Required Payroll Documentation:

Third Party Access /POA Needed:

Local Income Taxes Imposed:  

State Resources:

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When someone applies for a new job, it’s typical to have a potential employer run an employee background check. Some background checks are as simple as checking references and verifying skill sets. Others involve checks of criminal background. Increasingly, employers are adding credit checks to the mix.

The legalities of pulling credit reports for employment purposes

The Society for Human Resources Management conducted a survey that found that 60% of employers now run a credit check on applicants when they are in the hiring process.

Employers can see if potential employees are savvy with their money when running these checks. The question is whether those credit checks run in the course of running a background check are ethical.

Some states have made it illegal to pull credit reports on prospective employees. Hawaii and Washington, for example, have banned companies from performing credit checks on employees. In most states, though, it’s legal under federal law to perform credit checks on potential employees.

Section 604 of the Fair Credit Reporting Act is the legislation that makes using credit information for employment permissible. There is a caveat, though. Potential employees must give written permission for their credit report to be pulled.

What do credit reporting agencies provide employers?

Credit reporting agencies will not provide employers with the credit score of a prospective employee or new hire. Instead, the credit reporting agency will provide the employer with a credit report that is specifically designed for the employer.

An employer’s credit report gives information about payment habits, but it will not disclose a potential employee’s credit score.

Employers must disclose if they use information in a credit report to deny a candidate employment. The reality is that most employers find a different reason to deny a candidate employment, or they simply don’t provide a reason. Employers choose this route to avoid legal complications.

Legality versus ethics of using credit reports when hiring

With few exceptions, it’s legal for businesses to use a credit report as part of the hiring process, but the question of ethics remains. Some people fall behind on bills for a good reason.

Denying jobs based on a credit report may be unfair because it penalizes people who would otherwise be qualified to do the job based on unavoidable circumstances.

For example, an unexpected medical emergency or a layoff can cause people to land on unstable financial footing. Therefore, denying jobs based on a credit report may be unfair because it penalizes people who would otherwise be qualified to do the job based on unavoidable circumstances.

In addition to Washington and Hawaii, 16 other states are considering a ban on employer credit checks. These states consider credit checks a hurdle to climb for those who are desperate to find jobs. The states considering a ban include New York, Oregon, Ohio, and South Carolina.

The difference between a credit report versus credit score

A credit report details all of a person’s credit history which includes credit card accounts, account balances, available credit, and payment histories. A credit score is a 3-digit number that summarizes the information in a credit report as a rating.

Good scores mean a person is a reasonable credit risk and is more likely to pay back loans, but a low score means the person is a poor credit risk and is less likely to pay back a loan.

Why would potential employers check credit reports?

The number 1 reason employers cite for conducting background checks during the hiring process is to protect customers and employees. Some employers also run credit reports at that time to verify identity, background, and education.

The reports can be used to prevent theft or embezzlement or to see previous employment if a resume is incomplete. It allows employers to gauge how a candidate handles personal responsibility.

Typically, an employer runs a credit check after the decision has been made to hire a candidate. Credit is usually the last thing an employer checks.

Checking credit costs an employer time and money, so they don’t usually use credit checks to eliminate people from a large pool of potential employees. Instead, they only check the credit for those they intend to hire rather than check everyone’s credit.

Those who have applied for a financial position or one that requires dealing with money, like a cashier role, are the ones most likely to have their credit pulled.

Credit reports are also often considered when an executive position needs to be filled. Typically, criminal or identity history is more important than an applicant’s credit score.

Theories behind the use of credit scores during the hiring process

The theory behind the use of credit scores during the hiring process is good credit means the applicant will be more reliable and they will be less likely to commit theft against their employers.

The flip side of the theory is thinking that those with bad credit scores are less reliable. When considering the weight to place on credit scores, employers need to remember that things like bankruptcy, foreclosure, and divorce also make their way onto an applicant’s credit report.

However, employers don’t see an applicant’s credit score. Rather, they see information such as past job history, insurance, legal issues, open lines of credit, any late or missed payments, bankruptcies, or collections.

How does an employer credit check affect someone’s credit?

An employer credit check doesn’t affect someone’s credit score. Employer checks are like soft credit checks. Employers look at long-term credit history, typically 4 to 7 years’ worth. Even if an applicant’s recent credit history is clean, employers can ask about large discrepancies, in work history, for example.

The good news is that credit checks, as part of employment practices, have started to decline in popularity. Regulation and decreasing interest mean that fewer employers are choosing to request credit checks for potential employees.

Employees can eliminate any surprises during the hiring process by enrolling in credit monitoring programs. These help potential employees prepare for questions regarding what is reported on their credit reports.

Pre-employment credit checks may be legal but are they ethical?

A credit report for employment is technically a legal measure of someone’s ability to handle the pressure and responsibility of a job. While almost every state considers pre-employment credit checks legal, there is some question about the ethics behind them.

The reason for the question regarding the ethics of credit checks is that unexpected things happen to good people, and when those unexpected things happen, credit scores can be negatively impacted.

Employers must comply with regulations set forth by the FCRA. Whether credit checks are ethical or not, they are legal in the majority of the United States.

However, the applicant must give permission for the credit check, or the employer won’t be complying with FCRA rules. Also, employers must inform the applicant if their credit report is going to be used negatively in the hiring process, which means the applicant can dispute or explain anything on the credit report.

The post Is a Credit Score Check During a Background Check Ethical? appeared first on Workest.

Sometimes, it can seem as if fire drills slow productivity and take up time. Waiting for an entire office to meet up outside and chat may seem like a process that wastes valuable time. Even mentioning the possibility of a fire drill can bring on groans, as some find it a useless exercise.

Many people think of fire safety, and the vision of fire alarms, extinguishers, and sprinklers comes to mind. However, practicing regular fire drills is just as important. Safety drills ensure everyone is prepared for a fire. In this article, details will be provided about how often these drills should happen as well as other critical information.

What are the objectives of a fire drill?

For those who may be unfamiliar with fire drills, they are a means of practicing what would happen in the case of a real fire. Drills are designed to ensure all members of a business know the proper steps to take in an emergency.

Fire drills should go over all emergency procedures to cut down on panic and confusion if a real fire happens. This includes everything from meeting points to evacuation routes.

The main objectives of a fire drill include the following:

• Ensuring compliance with all local fire code requirements
• Providing employees a chance to practice emergency processes in a safe and simulated environment
• Evaluating how effective evacuation processes are to make any needed changes to improve performance in an actual fire
• Determining if workers understand and can carry out emergency duties

Why are fire drills important in the workplace?

Everyone should know what to do if a fire starts at work. The main thing that should be done is to get out of the building. However, in an emergency, there may be several questions that need to be answered. Fire drills are a better time to find out the questions and ensure there are answers to them.

