It’s time again for our HR Basecamp Roundup. If you’re new here, we take the most popular questions submitted by our HR Basecamp Facebook group every other week and go more in-depth on the answer. Join the over 10,000 other office managers and business owners here to submit your questions and participate in the discussion!
Resources in this Roundup
Reasonable Accommodations in the Workplace Explained
I’m struggling with my employees taking too much unpaid time off. I offer vacation and I am in a state with mandated sick leave, so they have lots of paid time to use but instead take unpaid time off throughout the year and “save” all the paid time until a holiday rolls around. This is causing scheduling issues. How can I set a limit on unpaid time?
The legal side of things: Time off is one of the areas where employers have traditionally had the most discretion - though this is getting limited more and more over the years as states, cities, and counties increasingly pass rules giving employees more rights to time off.
You can generally require that an employee use their paid vacation time toward any time off they take. We highly recommend putting in your employee handbook that this paid time must be used before any unpaid time off can be requested.
As for sick time, there are going to be state laws limiting whether you can require an employee to use that time to cover an absence or not. So an employee may be out of paid vacation, but still have paid sick leave, and be wanting to take unpaid time off rather than using their legally protected paid sick leave. If that’s the case, then they don’t have legal protection over those absences.
This means you can address excessive absenteeism if that is becoming a problem. You can set a limit on how much unpaid time employees can take and deny any requests that would cause a scheduling issue.
Keep in mind that there are a variety of ways an unpaid absence could be protected. It could be part-intermittent FMLA leave or covered under a state-required leave benefit. Some jurisdictions even have protected unpaid sick leave once paid leave runs out. We strongly recommend speaking to an HR expert if you’re not sure.
Now for the human approach: Many of our members cap unpaid time off in order to manage absences and scheduling better, and require that employees use up all their paid time off benefits before seeking to take any unpaid time off. Protected paid leave would be the only exception to this policy.
That said, you can still deny unpaid time off before an employee reaches the maximum amount allowed or without setting a cap at all. Most employers try to approve unpaid time off requests if ample advance notice is given and if staffing works. But if an employee gives you limited notice or if staffing needs do not allow for this, it is OK to deny the request.
Since this is an issue you’re having with multiple staff members, you may want to issue a memo regarding limits to unpaid time off. If you’re a CEDR member, contact the Solution Center and one of our advisors will draft the memo for you.
Resources in this Roundup
The legal side of things: Time off is one of the areas where employers have traditionally had the most discretion - though this is getting limited more and more over the years as states, cities, and counties increasingly pass rules giving employees more rights to time off.
You can generally require that an employee use their paid vacation time toward any time off they take. We highly recommend putting in your employee handbook that this paid time must be used before any unpaid time off can be requested.
As for sick time, there are going to be state laws limiting whether you can require an employee to use that time to cover an absence or not. So an employee may be out of paid vacation, but still have paid sick leave, and be wanting to take unpaid time off rather than using their legally protected paid sick leave. If that’s the case, then they don’t have legal protection over those absences.
This means you can address excessive absenteeism if that is becoming a problem. You can set a limit on how much unpaid time employees can take and deny any requests that would cause a scheduling issue.
Keep in mind that there are a variety of ways an unpaid absence could be protected. It could be part-intermittent FMLA leave or covered under a state-required leave benefit. Some jurisdictions even have protected unpaid sick leave once paid leave runs out. We strongly recommend speaking to an HR expert if you’re not sure.
Now for the human approach: Many of our members cap unpaid time off in order to manage absences and scheduling better, and require that employees use up all their paid time off benefits before seeking to take any unpaid time off. Protected paid leave would be the only exception to this policy.
That said, you can still deny unpaid time off before an employee reaches the maximum amount allowed or without setting a cap at all. Most employers try to approve unpaid time off requests if ample advance notice is given and if staffing works. But if an employee gives you limited notice or if staffing needs do not allow for this, it is OK to deny the request.
Since this is an issue you’re having with multiple staff members, you may want to issue a memo regarding limits to unpaid time off. If you’re a CEDR member, contact the Solution Center and one of our advisors will draft the memo for you.
One of my employees is taking excessive bathroom breaks. Each time they step away they’re in the bathroom for 10+ minutes. Other employees have noticed and they’re bothered by the impact this has on workflow since we are a small office. Can I say anything about it to this employee?
The legal side of things: It’s possible that the lengthy bathroom breaks may be related to a medical issue. If the employee mentions health needs in any way, you’ll need to pivot how you handle things since the breaks may qualify as a medical accommodation.
ADA protections kick in at a federal level when you reach 15 employees and require that you go through the interactive process when an employee mentions a need for accommodation. Similar protections may apply even if you have less than 15 employees depending on state laws. However, even if none of these laws apply to your business, it is HR best practice to go through the process anyway if the employee expresses a need for an accommodation.
