HR Base Camp Roundup – February 8th, 2022

Recent questions in HR Base Camp and the HR Solution Center covered the legal nuances of some common team management issues. Here are the top HR Q & As from the past week:

    1. Can I have my employees sign a waiver to release their vaccination status?
    2. Can I replace a poor performer who is out sick?
    3. Do gift cards given as incentives need to be taxed?
    4. What is my risk if I ask employees to come to work in bad weather?


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Don’t share your team’s vaccination status even if they sign a waiver…

A member was losing patients that were demanding to know their team’s vaccination status. The doctor wanted to know if it was okay to share the team’s vaccination status if their employees signed a waiver saying it was okay to do so.

Answer: It’s understandable for patients to want to know the status of who is treating them, but that unfortunately puts employers in a tough position when it comes to answering their questions. That being said, we do not recommend getting a release from your employees to allow you to share their medical information or to make any other public declaration about their vaccination statuses. This is not to say that an employee cannot answer truthfully about their own status if they choose to, one-on-one. Even if all of your employees have received the vaccine and all are in agreement that it’s okay to share this with the public, it’s still a bad idea to do so. 

Sharing your team’s medical information with regard to their COVID vaccination status is a violation of your lawful duty as an employer to keep the medical information of your employees private. This responsibility doesn’t mean “don’t share health information unless you can get your employees to sign a release.” It means that you have an obligation and they have a right to expect this type of information to be kept strictly confidential and shared only on a need-to-know basis. Additionally, by calling attention to your employees who have been vaccinated, it could make the employees who have not been vaccinated due to a protected health-related or religious reason feel targeted or discriminated against. Patients and other employees may start to treat them differently, or even make efforts to avoid working with those employees altogether, which could lead to a variety of issues. 

The most important thing you want your patients to know is that your office takes patient safety seriously and that it’s safe to schedule appointments at your practice. In response to patients that ask about vaccination status, you can let them know that, like patient health information, employees’ medical information is also protected and you are

unable to disclose their vaccination status, but you are still following all required protocols to ensure patient safety. As mentioned in a previous reply to a similar question, if you have the ability to accommodate a patient’s request to see a vaccinated employee, it’s okay to do so. Just remember that doing so should not inadvertently reveal another employee’s vaccination status.

Poor performer out sick – one more reason to document performance issues as they arise…

An employee with a history of performance issues was out with COVID but gave no timeline for returning to work. Their employer wanted to know if it was okay to hire a replacement and terminate the employee who was out sick.

Answer: This is a tricky situation. We can’t give a complete answer without knowing all the specific details, but we would advise against letting the current employee go at this time, especially if there’s no history of documentation for the performance issues you mentioned. Dismissing the employee simply because she was sick with COVID could lead to a retaliation claim, especially if you are in a state with protected sick leave. It might be best to bring her back and hold her accountable for attendance and performance. If she continues to not perform well, documenting the lack of performance and letting her go for those specific issues is fine. You might consider both hiring the new person and bringing the former back and go from there. We know that may not be economically feasible but it is an option. Again, if you are in a state which regulates sick time, you really need to consult with an HR expert who

understands the limitations of the protection.

This is the kind of issue the Solution Center specializes in. If you’re interested in speaking to someone about CEDR’s services, you can schedule a call here.

Do gift card bonuses need to be taxed as income?

An employer wanted to provide their team with Amazon gift cards as a reward for reaching a goal and was wondering if those needed to go through payroll and be taxed as income.

Answer: The vast majority of items provided to employees, even if in gift card format, are going to be viewed as income. The gift card is essentially a bonus, and bonuses are taxable income. You can’t work around that by providing the bonus in a format other than cash. If you choose to give your staff a gift card, that amount will still need to be taxed through payroll. More information can be found on the IRS website.

Of course, this kind of reward system can be a lot of fun. It’s nice to set an attainable goal and then share in the success by handing out the gift cards as it creates a rallying point to discuss a Key Result. It combines business planning and skills into a shared experience. So much is being written about employee engagement and the program you are thinking about implementing supports engagement. 

Hint: Everyone needs to create the goal together. We suggest you and your team create a plan with a goal and then a stretch goal to give them even more recognition. 

Final hint: Focus more on the goal and less on the reward. As we stated earlier, keep it legal. Those gift cards are wages! Just report them and let the employees know that their checks may be slightly smaller as the IRS takes their share of the gift cards.

What’s your risk level when you ask employees to come to work in inclement weather?

An employer wanted to know about their potential risk if they asked their employees to drive to work on icy roads.

Answer: We don’t recommend that you discourage employees from staying home if they are uncomfortable driving in inclement weather. Communicating an expectation for an employee to show up to work when the employee deems it unsafe to drive is risky. If you tell an employee that their presence is encouraged/required, or otherwise inform an employee that they will face adverse action for not showing up to work during inclement weather that the employee is not comfortable driving in, the employer can be held legally and financially responsible if the employee is involved in an accident on the way to work. 

It’s good to have a policy for inclement weather in your handbook so that employees know the procedures they should follow if they decide not to come in and whether or not they will be paid if they miss the day. All CEDR handbooks have this policy and it is customized to comply with state law when applicable. If you’re interested about learning about our handbooks, schedule a call here.

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Feb 7, 2022

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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