Employment Law Q & A

Business owners write in to Liberty Watch from time to time with employment questions. Other readers may be confronting similiar situations, so this month I will share a few.

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Q: Our company recently implemented a weekly attendance bonus based on working the entire work schedule. The policy states employees must be “present” for the entire week and will not earn the bonus if they use vacation or are on any type of leave. Is this policy legal?

A: Yes, facially legal, but potentially fraught with pitfalls. Incentive bonuses designed to motivate staff and encourage them to perform at a higher rate are generally a good thing, a win – win for both the employer and employee. However, if not carefully designed, attendance bonuses can indirectly discriminate against some employees. The issue comes down to the reason for the absence and/or leave. The 2010 Equality Act states that no employee should face discrimination arising from a disability. Additionally, a leave due to a pregnancy-related illness will also be protected under the Act, and persons taking FMLA leave, cannot be retaliated against for taking said leave. Employers should ensure that they avoid withholding an attendance bonus if doing so could constitute unlawful treatment.

Q: We have an employee whose Family and Medical Leave Act (FMLA)-approved medical condition changed from just having surgery to now having physical therapy (PT) a few times a week. We asked her to recertify because of the change in treatment. She returned a general note from her doctor stating, “PT is needed and should occur at the discretion of the therapist.” It doesn’t say how often or how much. May we ask for more details?

A: According to the U.S. Department of Labor Wage and Hour Division’s Fact Sheet #28D, if an employer is unable to determine whether a leave request should be designated as FMLA-protected because a submitted certification is incomplete or insufficient, the employer is required to state in writing what additional information is needed. The employer may use the designation notice to inform the employee that the certification is incomplete or insufficient and identify what information is needed to make the certification complete and sufficient.

Q: We are moving from an accrued paid time off (PTO) policy to an unlimited PTO policy. We are going to require employees to use their accrued PTO before using the unlimited PTO. May we set a date by which all accrued PTO must be used?

A: Unlimited PTO policies are becoming very popular and can be quite effective for exempt employees. However, how an employer rolls out its new policy and manages the transition of the policies depends on state law. In Nevada, the employer’s existing policy terms are relevant and must be considered when rolling out a new plan. However, as most Nevada employers reserve the right to change their policies upon notice, a Nevada Employer will generally be able to proceed as noted above.

Q: We will be hosting a voluntary “fun run” activity for our employees. Anyone who is interested will meet every week after work to run or walk. May we require the employees to sign a waiver stating we won’t be held liable for any injuries or illnesses?

A: Yes, you may require them to sign a waiver of liability, however, the enforceability thereof will
depend on the facts surrounding the event. LW

Liberty Watch publishes this column to convey general information, and not for the purpose of providing legal advice. You should not consider any information in this column to be legal advice, and you should not act upon any such information. Readers should obtain specific legal advice directly from members of Clark Hill (or their own legal counsel) in relation to any decision or course of action contemplated. Clark Hill and its members provide legal advice only upon the execution of a formal attorney-client retention agreement establishing an attorney-client relationship. This column and its contents do not create an attorney-client or any other relationship between Clark Hill, any of its attorneys, and/or any reader or other person or entity.

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