This week in HR Base Camp and the HR Solution Center, employers had questions about PTO, employee pay, reasonable accommodations, and asking applicants about vaccination status. Here are the top HR Q & As from the past week:
An employer wanted to know the rules related to paying out PTO upon separation and requiring employees to use earned time off when out.
Answer: Federal law does not require that you payout unused vacation time at termination, unless promised otherwise. As long as you have a clear handbook policy that explains that time will only be paid out if notice is given, it’s okay to set this stipulation. Note that there may be different rules to follow based on your state. If you’re in a state with a mandated leave law and you use one bank of PTO time to cover both protected leave and vacation, it’s extremely important that you research and follow the rules set by the state law. Violations of leave laws can be extremely costly to employers.
In terms of restrictions, this also depends on if you have a mandatory leave law in your state. Some leave laws don’t allow employers to force use of protected time, so if you have one PTO bank that includes protected leave time and vacation time, then you may not be able to force use of that time. If there are no state restrictions in place, then it’s completely up to you as the employer to allow unpaid time off before forcing employees to use their earned time.
CEDR tracks all state sick and earned leave laws. One major benefit of a membership is that we will update your policy as needed and work with you to make sure that customized language you want to include is compliant. If you’re interested in learning more about our services, you can schedule a call here.
A member had an employee requesting to be paid on a salary basis and wanted to know if it was a good idea to transition the employee from hourly compensation to salary.
Answer: Non-exempt employees still need to track hours, regardless of how they are paid. Being paid a salary does not automatically mean they are excluded from overtime pay. This would only apply if the employee is (properly) classified as exempt. There is specific criteria an employee must meet to be classified as exempt and most dental positions do not qualify for this status. While it may be tempting to classify an employee as exempt so they can work after hours or on weekends, especially if they’re the ones requesting the change, misclassifications can be extremely costly to the employer. You can find additional information on exempt vs. non-exempt employee status here.
One of the benefits of a Solution Center membership is that our HR experts walk through the scenarios with you and give you detailed guidance so that you can manage employee requests while staying compliant. If you’re interested in speaking to someone about a membership, you can schedule a call here.
An employer wanted to know if they could ask applicants about their vaccination status.
Answer: You should only ask a new hire about their vaccination status if you already require the rest of your staff to be vaccinated. If you don’t have a policy in place and vaccination is optional for your current staff, then it should be optional for new hires as well. If you decide to implement a mandatory vaccination policy for all employees, you could then inquire about vaccination status during the interview process by asking a ‘yes or no’ question such as, “Absent a valid accommodation, would you be willing to comply with a vaccine requirement?” You want to avoid directly asking “are you vaccinated or not?” as this can potentially lead to a candidate revealing a protected class like religious status or disability. Remember that if you decide to implement a vaccine requirement in your office, you must still allow employees to request medical/religious exemptions.
As always, this can also be impacted by state law. If your state has a vaccine mandate in place, you may already be required to request proof of vaccination from new hires. Some states have done the opposite and essentially prohibited employers from requiring the vaccine. We recommend checking your state’s law to see if any mandates apply.
An employer had an employee returning from medical leave and wanted to know how to approach the accommodation process, as well as how to apply benefits if the employee went from full time to part time.
Answer: While we can’t tell you what kind of accommodation you should provide, we can offer some guidance as to how to approach the topic. Our recommendation is to engage in the Interactive Process. While this is only legally required if you have 15+ employees, we strongly encourage all employers to engage in the process. This link explains the Interactive Process in detail.
It’s ultimately up to the employee to request a specific accommodation, so you shouldn’t automatically make adjustments to her essential duties or work schedule. The employee should request the accommodation in writing so that you have it for your records. You should rely on the employee to provide you with information about her medical condition and limitations, but if she does not have sufficient information about it or is not sure what limitations it poses and which accommodations would be effective, you can ask her to get more information from her doctor. Note that if the ADA applies to you, you’re required to accommodate to the extent that it does not create an undue burden on the Practice.
In terms of benefits, you can follow your current handbook policies for part-time employees. If you choose to extend any additional benefits due to this being a long time employee, remember that you will need to apply this consistently to similar situations in the future.
Have an HR question you want answered? Ask CEDR’s HR experts in our private Facebook group, HR Base Camp.
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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