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Q&A: Does Workers Comp Count against FMLA?

Good morning, Ladies and Gentlemen. Welcome to the people processes podcast where we dive deep into the tools, laws, and yes processes that you need to scale and grow your people processes. I’m your host, Rhamy Alejeal, and I’m the CEO of People Processes. My company helps organizations all across the United States streamline, optimize, implement, and revolutionize their HR operations. We’ve helped hundreds of companies and thousands of HR leaders across the world get their people processes right. Today, we’re going to be answering some questions that have been submitted either by our clients or through our social media. Please check us out over at Facebook, Twitter, Instagram, LinkedIn. You can find the links at peopleprocesses.com where you can ask any questions like these that are going to come up in our Q&A today. Specifically, we’re gonna be talking about FMLA and workers’ compensation. We’re going to be talking about required religious holidays and a few more topics. Before we dive too deep, though, I want to ask you, please subscribe to our podcast. You can find us on iTunes, Google podcasts, Stitcher, Spotify, pretty much any pod catcher of your choice. You can also subscribe at peopleprocesses.com which will give you exclusive subscriber only content.

Now let’s dive in. Okay. First question.

Are employers required to grant employees time off from work for religious holidays?

That’s a good question. Title VII of the Civil Rights Act. It says that covered employers must make a reasonable accommodations for employees religious observances. So if you fall under title 7, which generally applies to employers with 15 or more employees, though many state laws create similar obligations for smaller employers. But at a federal level, 15 or more, you fall under the title 7 of the CRA. The act clearly States that, an accommodation for an employee’s religion must be made. The only way you’re out of that is, if the employer can demonstrate that they are unable to reasonably accommodate the religious observance without undue hardship. So that means upon request, you would open a file, you would look at it, you would say, this is the request, this is the burden on the company. We cannot support that burden. That burden is undue.

According to the EEOC, an accommodation may cause undue hardship if it is costly compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees or requires other employees to do more than their fair share of more than their share, no fair of potentially hazardous or burdensome work. So the way I would do it if you’re a smaller company and you’re worried about this. Request, wants religious holiday, employee name, date of request, who was requested to a manager name or whatever. And then the HR or a small company business owner stick this definition right there at the top. EEOC says this and then determination. This would or would not cause undue burden. And then resolution granted leave. One thing to know. Federal law does not require employers to compensate employees at all for time taken off in observance of a religious holiday practice or belief. So if you don’t have a PTO policy or something like that, you can let them off unpaid.

However, an employer must offer the same options for religious holiday requests as it does for other time off requests. So you have to let them use their PTO if they’re going to use that, whether it’s vacation or personal leave, those sorts of things. Hope that answers your question. Again, start a file. Do your EOC check on undue burden. Make your determination. You do have to check it though.

Okay. Next question.

Can an employer require its employees to use their accrued PTO during an employer-required lay-off or time-off or furlough? And If salaried exempt employees worked during the furlough, how is pay calculated for these employees?

Okay, those are good questions. An employer can require employees to use PTO accrued, if that’s vacation or personal, whatever it is during a furlough, during a layoff. If an employer has no accrued time off, the employer can even put the employee into a negative pay leave balance if you would like. So you could continue paying them, let it go negative, require that be paid back upon resumption of work. Even while furloughed, however, FLSA applies to employees. So the fair labor standard act mandates compliance with the salary basis requirement for salaried exempt personnel. So if an employee performs any work during that week period, for a salary basis employee FLSA exempt, the employer may not dock the employees pay for the absence. When a furlough is for one week or more a full week, something like that. Federal law generally does not require payment to the employee. So if you’re going to lay someone off or you’re gonna have to do a temporary shutdown for a low, you’ve got to look at whether they’re salaried or hourly. If you’re going to do salary, you got to pay him for the whole week period if they work any hour of that week. One thing to also keep in mind that I didn’t ask about this, but during a furlough for the legal term of that, you are required to continue occurring vacation days, sick days, personal days, and to continue to receive other benefits such as health insurance. So hope that helps you out there.

Next question.

Does workers’ compensation leave count against an employee’s FMLA leave entitlement. And how do temporary disability plans fit within the Family Medical Leave Act?

Okay. Let me clear something up. FMLA leave a family medical leave act. It protects the employees job and benefits during the leave for up to 12 weeks in a 12 month period. There are some exceptions to this. The spousal exemption is actually my favorite, most common, where you share these things in a lot of ways with a employed spouse at the same organization. But the key is FMLA leave is unpaid. It’s a job protection and benefits. It is not related to pay. Workers’ comp provides for treatment for a work related injury or illness and partial wage replacement. So it’s a disability policy. It would run concurrently at the same time with leave under the FMLA at leaves you, what you should do is designate the leave is FMLA.

As soon as FMLA leave starts, as soon as that eligible workers’ compensation illness or injury starts and it requires that the employee be out of work, it starts then. That’s their 12 weeks of protection. But the pay is related to the worker’s comp. If your company, if your employee qualifies for any sort of partial disability plan, whether that’s workers’ comp or some other disability plan, it’s going to run concurrently with FMLA leave disability plans, workers’ comp, they provide for wage payment. FMLA provides for job and benefits protection, but not pay. Hope that clears up for you. In the process of our last question of the day. Hope this has been interesting to you so far.

In the process of auditing I-9s, we found some I-9 forms containing incomplete or inaccurate information. What should we do?

Okay. You do not want to get new ones. Let’s start with that. If information on an employee’s I-9 is incorrect or incomplete, you can make corrections near the incorrect or incomplete space in the employee’s I-9 that had the errors. The employer and the employee have to work together on it. What you want to do is draw a line through the inaccurate information, write the correction on the form using a different colored pen. If you did this digitally, you need to print the copy, do this on paper, scan it back in. Okay. So anyway, I’m sorry. I printed it off, draw a line through the inaccurate information, right? The correct information on the form. Use a different color pen and then initial and date the correction, both the employer and the employee. Missing information should be provided initial dated and a written explanation. I’d put it on the front as to the reason for the change attached, not on the same form, like an extra one.

I would make a note that the file was a self-audit that was completed on that date. So if you have like five or six changes or 50 or 60 changes to make, I do your I-9, I’d put up, you know, internal memo in a self-audit was completed on December 31 2019. The following twenty I-9s had corrections brought with the employee, make those pieces, make sure the signature relates to the attestation. So remember that there’s a signature line of the I-9. It says, “I attest under penalty of perjury…” So you want to put that, you want to make sure you’re signing near there. If you have a cover letter, you want them to sign on top of it. I wouldn’t do that. I would just have them initial and date the corrections and sign at the bottom

If your company is audited, the examiners will want to have proof that you exhibited good faith effort to audit your records and correct the deficiency. So it’s a good thing to do. You’re not going to get me in worse off shape. Having audited founded errors and corrected them. You just want to make sure that it’s obvious that you’re not covering it up. You used a different color pen. You got it straight, cleared up, made a note, signed at the bottom. It’ll take care of you.

Okay, ladies and gentlemen, that’s it for today. I hope that was helpful to you. I hope you learned a little something. Please check us out on our social media pages and subscribe at peopleprocesses.com or on the pod catcher of your choice. We’re going to be coming out with episodes every week. We’ve got a lot of interviews coming up for 2020. I’m very excited to get to know some of our new guests and share their wisdom with you. Thank you so much for tuning in. My name is Rhamy Alejeal. Now it’s time for you to go out there, have a great day, and get your work done.