Employee injuries, PTO policies, and religious holidays

We’re a pediatric office and one of our patients bit an employee this week. The employee’s hand is pretty swollen and they’re worried it will get worse. What steps should I take?

The legal side of things: Your worker’s compensation insurance should cover this. This is what it’s there for. If an employee is injured on the job, they can make a claim through your insurance company for reimbursement of medical bills and lost wages from missing work due to the injury.

If you’re in Texas, you are in the only state in the country that doesn’t require you to have workers’ compensation insurance. We talk to a lot of Texas employers who simply see this as a cost savings. But the first time an employee gets hurt, they immediately change their minds and buy insurance. This is because the whole purpose of the workers’ compensation program is to prevent an employee from directly suing you for an injury. Without the insurance coverage, your out of pocket costs can skyrocket as a result of having to defend yourself in a lawsuit over a single small injury.

Now back to the incident of the child biting attack on an employee’s hand.

The injured employee has a legally protected right to file a workers’ compensation claim. Whether they choose to do so is entirely up to them. The fact that they have activated this legally protected activity means you need to tread carefully for a period of time after the injury, as the employee also has legal protections against retaliation for filing, or having the ability to file, a claim against your insurance. This means if you’ve been letting their tardiness slide for the past 6 months, but suddenly start writing them up for it starting a week after their injury, you’re setting yourself up for a retaliation lawsuit.

The human side of things: Order an Uber and get them to urgent care or the hospital!

If the employee’s hand is swelling, it should be pretty clear to both of you that they need to seek medical care. Give them a list of your workers' compensation company’s preferred providers. They don’t have to go to one of those selected locations, but doing so will make the whole process smoother. You can also facilitate this process by immediately getting on the phone with your workers' compensation carrier to make an initial report of the injury. They may be able to provide you with a claimnumber right away, which the injured employee can give to the urgent care office.

If the employee doesn’t think they need medical care, be clear that you would prefer they go for their own health and safety (meaning that you won’t be upset if they leave work early). Also reassure the employee that they won’t be footing the bill. You can tell the employee that you’ll be helping to get this reported to worker’s compensation, and they can tell the hospital that it is a work injury so the hospital has that information for billing purposes. We recommend paying the injured employee through the end of their shift so they won’t be losing pay as a result of leaving early to seek care.

OK, but what if they’re just not going to seek treatment after the incident? You need to do two things that same day. First, have the employee and any witnesses to the incident document what happened. Second, you need to contact your workers’ compensation carrier to put them on notice of the incident. If the employee realizes they’re infected in 10 days and decides to report a claim at that time, your carrier may try to bar the claim based on you not reporting it in a timely manner.

Workplace injuries can take a toll on the employee. Keep this in mind and remind the employee that you are there if they need any support, and they should let you know if their condition worsens. Don’t forget to document any conversations you have with the employee about this incident. We recommend using the HR Vault to keep your notes on file. You can use the Vault for free even if you aren’t a member.

While we can’t speak directly to how you should handle things with the patient that injured the employee, it’s a good idea to remove the employee from their appointments to avoid any more issues in the future. This goes for any situation where the employee’s injury is due to someone they were treating.

I automatically apply PTO when an employee calls out or takes a day off, even if the employee didn't put a formal request in. One of my employees says this is illegal and they're going to file a claim against me if I do it again. Are they right?

The legal side of things: We can’t know for sure without taking an in depth look at your time off policies and knowing where you’re located, but it’s possible.

There’s layers to the legality of this. Generally, in most states and under most PTO policies, it’s okay to require your employees to use their PTO benefits if they are taking time off.

The primary exception (and why their claim might be successful) is if you live in a state, city, or county that has a mandatory sick leave or paid time off law. The majority of these laws strictly prohibit forced use of paid time off, as the benefit is supposed to be available for the employee’s use when they need to use it.

This is where we peel back the layers. If a local paid sick leave law applies to you and you have a general PTO policy (meaning the required sick leave is rolled into PTO along with their vacation time), all of that time is subject to sick leave regulations. That means that it doesn’t matter what the employee says they took the day off for - if the time is subject to the same rules as a sick leave law, it’s almost guaranteed that you can’t force them to use it.

This is one of the many reasons why we strongly recommend separating your vacation/PTO and sick leave policies if you're subject to a law that regulates paid time off. Better yet, talk to an HR expert who can create a compliant policy for you from the get-go.

