a liability for the employer, but more devastatingly may impact employees’ ability to carry out the essential functions of their positions without distractions or disruptions. Effective leaders would be proactive and provide employee trainings that provide opportunities for the employee to understand their own biases and the potential impact in the workplace.

Fortunately, POOL/PACT Human Resources has created a new training titled “Creating an Inclusive Work Environment” which gives participants the opportunity to explore their biases and how these biases influence the decisions they make. Participants may feel out of their comfort zones as they explore, but most leave with a better understanding of themselves. Effective leaders may either contact their organization’s Human Resources representative or their POOL/PACT HR Business Partner to discuss bringing this training to their employees.

You get a call that an employee has been injured on the job, setting off a flurry of activity, from transporting the employee to get medical treatment and potentially a post-accident test, completing the C-1 Incident Form, preparing to submit the claim to the workers’ compensation insurance carrier, and possibly making plans to cover the employee’s work. However, you may be missing a crucial step: conducting an incident investigation. After every workplace injury, the employer should conduct a timely and thorough investigation which will help prevent future accidents, assist in the denial of fraudulent claims, and protect the organization from liabilities associated with an unsafe work environment. Additionally, conducting investigations communicates to your employees that the organization takes workplace safety seriously. Knowing that safety is the highest priority will increase employee confidence and encourage them to be active participants in maintaining a culture of safety.

The investigation should be conducted by the Risk Manager, Human Resources, or whomever handles Workers’ Compensation in the organization. The basic steps include:

1. Interview the injured employee and gather the facts: when and where the incident occurred, what task was being performed, how the injury occurred, potential causes, the names of any witnesses, and ideas on how the incident could have been prevented.
2. Gather statements from witnesses.
3. Examine the accident location and document any hazards or other evidence (photos are very helpful).
4. Gather additional evidence, including surveillance video, emails or other communications, photos of the injury.
5. Document corrective measures being taken to prevent repeat incidents.

The focus of the investigation should be on finding and correcting the root cause of the incident, not on placing blame on the employee. Once the investigation is complete, follow through with any corrective measures that were decided upon and communicate them to affected employees. For instance, procedures may be modified, hazards may need to be repaired, or additional safety training may be assigned. If you have any reason to doubt the validity of a workers’ compensation claim, submit the investigation and evidence to the claims adjuster and discuss your concerns. The quantity and quality of the documentation will be instrumental in determining whether the claim will be accepted or denied.

A sample Incident Investigation Form is available on the POOL/PACT website to registered users. If you need assistance in locating this form or have other questions, contact your HR Business Partner.

If you are a fan of the TV show, “The Office”, you will probably remember the episodes where Michael Scott put on some wild and inappropriate holiday/end-of-year office parties. Most likely, you felt relieved that those parties were not your mess, so you were able to find some humor in the chaos. As we approach the end of the calendar year, many organizations are starting to plan their own holiday or end-of-year parties. Without careful planning and adherence to your organization’s polices, you may find that your party resembles these nightmarish TV episodes. This article will provide helpful tips to ensure your party is a work-appropriate and policy-compliant celebration.

To ensure a policy-compliant celebration, you will first want to make sure your organization’s personnel policies are up to date and not only apply to the workplace, but also to work-sponsored events that may take place outside the workplace. One important policy to review is the Drug- and Alcohol-Free Workplace Policy. Many holiday/end-of-year policies celebrate with alcohol. Does your policy allow consumption of alcohol at work events, whether at work or elsewhere? If not, then it would be a good idea to adhere to the policy by providing non-alcoholic drinks. If the policy does allow alcohol for these events, it would be a good idea to limit the amount of alcohol employees consume. To do this, you may use drink tickets or a two-drink maximum. This is important for at least two reasons. First, alcohol lowers people’s inhibitions, which may lead to inappropriate comments and/or actions. Second, excessive alcohol consumption may lead to safety concerns if employees drive themselves home after the party. Not only may inebriated employees seriously hurt themselves, but they may also hurt others. Employers may be liable in the event of an accident or injury where the employer allowed an intoxicated employee to drive after the party.

Another policy you will want to consider is your Anti-Harassment policy. It is important to understand what is considered inappropriate conduct and speech so as to ensure employees behave appropriately during your party. In addition, ensure you reasonably accommodate employees’ religious observances, practices, and beliefs. Consider basing your celebration on workplace achievements rather than religious or cultural holidays. Keep it neutral and choose seasonal decorations not associated with any specific religious holidays. One tip for doing this is to include a diverse group of people in your holiday/end-of-year party planning. This may include individuals from different departments, age groups, genders, and cultural backgrounds.

One other policy to review is your Personal Appearance policy. Personal appearance and dress should be appropriate and professional no matter the time or place of the party. Make sure the policy is up to date and covers work-sponsored events like the holiday/end-of-year party.

In addition to reviewing the above policies to ensure they are up to date; it is just as important to communicate them to your employees. You may do this through mini trainings, staff meetings, eLearning, email, memo, or whatever is most appropriate for your workplace. Make sure your employees understand the expectations prior to the party and that any questions they have are answered. Also, consider making attendance at the party voluntary, especially if held after hours, to avoid having to pay unintended wages or overtime for hourly, non-exempt employees. If attendance is mandatory, then you may have to pay employees for the time they spend there. Finally, remind leadership to set the example for the type of behavior and language that is expected at the party.

If you have any questions about how to best prepare for your holiday/end-of-year party, please contact your POOL/PACT HR Business Partner.

