Employees who have been rated QIW and can no longer perform their jobs
The firm has received a lot of questions about what to do with employees who have been rated QIW and can no longer perform their jobs.
There are some basic concerns that need to be taken into consideration when dealing with this kind of situation in order to avoid civil liability under the Americans with Disabilities Act and/or the California Fair Employment and Housing Act, and even LC 132a.
1. Just because employees are rated QIW does not automatically mean that the employer can terminate the relationship. The standard under California law is whether the employee suffers some kind of limitation on a major life activity that affects his or her ability to perform the essential functions of the job, rather than unable to perform the usual and customary job duties.
2. Employers are legally obligated to undergo a reasonable accommodation analysis, to determine whether there is any kind of accommodation that would allow the employee to perform the job’s essential functions. If the employee cannot perform marginal functions, then those marginal functions must be removed from the list of the employee’s duties. The employer does not, however, need to eliminate essential functions. The accommodation, however, cannot impose an undue burden on the employer, and it does not have to necessarily be the accommodation the employee desires. Unless it would be demonstrably futile to undergo the process, the employer must engage in an interactive exchange, i.e. brainstorming session, with the affected employee to meet this legal requirement. Not doing this can, on its own, subject the employer to legal liability.
3. If it is determined that there is no reasonable accommodation available, the employer must look within the organization to determine whether there is some open position that the employee can fill, either with or without reasonable accommodation. If so, even if it’s at a lower pay grade, then the position must be offered to the employee, as long as the employee’s competent to fill it. You do not need to promote an employee as a reasonable accommodation, nor does the employer have to create a position.
4. Placing an employee in a temporary light duty position while recovering from an industrial injury does not create a permanent position for purposes of the ADA/FEHA.
Large employers with separate departments handling workers’ compensation claims and employment related matters need to coordinate when dealing with the industrially injured employee with regard to return to work evaluations. As always, the above guidelines provide merely an overview of the law. Employers facing these kinds of situations should consult the advise of employment counsel.
Minimum wage
California’s minimum wage is now $8.00 per hour, up from $7.50, effective January 1, 2008.
Decrease in minimum hourly rate for exempt, hourly paid computer software professionals
The minimum hourly wage necessary for computer software professionals to maintain exempt status was lowered from $49.77 to $36.00.
Privacy Laws
The data notification laws now include information concerning medical and health insurance information. Any business owner licensing such data must notify all affected California residents (including employees or applicants) of any breach or disclosure that may compromise the confidentiality of this information.
Leaves for qualified military spouses
This law became effective October 9, 2007, and requires all employers with 25 or more employees give up to ten days of unpaid time off to spouses of military members who are on leave for deployment in combat. The employee must, however, provide reasonable notice.
Healthcare whistleblowers
The Health and Safety Code whistleblower provisions now cover physicians and surgeons who complain about unsafe patient care. This expands the law which previously had only applied to patients and employees.
Alternative work week schedule for pharmacists
The alternative work week schedule that applies to employees in the health care industry and other alternative work week schedules permitted under California Wage Order No. 4 now apply to pharmacists. By complying with the legal requirements contained in the wage hour orders, California employers may implement a regularly scheduled alternative work week schedule of not more than ten hours per day within a 40 hour work week, without having to pay non-exempt employees overtime premiums.
Cell phone restrictions
Starting July 1, 2008, drivers may not use hand held cell phones while operating vehicles, unless the phone is designed and configured for hands free listening and talking and is used in that manner while driving.
Pay stub requirements
Prior law required that an employee’s entire Social Security number appear on the paycheck pay stub. This has been changed so that only the last four digits of the Social Security number may appear on the pay stub.
Workplace violence
Employers may now seek temporary restraining orders on behalf of multiple employees at multiple locations where appropriate. It also provides that employers can seek a TRO where an employee who is directly threatened does not want to pursue obtaining a TRO.
Child support
Stiff penalties consisting of up to three times the amount of the assistance provided, subject to maximum of the entire support obligation, can be imposed against employers or other persons who assist employees or contractors in avoiding child support obligations. It applies where an employer knew or should have known that the individual has a child support obligation and fails to report the employee’s hire, employment and/or wages to the Employment Development Department.
Sexual harassment training
The California Fair Employment House Commission has provided new regulations regarding the requirements for sexual harassment training for supervisors. It also clarifies the 50 employee threshold for employers to be covered by the sexual harassment training law includes employees outside of California.
New I-9 Form
A new Form I 9 that the employers must use to verify employment eligibility of all new hires and re-verification has been issued. Employers who are not using the new I-9 Form as of December of last year are subject to penalties. The form only has to be used for new employees and re-verifications. Current employees do not need to complete new forms, unless the employee’s status needs to be re-verified on other grounds. The new form may be found at http://www.uscis.gov/files/form/i-9.pdf.
No match letters
The United States Immigration and Customs Enforcement adopted procedures for employers to follow receiving “No Match” letters from the Social Security Administration and/or Homeland Security. Employers are required to make affirmative efforts to resolve no match disputes within 30 days and take further action to resolve dispute if the no match cannot be resolved within 90 days. Enforcement of the procedures, however, has been enjoined by a United States District Court. Nevertheless, employers who receive no match letters should consult with legal counsel in order to ensure compliance with the law as it currently stands. Additional information on the no match requirements can be found at http://www.dwt.com/practc/empservices/bulletins/08-07_NoMatchLetters.htm.