• How do people know a fire has started?
• Who turns on the fire alarm?
• Where should everyone go?
• What’s the best route to take?
• What happens if an evacuation route is blocked?
• Are any areas to be avoided?
• Who makes sure everyone gets out?
• Should someone attempt to put out the fire?
• What should happen to visitors?
• Are there any people who will have difficulty leaving?

Asking these questions during a drill is far better than in a real fire. In the latter situation, lives are at risk. This is why fire drills are needed at work. Employees and others in the building can get accustomed to what should occur if a fire happens.

In addition, it provides fire marshals and employers with a set of responsibilities. It’s also an excellent way to ensure the evacuation plan works. If a better option is determined, the plan can then be updated.

How often should you hold fire drills at work?

The frequency of fire drills can vary depending on the organization. OSHA notes that “it is a good idea to hold practice drills as often as necessary to keep employees prepared. Include outside resources such as fire and police departments when possible. After each drill, gather management and employees to evaluate the effectiveness of the drill. Identify the strengths and weaknesses of your plan and work to improve it.”

The frequency of fire drills depends on 2 separate things. The 1st is what the local fire code requires. The second is what sorts of fire hazards are located within the building.

For instance, a building with difficult egress in a high rise or one with flammable materials may wish to have fire drills as often as once every 3 months. Others may find that twice-annual fire drills are sufficient.

Choosing when to have fire drills will depend on several factors. Consider how high the risk of a fire is. Determine how easily people can get to a safe location. Finally, check whether anything has changed since the last fire drill.

Carrying out a fire drill can give insight into how often to have them in the future. If the business hasn’t had a fire drill in a while or the procedures have changed, having one will help everyone learn how things go.

It’s also a time to consider things such as whether the alarm can be heard everywhere, if anyone needs extra assistance, and whether all parties can make it out within the expected time.

Who is responsible for conducting fire drills at work?

For commercial buildings, the owner, occupier, or manager is responsible for fire drills. Per The Regulatory Reform (Fire Safety) Order 2005, this individual is known as the “responsible person.” They are required to ensure all legislation around fire safety is adhered to.

Any reorganization, maintenance, or repairs needed as a result of a fire drill report should also be arranged by the responsible person.

The responsible person needs to organize fire drills. In addition, they should keep records of the fire drill results. Any reorganization, maintenance, or repairs needed as a result of a fire drill report should also be arranged by the responsible person.

What happens during a fire drill in the workplace?

There are a series of steps involved in carrying out a fire drill. Below is an example of what a standard fire drill might look like for the average business.

1. All parties who are onsite at the time of the intended fire drill, whether employees or visitors, should be informed about what will be occurring.
2. The responsible person will get the fire drill started.
3. When alarms go off, everyone in the building should move calmly to the closest available fire exit.
4. All occupants of the building will next gather at the designated assembly area.
5. Responsible individuals will observe the exit procedure, looking for reasons for delays, such as obstructions. They will also help others find an exit when needed.
6. While people leave the building, marshals or others will ensure their area is evacuated before leaving the building and moving to the assembly area.
7. A roll call will be conducted at the assembly area to ensure all known occupants of the building are present.
8. When it is clear that the evacuation is done, employees will be allowed to calmly re-enter the building.
9. The fire drill will be recorded in a Fire Log Book. The main focus will be to jot down any problems that happened or issues that need to be resolved.
10. Any problems discovered during the fire drill will be rectified by the responsible person.

Preparation is key for safe and effective fire evacuations

Fire evacuations are extremely serious situations, and being prepared is essential. The employees and others in the building have their safety at stake, which makes it critical to engage in thorough planning. Going through regular fire drills can prevent injuries if a real fire occurs.

When everyone knows what is expected of them and how that benefits them, the effort made to create fire drills will be appreciated. It can make the process more professional and efficient. Everyone can feel confident knowing how to safely leave the building during a fire.

To further prepare for potential workplace emergencies, learn about active shooter training for safety in the workplace.

The post How Often Should a Company Perform Fire and Safety Drills? appeared first on Workest.

The impact on businesses probably won’t be onerous. Less than 2% of workers in the United States are pregnant each year, according to the National Women’s Law Center.

The 2 laws are:

• Pregnant Workers Fairness Act (PWFA)
• Providing Urgent Maternal Protections for Nursing Mothers (PUMP Act)

What is the Pregnant Workers Fairness Act?

The PWFA requires that employers provide reasonable accommodations to pregnant women that would allow them to continue to work. Accommodations that impose undue hardship on the employer don’t have to be provided.

The law applies to employers with 15 or more employees. Covered employers must also accommodate job applicants.

Currently, federal law only requires accommodations for expecting working mothers only if employers provide them to workers with injuries or medical conditions. The Pregnancy Discrimination Act specifies that pregnant workers must be treated the same as those who are “similar in their ability or inability” to work.

The PWFA is modeled on the Americans with Disabilities Act (ADA).

The PWFA goes into effect on June 27, 2023.

What are examples of reasonable accommodations?

Reasonable accommodations don’t have to be complicated. Examples of reasonable workplace accommodations for pregnant workers can include:

• Temporary decrease in job responsibilities
• Reduced manual labor and/or fewer lifting requirements
• A temporary transfer to a less physically demanding position
• An increase in the number of breaks
• Longer breaks
• More flexibility in taking breaks
• Providing a stool for workers so they can sit more often
• Changing the dress code so that pregnant workers can wear maternity clothing
• Shorter work hours or a later start time to accommodate morning sickness or health appointments
• Flexible scheduling for prenatal or postnatal appointments
• Time off whether paid or unpaid

Employers can’t require that workers take time off, whether paid or unpaid, if another reasonable accommodation can be found.

What is the interactive process under the PWFA?

Similar to the Americans with Disabilities Act, an interactive process is required. Employers must cooperate with workers to determine the reasonable accommodations that can be provided.

The employer must engage in the interactive process without delay when accommodation is needed or requested.

Undue hardship

Employers don’t have to provide accommodations that unduly burden their business.

Undue hardship under the PWFA has the same meaning as it does under the ADA. Undue hardship means the accommodation would be “too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business.”

No retaliation

Retaliation is illegal. Employers cannot take adverse employment action against employees who need or request a reasonable accommodation.

PWFA compliance is an EEOC priority

Compliance with the PWFA is on the EEOC’s radar. As part of its annual listing of enforcement targets, the federal agency recently announced that monitoring employer compliance with the new law is a priority.

States, localities already require pregnancy accommodation

Accommodating pregnant workers may not be new to some employers. Many employers are already required to accommodate pregnant workers under various state and local laws. Over half of the states and a number of cities already have pregnancy accommodation laws on the books.

The PWFA expressly states that if the laws of a state or locality provide greater protection for pregnant workers, then the laws of that jurisdiction control.

