Physical Exams as a Condition of Employment: Are They Permissible?

Q.  My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this allowable?

A.  Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions:

  • All other candidates in the job category must also be required to submit to the physical;
  • The candidate’s medical history is kept separate from other employment-related records and is treated confidentially; and
  • The results are not used to discriminate against the applicant under the Americans with Disabilities Act (“ADA”) or other discrimination laws.

To ensure that there is no ADA violation, the physical examination should be limited to an assessment of whether the applicant is able to perform the duties of the position, with or without an accommodation. To avoid a claim under the Genetic Information Nondiscrimination Act (“GINA”), the physician should not request information about the applicant’s family medical history.

It would be helpful to provide the physician with a copy of the job description prior to the examination so that the physician is familiar with the responsibilities expected of the position.

Employers will want to tread carefully in making an adverse employment decision based on the results of a physical exam. The applicant’s offer may not be rescinded unless the issue is job-related and consistent with business necessity, or creates a direct threat to health and safety of the applicant or others, and the condition cannot be reasonably accommodated.  Moreover, the company could violate discrimination laws if it rescinds an offer based on non-medical information learned as a result of the physical (for example, the applicant’s age, religion, etc.)  Likewise, employers could land in hot water if they rescind an offer after learning about an employee’s pregnant condition as the result of the exam.

–Tracey E. Diamond

New York Paid Family Leave Benefits Law: Key Provisions and Tips for Preparation

Q: What do I need to know about the new New York Paid Family Leave Benefits Law?

A: The New York Paid Family Leave Benefits Law (“NY PFL”) provides employees with paid leave for bonding with a new child, caring for a close relative with a serious health condition, and leave associated with when their spouse, partner, child, or parent is on active military duty or has been notified of an impending call of active duty.

Unlike the federal FMLA, which applies to employers with 50 or more employees within a 75 mile radius, all New York employers that have employed one or more individuals for 30 consecutive days are subject to the new law. The NY PFL also expands the definition of a covered employee from the FMLA.  Employees who have worked for at least 26 consecutive weeks (for employees whose regular schedule is 20 or more hours per week) or 175 days (for employees whose regular schedule is less than 20 hours per week) are eligible for NY PFL.

The NY PFL begins January 1, 2018, and will be phased in over a four-year period. For 2018, employees can take a maximum of 8 weeks of leave, and the maximum pay during the leave is 50% of the employee’s average weekly wage, which caps at 50% of the state average weekly wage (which is currently $1,296).  For example, in 2018, an employee who makes $1,000 per week would receive a benefit of $500 per week.  An employee who makes $2,000 per week would receive a benefit of $648 per week (half of $1,296).  Both the maximum weeks of leave and maximum pay during leave will increase over the four-year phase-in period, with 12 weeks of leave in 2021 and payment increased to a maximum of 67% of the employee’s average weekly wage.

Unlike NJ Paid Family Leave, which is administered through the State’s existing Temporary Disability Benefits Program, the NY PFL will be administered through each individual employer’s disability policy (or through self-insurance), and the premiums will be funded by employees through payroll deductions. The current rate of contribution for NY PFL is 0.126 percent of an employee’s weekly wage, up to a maximum of $1.63 per week.  Employers may start making the deductions on July 1, 2017, so  employers should contact their disability insurance carriers and payroll providers to prepare.

If the need for NY PFL is foreseeable, employees must provide at least 30 days of notice of their need for leave, and if the need is not foreseeable, the employee must provide notice as soon as practicable. Similar to the FMLA, employers must maintain employees’ existing health insurance benefits for the duration of NY PFL, and employees are entitled to reinstatement upon their return to work.

Employers may permit employees to use sick or vacation leave so that they can be fully compensated for time-off, but employers cannot require use of sick or vacation leave. If an employee is eligible for leave under both FMLA and NY PFL, employers may designate the leave as both FMLA and NY PFL, even if the employee declines to apply for NY PFL payments.

To prepare for the law and set employees’ expectations, employers should consider communicating with their employees about the new law in advance, especially if employers will be making payroll deductions in the coming months. It is also prudent to explain the maximum wages that the NY PFL will provide – many employees may assume “paid family leave” means that they will receive full wages while on leave.

