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Best Practices, Legal Requirements, and Respectful Workplace Culture

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In the modern workplace, a respectful workplace culture isn’t just a cherry on top of a job role. If the work culture isn’t healthy and respectful, it could mean organizations lose their best employees and lose out on the best candidates. People don’t just want a respectful workplace culture, they EXPECT it. It’s a necessity for a high-performing workplace.

The issue, however, is that many organizations don’t realize the importance of creating and maintaining a positive culture. They also don’t understand the strong role leaders play in making that culture a reality. By empowering leaders to facilitate respect in the workplace, organizations can improve productivity and employee experience, and also protect businesses from legal issues and allegations.

Our Guest: Labor, employment, and human-rights lawyer Marli Rusen

On the latest #WorkTrends podcast, I spoke with Marli Rusen: labor, employment, and human-rights lawyer, mediator, arbitrator, author, speaker, and organizational consultant. Using her knowledge of workplace dynamics and law, Marli helps organizations create productive and healthy work environments. She reviews, analyzes, and helps resolve serious workplace issues, like misconduct allegations, employee disclosure, mental health discussions, etc.

Because of her extensive experience over the last 25 years, I wanted to get her take on how legal and societal expectations around respectful workplace culture have changed over time. According to Marli, in the last five years, a respectful culture has become a must-have at any workplace.

“Respectful workplace culture and conduct used to be an afterthought or a ‘nice-to-have,’ but has now turned into an expectation on the part of employees. And it’s now a legal requirement on the part of the courts,” Marli says. “It’s a core expectation in the employment world, and leaders should take notice of this.”

Why should they take notice? Marli says there are several reasons. 1) If an organization doesn’t take respectful conduct seriously, high-performing employees will look elsewhere. 2) If an employee sees that leaders are taking part in or tolerating misconduct, they may take legal action against them. And 3) organizations are putting themselves at risk in the “court of public opinion,” because employees can take them to task on social media. Leaders are key in preventing catastrophes and keeping employees happy.

“Leaders have a greater responsibility in maintaining a respectful workplace culture because they have greater authority. They have the power and therefore have the responsibility to exercise that to build and sustain a respectful workplace,” Marli says.

Walk The Talk: How Leaders Can Maintain a Respectful Workplace Culture

So what can leaders do to make sure they’re holding up their end of the bargain for employees? How can they best utilize their power for the good of the organization? According to Marli, they need to consider the three M’s of leadership.

“The first M is MODEL. Leaders need to model respect. Walk the talk. Show how they expect people on their teams to behave. The second M is MONITOR. Leaders need to get out there and engage and interact with employees to make sure they’re treating each other well,” Marli says. “And finally, the third M is MITIGATE. Leaders are the face of organizations, so they have to mitigate risks for other leaders. If they see something amiss at an organization, they need to speak up and help others.” 

As companies add policies to ensure a respectful workplace, they have to be careful that once the policies are written, there are plans to take action in the face of a violation. There can’t be a culture of avoidance at work, otherwise, there is no point in creating policies at all.

“In some workplace cultures, there’s a fear of holding people accountable because doing so will seem disrespectful. There is a belief that they need to make people feel good and not give critical feedback,” Marli says. “But once there’s been an objective review and allegations are confirmed, there’s an obligation to take action. Organizations must demonstrate through measured consequences that they take these issues seriously.” 

I hope you enjoy this episode of #WorkTrends. You can learn more about creating and sustaining a respectful workplace culture by reaching out to Marli Rusen on LinkedIn.

New CDC Vaccine Guidelines: What They Legally Mean for Employers

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According to new CDC vaccine guidelines, vaccinated individuals can now safely gather indoors without a face covering. This is an exciting development after more than a year spent at home. Employers and employees alike are sorting through the implications. What does it mean for employees who are unable to get vaccinated or choose not to get vaccinated? Or those who feel uncomfortable gathering without masks, regardless of their vaccine status? What does it mean for employers when employees decline vaccination or push back against health and safety measures?

