HR Base Camp Roundup – June 1st, 2022

The top HR questions from our HR Base Camp Facebook Group and HR Solution Center this week demonstrate why it’s so helpful to have HR experts on your side. Here are the Q&As for this week’s Roundup:

  1. How do you deal with employees who are caught vaping in the office?
  2. What do you do if an employee with a history of performance issues suddenly becomes pregnant?
  3. How do you calculate employee time off based on hours worked?

Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!

How do you deal with employees who are caught vaping in the office?

An employer caught an employee smoking an e-cigarette in the office despite having a handbook policy in place stating that use of tobacco products was not permitted during the work day. 

Vaping: it’s smoking’s sneaky, hipster younger cousin. 

It’s not a great look if your patients or customers catch sight of your employees vaping around your office. And, in many states, vaping inside public buildings isn’t just discouraged. It’s actually illegal. We would also expect that the policies inside your employee handbook prohibit the use of such products inside the building, which means that, when faced with this sort of issue, it should absolutely be addressed. 

One problem for this employer, though, is that their policy states that an employee is prohibited from vaping “during the work day.” Having a policy on smoking seems simple enough, but this is actually an instance of where some big-picture HR expertise is important. 

Here’s the problem: You can’t regulate what someone does during their personal time. And employees have personal time even during the workday, assuming they are permitted to take breaks. If an employee is on a break, particularly if they are clocked out on a break, you are pretty limited in what you can say about how they use that personal time. 

We know what you’re thinking. You’re a healthcare practice and it’s hugely problematic for your patients to see your team smoking and perhaps even worse for them to be smelling smoke on your employees while they’re in an operatory. 

The good news is that you absolutely can address those issues without having an outright ban on smoking. You can prohibit the use of tobacco and e-cigarette products inside the building and directly outside the building. You can also prohibit employees from smoking during the workday outside of authorized breaks. You are not required to provide extra break time to smokers, and we find it useful to have a policy that outright states that smokers are not entitled to extra breaks. Smoking breaks are not a thing. 

Most employees will take those rules as a given. But, as this business owner’s question shows, you shouldn’t assume that things that might appear to be common sense to you will be automatically understood by everyone, so you’ll definitely want to put these rules in writing. Still, the most important part of your smoking and tobacco policy is actually addressing the impact of smoking on your business. 

Even if an employee is perfectly compliant with your rules about only smoking if they’re on their personal time, that can still pose a huge problem for you as when they come back into the office everyone will know they were smoking due to the smell. 

Your policy should be clear that smelling of smoke while working is not tolerated. The employee should know that they can be sent home if they are reporting to work with their clothing, breath, hair, etc. smells in any way of smoke. How they manage to smoke on a break and come back to work with zero smell on them is the employee’s problem to solve. And the easiest solution is the one you want anyway — that they do not smoke before work or on their breaks. 

With this in mind, some employers might prefer to simply not hire smokers, vapers, or those who use any form of tobacco product. However, before banning smokers and vapers from working at your business outright, it’s important to know whether or not there are laws in your state that protect employees from workplace discrimination based on legal off-duty conduct. 

More than half of states and the District of Columbia have some form of legal protection in place that prevents employers from discriminating against employees based on legal conduct they engage in off the clock, including smoking, vaping, and, in some cases, using recreational or medical marijuana.

What this means is that you cannot base a hiring decision upon whether someone smokes. Employers generally should not be trying to regulate what employees do outside of the office, anyway. Whether you are in one of those states with legal protection or not, we don’t really recommend making someone’s status as a smoker (or vaper) a determining factor as to whether or not you want that person to work with you. 

Remember, what you absolutely do want to address is the impact that the use of tobacco products and e-cigarettes can have on them at work. 

The policy CEDR includes in our member handbooks specifically mentions e-cigarettes and vaping to make sure that all bases are covered. 

So, now that we’ve covered a little bit about the policy implications of the vaping-at-work issue, let’s talk about how to address an employee when you catch them vaping in your office.

Just like any other behavior or performance issue with an employee, we recommend using the Progressive Corrective Coaching approach to handle this situation. 

