Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming events are on May 23 "The Three Biggest HR Risks Effecting Business Growth" sponsored by FSRG and on June 28 "Hiring for Consistent Performance" sponsored by West End Real Estate Professionals (WEREP).

 

Full Day Workshop on June 25: my last HR4U 101 Workshop for 2013.

 

After Exhausting PDL can Employee be Protected by FEHA?

In Sanchez v. Swissport, Inc., the California Court of Appeal addressed for the first time the following question: Can an employee who exhausted all of her available leave under the California Pregnancy Disability Leave Law (“PDL”) who was terminated when she was unable to return to work after exhausting all available PDL leave state a claim for alleged sex discrimination or disability discrimination under the California Fair Employment and Housing Act (“FEHA”)?   The court held the answer is “yes.”  The court concluded that because the protections provided by the PDLL are in addition to the protections provided by the FEHA, an employee who has exhausted all available leave under PDL who suffers an “adverse employment action,” such as a termination, can nevertheless state a claim for alleged discrimination in violation of the FEHA.

 

Sanchez said Swissport terminated her employment because of her pregnancy, because of her pregnancy-related disability and/or because of her requests for accommodations and that whatever accommodations she might require would not have created an undue hardship on Swissport.

 

The Court of Appeal rejected Swissport’s argument that an employer is not required to provide any further accommodation of a pregnancy-related disability once the maximum four-month leave provided by PDL has expired even if such further accommodation would not result in any undue hardship on the part of the employer.  The Court of Appeal concluded that argument is “contradicted by the plain language of the PDL law, which makes clear that its remedies augment, rather than supplant, those set forth elsewhere in the FEHA.” 

 

Based on the Court of Appeal’s decision and depending on the facts and circumstances of a particular situation, California employers may be required to reasonably accommodate employees with disabilities or medical conditions by providing reasonable leaves of absence longer in duration than the 16 weeks of protected leave provided by PDL, CFRA, and/or FMLA.  In other words, an employer’s duty to engage in the interactive process and to reasonably accommodate an employee’s disability does not end merely because the employee has exhausted all of his or her protected leave, and the facts and circumstances of a particular situation may require the employer to provide additional leave when such additional leave is a reasonable accommodation. The court did not set an outside limit on the amount of additional leave that might be deemed to be a reasonable accommodation in a particular circumstance.

 

The Power of Being Stupid

In a study published this year in the Journal of Management Studies titled “A Stupidity-Based Theory of Organizations,” in which researchers at Sweden’s Lund University found that “functional stupidity” can increase efficiency.

 

Essentially, they write, although “critical reflection and shrewdness” were net positives, when too many smart people in the workplace offered their opinions or ask “disquieting questions about decisions and structures,” it slows work down. “We see functional stupidity as the absence of critical reflection. It is a state of unity and consensus that makes employees in an organization avoid questioning decisions, structures and visions.”  “Paradoxically, this sometimes helps to raise productivity in an organization.”

 

In other words, when everyone joins together and simply focuses on the immediate task on hand, then productivity, consensus and engagement levels go up. Mission accomplished! This approach is not without its risks, of course. Problems may arise when people don’t pose critical questions about what they’re doing, leading them to ignore risks and warning signs.

 

“Short-term use of intellectual resources, consensus and an absence of disquieting questions about decisions and structures may oil the organizational machinery and contribute to harmony and increased productivity in a company.” “However, it may also be its downfall.” In other words, don’t be too hard on those irritating, complaining malcontents in your organization. They may slow things down  but they could also end up saving the project.

 

OSHA Basics

Who’s covered?

• The majority of private employers

What’s the purpose of the Act?

• To ensure that every employee works in a safe and healthy environment

What are employers required to do?

• Provide a workplace free from recognized hazards likely to cause death or serious physical harm
• Comply with safety and health regulations promulgated by OSHA
• Keep a log and summary of workplace injuries and illnesses
• Keep records of safety training sessions
• Retain records for the required period of time

Does an employer have specific obligations with regard to serious accidents?

• Yes. Employers must notify OSHA within 8 hours of learning of any workplace accident resulting in the death of at least one employee or the hospitalization of three or more employees.

What are the potential penalties?

• Monetary fines
• Criminal penalties, including imprisonment

Top OSHA tips

• Keep track of all pertinent safety regulations
• Post the “Job Safety and Health Protection” poster, available from OSHA
• OSHA inspectors have the authority to show up and inspect certain workplaces without notice
• Inspections will frequently occur after serious accidents
• Have a plan in place regarding how to deal with OSHA inspections
• It is illegal to retaliate against employees who have complained to OSHA about unsafe or unhealthy conditions

And in California we have CalOSHA

• Make sure you have an Illness & Injury Prevention Plan per CA requirements
• Make sure you follow your plan
• Keep all IIPP related documentation with your IIPP

 

Factoids

• Almost 19% of companies say they are very concerned about employee skills shortages
• Critical thinking and problem solving is the skill that is most lacking

PPACA factoids

• Employee contribution cannot exceed 9.5% household income
• Plan admittance waiting period is 90 days max
• Applies to 50+ FTE employers, FT is defined as 30+ hours/week
• Employers must pay for at least 60% of the cost
• Only 2% of employers now say they will drop coverage (down from 20% 2011)

 

Quotes

“I’d rather regret the things that I have done than regret the things that I haven’t.”

~Lucille Ball~