Category Archives: Employment Law

HR Thursday: Health Hazards During Pregnancy

Your employee says, “I’m pregnant!”

You say, “Congratulations!”  (Don’t say what you really might be thinking)

Then, your employee immediately signs the Health Hazards During Pregnancy Release Letter that you have in your office policy manual. 

If your employee will be taking a Pregnancy Leave near the end of the pregnancy, then you should also have in your policy manual the Pregnancy Disability Leave Letter.

Watch this video NOW

For copies of these free forms, click here;

Health Hazards During Pregnancy/ Pregnancy Disability Leave

These forms are compliments of Bent Ericksen & Associates  Call them for ALL of your HR/Employment Law needs!

HR Thursday: Drug and Alcohol Testing

A recent article by Tim Twigg and Rebecca Crane of Bent Ericksen & Associates tells us to “Be Careful” when it comes to employee drug testing.

Let’s say one of your employees exhibits some, or all of the following behaviors:

  • Seems distracted and inattentive
  • He/she looks unkempt, tired and unprofessional
  • Sometimes you may smell an odor on him/her that could be alcohol or drugs

You’re determined to require a drug or alcohol test, feeling that if he/she fails, you’ll surely fire him/her, right?  Oh…if the issue were only that black and white.

Did you know that the Americans with Disabilities Act (ADA) considers some drug- and alcohol-related situations to be a disability, and therefore protects these people from illegal discrimination?  Your employee can be protected under the law if:

  • He/she is addicted to drugs
  • Has a history of addiction
  • He/she is currently in, or has completed a drug rehab program
  • He/she is not a “current” illegal drug user

Alcoholism is ALWAYS considered a disability, therefore if your employee is able to perform the functions of their job, he/she is protected under law.

Do’s and Don’ts of Recruiting

Illegal drug use is not considered a disability.  Therefore, questions and tests for illegal drugs are permissable.  Pre-employment tests for illegal drugs are often accompanied by a Conditional Offer of Employment Letter.

Conducting alcohol tests at the prehire stage is not allowable.  An employer should tread lightly with questions regarding alcohol use, since it could result in learning that the person has a disability, which is illegal to question at the preoffer stage.

Post-Hire Monitoring

Here are three common scenarios for drug and alcohol testing:

Reasonable suspicion–The employer has specific objective facts and rational inferences about an employee and suspects they are abusing drugs/alcohol

Post-accident–The employer has reasonable suspicion that an accident at work was caused or exacerbated by the use of drugs or alcohol

Random–The employer puts employees on alert that they may be “randomly” selected for a drug test at any time.

Implementing Drug and Alcohol Testing

The first step is to have a clear policy stating that you don’t tolerate illegal drug use, and explain the rules and consequences for violators.  If you don’t have a policy, you should NOT carry out any testing of employees.

Reasonable Accommodation

If the employer finds out that after an employee is hired that he/she has a drug.alcohol problem, it is considered a disability and the employer is obligated to reasonably accommodate the individual.  That means the employer must provide whatever is necessary for the employee to continue performing his/her job without causing hardship to the business or practice.

You can see that drug and alcohol testing is a legal minefield waiting to explode on unsuspecting employers.  Be cautious and seek counsel from a professional before you decide to test.

HR Thursday: Leave of Absence policy

What happens when your employee want to exercise their right to take a Leave of Absence? 

Watch this video!

Some Leaves are optional, some are required.  Do you know the difference?  Your requirements to allow these types of leaves are based on State/Federal regulations and on the number of employees you have.  There are very clear protocols and policies when it comes to Leaves of Absence, and it behooves you to know what they are.  It’s even more important that you have them stated clearly in writing in your office policy manual.

Types of Leaves:

  • Bereavement leave

  • Personal Leave

  • Personal Leave due to Illness or Disability

  • Medical Leave for Occupational Disability

  • Leave for School Activities

  • Military

  • Military Family Leave

  • Leave Related to Domestic Violence

  • Pregnancy Leave

Important parts of the written policy:

  • Definition

  • Eligibility

  • How request is made/when

  • Length of Leave

  • Reporting on progress

  • Salary and Benefits

  • Reinstatement to work

  • Termination of employment while on Leave

For more information about creating an up-to-date policy manual for your practice, comment on this blog or send me an email!

HR Thursday: Reference Checking

Because of some technical difficulties, I’m unable to provide video this week, but welcome to HR Thursday on:
Reference Checking

A Cautionary Note—various local, state, and federal laws, including the Americans with Disabilities Act, affect a prospective employer’s right to secure and use information during the screening process. Employers undertaking reference checks should:

  1. Become thoroughly familiar with all laws and regulations pretaining to pre-employment inquiries.
  2. Institute and follow procedures to maintain the confidentiality of all information obtained
  3. Take care to protest personal informaiton in employment files.

***Reference checking should be done only by trained management personnel or by an outside investigative agency.

Reference checking guidelines

Have the applicant’s permission in writing
. Many former employers will refuse to supply such information without a signed consent from the former employee. Before initiating a reference check, ask job applicants to sign a release authorizing their former employer to provide employment-related information

Mail or fax a copy of the Reference Request form to former employer(s)
(Ask me for a copy of this form for free)

Treat all reference information obtained in a confidential manner
. Save information received from former employer(s) in Personnel File if hired. If not hired, store with other completed applications — you may have to justify later why a person was not hired.

Ensure that the information received is from an authorized source
. Make sure that any professional or personal reference to be contacted is in a position to provide the kind of job-related information you need such as someone in a management position who has been delegated the responsibility to give out reference information. If applicable, speak to two persons for whom the applicant has worked on each job, the immediate supervisor and his/her superior.

Ask only direct and pointed, job-related questions

If possible, ask the same questions of all references, and use the same format for all reference checks.

the questions you asked, as well as the responses.  Your objective is to clear up discrepancies or fill in gaps in employment information.