Progressive Corrective Coaching is a method of guiding employees to improve their performance or behavior via a series of documented, escalating steps beginning with establishing expectations (including by having a handbook policy on the topic and making sure your employee has acknowledged the policies in that handbook), then providing verbal warnings for minor infractions, followed by written corrective actions, a final written warning, and ultimately culminating in termination, where applicable.

These steps do not necessarily have to be followed in order. And, for egregious policy violations or issues, sometimes jumping immediately to termination is the right move (we provide guidance on terminations in our Separation Guide).

For many employers, their immediate thought when they hear about an employee vaping in the office is to jump straight to terminating the employee. And if the employee is vaping in front of patients or missing appointments because they’re somewhere vaping, then that might be the right choice. 

But, if it’s the first offense, particularly in this difficult hiring environment, we might recommend starting with either a Verbal Warning, a written Corrective Action, or even a Final Written Warning. 

Whichever way you choose to go with this, make sure you document it. If you opt for the verbal warning, you can use this Employee Interaction Log. If you choose to go with the Corrective Action or Final Written Warning, you can use this Corrective Action Form and have your employee sign it.

Once you’ve decided which direction to take things, sit and have a conversation with the employee and go over your policy (use the FIRR Method to deliver that information). Let them know that vaping in the office is a violation and that further offenses could lead to termination. Then add your documentation from that meeting to the employee’s file (we suggest using our free HR Vault software) and hold them to the expectation that it won’t happen again. 

If it does happen again, move on to the next step(s) in the Progressive Corrective Coaching process and/or let the employee go.

If you’re a CEDR member and need to discuss a behavior or performance issue you’re having with an employee, reach out to the Solution Center. We’ll even take care of the necessary paperwork for you.

If you’re not a CEDR member and want to learn more about membership, click here to get in touch.

Get your free corrective action form from the HR experts at CEDR. Click to download!

What do you do if an employee with a history of attendance issues suddenly becomes pregnant?

 An employer had been lenient with an employee’s history of tardiness and absenteeism related to her childcare needs. The employee had even expressed gratitude for this flexibility. But, now that the employee had become unexpectedly pregnant, the employer wanted to know how careful they needed to be about moving forward with termination.

This question is so common that versions of it actually came up twice in the course of a few days in our HR Base Camp Facebook Group for business owners and managers.

First off, it’s worth giving a nod to both of the humans involved in this scenario. Kudos to both the employer for their effort to work with the employee in a difficult situation, and to the employee for acknowledging that the employer was going above and beyond for them. 

That said, terminating a pregnant employee can be particularly risky. Because of this fact, there are a few things you would want to consider if you’re ever faced with a similar situation.

Before taking any adverse action against a pregnant employee, you must always double check what kind of protections exist for them. There are a number of federal laws that have protections for a pregnant employee if the employer has 15 or more employees. Many states also offer additional protections beyond what federal law provides and those protections can apply to employers with as few as one employee. 

If any of these laws apply to your practice, you’ll need to understand your obligations when it comes to providing the legally required accommodations before terminating or even providing a written corrective action to a pregnant employee.

You’ll also need to consider how you’ve handled this employee’s attendance issues so far. While it sounds like this particular employer had addressed the employee’s tardiness and absenteeism enough that the employee acknowledged that they were being treated more than fairly, as HR professionals we would want to know and ensure that certain types of documentation–including an acknowledgement of the employer’s policies on tardiness and absenteeism, as well as any previous corrective actions– were on record and signed by the employee.

This documentation is important because without it, this can easily turn into a scenario where a third-party (like the EEOC, or a lawyer, judge, or jury) sees that the employer only started caring about attendance issues once the employee announced they were pregnant. That leads to the easy conclusion that, since it didn’t seem to be an issue before, the employer doesn’t actually care about the employee showing up late – they simply don’t want to deal with a pregnant employee or a maternity leave.

