How to get through winter without a lawsuit

As readers of epic fantasy novels and viewers of a certain TV show know all too well, winter is most definitely coming. Your radio is already playing holiday music, the shiny decorations are already out in malls and retail stores, and your coffee shop is serving you drinks in red cups.

The signs are obvious, so what should you do now to prepare your business for the most brutal of all the seasons? Here are four risks that this season may bring:

1)  Paying employees during snowstorms

First and foremost, you should plan ahead and develop policies addressing inclement weather, including how employees can find out if the business is open, how their schedule may be changed, and what they should do if they are unable to make it to work due to the weather. If you already have such policies on the books, now is the time to review them to make sure they are up-to-date and reflect the current company philosophy on these issues.

In addition to dealing with scheduling and commuting issues, you must also ensure that employees are paid properly. Your company must comply with the federal Fair Labor Standards Act (FLSA) and any associated state or local wage and hour laws.

Employees are treated differently under the FLSA depending on whether they are classified as non-exempt or exempt. Non-exempt employees are those who are entitled to overtime pay. Exempt employees are those who are paid on a salaried basis and also meet specific legal requirements so as to be exempt from the overtime pay requirements.

What should you do when you stay open but the employee is unable to come to work? The U.S. Department of Labor says that if you are open for business and an exempt employee chooses not to (or is unable to) report to work, you may count this as time off for personal reasons.

Under the FLSA, you can take deductions from an exempt employee's salary or leave time for absences due to personal reasons, so long as time is not deducted for sick leave. The sole caveat is that you may deduct from an exempt employee in full-day increments only, not for half-days missed. Thus, if your exempt employee shows up for work at noon and works until 6 p.m., you will not be able to deduct from his or her pay.

2)  Dealing with the flu
Although flu activity typically peaks in January, it is not uncommon for your workforce to start displaying signs of the sickness well before the holidays. The time to prepare for an outbreak is now. You can start by educating yourself about preventive steps you can take and planning for what you will do if an outbreak hits your workplace this winter.

Several commonsense actions can be utilized to help keep a flu epidemic from breaking out at your company. Some of these measures are very easily implemented and cost-effective. For example, you should urge your workers to thoroughly wash their hands and to use proper cough and sneeze etiquette. Keep a supply of antibacterial or waterless soap readily available. You should provide cleaning supplies for telephones, keyboards, and desks to help limit the spread of germs.

Depending on your business operations and the potential effect of a widespread flu outbreak among your workers, you may want to take a more aggressive approach to help limit flu cases. For example, you may want to consider suspending or changing some of your workplace policies in order to encourage workers to avoid spreading the flu. You may want to temporarily alter your paid-time-off or attendance policy to lessen the chance that sick employees will rush back to work.

Or perhaps you could permit workers to telecommute or otherwise work from home during an outbreak so that an entire department doesn’t get wiped out for days or even weeks. At the first sign of symptoms, consider sending sick workers home or providing them with protective gear, such as face masks, to help prevent the spread of germs.

Requiring employees to get mandatory flu vaccinations is a controversial issue. Many workers will refuse to comply, although in some industries such as healthcare, mandatory flu shots are common.

The Occupational Safety and Health Administration (OSHA) and the Equal Employment Opportunity Commission (EEOC) have largely deferred to the CDC policies to determine the proper way to view and handle mandatory flu shots in the workplace. A risk assessment is the first step in making such a determination, and the nature of the workplace and the responsibilities of the employees will be major factors to be considered.

Certainly some jobs and some businesses will face far more serious problems with the flu than others, and you must be prepared to take into consideration many elements when an employee objects to the vaccination. For example, is the worker objecting to the vaccine on religious grounds? Would the vaccine aggravate another health condition or set off an allergic reaction? Does the employee simply fear needles?

According to the EEOC, an employer must interact with any employee who objects to vaccines, whether based on religious or health reasons. You need to consider possible issues under the Americans with Disabilities Act (ADA) and whether reasonable accommodations are necessary.

You should consider creating forms for employees to fill out if they want to request exemptions from any required inoculations based on religious, disability, or medically-related reasons. Make sure you have a team available to review and resolve any such requests in a professional and expeditious manner.

3)  Handling weather exposure issues

With winter bearing down upon us, it is a good time to familiarize yourself with the dangers of weather-related health threats, and gain some important tips to help protect your workers from the cold weather. While the cold-weather months are obviously dangerous to employees spending long hours outside such as construction workers, other workers may be exposed as well. Remember, your employees may be conscripted to help out with shoveling out or other weather-related cleanup activities they do not normally handle.

OSHA requires you to provide a safe and healthy workplace for your employees. Besides protecting your workers from expected threats like winter-weather exposure, you also have an obligation to rid your workplace of winter-related hazards like icy walkways and parking lots.

4)  Throw a holiday party, not a red wedding

If your employees aren’t planning your company holiday party right now, they soon will be. It’s time for you to get involved to make sure things don’t go off the rails.

There is always a human resources risk involved in holding any company-sponsored function. Since most employers still want to hold holiday parties despite the risks, you can reduce your legal liability by observing as many of the following recommendations as possible:

  • If you’ve had troubles in the past or want to organize the most conservative holiday party possible, have a catered lunch at your offices without alcohol present.
  • But if, like most, you serve alcohol, you should invite spouses and significant others so that there will be someone there to help keep an eye on your employees and, if necessary, get them home safely.
  • Always serve food and always have plenty of non-alcoholic beverages available.
  • If your party is a dinner, consider serving only wine or beer (plus non-alcoholic alternatives) with the meal, not hard liquor.
  • If you do serve alcohol, don’t have an “open bar” where employees can drink as much as they want. Instead have a cash bar or use a ticket system to limit the number of drinks. Close the bar at least an hour before you plan to end the party. Switch to coffee and soft drinks from there on.
  • Let your managers know that they will be considered to be “on duty” at the party. They should be instructed to keep an eye on their subordinates to ensure they do not drink too much. Instruct managers that they are not to attend any “post-party” parties.
  • Remind employees that, while you encourage everyone to have a good time, your company’s normal workplace standards of conduct will be in force at the party, and misconduct at or after the party can result in disciplinary action.
  • Hire professional bartenders (don’t use supervisors!) and instruct them to report anyone who they think has had too much. Ensure that bartenders require positive identification from guests who do not appear to be substantially over 21.
  • Arrange for no-cost taxi or other driving service for any employee who feels that he or she should not drive home. At management’s discretion, be prepared to provide hotel rooms for intoxicated employees.
  • Finally: never, ever, hang mistletoe! Just as R plus L probably equals J, you can be sure that mistletoe + alcohol = lawsuit.

Caulkins, partner, Foulke Jr., partner, Menghello, partner, and Mitchell, senior counsel, work for Fisher & Phillips LLP. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

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