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Working while on vacation, home office injuries, and tandem lay-off meetings

Employees go on vacation, but business doesn’t stop. So sometimes workers are asked to put in time when they’re expecting to be kicking back at the beach.

Working from home is a popular arrangement, but what are the workers’ compensation implications when an employee is injured in a home office?

Lay-off meetings are never easy, and employers can go astray when looking for the least painful way to deliver the news.

The above situations can put employers in a quandary, and that’s why those issues were put to a group of attorneys recently. Here’s a look at their insights.

Vacation interrupted
What if an exempt employee hears from his supervisor that he’s expected to make some follow-up phone calls to clients while he’s on vacation? The employee makes the calls his boss requests, using part of his vacation time. Is the employee justified in asking for that vacation day back?

Certainly a key point is that the employee is exempt and therefore not covered by the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). But it may still be possible that an employee can make a case for getting another day off.

“There is no legal requirement to provide vacation days to employees,” says James F. Kilcur, a partner with Saul Ewing LLP in Philadelphia. “You can have a policy that advises exempt employees that they are required to return phone calls while on vacation. However, if there is no policy, an employee could claim that he is entitled to another vacation day.”

Peyton Irby, a shareholder with the Jones Walker law firm in Jackson, Mississippi, reiterates that the employer isn’t obligated to give the employee a day off. “Exempt employees may be called on to work as you see fit, regardless of their particular work schedule,” he says.

Injured in a home office
An employer may experience a situation in which an employee working from a home office files a workers’ compensation claim. The employer may want to request photos of the worker’s workspace, but does that present legal risk?

Michael Petrie, an attorney with Jorden Burt LLP in Simsbury, Connecticut, says no law prevents an employer from making such a request, although photos might not provide a clear answer to the employer’s questions about the validity of the workers’ comp claim. They could help, though.

“Presumably, if you provided the employee with certain equipment to ensure a safe and ergonomically correct work environment, you might want to see that the equipment is being used and is set up properly,” Petrie says. “But it seems unlikely that pictures will reveal how the accident occurred or substantiate or disprove whether the injury was work-related. Nevertheless, you should feel free to make the request.”

Irby agrees that an employer can legally ask for photos. “The filing of a workers’ comp claim generally means that you and your insurance carrier are allowed full access to the work site to evaluate the claim and the pertinent facts,” he says.

Workers’ compensation rules vary state by state, but Irby said in his state, Mississippi, the employer probably would be able to get an order from the Workers’ Compensation Commission mandating access and the opportunity for photos.

Kilkur, in Pennsylvania, said the employer should put the request in writing and explain the reason for the request. Also, the photos should be of the workspace that supposedly caused the accident or injury.

Not so private lay-off meeting
Another employer has presented a situation in which a supervisor wants to eliminate two positions because she needs an employee with a different skill set. She doesn’t have a need or the budget to continue the two positions and still make the new hire. She wants to talk to both the employees being laid off at the same time. The supervisor’s thinking is that it will help the two workers if they know they aren’t alone in being laid off. Also, the supervisor wants to make sure both workers hear the same explanation. But is it a good idea?

Kilkur votes no. “Although there is no legal prohibition against notifying individuals of a layoff jointly, it’s better to do it individually,” he says. “Generally, losing a job is an emotional experience, and employees react differently.”

Irby suggests talking with the supervisor to explain the risks. “You do not know how the employees will react or what questions they may have,” he says.

Petrie in Connecticut also sees problems with the group-meeting approach. “There is no legal reason you can’t deliver a layoff notice to two people simultaneously,” he says. “You also are allowed to terminate someone by text message, but that doesn’t mean it’s a good idea.”

Petrie adds that being terminated “can be a deeply emotional, confusing, and anxiety-inducing moment” and employers need to be able to respond if someone gets upset or does something unexpected.

“In addition, some employees might consider a group approach disrespectful, like you couldn’t make time to speak to them one on one,” Petrie says. “Sure, a consistent message is important, but there are other ways to accomplish that. Have simple written talking points that you follow, and stick to your script. Prepare a list of frequently asked questions and answers to which you can refer.”

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