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Ask the Attorney Archives

Have we made enough allowances for this underperforming, but medically challenged, employee?

Q: “We have an employee who has been prescribed medications for her back and to help her sleep. Over the last year we have had a few incidents where she periodically called in sick for three or four days, has fallen asleep on the job (at her desk), has slurred speech and her writing is not legible. Her work performance is truly suffering. She has admitted the prescriptions were too much for her, and she has seen a doctor to help her change the dosage. We have talked with her about this many times, and we have offered to help her in any way we can. “Unfortunately, it doesn’t seem to be getting better. We think she needs more help, but we also know we can’t make her get it. Six years ago we had a similar situation. She is a recovering alcoholic, and we know this is considered a disability. We want to do the right thing by her, but she needs to do her part. We are considering letting her go. “Can we do this without any repercussions? We have documented everything with notes to her file. She also has a couple of written warnings that state we could terminate if this were to happen again, and it has.” – Jodi, Massachusetts

How does Maryland’s Sick and Safe Leave Act work?

Q: “We are in Maryland and fall under the Sick and Safe Leave Act. Our exempt, salaried managers accrue PTO. Our PTO meets the qualifications of the Sick and Safe Leave Act, so we do not have an additional sick leave bank for exempt, salaried managers. They use PTO when they have to take the day off for being sick. Is this correct? Or should they not be using any PTO and still get paid for those days they don’t work when they are sick? (They bring in doctor’s notes and all.) – Ami, Maryland

How do we legally terminate an employee contract?

Q: “An employee’s contract terms include that if either party decides to terminate the contract, a 30-day notice must be given. The employee turns in their 30-day notice as the terms of the agreement states, but the employer doesn’t honor the 30-day notice, telling them the notice won’t need to be fulfilled, making the employee’s last day effective immediately. Does that make the employer obligated by the terms of contract to pay the employee for the duration of notice given?” – Lauren, North Carolina

Must we make accommodations in the case of left- or right-handedness?

Q: “Our office is set up for someone who is right-handed. It would be impossible to change our patient rooms to a left-handed approach. How do we communicate this to a new clinical person that might be applying?” – Mary Lynne, Minnesota

What are the rules for cellphone reimbursement?

Q: “When it comes to reimbursing employees or providing a monthly stipend for the use of their personal cellphones for business purposes, is this a non-taxable fringe benefit?” – Maren, Virginia

Must we pay exempts for a full week if the office is closed for some of it?

Q: “What are the conditions under which you are not required to pay an exempt employee for a day? If the company is closed for a few days, can we pay employees three out of the five normal workdays for which they will actually be at work?” – Michael, California

What is required by New York’s reproductive health law?

Q: “New York state now has a reproductive health law that needs to be included in employee handbooks. What exactly is required by the New York Labor Law section 203-e and how should it be presented? The requirements are not clear.” – Ken, New York

What happens when FMLA leave is exhausted before the baby is born?

Q: “An employee is expecting a baby, but has had some complications and has been put on bed rest. She is currently on FMLA leave. By the time the baby is born, she will have already used 10 weeks of FMLA. Does the birth start a new FMLA leave cycle or is it a 12-week max within a year regardless of reason(s)?” – Chrissy, Tennessee

When have we kept employee records too long?

Q: “Is there any legal liability for an employer keeping employee records for too long? For example, seven years? I know they need to be shredded, but what if you are audited and it is found you have employee files from 15 years ago?” – Anonymous, Texas

How do we know when to obey a garnishment order?

Q: “We received an order directing us to withhold wages from an employee from ECMC (Educational Credit Management Corporation). Since this is not a government entity, are we required to process mandatory withholding that is listed on the Order of Withholding from Earnings?” – Julia, California