Firefighters, law enforcement, search and rescue, and emergency/paramedical personnel play a vital role to help protect the safety of the public. Sometimes stressful working conditions expose these first responders to danger and strain, leading to unmanaged stress and anxiety that may negatively impact an employee's mental and physical health. What can employers do to support their employees?

Promote the Employee Assistance Program Counseling Resources

Due to harmful and often erroneous beliefs, employees can feel stigmatized when seeking help. By fostering a supportive work culture and offering EAP services, employers can help their employees. POOL/PACT’s EAP, Kepro, is available to employees and their family and household members, volunteers, and governing board members, and is available 24 hours a day, seven days a week, 365 days a year, by calling 1-833-430-6028 or through the website EAPHelpLink.com (company code: POOLPACTEAP).

Kepro contracts with Nevada providers who specialize in public safety and first responders. Employees and their dependents can receive up to four counseling sessions per issue per year. Professional counselors are available through face-to-face, virtual, and telephone consultations, and the information disclosed during a session is confidential. After using their free sessions, employees (or household members) may continue at their own expense.

Create a Culture of Resiliency

Creating a culture of resiliency in the workplace can help maintain the psychological well-being of employees despite work-related stress or adversity by addressing situations with empathy. The EAP website provides valuable resources and articles which can be located by using keywords in the search bar, such as resilience, first responder, law enforcement, or firefighter.

Other Resources

There are also several other resources available for employers to help create a supportive workplace, such as:

• Northern Nevada Peer Support Network
• Vitanya Brain Performance
• Heal the Hero Foundation
• Mental Health for First Responders-POOL PACT

Employees who take advantage of available resources can develop the ability to thrive when facing adversities. For additional information, please contact your POOL/PACT HR Business Partner.

Dear POOL/PACT HR,

One of our employees is having a major surgery and will be out for the next three to six months. He has more than 1000 hours of sick leave accrued and does not want to use his FMLA allotment until he runs out of paid time. Do we have to allow this?

Signed,

Dee Feral

___________________

Dear Dee,

Ah, FMLA deferral! This is one of those questions that should have an easy answer but, sadly, it does not – anymore.

Way back before 2014, the answer was in fact clear – FMLA regulations spell out that employers have not only the right, but also the responsibility, to designate leave as FMLA anytime the employer determines that leave is for an FMLA-qualifying reason, and the employee is independently eligible (see 29 CFR 825.301). And then the Ninth Circuit made a ruling…

On February 25, 2014, the Ninth Circuit, which includes Nevada, concluded in Escriba v. Foster Poultry Farms, Inc., that an employer may not force an unwilling employee to take FMLA; rather an employee may “defer” FMLA leave until a later time (e.g., after his/her paid leave is exhausted). The case was very fact-specific and actually did not end well for the employee (Escriba) who had specifically requested for her otherwise FMLA-qualifying leave to not be designated as FMLA. The employer allowed the request, but when Escriba failed to return from her two-week (not job-protected) leave, she was terminated under the employer’s “no-call, no-show” policy. She later sued claiming the employer had an obligation to designate the time as FMLA thereby protecting her employment (even though she specifically requested it to not be designated). The Ninth Circuit disagreed with Escriba, holding instead that “an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking leave would have invoked FMLA protection.” Ultimately, this decision gave employees the power to decide whether their leave was to be designated as FMLA.

But, to the Ninth Circuit’s dismay, the DOL disagreed (albeit five years later). On March 14, 2019, the DOL issued an opinion letter which concludes that an employer is prohibited from delaying the designation of FMLA-qualifying leave even if the employee would prefer that the designation be delayed. In fact, 29 CFR 825.220(d) states, “Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA.”

This conclusion is in direct conflict with the Ninth Circuit’s stance on the subject. The DOL addressed the Ninth Circuit decision in the letter stating that it, “disagrees with the Ninth Circuit’s holding that an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order to preserve FMLA leave for future use.”

So, should you allow the employee to defer or not? Well, that depends on whether one type of law supersedes the other; that is, does the DOL’s opinion (statutory law) supersede the Ninth Circuit ruling (case law)? Or vice versa? The answer seems to be either one could win this arm-wrestling contest – you just need to pick sides and be consistent in your approach. If you allow the deferral, then you would rely on the Ninth Circuit precedence; if you choose not to allow it, then you use the DOL’s opinion letter as well as the actual statute as your justification. Whatever direction you want to go, make sure to work closely with your legal counsel to determine the best approach based on your personnel policies, CBAs, and past practices.

With that said, POOL/PACT HR attained a legal opinion on the subject which concluded employers should in fact designate the leave as FMLA anytime it has been determined the need for leave is qualified, and the employee is independently eligible.

For more information, please see POOL/PACT HR’s Family and Medical Leave Act HR Briefing at www.poolpact.com or contact your HR Business Partner.

Do you have an HR question for this newsletter?

Submit it to hrtraining@poolpact.com.

Essential Management Skills in the  Public-Sector Certificate Program

January 2023 - Virtual Version

Four sessions presented in eight half-day segments

This program has been developed specifically for managers and supervisors to assist them in learning to build credibility through effective communication, time management, and performance management skills. Whether in the trenches or just starting to manage others, this program provides a wealth of ideas, techniques, and knowledge to help manage people and projects effectively. This is an invaluable opportunity for participants to learn proven techniques to make them effective leaders in their organizations.