Going Catty: Can You Keep Workplace Gossip at Bay?

All week long, people have been talking about Sarah Palin's autobiography Going Rogue. There are those who love her more than ever. And those who don't. And then there's the back and forth about who had to pay for what and whether an advisor to the vice presidential candidate urged her to be interviewed by Katie Couric because Katie's "insecure." (Note to self: never run for office and never agree to a televised interview because the interviewer is "insecure.")

Now, you're thinking, what does this have to do with workplace legal issues? Turns out that some of this kind of stuff----and I'm thinking the highly technical legal word for it is "gossip" ----is the subject of workplace headaches for a lot of employers and workplace policies for some.

A recent piece in the New York Times by John Tierney discusses an Indiana University study of gossip published in the Journal of Contemporary Ethnography. Apparently, and this won't surprise, one of the findings of the study is that workplace gossip tends to be overwhelmingly negative. And destructive to a workplace if not handled.

According to the Times, one of the study's authors, Tim Hallett, a sociologist at Indiana University said “[o]ffice gossip can be a form of reputational warfare....It’s like informal gossip, but it’s richer and more elaborate. There are more layers to it because people practice indirectness and avoidance. People are more cautious because they know they can lose not just a friendship but a job.”
In Tierney's blog, he opens up a discussion about strategies for preventing or at least taming gossip's destructive effects at work. One solution apparently is creating a "no gossip" workplace policy. In another Times article this week, at least one worker sings the praises of such a policy.
Shayla McKnight works at an on-line printing company with a no-gossip policy and here's what she said in the article: "There’s a greater sense of being part of a team here than in other jobs I’ve had. If employees do violate the company policy, a manager speaks to them, and if they don’t stop, they’re let go. It has happened.It appears to me as if everyone has bought into the mind-set. If we ever sense that someone might be gossiping, we call that person out and say, 'You need to go to the source if you have a question.'”

So does your office remind you of scenes from "Gossip Girl"? If not, and your workplace has come up with an effective solution for workplace gossip, let us know. We'd like to hear from you and if we learn about any ingenious ways to tame the gossip game at work, we'll let you know.

Posted by Denise Cline

Emergency Contagious Worker Paid Leave Bill

Health care debate in Congress isn’t limited to the 2000 page health care reform bill passed last weekend in the House of Representatives. U.S. Rep. George Miller, (D-Calif) has introduced a employee leave bill that would allow contagious workers who are asked to stay home by their bosses five days of leave with pay.
The emergency legislation (H.R. 3991), called the Emergency Influenza Containment Act, was intended to limit the spread of the H1N1 flu virus, according to Miller. Miller is the chairman of the House Education and Labor Committee, and has expressed a desire to have the bill voted on quickly. The Education and Labor committee will hold a hearing on the emergency measure on November 16, 2009. That proceedings on this four-page bill should be considerably shorter than those for the huge health care reform bill now under debate in the Senate.

“Sick workers advised to stay home by their employers shouldn’t have to choose between their livelihood, and their co-workers’ or customers’ health,” Miller said on his website. “This will not only protect employees, but it will save employers money by ensuring that sick employees don’t spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.”

The Center for Disease Control reports that the swine flu is now widespread in 48 states, and today reports that the death toll has reached 3900. In its guidance for small business and employers, the CDC recommends that individuals afflicted with the flu stay home at least 24 hours after fever subsides, which in most cases means employees will need to be out of work 3 to 5 days.

Under the Emergency Influenza Containment Act, paid leave would be available if an employer directs an employee to leave work or to stay home because the employer believes that the employee has symptoms of a contagious disease or has been in close contact with an individual who has symptoms. The bill would not require paid leave unless the employer makes the decision to send the worker home, however.

The maximum period of the leave under the bill is five days per 12 month period. The bill also prohibits discipline, firing or retaliation against an employee who stays home.
The Family Medical Leave Act may also be applicable to workers with H1N1. But that Act only applies to workforces with 50 or more employees and it only requires employers to provide unpaid leave.
By contrast, the paid leave requirement under the Emergency Influenza Containment Act would only be applicable to employers with 15 or more employees. Additionally, the paid leave requirement would not be applicable to an employers who already provide at least five days of paid leave during a 12 month period for an employee to use and his or her discretion.
The bill if passed would be effective immediately and would expire within two years.

We'll watch for news of this legislation after the committee hearings on Monday. And keep you posted.

Posted by Denise Cline

Amended FMLA Signed Into Law

Families of service members in the armed forces now have expanded benefits under the Family Medical Leave Act (FMLA). The House of Representatives passed amendments to the FMLA in early October and the Senate approved the benefits as a part of the 2010 Department of Defense Authorization bill. President Obama signed the bill last Thursday, and the amended law took effect immediately.

Last year’s amendments to the FMLA added the concept of “qualified exigency leave” to the list of rights available to workers of employers covered by the FMLA. Prior to the most recent amendment, exigency leave had been available only to family of service members in the reserves or National Guard called away on “contingency operations.”

Exigency leave is a limited period of unpaid leave provided so that family of service members may make arrangements for childcare, relocation, financial and legal planning, school or military meetings and other activities required in connection with short notice deployment.

Changes in the 2009 bill include an expansion of exigency leave to include family of service members in the regular Armed Services, not just the National Guard or reserves as previously allowed. The changes would allow coverage not only for family of active duty service members in “contingent operations” but also to any active duty service in a foreign country.