Extensive support for the Pregnant Workers Fairness Act

The legislation passed Congress with bipartisan support. It was also endorsed by high-profile business advocacy organizations such as the U.S. Chamber of Commerce and the National Retail Federation.

While the measure was under consideration, supporters argued that neither the Pregnancy Discrimination Act nor the Americans with Disabilities Act provided the accommodations that pregnant workers need for a safe and healthy pregnancy. For example, they said, neither the PDA nor the ADA offer help for workers suffering from severe morning sickness.

What do employers need to do to prepare for the PWFA?

Employers should review their pregnancy accommodation policies and procedures to make sure they comply with the new federal requirements.

HR, managers, and supervisors should be trained on the new law and on ways to accommodate pregnant workers.

In addition, HR, managers, and supervisors should be trained on the new law and on ways to accommodate pregnant workers.

What do employers need to know about the PUMP Act?

Separately, the PUMP Act expands federal requirements on breastfeeding time and private space protections to a larger group of nursing workers. Nursing mothers who are hourly workers have been covered under the FLSA since 2010 but salaried workers were not.

The new law also extends the time breastfeeding mothers can take advantage of the requirement from 1 to 2 years.

Previously, the Fair Labor Standards Act required that employers with 50 or more employees provide reasonable break time for a non-exempt employees to express milk for a nursing child for 1 year after the child’s birth. The employee number required for compliance has not changed.

The FLSA also requires that employers provide a place to do so that is not a bathroom and is shielded from view and free from intrusion from coworkers and the public.

Those protections have been in place since 2010.

The changes to the law means that an additional 9 million working women will be covered, according to the American Civil Liberties Union.

The PUMP Act does not preempt local or state laws that provide greater protections.

Must breaks under the PUMP Act be paid?

Employees don’t have to pay workers who take breaks under the PUMP Act. However, there are 2 exceptions: (1) if non-exempt employees are not completely relieved of their duties for the entire break, the worker must be reimbursed and (2) if a worker expresses milk during a paid break.

In addition, the PUMP Act specifically states that time spent expressing breast milk must be considered as hours worked if the worker is already on the clock.

When does the PUMP Act go into effect?

The new mandates went into effect upon the President’s Dec. 29, 2022 signing of the bill. As a result, businesses with 50 or more employees are required to provide the time and space for pumping unless the exemption applies.

However, enforcement, including an employee’s right to file a complaint, has been delayed until April 2023.

Employees who claim that the PUMP Act has been violated can file a complaint with the U.S. Department of Labor’s Wage and Hour Division or file a lawsuit against the employer. Before taking action against the employer, the employee must notify the employer that an adequate space has not been provided.

The PUMP Act amends the FLSA.

What are PUMP Act exemptions for businesses?

Small business exemption. Small businesses can qualify for a hardship exemption. Employers with fewer than 50 employees do not have to comply if doing so creates undue hardship. Undue hardship means that the accommodation causes “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business” for the employer.

Bus companies. The law doesn’t apply to bus drivers for long-distance companies for 3 years. They can apply the undue hardship exemption.

Railroad workers. The law doesn’t apply to railway companies for 3 years. They also get the undue hardship exemption.

Airlines. The law doesn’t apply to pilots and flight attendants because of the limited amount of space on a plane. Airline employees who are not flight crew members are covered under the law.

What can employers can do to comply with the PUMP Act?

Employers should update their lactation policy to ensure compliance with the new law.

Will your business be affected by the PWFA?

Small businesses don’t have to comply with the new federal laws on pregnant workers because of the required employee count or the ability to claim the exemption. However, experts recommend that small businesses consider adopting such policies to be competitive with larger businesses when it comes to hiring and retaining workers.

The post Feds Enact Workplace Pregnancy Accommodations, Expand Lactation Requirements appeared first on Workest.

The primary differences in status between exempt and nonexempt jobs are whether they’re:

• Paid a salary
• Paid by the hour
• Eligible for overtime compensation

The Wage and Hour Division (WHD) under the U.S. Department of Labor (DOL) sets federal laws on overtime.

You can determine if your employees should be classified as exempt or nonexempt by performing a position assessment based on multiple factors, including:

• How much money they can earn.
• The type of work they do.
• Their specific responsibilities and job duties

The federal Fair Labor Standards Act (FLSA) determines which jobs are eligible for overtime pay. Regardless of employees’ exemption status, all employers must pay eligible workers at least the federal minimum wage, which currently is $7.25 an hour.

Since several states have a specific minimum wage, you must comply with that rate. It is particular to the state, municipality, or local jurisdictions where your employees work to ensure you comply with all the applicable laws.

What jobs are exempt?

FLSA provisions generally exempt positions from receiving overtime pay. Those job duties are classified into the following categories (links for the various exemption tests have been provided):

• Executive
• Highly compensated
• Professional
• Administrative — it’s critical to understand that “administrative” does not automatically equate to clerical/secretarial roles
• Computer-exempted
• Outside sales

Employees in these positions are considered white-collar workers.

The DOL raised the minimum weekly compensation for lower-paid exempt workers effective Jan. 1, 2020, making more people eligible for overtime.

Exempt wage rates

Workers in exempt jobs generally receive a salary rather than hourly pay.

Simply paying a job this rate doesn’t automatically exempt it from overtime eligibility. It still must pass the job duties/independent judgment tests.

To be exempt from overtime, employees must receive a wage rate of no less than $684 a week ($35,568 a year) or $27.63 an hour, such as in the case of computer-exempt workers. (Compensation for outside sales workers may differ.) You must understand that simply paying a job this rate doesn’t automatically exempt it from overtime eligibility. It still must pass the job duties/independent judgment tests.

Highly compensated employees typically perform office or nonmanual duties and are paid at least $107,432 annually. Their wage rate exceeds the minimal $684 a week rate.

Exempt status criteria

Employees’ primary job duties also factor into determining their exemption status. For example, the primary duties for workers classified as professional:

• Require advanced knowledge
• Are primarily intellectual
• Include work that regularly requires the application of independent discretion and judgment

Exempt employees often work more than the standard 40-hour week. However, it is essential to remember that the job must meet the exemption requirements. To say it bluntly, employers may not override the exemption requirement because they don’t want to pay overtime.

Exempt status is considered advantageous to employers because it doesn’t limit the hours an employee can work in a pay period for their earned salary.

State laws may also have different criteria for classification that you must follow. For example, California has additional requirements allowing a job to qualify as exempt, which you can learn about here.

What qualifies as nonexempt?

Employees entitled to overtime pay under the FLSA rules are classified as nonexempt. These job duties are generally classified as:

• Manual labor
• Work involving repetitive hand operations
• Work requiring physical skill and energy

Employees in nonmanagerial jobs in production, construction, maintenance, and various white-collar environments are typically entitled to overtime pay. These workers include:

• Carpenters
• Clerical workers
• Clerks
• Construction workers
• Electricians
• Longshoremen
• Mechanics
• Operating engineers
• Plumbers

Nonexempt employees are traditionally considered “blue-collar” workers.