The CDC vaccine guidelines are the beginning of a much anticipated, albeit slow, reopening of the country. However, they also present employers and HR departments with more complicated scenarios to navigate. The legal and scientific landscapes continue to evolve. Because of this, employers find themselves hitting a gray area regarding how to handle these new guidelines in tandem with the needs, beliefs, objections, and safety of their workforce.

Companies around the country are eager to open their doors and welcome employees back in. But as more organizations consider lifting mask mandates and implementing vaccine passports and COVID-19 tracking programs, there are several key issues for employers to keep in mind.

Encourage or mandate COVID-19 vaccines

Business leaders and HR departments must determine if and how to mandate vaccination. The CDC vaccine guidelines encompass only those who have been fully vaccinated as safe to congregate. While most experts agree that employer vaccine mandates and subsequent potential passport programs are lawful absent state or local bans, there are specific employee rights to consider. For example, employers must make necessary accommodations for those unable to get a vaccine for reasons such as disability or a sincerely held religious belief. Any employer vaccine program up for consideration must fully comply with anti-discrimination laws. This is to ensure that accommodations are provided to those who need them under federal, state, and sometimes even local law.

In addition, we are starting to see more legal challenges to vaccine mandates. As of this writing, none have been successful. Many of them cite the emergency use authorization status of the vaccines available in the U.S. They also cite a portion of the Food, Drug, and Cosmetic Act that requires that recipients be informed about benefits/risks/unknowns, their right to refuse, and the consequences of refusal. However, there is no private right of action authorizing employees to sue employers under that statute. Also, there is no specific provision that prohibits termination as a consequence for those who refuse.

Although the litigation challenging vaccine mandates seems likely to fail, a successful legal defense is costly all the same. Moreover, even without litigation, vaccine mandates present legal complications in wage and hour, workers’ compensation, and other areas. As a result, most employers are strongly encouraging vaccination rather than imposing a mandate.

Know your audience and communicate properly

Whatever approach an employer takes, considering where employees are based––including remote workers––is critical. Because federal law and regulations concerning the pandemic provide limited guidance, state and local law may have a major impact on specific employer obligations and employee rights. Moreover, because some states and cities have been more successful than others at curbing the infection rate, a uniform solution across state lines may not be the best tactic.

Employers must recognize that jurisdictions have varied in their approach to vaccine mandates. For example, Montana now recognizes vaccination status as a protected class under its anti-discrimination laws. Employers cannot refuse to employ or otherwise discriminate against employees or applicants on the basis of vaccination status or possession of a vaccine passport. In addition, employers cannot mandate vaccines that have only obtained emergency authorization status or are subject to ongoing safety trials. In other words, mandatory vaccination policies are unlawful in Montana. Conversely, Santa Clara County, California has issued an order under which all businesses and governmental bodies must determine the vaccination status of all personnel as of June 2, 2021, and maintain relevant records. Those who are unvaccinated or who refuse to provide proof of vaccination must wear masks and remove themselves from the work location in the wake of COVID-19 exposure.

Having determined the best approach in light of legal risks, employers should focus their attention on getting the word out in a way that works for the corporate culture. There is no escaping the fact that the issue is sensitive and highly politicized. For some, continuing to require masks for vaccinated individuals despite CDC vaccine guidelines runs the risk of negatively impacting the way employees view their employers. This is especially true in states that may have opened up more than others.

Ensuring ultimate safety and success

HR managers should develop an intimate understanding of how different populations may respond to certain regulations and effectively communicate down the line. They should offer opportunities to ask questions and obtain additional information. Thoughtful, accessible, and regular communication about vaccine requirements and health and safety protocols can be helpful. Employees will be able to better understand why decisions are being made and have greater confidence in the company overall.

Obviously, employers are faced with unique and complicated questions about vaccination and health and safety measures as we navigate out of the pandemic. Whatever strategy an employer adopts, they must consider state and federal law, possible risk, and employee morale. Employers should consider their reopening goals and ask the following:

  1. What am I hoping to achieve as employees come back into the workplace?
  2. Is the best approach to get to 100 percent in-person operations as soon as possible?
  3. Is my aim to continue some portion of a remote workforce for a more staggered and safer return to work?
  4. Am I ready to completely reimagine expectations for a hybrid remote/in-person workforce?