Other amendments include an expansion of “injured service member” leave. In the 2008 amendments, Congress provided for 26 weeks of leave for next of kin of current service members where the service member's injuries or illness occurred as a result of their service.

The new amendments provide injured service member leave not only for active duty service members, but also for veterans undergoing medical treatment or therapy for injury or illness. To qualify, the injury or illness must have occurred within five years after the veteran left military service. The new act also expands the definition of “serious illness or injury” to include conditions that aggravate conditions suffered prior to active duty service.

You might not think to look for an expansion of FMLA rights in a defense bill, but employers should take note and put revised policies and practices into effect immediately.

Posted by Denise Cline

Mandatory Flu Vaccinations Halted in New York

Facts have a remarkable way of trumping the law. We've posted on the decision by some healthcare employers and the New York State Health Deparpment to require health care employees to get flu shots. Predictably, courts have become involved, but last night New York Governor David A. Paterson announced that the state's program for mandatory vaccinations has been suspended because of a shortage in the H1N1 vaccine. Apparently, the Centers for Disease Control and Prevention (CDC) acknowledged that only 23 percent of the vaccine supply designated for New York would be available by the end of the month. Governor Paterson and Health Commissioner Richard F. Daines have determined that the limited vaccine supplies should first go to members of the population at high risk, including pregnant women and young people between the ages of 6 months and 24 years.

The New York Times had reported last week that a New York judge had temporarily enjoined the Health Department from enforcing its regulation that would have required flu vaccines for health care workers in hospitals, outpatient clinics and home care services, unless employees had medical complications that would militate against the immunizations. The department's rules would have required immunizations for both seasonal and swine flu to limit the spread of the virus in hospitals and other health care facilities. The department had vowed to fight the temporary restraining order.

The temporary restraining order reportedly came as a result of a lawsuit filed by three Albany nurses who claimed the vaccination requirement violated their civil rights. Although the New York State Nurses Association reportedly supported the notion of immunizations, they objected to the mandatory nature of the requirement, citing concerns about the safety and effectiveness of the vaccines.

But for now, those objections will take a back seat to the more pressing issue of limited supplies of vaccine. The widespread shortage of vaccines could also halt other healthcare systems from enforcing similar restrictions. In Washington State a nurses' union has filed a lawsuit to prohibit Multicare Healthcare Systems from carrying out similar mandatory immunization requirements. Those requirements may meet the same fate as the New York State Health Department regulations.

Posted by Denise Cline

After the Flu: Where's Your Doctor's Note?

We (like just about everyone else who lives outside a cave and can read and type on a computer) have been posting on the swine flu pandemic and workplace issues. Although our region is not yet as seriously affected as other parts of the world, there are reports of widespread flu-related workplace absences in other parts of the country, including the Pacific Northwest.
Employers still have a lot of questions about handling workers with the swine flu. One of those questions is how to handle an employee's return to work. For example, if you usually require a doctor's return-to-work note after an employee has been out sick, should that rule still apply during this flu pandemic?
The Centers for Disease Control and Prevention’s (CDC) Guidance for Business and Employers says no. The CDC actually recommends that during the H1N1 flu pandemic employers waive any requirement that employees ill with flu symptoms produce doctors’ notes before returning to work. The premise is that the healthcare system is or will be strained with treating large numbers of flu patients and that requiring doctors to issue return-to-work notes would take that strain to a breaking point.
Some employers may disregard that recommendation, however, reasoning that a pandemic is a time for employers to be extremely cautious about letting workers return to work when there is a risk they can infect others. This is especially true for child care, healthcare and educational workplaces. Employers also may see the doctors' note requirement as a way to curb abuse of time off policies.
Others intend to follow the CDC’s recommendation. Where the virus is spreading quickly, doctors have all they can handle to see the patients who come in. In most cases, the CDC doesn’t even recommend testing for the virus, and there are reports of long waits at doctors' offices just for treatment alone.
Should your company disregard the CDC recommendation? If you do, you may face employee resistance unless you can explain your reasons. Where employees can't get in to see their physicians in a timely way, they may still want to avoid missing work, especially during these difficult economic times. At the other end of the spectrum, some employees may try to game the system absent some requirement that they schedule and document doctors’ visits.
A similar issue is what to do about non-exempt workers who must be out with the flu. If employers decide not to pay those workers, the incentive to return to work is great----perhaps so great that contagious workers may try to come back to work too soon. But if employers decide to pay non-exempt workers, some employees may be tempted to claim sickness for paid days off, even if they aren't sick.
One option some employers have adopted is to require employees to use paid leave from their vacation or paid leave bank. In some cases, they advance paid leave before it’s earned. That way workers are less tempted to come into work sick, but still must use up time that they would otherwise have had available. If that’s the route your company decides to take, make sure your employees know that’s the policy in advance. If you’re still worried about workers coming into work sick, make clear that your business reserves the right to send workers home if they appear ill
You may have other practical questions about how to handle the pandemic from an HR perspective, including what questions you may ask about an employees' symptoms, whether you can require handwashing and mask-wearing and other issues. The EEOC has issued some guidelines in the context of the Americans with Disabilities Act and Title VII that you may find helpful.
In the meantime, if you have ideas about handling workplace pandemic issues, we'd like to hear about them. So stay healthy, and send us your comments.


Posted by Denise Cline