Some exceptions to nonexempt laws apply under special circumstances to:

• Police officers
• Firefighters
• Workers in hospitals and nursing homes

You can find a list of other first responder occupations that are eligible for overtime here.

Nonexempt wage rates

Under federal law, you must pay nonexempt employees a minimum wage plus overtime pay if they work more than 40 hours in a workweek.

Overtime must be paid at 1.5 times an employee’s regular pay rate. Also, you will need to consult your state and local labor laws for additional requirements, as some states require payment of daily overtime.

Nonexempt criteria

The FLSA doesn’t limit the number of hours employees aged 16 and older may work during any workweek.

Also, the law doesn’t require employers to pay overtime on weekends, holidays, or regular days off. Still, they must pay overtime to employees who worked over their daily or weekly overtime hours on those days.

Are there exceptional circumstances and rule exceptions?

There are situations and exceptions involving overtime to consider. These include paying part-time workers and handling partial exemptions. Here are answers to common questions you may have about applying the law in particular circumstances:

Are exempt employees ever eligible for overtime?

Exempt workers’ position pay level determines their overtime eligibility. Those classified as exempt but whose salary is equal to or less than $684 a week are entitled to overtime for work they perform beyond a 40-hour week.

Do I have to pay part-time employees overtime?

According to the DOL, yes. Part-time employees are typically, but not always, hourly or nonexempt workers, and, as such, you must pay them at least one and one-half times their regular rate of pay after they’ve worked 40 hours in a workweek. They are not eligible for time and a half pay until they have exceeded 40 hours instead of working more than their regularly scheduled number of hours.

Part-time employees are typically, but not always, hourly or nonexempt workers, and, as such, you must pay them at least one and one-half times their regular rate of pay after they’ve worked 40 hours in a workweek.

Again, check federal and state laws that apply — employees subject to state and federal laws are entitled to whichever law requires the higher wage rate.

How do I pay employees who work weekends and nights?

Employees typically work overtime on weekends or nights through an agreement with their employer or union if they’re in a bargaining unit. You’ll want to have policy documented in your employee handbook about working on weekends and nights that complies with WHD laws.

How do I pay my contract workers?

The Contract Work Hours and Safety Standards Act (CWHSSA) requires you to pay contractors, subcontractors, and mechanics on most federal contracts over $100,000 at least one and one-half times their base rate of pay for all hours they worked beyond a 40-hour week.

What are other exclusions under WHD rules?

Employees must be paid at least the federal minimum wage. And certain employees are exempt from overtime pay based on their job duties. However, some workers, besides the exempt employees described above, are considered exempt from minimum wage, overtime pay, or both under FLSA provisions.

Certain employees are exempt from overtime pay based on their job duties.

Here are lists of those employees as listed in DOL’s Employment Law Guide:

Exemptions only from overtime pay

• Announcers, news editors, and chief engineers of certain non-metropolitan broadcasting stations
• Auto, truck, or farm implement parts clerks and mechanics employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers
• Auto, truck, trailer, farm implement, boat, or aircraft salespersons employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers
• Certain commissioned employees of retail or service establishments
• Domestic service employees solely employed by the individual, family, or household receiving services (not an agency or other third-party employer) who reside in the private home where they provide services
• Employees of motion picture theaters
• Farmworkers
• Railroad and air carrier employees, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans

Exemptions from minimum wage and overtime pay

• Casual babysitters
• Deliverers engaged in newspaper delivery
• Employees engaged in fishing operations
• Executive, administrative, and professional employees (including teachers and academic, administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor’s regulations)
• Farm workers employed on small farms (i.e., those that used less than 500 “man-days” of farm labor in any calendar quarter of the preceding calendar year)
• Persons employed solely by the individual receiving services (not an agency, non-profit, or other third-party employers) primarily providing fellowship and protection (companionship services) to seniors and/or individuals with injuries, illnesses, or disabilities
• Seamen employed on foreign vessels
• Staff of certain small newspapers and switchboard operators of small telephone companies
• Workers of particular seasonal amusement or recreational establishments

Partial exemptions from overtime pay

• Employees engaged in certain operations on agricultural commodities and employees of certain bulk petroleum distributors
• Employees who lack a high school diploma or have not completed the eighth grade spend part of their workweeks in remedial reading or training in other basic skills that are not job specific. Employers may require such employees to engage in these activities for up to 10 hours in a workweek. Employers must pay regular wages for hours spent in such training but need not pay overtime premium pay for training hours
• Workers at hospitals and residential care establishments that have agreements with the employees that they will work 14-day periods in lieu of 7-day workweeks (if the employees are paid overtime premium pay as required by the Act for all hours worked over eight in a day or 80 in the 14-day work period, whichever is the greater number of overtime hours)

Because exemptions are generally narrowly defined under the FLSA, employers should carefully check the exact terms and conditions for each.

Where can I go for help with WHD questions?

The fines and penalties for misclassifying jobs as exempt rather than nonexempt can be substantial. Exemption status is something you want to make sure you get right.

Employers should carefully check the exact terms and conditions for each.

Therefore, below are some additional links to help employers and employees understand the rights and responsibilities under federal overtime laws:

The Department of Labor (DOL) FLSA Overtime Security Advisor

Overtime Laws, US Department of Labor – DOL.gov

Editor’s note: much of this information is taken directly from the DOL’s website to ensure absolute accuracy.

The post What’s the Difference Between Exempt Vs. Nonexempt Jobs? A Guide appeared first on Workest.

Previously, employers in the Empire State only had to provide breaks for expressing milk and make reasonable efforts to provide a space for employees to pump breast milk. That standard for private employers, however, fell below the compliance requirements for government employers. That is according to a statement from the Governor’s office.

The increased requirements for New York employers will bring private employers in line with government employers, the governor’s office said.

Little will change for employers in New York City because the state action closely mirrors the Big Apple’s lactation accommodation requirements, according to Littler Mendelson P.C. attorney Devjani Mishra.

The state law requirements go into effect on June 7, 2023. The governor signed the legislation on Dec. 9, 2022.

Who must comply with New York’s lactation laws?

All employers in the state of New York must comply with the state law.

What must employers do to comply with laws for nursing mothers?

Employers already must provide a lactation room or location in close proximity to an employee’s work area under a state law that has been in place since 2007.

The new measure provides more specifics. It requires that private employers designate a room or other location that is not a restroom or toilet stall for employees to express breast milk.