We would also want to know if this employee had stated that she needs a permanently adjusted schedule due to her pregnancy. In many cases, this can be seen as a reasonable accommodation that employers can provide to employees who enjoy certain legal protections, including pregnant employees. It might seem like common sense to deduce that this employee’s past issues will predict her future performance, but doing so when an employee is in a protected class is an HR trap.

When an issue like this comes up, employers must enter into and let the “interactive process” guide them. 

The Interactive Process is a recognized HR process. And, when we say recognized, we mean that the EEOC and other agencies require it. If something goes south, the first question an enforcement agency will ask will be to see your documentation of the interactive process. It can be a huge strike against you if you cannot show that documentation.

Engaging in the interactive process is the best way to address any situation that comes up with employees that are pregnant or have certain medical conditions or religious beliefs that might make it difficult to fulfill the responsibilities of their role without an accommodation. Ideally, working through this process will help you come to a solution that works for both you and the employee. With or without an accommodation, you can still hold employees accountable for the essential duties of their position. You just need to be careful that you have done your legally required due diligence before taking any punitive action against the employee.

Of course, these types of issues are intricate and many different variables come into play when sorting them out.

State laws, handbook policies, and each employee’s condition can all impact how a certain situation should be handled. That’s why, when CEDR members call in with pregnancy related issues, it requires a one-on-one discussion with an HR advisor and customized guidance. 

Hopefully the high-level guidance in this post is helpful, but we should note that it’s difficult to give a detailed, actionable answer to these types of questions that will apply to everyone in all circumstances. It’s a much more customized experience, and we’re therefore better able to provide a customized solution to the issue, when we can work with an employer directly and analyze the details of the whole situation. 

In short, if you ever find yourself in a situation like this, you’ll need an experienced HR hand to walk you through this process.

If you’re a CEDR member and need to discuss issues related to the performance or behavior of any of your employees, whether you think they are in a protected class or not, you should always reach out to the Solution Center for guidance before taking any adverse action against the employee.

If you’re not a CEDR member yet, you can use this link to learn more about CEDR’s services and how we can help.

Click to download your free employee interaction log template for free.

How do you calculate employee time off based on hours worked?

An employer wanted to know how to calculate time off for an accrual-based system, as well as if leave time should be factored into those calculations.

The specific formula you should use to calculate a time-off accrual rate will depend on a few factors. 

First, how much time do you want the employee to be able to accrue? Many employers start out with one week of PTO, but it’s critical to know how many hours are considered “one week” 

You’ll also need to determine if you want the employees to accrue their PTO throughout the entire year or have all of that time earned by a certain date. That decision also impacts what happens to unused time at the end of the year. If your employees are accruing their time from January 1 through December 31, for example, it will be literally impossible for them to use all of their “earned” time off in the course of a single year, so you’d need to allow them to advance time or have unused time roll over.  

Finally, you’ll need to know if you want your employees to accrue their time per hour worked, per pay period, or per month. And, if you decide to make the accrual rate based on pay periods, you’ll need to factor in how many pay periods you have per year. 

Once you’ve established the number of hours an employee can accrue and the time frame needed to complete that accrual process, you will then be able to come up with a formula you can use to calculate the correct accrual rate. 

With respect to the question of accrual during a leave of absence, employees are typically not eligible to accrue time off during leaves of absence. This should be made clear in the leave of absence policy in your handbook. If it’s not, you may want to work with us to get your handbook updated.

All of this being said, rather than getting all Beautiful-Mind on the whiteboard in your office in order to figure this puzzle out, you might want to think about switching over to a timekeeping system that can be customized to automate all of this stuff for you.

CEDR’s timekeeping system is perfect for setting this sort of accrual system up. It also automatically tracks time off for your employees so you don’t have to do it manually. Access to that system is included as part of CEDR membership.

You can watch a demo video here

Or, if you’d like to talk to someone about signing up, get in touch with us here.

At CEDR HR Solutions, we believe that “Better workplaces make better lives,” and we are committed to helping our members build stronger, better-protected businesses. 

Click here to learn more about how CEDR’s HR experts can help you build a better business for you and your team. 
Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!

May 31, 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 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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