Employers need to determine what the goals are upfront and include stakeholders from across the business. From there, they need to familiarize themselves with legal requirements. Then create a comprehensive program to achieve those objectives. Also, they need to adopt a functional and sensible means to communicate it to all relevant parties. Employers are excited to safely reopen their doors and welcome their workforce back in. But as they do so, it’s essential to understand possible risks and adjust to a changing legal landscape. They also need to take steps to ensure that the employer’s approach protects the business and employees alike.

 

FAQs About California’s Required Paid Sick Leave

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California recently enacted AB 1522, called the Healthy Workplaces, Healthy Families Act of 2014, which requires most California employers to provide paid sick leave to their employees effective July 1, 2015. California employers already face complex employment laws, which prove to be a challenge for most small businesses. This new bill will only add to the list of laws California business must be aware of to remain compliant. Below is a list of the most frequently asked questions since the mandate was passed.

FAQ: California Paid Sick Leave

Q: I only have a few employees, does this apply to my company?

A: All employers are covered, no matter their size. There are very few exceptions, most of which revolve around collective bargaining agreements. Also, providers of in-home support services under certain sections of the Welfare and Institutions Code are not covered.

Q: Which employees are eligible for paid sick leave?

A: All employees who work for an employer for 30 days are eligible. This includes all employee classifications such as exempt, non-exempt, part-time, temporary and per-diem employees.

Q: When does paid sick leave begin to accrue?

A: Paid sick leave begins to accrue on the first day of employment.

Q: When can employees begin to use their paid sick time?

A: An employee has the right to use paid sick leave beginning on the 90th day of employment.

Q: How much paid sick leave can an employee earn?

A: Paid sick leave is earned at a rate of one hour for every 30 hours worked.

Q: Can an employer limit the amount of paid sick time employees can earn?

A: Yes. Paid sick time can be limited to 3 days or 24 hours per 12-month period. The 12-month period can be a rolling 12-month period, a calendar year or an anniversary year.

Q: Does the paid sick leave bank reset to zero at the beginning of each new year?

A: No. Accrued and unused paid sick time must be carried over into the next year.

Q: How much paid sick leave can an employee have in the bank?

A: The Paid Sick Leave bank can be capped at 48 hours/six days. This means once an employee has accrued 48 hours in the bank no additional accrual can happen until a sufficient amount of sick time is used to allow for additional accrual.

Q: I currently offer a Paid Time Off (PTO) bank that can be used for sick or vacation time. Must I now offer a separate paid sick leave bank?

A: Maybe. If your PTO program offers the same or more time required under the new paid sick leave requirements, then no, you do not have to offer additional time off. If your PTO program offers less time than that required by the paid sick leave mandate, then yes, you will need to either bring your current PTO plan up to the levels required under paid sick leave or offer a separate paid sick leave bank.

Q: Can we require employees to use the paid sick leave for themselves only?

A: No. California’s “Kin Care” requirement still exists. “Kin Care” requires that an employee be allowed to use 50% of available annual sick leave to attend to an ill family member. A family member includes child, parent, spouse, domestic partner or child of a domestic partner.  The definitions of “child” and “parent” include adopted, foster, step and biological relationships, as well as legal guardians and wards. The criterion for domestic partnership is defined in Family Code Section 297(b).

Q: How will employees know how much paid sick leave they have available?

A: The employer must include the paid sick leave balance on the wage statement/paycheck stub or can provide a separate document with the balance on each payday.

Q: Do I have to pay out unused paid sick leave at termination like unused vacation has to be paid out?

A: No. However, if a worker is rehired/reinstated less than 12 months from his or her termination date the unused paid sick leave balance at the time of termination must be restored.

This is a great time to review your handbooks, agreements and policies to make sure you are in compliance with California law. The growing number of employment and labor law changes will be no different in 2015, and by staying knowledgeable in these areas, business owners can better protect themselves and their business.

About the Author: Michele O’Donnell leads the team of HR Consultants at MMC. She has been involved in the HR industry for more than 14 years.

photo credit: Jem Hologram. via photopin cc