Welcome back to another edition of HR Basecamp Roundup! This week, we tackle some interesting and common issues that come up in workplaces more often than you think. If you haven’t joined our HR Basecamp Facebook group yet, be sure to join so you can participate in these discussions in real time!
Podcasts and Resources in this Roundup:
One of my employees has come into work a couple of times smelling like cannabis. Other employees mentioned it to me, and I noticed it myself on one occasion. The state I live in just recently legalized recreational cannabis. Does this mean I can’t say anything to the employee about the smell?
The legal side of things: As more and more states legalize cannabis use in one way or another, employers need to adapt to the changing laws to make sure they’re compliant when addressing cannabis-related issues.
But the answer here is simple enough. Just because your state has legalized cannabis use (recreational or medical) doesn’t mean you can’t address an obvious odor. The key is how you approach it. In general, you can’t control an employee’s off-duty legal conduct. Instead of focusing on what is causing the smell, you should focus on the smell itself. PS: this same thought process applies even if your state hasn’t legalized cannabis.
If there’s more to it than smell and you suspect that the employee may also be under the influence at work, then the guidance changes and gets a little trickier because drug testing rules specific to your state come into play. Note that the steps you need to follow may vary, but your employees cannot be impaired on the job regardless of cannabis being legal in the state. You can read about how to manage impairment suspicions in this blog.
Now for the human approach: You can approach the smell issue just like you would if it was someone who was wearing a strong perfume. In an office environment, especially in a healthcare setting, any strong smell needs to be kept to a minimum. This applies to perfume, smoke, body odor, etc.
Many employers don’t realize that that smell should be addressed in your employee handbook (CEDR members can find it in the Dress Code section). Being able to point to this policy when talking to an employee about an odor issue shows them that keeping strong smells out of the office is a standard expectation. As always, it’s important that you apply the policy equally to all employees. For example, if you’ve also received complaints about an employee’s strong perfume, you should have the same conversation with that employee – not just the one who smells like cannabis.
Questions about cannabis odor in the office are extremely common in the Solution Center. So much so that we created two courses that can help guide owners and managers through this kind of issue. CEDR members can find these courses in backstageHR:
Interested in these resources and not a CEDR member yet? Reach out to learn about our services and how to access our library of content.
In the spirit of new year resolutions, I want to offer a wellness program to my staff to incentivize them to stay healthy and active. Can I offer a cash bonus to employees who meet specific goals in the program?
The legal side of things: When financial incentives are involved, one main concern is the potential for discrimination. This might seem far fetched, but it can happen unintentionally. Sometimes these programs include components that could potentially discriminate against any employees protected under the Americans with Disabilities Act.
The easiest way to avoid this is to make sure the program is entirely voluntary (with no penalty for those who elect not to participate) and offer the same program to all individuals (not just to certain people). This is especially true if participation involves a medical exam and bases eligibility for incentives on those results. If the program incentives have nothing to do with the employee’s current health status, that is an even safer place to be in. You can read more about how wellness programs interact with the ADA here.
If you have a team member with physical limitations that make it difficult or impossible to participate in your incentivized exercise program—such as someone who uses a wheelchair or has another permanent or temporary condition—we recommend reaching out for guidance. If you are a CEDR member, contact us directly for support. If you are not a member, consult your dedicated HR professional to ensure compliance and fairness in your program.
You also want to make sure that the program you set up is in compliance with HIPAA regulations and IRS tax laws. Any private health information obtained in the program should be kept confidential and secure in accordance with HIPAA standards. Cash or equivalent incentives (like gift cards) are considered taxable income, so we recommend having a tax professional review the program to make sure nothing slips through the cracks.
Now for the human approach: As we mentioned above, participation in the program should be completely voluntary. Not only is this an important legal component, but it also avoids any potential awkwardness with employees who don’t want to participate. There are plenty of reasons why an employee may not want to join the program and keeping it voluntary means they aren’t forced to share private details of their life to explain their reasoning for sitting out.
On a related note, you shouldn’t make any employment decisions (changes in wages, schedule, benefits, etc.) based on the employee’s participation or lack thereof. This program should be treated the same as any other health benefit: the employee’s decision to opt in or out does not affect anything outside of the program.
From an administrative perspective, we suggest putting a deadline on the program. An end date makes employees more likely to participate because they don’t have to make a long-term commitment. Plus, it helps you gauge interest in the program so you can adjust the details in the next round.
Extra Credit Reading: CEDR Two Minute Trainer: Employee Wellness Programs
Can I require that employees complete harassment training each year? As my business grows I think it’s important that all employees have this training so we can avoid having any issues down the line.
The legal side of things: Step one is to check for any applicable laws in your state. At least five states require harassment training and many more strongly encourage it. If your state has a law in place, the answer is easy, and you should begin enforcing this requirement as soon as possible. Some states even have model training that employers can use so you don’t have to develop or seek out your own program. But even if your state doesn’t mandate training, you can still require it. We recommend https://emtrain.com/ to CEDR members who are looking for a training plan. You can also look for a local company or organization that conducts training.
Now for the human approach: Training is a helpful tool to combat harassment in the office, but it’s not a fool proof solution. There are plenty of employees out there who complete harassment training only to go on and do exactly what the training said not to do.
In addition to providing training to your staff, it’s important that you have clear and thorough anti-harassment policies in place. These policies should be included in your employee handbook so that employees receive them upon hire and can reference them at any time. More importantly, it’s essential that you have these policies so that you have a process for handling harassment complaints from employees.
As an employer, you’re responsible for providing a safe working environment, which means harassment claims should be taken seriously and investigated. Employers who fail to do so could be sued just as easily as the employee who actually harassed someone. “But they did the training!” won’t be an acceptable defense should you find yourself in a lawsuit because you ignored an employee’s claims about someone else.
Check out this episode of What the Hell Just Happened?! for more on how to handle investigations and misconduct.
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.
A Blog Written by CEDR, written by HR Experts to help you run your practice.
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