It is also important for employers to train managers and human resources personnel on the NY PFL so that it is properly implemented. Employers should train key staff on the details of NY PFL, as well as the interaction between the NY PFL and other types of leave. As we have discussed above, NY PFL has some similarities to the FMLA, but also has distinct differences, such as eligibility requirements and coverage.  Employers should be careful not to assume that the two laws cover the same events.  For example, leave under the NY PFL cannot be taken for an employee’s own serious health condition, while FMLA leave can.  This means that a pregnant employee may take up to 12 weeks of FMLA leave, and then take additional leave under the NY PFL to bond with her child.

Employers should stay tuned for continuing developments as the NY PFL is interpreted by the courts. In addition, New York State published updated regulations at the end of May, for which the comment period recently closed.  We expect that the State will issue updated guidance and/or revised final rules in response to these comments.

Jessica Rothenberg

Pitfalls and Best Practices When Hiring for the Summer Season

Q: I hire seasonal employees for the summer.  Are there any particular considerations I should be aware of?

A: Seasonal employees can provide much needed support during the summer months.  However, there are certain issues to consider.  First, it is important to clarify upfront that employees are only expected to work for the summer, while at the same time reminding employees that the relationship is at-will and can be ended at any time by either party.

Another issue to consider is benefits. Many employers do not provide seasonal employees benefits other than what is legally mandated.  That practice is fine from a legal standpoint so long as it is applied consistently.  In terms of legally mandated benefits, it is essential for employers to understand which benefits apply to seasonal employees.  In certain circumstances, larger employers may be required to offer certain seasonal employees health benefits under the Affordable Care Act.  Moreover, depending on the jurisdiction, seasonal employees may be eligible for paid sick leave.

In New York City, for example, most employers have to allow employees who work more than 80 hours in a calendar year to accrue sick leave. While sick leave begins to accrue on the first day of employment, however, employees may not use sick leave until 120 days after the start of employment.  Thus, most seasonal workers will accrue sick leave, but will not be employed long enough to actually use it.  In contrast, Philadelphia’s sick leave law explicitly excludes seasonal workers, who are defined as people who have been hired for a temporary period of not more than sixteen weeks during a calendar year.

Seasonal employees also would be eligible for worker’s compensation benefits and potentially may be eligible for unemployment insurance benefits.

In addition to the benefits issues, employers also should be aware that seasonal employees are subject to the same wage and hour laws as other employees. Under federal law, non-exempt employees (whether seasonal or not) must be paid overtime for hours worked over 40 in a week.  Employers should be sure to be in compliance with state law requirements for overtime, as well as meal and rest breaks.

For employers who organize summer company events, such as barbeques, if attendance is mandatory, employees (including seasonal employees) should be compensated for their time. If attendance is truly voluntary, then employees who attend the event do not need to be compensated for their time. Consider establishing guidelines for appropriate employee conduct at such social events, particularly if they include alcohol.

Finally, while it may be tempting for employers to bypass the standard hiring and orientation processes for seasonal employees, it is crucial that seasonal employees are given policies and training in key areas, such as non-discrimination and harassment. In particular, employers should emphasize policies on sexual harassment, as well as other forms of harassment, and make clear that their policies apply equally to both seasonal and non-seasonal employees.  In addition to ensuring seasonal employees themselves are trained on such policies, it is also important for all employees to understand that seasonal employees are covered by the policies.  Employers who employ seasonal employees should consider revising their written policies so that seasonal employees are specifically included in the list of individuals protected and subject to anti-harassment policies, as well as EEO policies more generally.

Jessica Rothenberg

Drafting Effective Performance Reviews

Q.  Our performance review process seems outdated and I’m not sure what to do. Do you have any suggestions?

A.  Employee performance reviews are probably one of the most loathed aspects of the workplace. Managers hate to do them. Employees hate to receive them.  In some cases, they can do more harm than good.

Consider the employee whose performance is mediocre. He is friends with his supervisor, however, and they often grab a drink after work.  Knowing that a negative performance evaluation may impact the employee’s annual salary increase, the manager looks the other way and gives the employee an evaluation rated as “effective.”

Or how about the manager who is reluctant to provide honest criticism on an evaluation for fear it will make it more awkward and difficult to work with the employee going forward? Or the employee who receives negative reviews but salary increases year after year?

On the flip side, consider the employee who tries really hard, but has a supervisor who is mean-spirited and does not want to see this employee succeed and possibly usurp his job?   Or the company that regularly reviews the employees of one department but not another?  Or the manager who rates everyone the same, regardless of their actual performance?