The human side of things: We understand why you may want to force employees to use their time off benefits. We’ve spoken to many owners and managers frustrated because their employees took unpaid time all year and now everyone wants to use their paid time during the same season. We get it!

Setting an amount of PTO an employee can use each year is, for many employers, communicating how much time the employee is allowed to take off that year (without repercussion anyway). The typical assumption is that the employee knows this, and knows they need to use any available PTO to cover their absences, and wanting to take time off beyond that requires a conversation.

CEDR has found in recent years that this assumption doesn't hold up the same way anymore. A growing number of employees seem to be surprised that their manager doesn’t want them to be taking unpaid time off on a frequent basis while saving up all their PTO for a planned vacation later in the year. Thus, the rule goes in the handbook.

As far as everyone saving up PTO to use during popular times of the year, approval of vacation time is ultimately up to you. It’s okay to set guidelines around multiple people taking time off at the same time, or have a “no requests off for the week between Christmas and New Year’s” kind of rule.

HR ALERT: In case you haven’t heard, Illinois and Minnesota both have statewide leave laws going into effect on January 1, 2024, and California has amended its existing sick leave law to provide more time. Now is the time to start looking at your policies to make sure they’re compliant! If you’re a CEDR member, we’ve got you covered and will be reaching out with an updated policy.

I hate that I am writing this, but my owner is upset with the new hire, and I am worried he will get us in trouble. We have a new employee who, on her first day, asked for an accommodation based on her religion, and hey, I get it. The issue is that we are losing the person she is replacing in one week, and the new employee is asking for the day off for a religious thing on one of the busiest days of the week. So, she needs a day off less than a week in. So, on top of that, she came in today and asked me for details on maternity leave and what she would need to do in order to take time off to have a child. I am not sure if this is planning or if she is pregnant. I know that if I tell the doctor, he is going to go ballistic. I am not sure what the laws are and how she is protected. Our handbook has some stuff in it about maternity leave, but I've never had a new employee ask for this sort of thing. What do I do? Help before the Doctor loses it! I need to give him options.

Download your in depth HR guide covering religious accommodations, maternity leave, and everything Diversity Equity & Inclusion (DEI) related!

The legal side of things: We have two HR sensitive things going on here. A religious based holiday and pregnancy.

For the holiday request, most employers are required to offer religious accommodations to their teams, and that includes things like minor schedule adjustments. If an employer is denying a religious accommodation, they must show that it was an ‘undue burden’ on their business and be able to demonstrate what that burden was through significant financial harm or loss of business. What you are not required to do is create extra pay or additional time off. So, the answer might look like this. Yes, of course you can take that time off. The way holiday pay works here once you are eligible is that we pay for December 25th off each year. In your case, you could be paid for the day you asked and then the 25th will be with no pay.

When it comes to the pregnancy inquiry, federal and state laws require employers to provide a reasonable amount of leave time to employees who need time off due to pregnancy. Many states prescribe a set amount of time or offer state-sponsored paid leave while others do not. It’s important that your handbook policies comply with each detail of the unique laws applying to you.

Now for the human approach: Let’s talk about the holiday request first.

While an employee asking about a day off at an inopportune time is absolutely inconvenient, it’s very likely best practice to grant the request. With that said, you are allowed to have a more in-depth conversation about the exact need and impact on the business, when and if they are eligible based on your policies regarding that sort of thing.

Narrowing in on the details of the request is a practical way to meet the employee’s needs while exploring all of your business scheduling options.

Now, for the pregnancy inquiry, Don Miguel Ruiz, who authored the famous book The Four Agreements, says the following about assumptions: “If others tell us something, we make assumptions, and if they don’t tell us something, we make assumptions to fulfill our need to know and to replace the need to communicate.

The human answer here is to avoid making assumptions and communicate clearly. What this means is when someone asks for information about a leave, you give them that information. If you have a CEDR handbook, much of that information is available for employee self-reference. AND IT WOULD INCLUDE when new hires become eligible for certain benefits like maternity leave.

Then, communicate with them clearly. Perhaps say, “If you need to take leave, please let us know as soon as possible.” Perhaps ask, “Do you have a current need for leave?” In this situation, you are allowed to ask if they have a current need because they brought it up. If they say they do not have a current need, leave it at that.

The conversation should not impact their employment with you. If they say they do have a current need, then the conversation changes to address the current need. Again, this is an area where having a great HR support system like ours can help you get the very best outcomes.

Nov 7, 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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