An employee going through management files, noisy sickness, and offering bereavement leave

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I have an employee who is discussing their team members’ salaries with other employees. This is confidential information that can only be accessed by viewing my (the manager) emails. The other employees were unhappy with the discussion taking place, and I have no idea what to do here.



The legal side of things: As you may know, you cannot restrict your employees’ discussions about wages. The National Labor Relations Act protects employee speech about employment conditions, including wages. Enacting a policy that says they can’t discuss pay or taking any adverse action against employees for doing so can lead to an expensive NLRA violation. So the problem you’ve presented needs to be run through two filters: The first one is this overarching federal law, and the second one is that your employee may have accessed confidential information without having the authority to do so.

Now for the human approach, which still needs the legal approach:This situation is unique because it is not just one employee talking about other people’s wages and causing upset with the team; there’s also a confidentiality issue here with them accessing your files.

First, we assume you do not have a policy that states “no talking about salaries” or “salaries are confidential” within your employee handbook. If you do, it is highly illegal, and even though the employee may have done something wrong, you have a serious issue because of your illegal policy. You can not follow our guidance in this article without more hands-on support, nor enforce your policies without substantial legal risks. Please refer back to the link about the NLRA and then contact us to help you understand how you must remove those policies as soon as possible.

If you don't have that bad policy, it would be okay to address the issue with the employee by letting them know that it’s come to your attention that they are making others uncomfortable. Not everyone wants to talk about pay or to have their pay rate disclosed to others. So, this employee should be more aware of the comfort level others have in topics being discussed. See what we did there? We addressed the issue at hand and never mentioned that their discussing wages is an issue.

Of course, the bigger issue is how the employee learned how much other employees are being paid if other team members did not openly share their pay. Since you are on a fact-finding mission, we encourage you to avoid sharing your suspicions about them. You can ask how they learned this information without directly accusing the employee of going through your emails.

Depending on the answer or no satisfactory answer from them, a deeper investigation may be required. If the employee says that other team members did, in fact, disclose their pay rates, we recommend continuing your investigation through confidential interviews with the other employees. Again, this is some delicate stuff and highlights just how hard your job can be.

However, it sounds like that was almost certainly not the case here, so you may have a larger privacy issue at hand. If the employee in question accessed documents they are not authorized to access, this could warrant a corrective action at minimum, or you may decide to terminate employment based on having indisputable proof that they have been accessing information they are not authorized to possess.

We can not stress enough that this article only scratches the surface when it comes to handling an issue with clear protections and a clear violation of policy intermingled with one another. In these instances, having expert guidance to help you navigate the issue and document everything is your only defense. Regardless, we all agree that this issue needs to be addressed and handled quickly.

And, since any termination can present risk, we recommend that you check out our free Separation Guide and reach out to a qualified HR professional before letting an employee go.

At a minimum, it’s a good idea to change the login information for your email so that it is protected anytime someone else has access to the same device.



I have an employee who gets sick every day at work, and the “noise” that comes from it has started to disturb the office. Patients are noticing it, and other employees are noticing it. I don't know what I can do here.



The legal side of things:Dealing with an employee who frequently falls ill at work can be tricky, especially when it affects the office environment. Navigating this issue with compassion and compliance with relevant laws is essential.

First and foremost, consider the legal aspects. If your employee's noises could in any way be associated with a medical condition, they may be protected by the Americans with Disabilities Act (ADA) and/or state laws. Those laws say you cannot discriminate against them for their disability or a medical condition, and they may be entitled to reasonable accommodations. This does not mean that nothing can be done.

In many cases, we recommend employers be careful to avoid assuming someone’s health status is the reason behind an issue. Don’t start with, “Wow, are you sick?!” However, when a medical issue becomes apparent and affects their ability to work or disrupts others, it may be necessary to address it. We do this by, again, going on a fact-finding mission.

You have the right to inquire and subsequently discuss the possible health issue with the employee through the interactive process. This is a delicate matter, and the goal is not to accuse or make assumptions but to understand the situation and explore potential accommodations if needed.