The lactation room must meet certain specifications. The room must be:

• Well lit
• Shielded from view
• Close to the work area
• Free from the intrusions of others in the workplace or the public

The room must be supplied with certain items:

• A chair
• A working space
• Access to clean running water
• An electrical outlet if the workplace has electricity
• A refrigerator for storing expressed milk if the workplace has access to refrigeration

The lactation room doesn’t have to be dedicated only to the purpose of allowing nursing employees to express milk. However, the room must be available for that purpose when needed. It cannot be used for any other reason while being used by nursing working mothers.

Employers must adopt a written lactation policy

The new measure also requires that employers adopt a written lactation policy developed by the New York State Department of Labor. The written policy must be provided to each employee:

• Upon hire
• Once a year
• Upon return from maternity leave

Are there employer exceptions for compliance?

The state law provides a carve out for compliance. Like many similar laws, it has an “undue hardship” exception. As a result, following the law is not required in instances where it would be “impracticable because it would impose an undue hardship on the employer by causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

Mishra noted that, apart from the exemption not being clear, “it is rarely the case that an employer” can reasonably claim that providing an accommodation for a nursing worker is a hardship.

Do not retaliate against workers

Employers cannot retaliate against workers who take advantage of the state law’s protections. The law prohibits employers from discharging, threatening, penalizing, or discriminating against in “any other manner” employees who seek to exercise their rights under the law.

New York City lactation room requirement

New York City already has a lactation accommodation requirement in place.

Big Apple lawmakers passed legislation in 2019 that imposes similar requirements to the state law. The NYC law requires employers with 4 or more employees to provide lactation rooms upon request. It also mandates that employers provide written lactation accommodation policies.

The city law requires that employers provide a private room, that is not a bathroom. It needs to include a chair, an electrical outlet, a working surface, and access to running water. The room must also include a refrigerator intended for breast milk storage.

When not needed as a lactation room, the room can be used for other purposes.

If an employer determines that providing appropriate lactation accommodations poses an undue hardship, it is required under the NYC law to discuss other available options with the employee. Once an agreement has been made, the employer must provide written confirmation of the agreement.

However, New York City lawmakers have noted that it would rarely cause an undue burden for employers to meet lactation accommodation requirements.

What is federal legislation relating to nursing mothers?

President Joe Biden approved similar legislation a few weeks after Hochul’s sign off on the state legislation. The “Providing Urgent Maternal Protections for Nursing Mothers Act” or PUMP Act expands federal requirements under the FLSA on breastfeeding time and private space protections to include exempt employees.

Nursing mothers who are hourly workers have been covered under the FLSA since 2010 but salaried workers were not. The new law also extends the time breastfeeding mothers can take advantage of the requirement from 1 to 2 years.

Previously, the Fair Labor Standards Act required that employers with 50 or more employees provide reasonable break time for non-exempt employees to express milk for a nursing child for 1 year after the child’s birth. The employee number required for compliance has not changed.

The FLSA also requires that employers provide a place for expressing breast milk that is not a bathroom and is shielded from view and free from intrusion from coworkers and the public.

Those protections have been in place since 2010.

Which law controls?

Most federal laws have a stipulation that if a state law that offers greater or equal protection then the state law must be followed. Most state laws have a proviso that if a local law or federal law offers greater or equal protection then the stricter law must be followed.

Mishra noted that, in general, employers must follow the law that is the most protective of employees.

So, New York City employers will have to follow NYC lactation requirements. Conversely, employers in the rest of the state will have to follow the state law.

New York airports required to provide lactation accommodations

Hochul also signed a bill last summer that expanded nursing mother accommodation requirements to airports. The legislation mandates that airports provide a space for breastfeeding that is free from public view.

State Senator Timothy M. Kennedy said in a statement that the bill was created after a conversation with one of his constituents who said there was a gap in services for working mothers. The constituent, who traveled for her job, found few accommodations for breastfeeding mothers in airports.

Review current policies pertaining to nursing mothers

Employers across the Empire State should review their policies pertaining to nursing mothers. They should also review the spaces they provide for expressing breast milk in light of the new requirements.

Employers should also note that there is a trend toward passage of laws that support working mothers who need to express breast milk.

Employers should also note that there is a trend toward passage of laws that support working mothers who need to express breast milk. Adopting an accommodation policy could put employers ahead of the curve in places where such laws are not yet in existence.

Company culture can also come into play. Mishra said employers should consider whether accommodating working parents is something the company should do as part of its company culture. She noted that it could prove advantageous for businesses to improve organizational support for working parents even if the law doesn’t require it.

The post Nursing Mothers in New York Get Additional Workplace Protections appeared first on Workest.

The measure will affect most employers who do business in New York state.

According to figures available from state officials, women in the Empire State earned 86 cents for every dollar men earned in 2019.

Lawmakers said the purpose of the legislation is to eliminate pay disparities and discrimination through increased transparency by requiring employers to disclose compensation information. According to figures available from state officials, women in the Empire State earned 86 cents for every dollar men earned in 2019.

This new legislation goes into effect on Sept. 18, 2023.

Who must comply?

Employers with 4 or more employees must comply. The law doesn’t mention whether they must work in the state.

Employment agencies must comply with the new rule. However, the new law exempts temporary help firms.

Covered jobs under the New York State law

The law covers ads for jobs that “can or will be performed in the state of New York.”

Job posting requirements

Postings for internal and external jobs, promotions, and transfers must include:

1. Good faith salary range. Employers must provide a minimum and maximum annual salary or hourly range. The numbers must be an accurate and “good faith” approximation.
2. Job description. Employers must provide an accurate job description if one exists. If not, there isn’t a requirement the employer provide one.

Commission-based jobs, promotions, and transfers must include a statement that compensation will be based on commission.

Violations

The state law does not provide for a private right of action. However, individuals and job applicants can file a complaint with the New York State Department of Labor.

There are fines for noncompliance:

• A first offense can result in a $1,000 fine
• The second offense can result in a $2,000 fine
• A third offense can result in a $3,000 fine

Recordkeeping

Employers must keep records of the pay ranges for the positions and the job descriptions.  The law does not specify how long the documentation must be saved.

Anti-retaliation

The law forbids employer retaliation against applicants or employees who take advantage of the law.

Opposition

Several business groups opposed the legislation.

Upstate United noted: “… Piling on more legislation will only serve to kneecap and confuse these business owners trying to comply with this onerous legislation,”

Upstate United, a business advocacy coalition composed of business and trade organizations, said the legal measure misunderstands how businesses operate. “If a business loses an employee in the IT department who has 10 years of experience and replaces him with someone who only has 2 years of experience, their pay will obviously differ. Piling on more legislation will only serve to kneecap and confuse these business owners trying to comply with this onerous legislation,” Upstate United noted on its website.

The group also noted that the law is unnecessary because New York employers are already subject to several state and federal laws regarding discriminatory pay practices.

Preemption of local laws?