Some companies have been moving away from the performance review process altogether, and replacing it with a policy of providing regular, project-specific feedback to employees. Regardless whether you offer feedback on a rolling or annual basis, there are a few pitfalls to be aware of:

  • Be honest. Performance reviews that do not accurately reflect the employee’s actual performance are damaging in many ways. In employment litigation, they often undermine the employer’s legitimate reason for terminating the employee and have a major impact on the outcome. And inaccurate performance reviews – whether they are unfairly harsh or fail to identify needs for improvement—have serious detrimental effects on the business. No performance evaluations are far better than inaccurate ones.
  • Watch out for gender bias. One 2014 study of performance reviews in the tech industry found that women were significantly more likely than men to receive critical feedback in performance reviews. In particular, the study found that women were more likely to receive feedback on personality traits that was contradictory to men. For example, while a female employee may be labeled as “abrasive,” that same trait may be defined in a male employee as “confident” and “assertive.”
  • Be consistent. It will be much harder to defend a termination decision of an employee for poor leadership if that same performer received regular annual performance reviews describing her as a great leader.
  • Focus on the performance, not the person. The best evaluations provide feedback on performance, supported by specific examples. Thus, rather than labeling an employee as “negative,” focus on a specific example of an instance when the employee spoke to a customer in an inappropriate manner.
  • Stay clear of euphemisms for age. Be careful not to label an employee as “slow,” or not savvy with computers. Instead, again, focus on specific performance issues and cite to examples of deadlines not met or projects not completed.
  • Be sure to evaluate the employee on his or her performance throughout the entire year, and not just focus on recent events.
  • Avoid surprises. Managers should not wait until review time to notify employees of issues with their performance. Rather, give consistent, honest and regular feedback to employees throughout the year.
  • Provide measurable goals. The best evaluations provide specific, performance-based feedback with measurable goals for the future. This gives managers a roadmap to evaluate how the employee performs the next year. If performance does not improve, and the employee is fired and sues, reviews that told the employee what he needed to do to improve, and a chance to do it, are a tremendous aide in helping the employer win the litigation.

-Tracey E. Diamond

 

 

Fighting Negative On-Line Reviews by Ex-Employees

Q.  A former employee has posted a negative review about our company on a social media website. Is there anything we can do about it?

A.  While social media is a powerful tool for promoting your company’s brand, negative reviews can be equally powerful in affecting the company’s reputation. When the negative review is by an employee or former employee, the review is particularly galling.

Unfortunately, employers have little recourse. While many employees have social media policies prohibiting employees from commenting about the company, the NLRB does not allow such policies to chill an employee’s ability to complain about the terms and conditions of employment on social media.  Moreover, the company’s ability to control social media activity ceases once the employee leaves the company or is terminated.

But there are a few things you can do. First, be sure to set an alert so that you are aware of all comments made about the company online.

If the post is made by a current employee, use this as a red flag that something may be amiss about the employment relationship. Meet with the employee and give him or her a chance to air his or her concerns.  Then ask the employee if he or she would be willing to take down the post and address the issue internally instead.

If you are offering a severance package to a departing employee, consider adding a nondisparagement clause to any separation agreement that would prohibit the former employee from making negative comments or otherwise denigrating the company’s reputation. Consider paying the severance over time, rather than in a lump sum, to create a disincentive for the former employee to violate the nondisparagement clause.

Assuming there was no written agreement and it is a former employee who is doing the negative posting, you will have to consider whether it makes more sense to ignore the post or respond to it. If you do choose to respond, be careful not to personally attack the individual, but instead focus on the comment and set the record straight.  While it is not a battle easily won, depending on how damaging the post is, you may also consider speaking with legal counsel about the possibility of an action for defamation.  Moreover, if the negative comment also reveals company trade secrets, you will need to analyze the situation with your counsel and consider sending a cease and desist letter and filing suit.

Finally, it is always best to take a proactive approach. Remind employees of the powerful impact social media can have on your business.  Encourage your employees to become a “brand ambassador” and  “like” the company on social media and share company achievements.  After all, a negative comment will have much less of an impact if it is surrounded by lots of positive, reputation-enhancing messages in cyberspace.

–Tracey E. Diamond