Verify factual information
, e.g., beginning and termination dates, reason for leaving, salary and positions held, former supervisor’s evaluation; personal information, such as education and qualifications, job responsibilities, position titles, etc.; ask about the applicant’s job performance, honesty, interpersonal skills, and judgment in fulfilling work related duties.

Do not ask questions that may not legally be asked of the applicant at the pre-job-offer stage
. Avoid questions that are considered improper under state inquiry laws. Avoid discussing or alluding to an applicant’s age, physical or mental disabilities, earlier periods of unemployment, discrimination complaints, marital status, and citizenship or national origin.

Be cautious about any extreme comments you hear, good or bad, unless they are verified from other sources.

If negative business related information is uncovered, consider its source and check its accuracy with other sources.

Ensure that background information is weighed in the same way for all candidates
. What disqualifies one candidate should be the basis for disqualifying any applicant.

Questions To Ask When Checking References

  1. Why did the applicant leave your employment?
  2. What was applicant’s beginning and ending date of employment?
  3. What was applicant’s salary at termination?
  4. What were the applicant’s major job responsibilities? 
  5. How would you rate the applicant’s quality of work?
  6. Results of any performance evaluations?
  7. How was applicant’s punctuality and attendance history? 
  8. Would you rehire the applicant?
  9. How would you characterize the relationship between the applicant and other staff members? How about between the applicant and patients, clients, and/or customers?
  10. What were the applicant’s principal strengths? Outstanding successes? Significant failures?
  11. How would you compare the applicant’s performance with the performance of others with similar responsibilities?
  12. Were you satisfied with the applicant’s management skills? (if applicable)
  13. How would you describe the applicant’s success in training, developing and motivating coworkers? (if applicable.)
  14. What other information do you have that would help develop a more complete work-related picture of the applicant?

For more information, contact Bent Ericksen & Associates

If you’d like a copy of Form #105 Reference Request Form to Former Employer(s), please let me know!

Have a wonderful week!

HR Thursday: Reference & Background Checks


Watch this video!

Most difficulties after hiring result from an employer not checking references and/or backgrounds

“The single most important indicator of how an employee will perform in the future appears to be how he/she has performed in the past.  Employees with a history of success tend to continue their successful performance.  The others, despite their best intentions, rarely are able to turn over a new leaf.”  Arthur A. Witkin, Chief Psychologist, Personnel Sciences Center, New York, NY

Why Check References and Backgrounds?

  • To screen out unsuitable candidates
  • To weed out potentially dangerous or violent employees
  • To avoid costly hiring mistakes

Some staggering statistics:

  • 45% of resumes contain false or exaggerated information
  • 52% of applicants exaggerate their experience
  • Approximately 10-15 workplace homicides occur every week
  • Approximately 1 million people are attacked at work each year
  • 1 in 3 employees steal

Claims of NEGLIGENT HIRING arises when any of the following occurs:

  • The employer hires an unfit employee who injures or is a risk to others
  • The employer fails to conduct a thorough background check
  • The employer fails to recognize and reject an applicant who may be a potential risk

The difference between a “Background Check” and a “Reference Check”

A key issue for employers is what constitutes a “background check” and what constitutes a “reference check.” This is important because the disclosure requirements differ.

Background checks
involve matters of public record. “Public record” means documentation of a conviction, civil judicial action, tax lien, or outstanding judgment. This category also includes an individual’s credit worthiness, credit standing or capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the individual’s eligibility for employment.

Reference checks
involve the prospective employer verifying an applicant’s employment dates, job title, last salary, and job performance with a previous employer. Results from this type of investigation do not need to be disclosed to a prospective employee.

All this information has been supplied by Bent Ericksen & Associates. To find out how to do legal and proper background and/or reference checks please contact them.

Continuing Education: to pay or not to pay?

Do you follow labor law rules for paying staff for travel to and attendance at seminars, lectures, or workshops?


The question that comes up most often in healthcare when discussing employee benefits and legal obligations is about Continuing Education.  It’s no wonder that there are questions about the subject because the language of the law can be often times misleading and hard to understand.

To begin with, there are 4 criteria that, if all 4 are met, the employer does not have to pay an employee for time spent in lectures, meetings and training seminars.

  1. The employee is going on their own initiative
  2. The training takes place outside of normal working hours—on a Saturday for instance
  3. The training is NOT directly related to the employees current job description
  4. The employee will not be performing any productive work during the course

ALL 4 of those criteria need to be met for the employer to be off the hook regarding obligation to pay.

ALSO, if the training is being taken for the purpose of maintaining licenses or certifications, such as dental hygienists or nurses, the employer IS NOT required to pay.

That means, doctors and employers, you will be paying for Continuing Education if even one of those criteria is not met.  And if attending the seminar will require the employee works more than the Federal or State Maximum regulations, you will have to pay overtime for non-exempt employees.

However, it may be appropriate for you to pay your employees attending Continuing Education courses a DIFERENT CAPACITY WORK RATE for dissimilar work.  This means you can pay your employees a separate straight-time rate of pay for dissimilar types of work during the same workweek.

  • That rate must meet or exceed the minimum wage requirements
  • Employees must agree in writing that any overtime pay will be at the special rate.

This will require that you keep meticulous records documenting the what’s, why’s and how’s.

It’s worth it, however.  Continuing Education is an important function of a well-run healthcare practice, and is advantageous to both employer and employee.   Therefore, give your employees opportunities for learning and self-improvement, and know your rights and obligations.

If you still have questions, and I know you will…comment on this blog and I’ll be happy to help you out!  You can also contact my good friends at Bent Ericksen & Associates who specialize in Employment Law Compliance and Human Resources Management.