The state law does not preempt local pay transparency laws, such as those enacted in New York City, Ithaca, and Westchester County. The Westchester County law, however, will expire in September when this state law goes into effect.

Differences between the NYC and NY state pay transparency laws

New York City has a pay transparency law. The New York City pay transparency law went into effect late last year. Employers, even those based outside the city, must comply with the legislation if they have 4 or more employees, 1 of whom works in the city, and they advertise in the metropolis to fill positions. Employers must post a “good faith” salary range for each job ad, promotion, or transfer opportunity that would be performed, at least in part, in the city.

Penalties for violation of the New York City law have the potential to be quite steep compared to the state law.

The state law is similar to the local law, but there are a few differences between the NYC law and the state law.

The state law requires that a job description be included in the job posting if one exists.

Penalties for violation of the New York City law have the potential to be quite steep compared to the state law. Fines can go as high as $250,000 for a first offense. However, there is a proviso of $0 for a first violation if the violation is corrected within 30 days.

The NYC law also allows workers to file a civil complaint against employers if they think the local law has been violated. State law does not create a private right of action.

Pay transparency laws across the country

Multiple states have enacted a number of new pay transparency laws in recent years.

• Colorado also requires pay disclosure in job postings. The state’s pay transparency law went into effect in 2021.
• California and Washington state have similar laws that went into effect at the beginning of the year.

More pay disclosure laws in job postings could be on the horizon. Several states are reportedly considering such a requirement.

Conclusion

Pay transparency laws are gaining steam. Providing pay information is increasingly considered a best practice in the business community. As a result, many employers are considering providing wage data even in places where doing so is not mandated by law.

Over half of the organizations surveyed by Willis Towers Watson last summer said they are considering or planning to disclose pay ranges—even if not mandated by the laws in the areas in which they operate.

Some employers may not view pay disclosure as a best practice. Nevertheless, those that post jobs that can or will be done in New York should adopt procedures and review their policies on job postings to ensure their rules comply with the new requirement.

The post New York Employers Must Post Salary Ranges in Job Ads in Late 2023 appeared first on Workest.

To do this, organizations must start by creating appropriate policies and incorporating them into their employee manuals for everyone within the company. All employees need to be aware of the safety protocols. Further, companies must integrate active shooter and workplace violence training into their instituted safety programs.

Active shooter defined

An active shooter doesn’t always equate to violence with a gun, as the name implies. A hostile intruder intent on violence also refers to the phrase “active shooter.” To clarify, according to the University of Miami Miller School of Medicine’s site, “an active shooter/hostile intruder is someone who is actively engaged in killing or attempting to kill other people in a confined, populated area by any means.

An active shooter doesn’t always equate to violence with a gun.

‘Any means’ includes, but is not limited to:

• Firearms
• Bladed weapons
• Vehicles
• Any other tool that is being used in a manner that constitutes deadly physical force.”

Many times when there is an active shooter in the building, there is no pattern or method to the way they select their victims. This makes most active shooter situations extremely unpredictable. They typically evolve quickly and end within minutes of beginning.

How common is workplace violence?

According to OSHA, workplace violence includes any act or threat at the workplace that includes:

• Harassment
• Intimidation
• Threatening disruptive behavior
• Physical violence

These acts run the gamut from verbal abuse to homicide. This kind of violence can include anyone in the workplace. It isn’t limited to employees; it can consist of clients, contractors, or even visitors.

Unfortunately, the statistics for workplace violence are staggering. OSHA reports that approximately 2 million Americans are victims of workplace violence annually. Homicide is actually one of the leading causes of job-related deaths in the US.

It’s shocking, however, OSHA reports that approximately two million Americans are victims of workplace violence annually.

In the last 20 years, the FBI recorded over 277 active shooter incidents within the US. Most of those incidents occurred in businesses, schools, government offices, or other areas under employer control.

What are employers’ responsibilities to their employees?

Employers are obligated to protect their employees from any preventable harm in the workplace. Additionally, OSHA’s General Duty Clause requires employers to “provide employees with employment and a place of work free from recognized hazards that are likely to cause serious physical harm or death.”

Workplace violence can constitute a hazard covered under the General Duty Clause. According to this mandate, employers can face enforcement action if they don’t take reasonable action to prevent it.

Employers must implement prevention programs to combat workplace violence even without established regulations. Therefore, various states are adopting laws requiring workplace violence prevention programs. The programs are particularly required for employers in the healthcare industry.

What defines an effective workplace violence prevention program?

Workers must prepare for incidents of workplace violence or active shooter situations. The best way to prepare employees is with a comprehensive prevention program.

An effective workplace violence prevention program is designed as a holistic approach to employee safety. Practical strategies for a violence prevention program include:

• A commitment to safety by employees and management
• Comprehensive policies that clearly state there is zero tolerance for violence at work
• Periodic program evaluation
• Workplace culture change

Clear, comprehensive training is vital to implementing workplace violence prevention strategies. Training is required to effectively ingrain programs into a workplace’s culture.

Nothing is more important than the employee’s safety.

Programs must include practical training that teaches managers how to spot, report, and prevent instances of violence.

Action guidelines for an active shooter situation

These are the steps for dealing with an active shooter situation in the workplace. Regardless of the level of someone’s position within the company, teach every employee these steps as part of a comprehensive workplace safety program.

• EVACUATE (Run): The first step in dealing with an active shooter is to escape if possible. The key to this step is to get to safety. Workers should know where the exits and emergency exits are in relation to their desks or work area. Workers should leave everything behind and get out of the area.
• SHELTER-IN-PLACE (Hide): If employees can’t safely evacuate, they should hide. They want to find places where the shooter will be less likely to find them. As part of the safety program training, encourage workers to consider where they might hide if they should ever need to.
• PROTECT ONESELF (Fight): The last step in dealing with an active shooter is attempting to stop or incapacitate the active shooter. Workers should only try this if their life is in imminent danger.

For any of those steps, workers need to follow all instructions they receive from law enforcement. Otherwise, they can worsen an already dangerous situation by causing authorities to think the team member is working with the perpetrator.

Another thing you should emphasize is that nothing is more important than the employee’s safety. Team members shouldn’t try to be heroic, and they shouldn’t try to carry their belongings with them.

Best practices for creating a more secure workplace

Suppose a company has decided to terminate someone who has the potential to become violent. In that case, the HR department or management should notify the local office of Public Safety before they end the individual’s employment.

Maintaining a safe, secure, and healthy workplace requires open, two-way communication between management and employees. Any workplace safety plan’s human element determines its success or failure.

Companies can restrict access to a building by:

• Employing uniformed security officers
• Installing alarm systems
• Building fences and gates

Still, if workers aren’t appropriately trained, those security systems will only be money spent rather than an effective tool. Here are some additional safety measures you can teach for maximized safety:

• Have workers close and lock the doors even on the warmest days. Everyone should know not to allow anyone to follow them into a card-controlled building.
• Routinely inspect work areas checking for safety and security issues.
• Report broken doors or other unsafe conditions to management as soon as possible after the discovery
• Immediately report and correct signs of escalating behavior.

