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Policy Corner

Policy Corner

Staff Senate receives numerous questions about labor law and UW policy. We've created Policy Corner to share some resources and information with you that may be of help. For further questions or concerns, employees can contact Human Resources or browse the information available at the US Department of Labor website or the Wyoming Workforce Services page.

Topics

How much medical information do I have to share with my supervisor when requesting sick leave?

What options are available to a post-probationary employee who disagrees with his/her performance review?

Does The Law Require Accommodations For Nursing Mothers In The Workplace?

Who receives On-call Pay?

  

How much medical information do I have to share with my supervisor when requesting sick leave?

For example, what happens if an employee feels uncomfortable discussing health issues in front of coworkers, but the employee’s supervisor requires more detail before s/he will approve sick leave?

The UW Employee Handbook states that the use of sick leave is “subject to verification by the Appointing Authority,” and “the employee must provide appropriate written medical documentation when requested” (p. 14, which complies with HIPAA).

However, this documentation does not have to include confidential medical information, either verbal or written. According to Marilyn Norman, Compliance Officer with Labor Standards in the Wyoming Department of Workforce Services, an employee should not be required to discuss any specific medical information with his or her supervisor or in front of his or her coworkers, when requesting sick leave, nor do supervisors have the authority to deny the use of sick leave if an employee has sick leave accrued. Norman indicated that to ask employees for specific medical information to determine the necessity of sick leave would then indicate the employee is “regarded as disabled,” and specific rules on disclosure of information would then apply under the Americans with Disabilities Act. The ADA: A Primer for Small Business circular states under the section Getting Medical Information from Employees that “The ADA strictly limits the circumstances under which you may ask questions about disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to performers job functions or will pose a direct threat because of a medical condition.” Thus, if an employee is using sick leave for a medical appointment or illness, a supervisor may request a note from the employee’s medical provider to confirm such, but the supervisor may not require that the note contain any confidential medical information or that it be shared with others.

If an employee is requesting accommodation under the ADA, an employer can ask only for the information needed to provide the accommodation. This information must remain confidential and be limited to information that is job-related and consistent with business necessity. See the EEOC circular, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA).

Similarly, if an employee requests leave under the Family and Medical Leave Act (FMLA), his or her employer may ask for information that establishes eligibility for FMLA, but there is no expectation that the employee will have to discuss his or her situation in front of coworkers or provide information on his or her medical diagnosis. See the U.S. Department of Labor’s Employee’s Guide to the Family and Medical Leave Act.

If you are uncomfortable with any conversation concerning sick leave, please contact Human Resources for assistance.

What options are available to a post-probationary employee who disagrees with his/her performance review?

 If a post-probationary employee disagrees with his/her annual performance evaluation, the employee may:

  1. Insert a response to the performance review within the employee comments section; and/or

  2. Request reconsideration by the next level supervisor appointing authority.

The final decision is made by the appointing authority, taking into consideration any attached responses, reconsiderations, and/ or guidance from the Director of Human Resources.
All pay increases allocated using performance evaluation ratings are discretionary and employees shall have no expectation of any pay increase.
Although staff may appeal an evaluation as provided in this section, there is no appeal process to contest a pay adjustment associated with a performance evaluation rating.

Does The Law Require Accommodations For Nursing Mothers In The Workplace?

The Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth. This rule applies each time the employee needs to express breast milk.

Employers are also required to provide a place for an employee to express breast milk, other than a bathroom, which is shielded from view and free from intrusion from coworkers and the public. The break time requirement became effective when the Affordable Care Act was signed into law in March 2010.

The University of Wyoming’s Campus Breast Pumping Program policy is outlined here.

For more information, you can view the Department of Labor’s FAQ’s on Break Time for Nursing Mothers by clicking here.

Employer solutions for supporting nursing mothers at work can be found at the US Department of Health and Human Services Department website by clicking here.

Who receives On-call Pay?

Are you Engaged to Wait, or Waiting to be Engaged?

According to the Fair Labor Standards Act, a non-exempt employee who is engaged to wait must be compensated with on-call pay, while an employee who is merely waiting to be engaged does not have to be paid. But how can you tell if you're engaged to wait?

An employee who is not free to leave the vicinity of their workplace (i.e. drive from Laramie to Cheyenne or Ft. Collins) or who must be able to return to work within 20-30 minutes is considered to be engaged to wait. Similarly, if they have to be available by phone at all times, or cannot consume alcoholic beverages, this would make them engaged to wait, and therefore they are on-call and must be compensated.

If an employee is not receiving on-call pay they are waiting to be engaged and their freedom cannot be constrained in the same way. They cannot be required to answer their personal phone, respond within 20 minutes, stay in town, refrain from consuming alcohol, etc. The time outside of their designated work hours belongs to them, and they do not receive on-call pay for that time.

For more information click here: http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol3/xml/CFR-2011-title29-vol3-part785.xml.

Staff Senate is currently researching the guidelines for exempt employees who are asked to be on call. We will share this information as soon as it becomes available.

  

Does the Fair Labor Standards Act apply to UW?



Ask us

Do you have a specific question that you would like us to investigate and post information on? Send it to us at staffsen@uwyo.

 

 

Policy Bulletins

The Leave Time Taskforce has issued several Policy Bulletins in conjunction with Human Resources. You can view them here:

Bulletin on Comp Time    Bulletin on Time Reporting  

Bulletin on On-Call and Essential Employees  



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