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Ask the Attorney Archives

Are these drug test results sufficient to terminate?

Q: “An employee does a post-accident saliva drug screen, and it shows non-negative for cocaine and it is sent off to an outside testing company. The testing comes back as ‘non-sufficient amount to test.’ Can we send her to get another drug screen, and if positive, terminate her employment?” – Anonymous, Illinois

What can we do about a model employee whose health issues have become a trial?

Q: “We have a 10-year admin employee who has incontinence issues. Other than this, she is and has been a model employee. She is 67 years old, suffers from health issues, is pre-diabetic and uses a walker. She does not have support at home to bathe regularly and she is wearing a diaper to work. We have suggested she get help through her doctor/a referral for home health care. She is not in a position to work from home—we would have to make a position in order for her to do so. This week, the employees that sit near and around her have all complained about the odor. They have added air fresheners, fans, etc. They are not saying anything or talking about her. They all feel sorry for her. The employee is immune to the odor, as having used a c-pap device, she can no longer smell. The employee is kind, gracious and in the past when this has happened, she is genuinely embarrassed. Her supervisor would like to suggest that she have her doctor refer her for disability. Every day is a struggle for her to even get to work. We are at a loss. I do not want an age discrimination claim, a harassment claim or anything of that sort. I would like some guidance on what we can possibly do for her?” – Beth, California

How best to pay those who need checks for two different types of work?

Q: “I have a client with several employees receiving two payroll checks. The first is for a normal 40-hour week at one rate of pay. The second is for a different job, at the same company, at a different hourly rate. The second work hours are from 2 to 15 hours after the regular 40-hour workweek. In most cases the second job’s hourly pay is more than the first. This is in New York City. Is there any violation?” – Kenneth, New York

How do the FMLA, ADA and New York Paid Family Leave interact?

Q: “Can FMLA and New York Paid Family Leave run concurrently? Can New York Paid Family Leave also run concurrently with ADA?” – Kenneth, New York

When a new hire quits quickly, is the cost of training simply lost?

Q: “If a new hire quits before their 90-day evaluation, are we able to deduct the amount they were compensated for training?” – Anonymous, Pennsylvania

Can we charge a penalty fee for misuse of the company credit card?

Q: “Our field employees are issued a company credit card to allow them to perform their work duties. The problem we run into is that they purchase personal items on their company credit card even though they have been told not to. They do pay the company back, but it is an accounting nightmare. Would it be legal for the company to assess a penalty fee?” – M, Oklahoma

Employee will be out for two months with an injury—what are our options?

Q: “We have an employee who was injured in an accident that was not work-related. He will not be able to return to work for at least eight weeks. Can we terminate him so he can sign up for COBRA? (We currently pay part of the employee’s medical, but don’t feel we should continue to do this when he is not able to work for at least two months.) Also, if he is terminated because he is injured and cannot perform his job, can he collect unemployment?” – Lisa, Florida

What if a background check report is based on bad information?


Q: “I have a client in New York State who authorized a background check when applying for a new job. She was denied employment based on a negative report from her prior employer. She has a copy of the report that was sent to her perspective employer. The report is not based on fact. What, if any, recourse does she have?” – Kenneth, New York

Can we say ‘No’ to firearms in cars on company property?


Q: “Can we prohibit an employee from having a firearm in their vehicle while it is parked on company property if they do not have a valid concealed weapons permit?” – M, Oklahoma

How long do we retain I-9s?


Q: “We are conducting a self-audit on our employees’ I-9s. Our understanding is that we only have to keep the I-9s for three years after their start date, or if they were here less than three years, we keep it for one year after they leave, whichever is longer. Is that correct? We are a government contractor. If we cannot find the E-Verify on a current employee, should we run them through even though they started far longer than three years ago?” – Donna, North Carolina