The human side of things:Balancing the legal considerations with a human approach is essential in this situation, as there are multiple interests at play – the employee's privacy, their possible medical issue, and the comfort of other employees and patients.

Let’s use an example of someone blowing their nose loudly and in the presence of either the rest of your staff or patients (or both!). This one is easy: “Please stop blowing your nose in the treatment rooms and go somewhere private.” Allergies and the like may cause the problem, but most people can take a minute to leave the room and quietly blow their nose. You can still start with the Fact: “A patient was upset that you blew your nose in the treatment room while her mouth was hinged open. We’ve noticed that you need to blow your nose often, and while it’s fine, we need it done in private and never in treatment rooms.”

Now let's talk about an employee with potential vomiting noises coming from the bathroom.

Consider these two approaches:

“Ashley, we are concerned because it’s been reported that it sounds like you are vomiting or getting sick, and it can be heard. Are you OK?”

Vs.


“Ashley, I don't know what is happening, but the vomiting is loud, and we don't need this sort of thing to upset the patients.”

Now, imagine you are Ashley and not quite ready to let everyone know you are pregnant and have morning sickness or, perhaps, in chemo. Which one of those two above approaches is the correct one? Imagine Ashley has an eating disorder or any of a number of other underlying health-related issues. All of these things can be covered under some sort of protective public policy.

Always address the matter with empathy, starting with a private and non-confrontational conversation with the employee. Mention the objective observations you've made, such as their frequent absences from their workstation and the sounds coming from the bathroom. Express your concern for their well-being and inquire if everything is okay.

It's crucial to approach this conversation without making assumptions or implying that the employee has done something wrong. Instead, focus on understanding their perspective and potential needs. This open dialogue can help the employee feel supported and may lead to them sharing more about their health condition.

From this point, engage in the interactive process, which involves discussing possible accommodations if the employee discloses a medical condition. The goal is to find a mutually beneficial solution that allows the employee to work comfortably while ensuring the office environment remains productive and respectful of everyone's needs.

Remember that handling such situations with sensitivity and respect aligns with legal requirements and fosters a positive workplace culture where employees feel valued and supported.


I recently had an employee suffer a death in the family. They asked to use bereavement leave, but I haven't had anyone ask that before. Am I required to provide bereavement leave?



The legal side of things: Until recently, the answer would have been “no” across the board. That’s changed over the last couple of years, and several states require bereavement leave in some capacity.

Depending on where you’re located and how many employees you have, you may be required to provide anywhere from 5 to 14 days for bereavement. CEDR members can go to backstageHR to read about recent bereavement leave laws that several states have passed.

Bereavement leave laws are rather new, but with more and more states expanding time off benefits for employees, we wouldn’t be surprised if we see similar laws in other states soon. No federal law addresses bereavement, so if no state law applies, the decision to offer bereavement leave is entirely up to you.

Now for the human approach: It’s entirely possible to not offer additional time off for bereavement and require employees to use their accrued vacation or paid time off hours to cover their absence.

However, this is obviously a sensitive area. Being forced to use their paid time off benefits for something completely out of their control and something they are likely already quite upset about can result in a dip in morale. It can also put an employee in a position of having to forgo attending a funeral based on this additional outside factor, which again isn’t great for your ongoing relationship with them.

Most employers we work with offer at least a couple of extra paid or unpaid days on top of any other time off employee benefits. Providing additional time off is a good way to show support during a difficult time. Note that this doesn't have to mean giving another bank of paid time off to your employee benefits package. Allowing them to take unpaid time off without being penalized allows the employee to take time if needed, without worrying about potentially using up PTO they may have been planning to use for something else.

While the most common reason for taking bereavement leave is to attend a funeral, it’s possible that an employee may want to use the time to attend a celebration of life later on or to say their goodbyes rather than attend a service. Keep this in mind when you receive a request for time off.

We end this guidance with the fact that you may also want to consider pets as a category.

Whatever policy you choose to implement, ensure it’s clearly detailed in your employee handbook and you apply it consistently.

Dec 20, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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