Now for the human approach: This is a sensitive issue and you won’t know if there’s a medical condition until you address it with the employee. Assuming this has not been discussed before, the most risk-averse first step is to speak to the employee about the impact their breaks are having on their work. This conversation should be in private and come from a place of trying to address an important productivity issue but with you showing sensitivity to the issue at the same time - you’re not taking adverse action just yet.
If the employee doesn’t bring up any personal issues causing the frequent breaks, you can verbally let them know that you expect them to keep brief breaks to a minimum and that excessive breaks could result in more formal corrective action. We recommend documenting this conversation with an Employee Interaction Log and storing it in the employee’s file (the HR Vault is perfect for this). If the issue persists, you can move on to a written corrective action or final warning as needed.
The legal side of things: It’s possible that the lengthy bathroom breaks may be related to a medical issue. If the employee mentions health needs in any way, you’ll need to pivot how you handle things since the breaks may qualify as a medical accommodation.
ADA protections kick in at a federal level when you reach 15 employees and require that you go through the interactive process when an employee mentions a need for accommodation. Similar protections may apply even if you have less than 15 employees depending on state laws. However, even if none of these laws apply to your business, it is HR best practice to go through the process anyway if the employee expresses a need for an accommodation.
Now for the human approach: This is a sensitive issue and you won’t know if there’s a medical condition until you address it with the employee. Assuming this has not been discussed before, the most risk-averse first step is to speak to the employee about the impact their breaks are having on their work. This conversation should be in private and come from a place of trying to address an important productivity issue but with you showing sensitivity to the issue at the same time - you’re not taking adverse action just yet.
If the employee doesn’t bring up any personal issues causing the frequent breaks, you can verbally let them know that you expect them to keep brief breaks to a minimum and that excessive breaks could result in more formal corrective action. We recommend documenting this conversation with an Employee Interaction Log and storing it in the employee’s file (the HR Vault is perfect for this). If the issue persists, you can move on to a written corrective action or final warning as needed.
I’ve reached a breaking point with cell phone use! No matter how many times I ask my staff to keep their phones away during work hours, they keep using them. Can I implement a “lock up” policy and have them store their phones in a locked area during the workday?
The legal side of things: Policies that involve taking away employees’ cell phones for the day or outright prohibiting use during working hours are typically not going to fly under the National Labor Relations Act (NLRA). This law applies to employers of all sizes and protects employees’ rights to communicate.
You can absolutely have a policy that limits employee’s cell phone use but you’ve got to make sure that it complies with the NLRA. Employment policies that prohibit any access to cell phones during work time have been found to run afoul of the NLRA.
CEDR has had success, however, in crafting policies for healthcare employers that greatly limit access to cell phones when carefully pointing to precautions that must be taken pursuant to HIPAA and OSHA. The NLRA's rights to have access to cell phones can conflict with equally important legal concerns about complying with HIPAA and OSHA.
Now for the human approach: Locking up employees’ phones may not be the best option, but that doesn’t mean excessive cell phone use should go unaddressed. You can (and should) ask employees to not use phones in view of patients or customers and remind them to stay on task while on the clock. You can also request that phones be stored with personal belongings without requiring it.
Since this appears to be a team issue, we recommend issuing a memo to remind employees of your policy and how using cell phones during working hours can negatively impact their work, other staff, and patients/customers. This is a safer approach to address the issue of excessive phone use than having your employees place phones in a basket.
If this doesn’t curb the excessive use, you can move on to individual corrective actions. This is a great example of how you can use the FIRR (fact, impact, reason, request) method to effectively address performance issues. You can learn more about the FIRR method here.
Extra credit reading: How Strong is Your Employee Cell Phone Policy?
The legal side of things: Policies that involve taking away employees’ cell phones for the day or outright prohibiting use during working hours are typically not going to fly under the National Labor Relations Act (NLRA). This law applies to employers of all sizes and protects employees’ rights to communicate.
You can absolutely have a policy that limits employee’s cell phone use but you’ve got to make sure that it complies with the NLRA. Employment policies that prohibit any access to cell phones during work time have been found to run afoul of the NLRA.
CEDR has had success, however, in crafting policies for healthcare employers that greatly limit access to cell phones when carefully pointing to precautions that must be taken pursuant to HIPAA and OSHA. The NLRA's rights to have access to cell phones can conflict with equally important legal concerns about complying with HIPAA and OSHA.
Now for the human approach: Locking up employees’ phones may not be the best option, but that doesn’t mean excessive cell phone use should go unaddressed. You can (and should) ask employees to not use phones in view of patients or customers and remind them to stay on task while on the clock. You can also request that phones be stored with personal belongings without requiring it.
Since this appears to be a team issue, we recommend issuing a memo to remind employees of your policy and how using cell phones during working hours can negatively impact their work, other staff, and patients/customers. This is a safer approach to address the issue of excessive phone use than having your employees place phones in a basket.
If this doesn’t curb the excessive use, you can move on to individual corrective actions. This is a great example of how you can use the FIRR (fact, impact, reason, request) method to effectively address performance issues. You can learn more about the FIRR method here.
Extra credit reading: How Strong is Your Employee Cell Phone Policy?
