Can we require that employees exhaust their vacation and sick time at the beginning of an approved medical leave of absence?
Generally, an employer may require employees to exhaust their paid time off when a medical leave, such as that under the Family and Medical Leave Act (FMLA), is unpaid. When not required, employees may choose to use their paid time off, vacation, or sick pay benefits to maintain income for part of their leave. Whether using paid leave or not, leave taken for an FMLA-qualified reason is job-protected.
If an employee is receiving any wage replacement benefits (such as benefits paid under a disability plan or workers’ compensation) during an FMLA leave, the employee generally may not use, and the employer may not require the employee to use, any accrued or accumulated paid benefit time. There are exceptions in some states, where employees may be allowed to combine workers’ compensation or disability plan benefits with paid time off benefits to further supplement income while on leave.
Exhaustion of paid leave is usually allowed where employers extend leave as an accommodation under the Americans with Disabilities Act (ADA) or comparable state laws.
As paid sick leave laws continue to be mandated in states and localities, be sure to check your state and local laws before drafting policies that require employees to use their paid leave. In all cases, your policies regarding use of paid time during medical leaves of absence should be clear and understandable. A best practice is to have all policies regarding leave in your employee handbook and available to all employees.
What events must employers report to the Occupational Safety and Health Administration (OSHA)?
All employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye as follows:
- Employers must report work-related fatalities within eight hours of finding out about the fatality.
- For any inpatient hospitalization, amputation, or eye loss, employers must report the incident within 24 hours of learning about the incident.
Only fatalities occurring within 30 days of the work-related incident must be reported to OSHA. Further, for an inpatient hospitalization, amputation, or loss of an eye, incidents must be reported to OSHA only if they occur within 24 hours of the work-related incident.
Importantly, starting in 2017, many employers are required to electronically submit their summary of injuries and illnesses to OSHA. Read more on the following websites about required electronic reporting:
- Information about electronic submission of injury and illness records.
- Injury Tracking Application.
- OSHA serious event online reporting website.
However, employers do not have to report an event if it:
- Resulted from a motor vehicle accident on a public street or highway (except in a construction work zone).
- Occurred on a commercial or public transportation system such as an airplane or bus.
- Involved hospitalization for diagnostic testing or observation only.
Reporting requirements may be more stringent in states with OSHA-approved state plans, so check your state’s reporting rules in addition to the federal OSHA regulations to avoid state citations and penalties.
What benefits are subject to ERISA?
Whether a benefit offered by an employer is subject to the Employee Retirement Income Security Act of 1974 (ERISA) will depend upon whether the benefit is an “employee welfare benefit plan” pursuant to § 3(1) of ERISA. Employee welfare benefit plans include, but are not limited to, any plan, fund, or program established or maintained by an employer, employee organization, or both, that is maintained for the purpose of providing(through the purchase of insurance or otherwise) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death, or unemployment. Vacation benefits, apprenticeships or other training programs, day care centers, and scholarship funds are also included.
Some common ERISA benefits include, among others, medical, vision, dental, life, long-term disability (LTD), and accidental death and dismemberment (AD&D) plans; health flexible spending accounts (health FSAs); certain disease-specific plans, such as cancer plans; health reimbursement arrangements (HRAs); certain employee assistance plans (EAPs); certain short-term disability (STD) coverage (depending on funding); prescription drug benefits, and certain wellness programs.
While working, an employee assaulted his coworker in our California workplace. May the injured employee pursue a workers’ compensation claim?
Yes. An employee who is assaulted at work by a coworker may elect to file a workers’ compensation claim. However, he or she may also file an internal complaint, report the assault to the police, or pursue a civil lawsuit. Whether the workers’ compensation claim (or any other claim) will be successful depends upon the facts. For example, was the injured employee the initial physical aggressor? According to California Law, at Cal. Labor Code § 3600(a)(7), employers are not liable under the state’s workers’ compensation law for an injury that arises out of an altercation in which the injured employee is the initial physical aggressor.
Regardless, after an injury occurred in the workplace, California employers must:
- Provide a workers’ compensation claim form to the claimant within one working day after a work-related injury or illness is reported.
- Return a completed copy of the claim form to the claimant within one working day of receipt.
- Forward the claim form, along with the employer’s report of occupational injury or illness, to the claims administrator within one working day of receipt.
- Within one day of receiving the claim, authorize up to $10,000 in appropriate medical treatment.
- Provide transitional work (light duty) whenever appropriate.
- Give notice of workers’ compensation eligibility within one working day of the crime (assault) that happened at work.
It is not for the employer to determine whether the injury will be covered under its workers’ compensation insurance. Rather, the claims administrator will determine whether the injury is covered.
Another issue worth mentioning is that California employers are required to abide by a duty of care in the workplace. According to Cal. Labor Code § 6401, “[e]very employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” Violations of this duty incur significant monetary damages.
Read more about workers’ compensation and the process on the State of California, Department of Industrial Relations’ website. Read more about workplace assaults and Cal/OSHA Guidelines for Workplace Security.