This isn’t a comprehensive list of safety protocols, but it’s an excellent place to start thinking about workplace safety. Another safety consideration is having periodic active shooter drills similar to your mandatory fire drills. These drills ensure you’ve prepared all employees should they ever have to face this kind of workplace violence.

Conduct periodic active shooter drills, similar to your mandatory fire drills.

Final thoughts

Active shooters are an unfortunate but real threat to the safety of the modern workplace. The best way to deal with an active shooter situation is to prevent it if possible. HR and management personnel should work together to create a workplace safety training program that includes specialized training for an active shooter situation.

Additionally, employers should consider holding periodic active shooter drills so employees can familiarize themselves with escape routes, hiding places, and other routines that will help them remain safe should an active shooter situation arise at work.

The post Safety In the Workplace: Active Shooter Training appeared first on Workest.

As part of the designated process, employees must submit a request for reasonable accommodation for their service animal just like they would with any other accommodation request. They need to be able to prove that they have a disability and are unable to perform their job duties without this accommodation.

When discussing something as critical as a reasonable accommodation, it’s essential to know what:

• Qualifies as a service animal or emotional support animal
• The differences between service and emotional support animals
• An employer can do to make room for suitable employment without breaking any laws or coming off as insensitive

Some businesses may think twice before allowing an animal into the workplace. Particularly if a non-traditional service animal or emotional support animal is the requested accommodation. Some companies may see this as unreasonable or a danger to other employees. For example, at first glance, an “emotional support horse” may not be the best fit (literally) for a small business. So, let’s get more understanding of the topic.

Service Animals

Titles II and III of the ADA define service animals as “dogs that are individually trained to do work or perform tasks for the benefit of an individual with a disability.” Examples of service animals are those that:

• Alert a Deaf person
• Calm a person with PTSD during a flashback
• Guide a person who is blind
• Protect a person from harm or warn them before a seizure
• Pull a wheelchair

At this time, there aren’t many all-encompassing programs for training that certify an animal as a service animal. Still, service animals are usually (but not always) wearing a vest, harness, or collar that indicates that they’re on duty.

Some businesses may think twice before allowing an animal into the workplace. Particularly if a non-traditional service animal or emotional support animal is the requested accommodation.

Per the ADA, service animals should be allowed in:

• State and local government locations
• Nonprofit organizations
• Businesses that serve the public

Service animals are allowed to be with their patients in any common areas that anyone else can frequent. This includes:

• Churches
• Libraries
• Museums
• Public transportation
• Restaurants
• Stores

As such, any establishment with a policy or notice stating “no pets” is null for service animals, even when food is served or allergies are present. These businesses don’t have to abandon this policy altogether. Still, it should be noted that a service animal is not a pet.

Emotional Support Animals

Dogs whose tasks have been defined as providing comfort in the effort of emotional support are not qualified as service animals under the ADA. This can make distinguishing between emotional support animals and service animals a little more complicated.

Emotional support animals are not the same as service animals if their job is to provide emotional support or comfort. This distinction can sometimes be evident in cases where they are not trained to perform a specific job for their patient.

Emotional support animals are not the same as service animals if their job is to provide emotional support or comfort.

This isn’t to say that they don’t still provide efficient therapeutic benefits to their patrons, though. These animals are more suited to ease the symptoms associated with:

• Major depression
• Anxiety disorders
• Phobias
• Other psychological disorders

An emotional support dog is only differentiated from a typical pet if they are prescribed by a mental health professional.

Emotional support animals have a limited number of rights compared to their servicing counterparts. For example, a service animal can be on an airplane with its companion – usually in their lap or at their feet. However, airlines are no longer required to allow accommodations for emotional support animals.

Important tidbits

There are some important things to unpack after gathering all this information. A few stipulations and exceptions apply to service and emotional support animals.

Characteristics of proper service or emotional support animals

Service animals are classified as dogs (and sometimes miniature horses), while emotional support animals can be any type of animal. Regardless, the animal must be current on all its checkups, well-maintained, and in good health.

Employees with a service or emotional support animal who need them to effectively perform their work duties must submit documentation asking for reasonable accommodation. The documents should detail how the animal will help them successfully perform their job duties.

By law, employees are not required to produce a certificate that the animal has been trained under a specific program. However, employers can ask for their health and vaccination history to guarantee the safety of their other employees.

Reasons that a service animal can be excluded from the premises

Service animals are required to be always under the control of their handler. Unless the disability merits an untethered service animal, it should always be leashed or harnessed. Service animals must also be housebroken and cannot be disruptive in any other way, such as:

• Excessive barking
• Growling
• Acting out of control

Employers are allowed to deny a request for a service animal if the presence of the animal presents the company with undue hardship. These include certain safety issues that could cause harm to the animal, customers, or employees of the business or establishment.

This could include factory or construction workers, where the animal could be in danger of falling objects or heavy machinery. Another example would be doctors or surgeons, where a dog in an operating room would pose a health risk for patients.

How employers can make an accommodation

What does all this mean for businesses, companies, enterprises, or corporations where their employees may require a service animal to help with ailments related to their disability? As long as a person is qualified to do a job, it’s against the law to discriminate against them by not allowing them to work or be reasonably accommodated.

As mentioned earlier, dander allergies are not valid reasons to deny a service animal. If an employee has allergies to a service animal, accommodations must be made for both employees. This can be done simply by assigning them:

• Different locations in the office
• Different lunch hours
• Using creative scheduling

It’s a more thoughtful response to buy some air purifiers to place around the office. This can be unrelated to having a service dog in the office, as it promotes healthier air circulation. Employees with allergies will especially be appreciative of the extra care.

Dander allergies are not valid reasons to deny a service animal. If an employee has allergies to a service animal, accommodations must be made for both employees.

Although it isn’t a company’s responsibility to provide supervision, food, water, or other care for the service animal, it would be a nice gesture to offer it to the employee.

If there is an undue hardship that prevents a service animal from being with its patron, employers must still offer effective alternative accommodations. If possible, the employee could be permitted to work remotely where their animal can be by their side.

Conclusion

No matter how different it may seem to have an animal in the workplace, an individual with disabilities must have an equitable working environment by law. Employers will do well to reference the ADA laws and use their lawyers as a resource when receiving a request for a service animal or emotional support animal.

Businesses must always ensure they’re being as reasonable as possible if one of these requests surfaces. This will ensure they know they are doing their best to treat their employees equally and morally.

The post Understanding the Difference Between Service Animals and Emotional Support Animals in the Workplace appeared first on Workest.

