New Year's Resolutions for HR

By Lehr Middlebrooks Vreeland & Thompson, P.C.

December 19, 2019

It is the time of the year to make resolutions for the new year. Often, these resolutions involve either exercising more, eating less or a combination of both. We offer the following ten resolutions for business leaders with HR responsibilities to adopt for 2020:

1.  Resolve to harmonize and coordinate obligations under the FMLA, ADA, and workers' compensation when providing leave.

a.  Train managers to know that the employee does not have to request "FML" by name for FMLA to apply.  Train managers to recognize and report to HR situations where an employee has a workplace injury, medical condition, or other life circumstance where the FMLA may be applicable.

b.  Timely issue notices of eligibility, rights and responsibilities, certification forms, and designation notices as required by the FMLA in all circumstances, even where the employee is receiving benefits under workers' compensation or short term disability.
 
c.  Once FML expires, neither workers' comp nor the ADA requires a guarantee of reemployment to the same or equivalent position. The employer has the right to tell the employee if the employee will not return in a timely manner (subject to the below) that the employee's job will be filled and, if and when the employee is able to return to work, the employer at that time will consider what position, if any, is available.

d. Eliminate or substantially revise all written policies or unwritten practices calling for automatic termination of employees unable to return after FMLA or any other grant of leave. When FML expires and an employee is unable to perform his/her job, an employer is not free to terminate. The ADA may require a reasonable extension of unpaid leave for a defined period of time as an accommodation. However, requests for indefinite extensions of leave are not reasonable.

e.  Eliminate or substantially revise all written policies or unwritten practices requiring an employee to be able to return to work without restriction before being returned from FML, a work-related injury, or other extended leave. Under the ADA, the employer has the obligation to provide reasonable accommodation and cannot require any employee to prove they are "100% healed."

2.  Resolve to discipline employees consistently, but contextually. Not all employees have to be treated the same, but the employer has to have business reasons for treating people differently, and be consistent in the application of those reasons.

3. Resolve to train supervisors in employee engagement and positive disciplinary approaches to improve employee attitude, attendance, performance, or behavior.

4.  Resolve that employees should receive fair, final, and documented warnings that their jobs are at stake prior to termination in most circumstances (with obvious exceptions for circumstances like theft, dishonesty, violence, etc., where immediate termination is the only acceptable and safe outcome). Don't be afraid to ask the employee if they want to stay with the company. You may also want to give employees who do not want to remain or who do not believe they can meet expectations the opportunity to look for other jobs while still employed.

5.    Resolve to work diligently with new employees, but to sever the relationship early if that effort is not reciprocated. Other than during the recruitment process (before they become an employee), an employee will never give you a better effort than during the first 90 days, whether or not you have a formal probationary period. This is particularly true for attendance, behavior, and attitude.

6. Resolve to apply and document reasonable accommodation procedures. In some respects, reasonable accommodation is "form over substance." The form is the process of engaging with the employee to understand the limitations and brainstorm possible accommodations. It is ultimately up to the employer to determine what reasonable accommodation, if any, will address employee needs. Don't presume that no accommodation exists just because an employee's requested accommodation is unreasonable. Often ADA charges arise over an employer's where an employer refuses a requested accommodation and does not clearly make a substitute proposal or other effort to engage. And while on the subject, remember that no fault attendance policies are not a basis for failing to accommodate an employee who may need extended time off. (See Resolution 1).

7.  Resolve to review exempt status under state and federal wage and hour laws. The salary threshold under federal law rises to $684/week on January 1, 2020. Additionally, several states have a higher threshold of salary level for an individual to be considered exempt as an administrative, professional or executive employee. Titles have little bearing on the ultimate question of whether or not an individual is exempt. If your organization has had restructuring or anticipates restructuring, consider whether those who are exempt today will meet the exemption status tomorrow. Remember there is no penalty for misclassifying someone who could be exempt as non-exempt (i.e., paying at least the minimum hourly wage and overtime rates).

8. Resolve to evaluate the scope of mental health resources your organization provides and promote that to the workforce. Where employees are willing, provide connections and the resource of time off so that the employee may have an opportunity to improve.

9.  Resolve to review your organization's drug testing policies and protocols, especially regarding marijuana. Most states that have decriminalized marijuana still permit employers to make business related decisions due to an employee's use of marijuana. Marijuana is illegal under federal law and its use does not have to be accommodated under the federal ADA (state laws vary). Based upon the labor market shortage, more employers are scaling back testing for marijuana and consequences if an employee or applicant tests positive for marijuana.

10. Resolve to review and/or establish restrictive covenants to protect your organization's interests. General noncompete agreements are sometimes facially unenforceable under a particular state's law or they may not be enforced by particular courts in particular circumstances. However, in most states, employers have the right to enforce agreements where employees do not solicit employer customers or employees. Some states have prohibited them altogether for lower paid employees. If your organization has such agreements, be sure to have them reviewed on a regular basis. If your organization does not have such agreements, you should consider establishing them.