HR Base Camp Roundup – January 25th, 2022

Last week’s conversations in HR Base Camp and the HR Solution Center covered how employees can use sick time, how PTO and sick time should be structured, how to make sure paying for new-hire education isn’t a wasted investment, and more. Here are some of the top HR Q & As in review:

Do employees have to use their sick time when they call out sick?

A member wanted to know if they could require an employee to use a sick day when they called out sick. The employee wanted to take the day unpaid and save their sick day for later in the year.

Answer: This really depends on the kind of sick leave you have. If you offer sick leave of your own accord, you can typically set the parameters however you like and require the employee to use available sick time before taking unpaid time. However, if you live in a state that mandates paid sick leave, whether or not you can force employees to use it is up to state law. Some states allow it, some outright prohibit it, and others do not address the issue specifically. That being said, forcing an employee to use protected sick time can be risky and CEDR generally advises against it. If an employee took issue with being forced to use sick hours and filed a complaint, the outcome may be more favorable to the employee since this is legally protected time they are entitled to.

Should employers separate paid time off from mandated sick leave?

An employer was curious about whether it was better to bundle state-mandated sick leave and PTO into one category or divide it between separate categories.

Answer: Employers can choose to offer one lump sum of time off that includes the minimum amount of sick leave required. The drawback to this is that it’s harder to differentiate between sick time and personal time when everything is under one PTO policy. Because sick leave is protected time with specific rules around it, you would then have to apply these same protections to all of the time offered under the PTO policy. This can lead to more last minute call outs since the time can be used as sick leave. And because there are so many rules surrounding sick leave (especially in California), even PTO policies that offer a lot more time than what is required need very specific edits and details included. It’s harder to manage administratively and, in the end, gives employees a higher amount of protected time off.

Paying for employee training: how to make sure you can recoup any up-front investment in a new hire.

A new hire was requesting that their employer pay for an expensive special training course. The employer wanted to know the best way to make sure that paying for the training didn’t turn into a sunk cost for the practice.

Answer: Any time you are considering whether to pay for someone’s training, you want to work with a professional so that you know what exactly is and is not ok for that precise situation. In most training situations the employer is required to pay for the cost of, and time spent, training as the employer is having the employee take a training that is directly related to the employee’s job. So the first step is to analyze to what extent this is job-related and intended to benefit the practice.

If the employee is learning something that isn’t meant to be used within your practice, but is something you’re simply being supportive of, you also want to consider what happens when this person is trained. Are they going to leave your practice to be a provider on their own? Or are they going to moonlight in a business that somehow competes with you? And is all of that ok with you, or something you want to place restrictions around (if permissible in your state)?

If ultimately this is not something the DOL would say you had to pay for anyway, you want to be very careful about how you handle this. Paying for a class on the contingency that they work for you for a certain amount of time can destroy the at-will relationship, making things much more complicated for you. And, you can’t force someone to stay. If they leave sooner than you want, it can be costly to try to chase them down and make them repay you. A less risky way to do this would be to have the employee pay for the course on their own, and you reimburse them at certain intervals if they’re still your employee.

To pay or not to pay: bonuses and holidays during an employee leave of absence.

An employer wanted to know if they were required to pay an employee for holidays or provide a year-end bonus while the employee was on maternity leave.

Answer:  When it comes to paying bonuses and holidays when an employee is on a leave of absence, you should refer to what your handbook policy states. Most policies state that benefits such as holiday pay and PTO are not accrued or paid during a leave of absence. In this case, it sounds like your holiday pay policy makes it clear that employees have to work before and after the holiday to receive pay. So, even if your handbook doesn’t address pay during a leave of absence, you can defer to this policy to explain why the December holidays weren’t paid. We also recommend updating your handbook to make sure your leave of absence policy addresses this topic.

Whether the bonus is owed depends on the type of bonus. If it’s a purely discretionary, end-of-year, holiday bonus that isn’t promised each year, then it’s at your discretion as to what to do. However, if this is in any way a bonus that is earned by the employees, then it entirely depends on what the bonus criteria is and what you have in writing about bonus eligibility.

What to do when patients request to work with employees that have a specific vaccination status.

A member had a question about how to handle a patient asking to work only with unvaccinated employees.

Answer: This is common question. More and more patients are requesting to be treated by vaccinated employees only. You were right to use the script we provided for questions like this and to refrain from sharing the vaccination status of specific employees. That being said, if you are able to accommodate her request and only schedule her with vaccinated employees, it’s okay to do so, but it must be done with discretion. For example, if your patient already knows she’s scheduled with Sally for a cleaning and then asks to see a vaccinated employee and Sally is taken off her appointment, this is inadvertently letting the patient know Sally isn’t vaccinated. So in order to accommodate the patient, you would need to make sure they are scheduled with a vaccinated employee without “outting” someone else’s status. While it can be done, it can be tricky to administer and can make scheduling appointments much more difficult. We recommend letting the patient know that you have put the request in her account, will do your best to accommodate, and reiterate that you are following all safety protocols to keep patients as safe as possible.

Did the recent Supreme Court decision affect state vaccination and testing mandates?

A member wanted to know if the California weekly COVID testing mandate still applied after the Supreme Court blocked the OSHA ETS federal mandate.

Can an employer ask about the vaccination status of non-employees who are shadowing at their practice?

A dentist hosting high school students for a day of professional shadowing wanted to talk to the students about their vaccination status. An employee was curious if this was allowed.

Answer: The dentist is permitted to ask the students about their vaccination status. However, if the students are minors the decision to be vaccinated or not is likely not up to them, so there is not much to gain from asking about it. And unless the doctor is making rules based on vaccination status (type of mask, length of quarantine, etc.) or is mandating the vaccine for all employees, there is no real need to have that discussion with the students from an HR perspective.