To determine a suitable accommodation, courts and the ADA favor an informal “back and forth” — the interactive process — between the employer and the employee.

What is the importance of the interactive process?

The interactive process is essential, David K. Fram, Director of the National Employment Law Institute’s (NELI) ADA & Equal Employment Opportunity Services, told Zenefits in an earlier interview about the ADA.

Courts “slam” employers when they do not participate in the process, Fram said. Judicial tribunals will examine the process to see if both the employer and the employee acted properly to come up with a suitable accommodation. If 1 of the parties refused to engage in or continue the interactive process, courts will rule against the party that stymied the process.

The agency that enforces the ADA, the U.S. Equal Employment Opportunity Commission, also prefers to see engagement in the interactive process. The federal agency hates to see a “lack of active engagement by employers,” Fram said.

While failing to participate in the process isn’t an explicit violation of federal law, some states, such as California, require that employers engage in the interactive process.

In addition, failing to participate in the interactive process is almost always used by the plaintiff’s attorneys as evidence of disability discrimination.

What triggers the interactive process in the workplace?

The interactive process — and the employer’s responsibility to accommodate — is triggered whenever an employer knows or should have known that an employee needs something because of an impairment.

In many instances, an employer will request a specific accommodation and that starts the process.

However, there are instances when circumstances that are not as clear-cut trigger the interactive process. That’s where the “should have known” requirement comes into place.

An employer’s 1st words in the interactive process should be: “How can I help you?”

For example, if an employee mentions to their supervisor that they’re late getting to work because of medical treatment, that has triggered the interactive process.

In another instance, an employee who uses a wheelchair tells the employer that their wheelchair doesn’t fit under the desk in their office. According to the Job Accommodation Network (JAN), this is a request for reasonable accommodation.

On the other hand, according to JAN, if an employee tells their supervisor that they would like a new chair because their present chair is uncomfortable, the employer has not been put on notice that the worker is requesting a reasonable accommodation. The need for the new chair did not link to a medical condition, JAN says.

Requests for accommodations can be informal

Requests for accommodation can be informal. The employee doesn’t have to put the request for an accommodation:

• In writing,
• Identify a specific accommodation, or
• Use specific terms such as “disability,” “ADA,” or “reasonable accommodation.”

According to the EEOC, when a need for an accommodation is obvious, the law may not even require an employee to initiate the interactive process.

In fact, the employee doesn’t have to be aware of the ADA or its requirements. It’s on the employer to know when a person has triggered the interactive process.

Fram has long advocated that an employer’s 1st words in the interactive process should be: “How can I help you?”

What are employer responsibilities in the interactive process?

If undertaken in good faith, participation in the interactive process can protect an employer in instances where a lawsuit is filed.

A federal appeals court ruled in 2018 that multiple attempts at accommodation showed an employer’s good faith participation in the interactive process even though it never found a workable solution for the employee’s ADA disability.

Employers can show good-faith participation in the process in many ways, the 3rd U.S. Circuit Court of Appeals has noted, including:

• Meeting with the employee
• Asking the worker for their preference in an accommodation
• Requesting information about the employee’s condition and limitations
• Documenting that they have considered the request
• Offering and discussing alternatives if the worker’s request cannot be fulfilled

Courts have consistently held that employees are not entitled to their accommodation of choice, only an effective, reasonable one.

Employers should keep information confidential

Employers should keep all information collected from employees about their disabilities and need for accommodations confidential.

Additionally, employers should maintain medical documents concerning the employee’s disability and accommodation in a standalone file. This file should be separate from the employee’s personnel file.

What are employee responsibilities in the interactive process?

Employees have a responsibility to participate in the process. They have a responsibility to answer employer questions, provide requested medical information, and more. If matters go to court, a worker’s failure to participate can defeat their legal claim.

In 2020, a federal district court ruled against an employee’s failure to accommodate claim. The plaintiff requested a private office to accommodate his allergies. The employer instead offered the employee permission to work from home. The plaintiff declined the accommodation.

The federal trial court found that the employee was responsible for the breakdown in the interactive process because he had rejected telework without offering an explanation.

The court said the plaintiff’s unwillingness to explain the rejection was not consistent with the “flexible give-and-take” necessary for finding an effective accommodation under the ADA.

How long should the interactive process take under the ADA?

Employers must be careful not to delay engaging in the interactive process. If an employer’s delay in starting the process is unreasonable, then the delay to start the process will be used as evidence of bias, legal experts have said.

However, there are no “hard and fast” rules on how long the interactive process should take. In 2018, a federal trial court ruled that an ADA interactive process that took almost 2 years to complete was not an undue delay that denied an employee’s accommodation.

The employee in that instance sued her employer alleging that it had denied her an accommodation because it failed to accommodate her sensitivity to fragrances — her claimed disability — in a timely manner.

The court ruled that the length of time was reasonable, granting summary judgment to the employer. The court explained that the employer, a federal agency, acted in good faith and was engaged throughout the process.

Additionally, the court said the employer suggested alternative accommodations and allowed the employee to work from home as an interim accommodation for about 1 year.

The employer spent time requesting information from the woman’s doctor and ordered special equipment as an accommodation. The employer also responded promptly to the employee’s requests for information.

What steps should employers take to properly handle the process?

There are several steps that employers should take to properly handle the interactive process:

• Adopt a reasonable accommodation policy
• Adopt a no-retaliation policy
• Train front-line managers and supervisors to recognize when a worker has made a request for a reasonable accommodation
• Train managers and supervisors on the requirements of the interactive process
• Ask workers: How may I help you?

Employers should have a policy in their handbook stating that if an employee needs an accommodation to perform the essential functions of their job, they should contact a supervisor, manager, or HR, legal experts have said.

Employers should also adopt an explicit no-retaliation policy. There should be a statement in the employee handbook that the company does not retaliate against employees who request accommodations.

Training on the interactive process is important. Fram said the biggest mistake that employers make is not training managers and supervisors on the process.

Often, managers and supervisors hear the comments that would put the employer on notice that an employee needs an accommodation or wants to talk about an accommodation, legal experts have said. Front-line managers who lack training may not realize that something has triggered the interactive process.

Training can also help management avoid the perception that a worker is merely complaining or asking for special favors.

Employers should document the interactive process

Fram suggests that companies document the interactive process. If a lawsuit is filed, documentation can be used to prove that the employer engaged in good faith in the interactive process.

Documentation should include:

• The employer’s efforts
• The worker’s responses
• The follow-up

Employers have a responsibility to accommodate workers

Employers have a responsibility under the ADA to accommodate workers who qualify for the law’s protections. Participation in the interactive process is an important element in complying with the federal disability law.

Failure to accommodate requests can be costly. One of the best ways for employers to avoid legal claims and to meet workers with disabilities’ needs is to create policies, procedures, and protocols that line up with the ADA’s interactive process.

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