Monthly Archives

June 2017

Cal/OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week.

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Cal OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week. California rules are very clear on how employers must protect their workers from heat illness.

Cal OSHA’s goal is to prevent deaths and serious illnesses and injuries caused by exposure to heat.” Special attention must be given to new employees who have not been acclimatized to working under hot conditions, as they are particularly vulnerable to heat illness. They must be monitored carefully for signs of heat illness and should, if possible, be allowed to begin work earlier in the day when the temperature is lower or gradually work up to a full schedule. Many regions of the state will be reaching temperatures in the triple digits. When temperatures reach 95 degrees or above, employers are required to implement high heat procedures to ensure outdoor workers are protected.

Procedures include effective monitoring of all workers through methods such as a mandatory buddy system for workers or regular communication with workers who work alone. California’s Heat Illness Prevention Standard requires employers to train workers on the signs and symptoms of heat illness, provide shade when temperatures exceed 80 degrees, develop emergency response procedures and train workers on how to execute those procedures when necessary. Cal OSHA inspects outdoor worksites in agriculture, construction, landscaping, and other operations throughout the heat season.

A written Injury and Illness Prevention Program is required for employer who have more than 10 employees. Documented Heat Stress training is required regardless of employee size.

If you should have any questions, please contact us 925-556-4404.

Is Crying at Work Sufficient Notice of an FMLA Covered Condition?

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It is well established that an employee need not specifically request leave under the Family and Medical Leave Act (“FMLA”) in order to benefit from the Act’s protections.  Rather, the law requires the employer to take action to notify an employee of FMLA rights when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason or that the employee may need such leave.  The difficulty facing employers is when to initiate the FMLA process based on observations of the employee’s condition or behavior.  In a recent decision out of the Northern District of Illinois, the Court held that an employee sufficiently stated a claim for interference under the FMLA because the employer was on notice of a serious health condition when she became “extremely distraught and began crying regularly and uncontrollably at work.”

In Valdivia v. Township High School District 214, a secretary claimed her coworkers made derogatory remarks about Hispanic students and their families.  She allegedly complained but nothing was done.  After expressing concern over whether she could continue working while in frequent distress, she was allegedly told that she needed to decide whether she wanted to continue working or resign.  The employee reportedly also told the principal that she was overwhelmed, not sleeping, not eating, and losing weight but she was again given the option of working or resigning.  Ultimately the employee resigned for medical reasons.

In addition to claiming a hostile work environment, the employee claimed that the school interfered with her FMLA rights by failing to provide her notice that she had the right to take job protected leave.  The Court noted that the FMLA notice requirement for employees is “not demanding.”  In fact, it may be possible that the employee is not even aware he/she is suffering from a serious health condition.  In these cases, “clear abnormalities in in the employee’s behavior may constitute constructive notice of a serious health condition.”  The school argued that it was not reasonable to be held accountable for knowledge of the employee’s health condition when she was not even aware of it.  The employee was diagnosed with depression after her termination.  The Court dismissed that argument and noted that uncharacteristic or unusual conduct at work may itself provide adequate notice of a serious health condition.

Employers often struggle with how to address situations involving changes in an employee’s condition or conduct.  Failure to address the situation as one that is potentially covered by the FMLA or even the ADA could result in a violation of the employee’s rights under those laws.  On the other hand, treating an employee as if they have a serious health condition could result in a claim that the employee was improperly regarded as disabled or, in the event of a later adverse employment action, retaliated against for having the health condition.  As demonstrated by this decision, Courts and the Department of Labor tend to give employees the benefit of the doubt with respect to notice of an FMLA condition and employers must be cautious about failing to react in these situations.

Cal/OSHA Urges Employers to Prepare For Sizzling Temperatures

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As Northern California braces for triple digit temperatures, Cal/OSHA urges all employers to revisit their Injury and Illness Prevention Programs and their emergency response procedures to make sure they are thoroughly prepared for high heat. Sacramento’s National Weather Service is forecasting temperatures in the 90s today and through the weekend. Early next week temperatures will reach triple digits in much of Northern California, from south of Stockton up to Redding. “During heat waves and whenever temperatures reach or exceed 95 degrees, employers must take additional steps to monitor workers for signs and symptoms of heat illness,” said Cal/OSHA Chief Juliann Sum. “Water, rest and shade can protect workers from the heat.” California’s outdoor workplace Heat Illness Prevention regulations require employers to take four steps to prevent heat illness:

• Training – Train all employees and supervisors on heat illness prevention.

• Water – Provide enough fresh water so that each worker can drink at least 1 quart per hour, and encourage workers to do so.

• Shade – Provide shaded areas upon request or when temperatures exceed 80 degree, and encourage any worker to take a cool-down rest in the shade for at least 5 minutes to protect against overheating. Workers should not wait until they feel sick to cool down.

• Planning – Develop and implement effective written emergency response procedures for complying with Cal/OSHA’s Heat Illness Prevention Standard. Cal/OSHA will inspect outdoor worksites of industries such as agriculture, construction, and landscaping throughout the heat season. Cal/OSHA’s Heat Illness Prevention program, the first of its kind in the nation, includes enforcement of heat regulations as well as multilingual outreach and training for California’s employers and workers. Information on heat illness prevention requirements and training materials is posted on Cal/OSHA’s Heat Illness Prevention web page and on the “Water. Rest. Shade. The work can’t get done without them” educational campaign website. A Heat Illness Prevention e-tool is also available on Cal/OSHA’s website.

IRS Says Employer’s Parking Benefits Are Taxable to Employees

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In an information letter, the IRS concludes that benefits an employer provides under its company parking policy are taxable income to the employees that choose to use the benefit.

An IRS information letter is the agency’s response to a taxpayer’s request for information about the taxation of a specific benefit under particular circumstances. Information letters are not binding legal advice and may not be used or cited as precedent. However, they provide general guidance for other employers that provide, or are contemplating providing, similar benefits to employees under similar circumstances.

Parking Policy

An employer implemented a policy under which it contracted and paid for secure parking for its employees in a parking facility near the office. The employer pays the parking vendor directly for the parking spots. Employees who wish to use the parking must agree, in writing, to reimburse the employer by having the monthly parking fee deducted from their pay the month before they use the parking. The employees cannot get a refund of the amounts withheld if they do not use the parking.

The cost of the parking is less than the statutory limit under Internal Revenue Code (IRC) § 132. The employees do not have the option to choose between taxable cash compensation and parking. Accordingly, the employer does not exclude the cost of the parking from the employees’ taxable wages. Instead, the employer deducts the cost of the parking from the employees’ after-tax wages.

The employer requested information from the IRS because employees who have elected to use the parking spots have asked whether the amounts deducted from their wages should be excluded from their taxable income and wages as a “qualified parking” benefit under the IRC.

‘Qualified Parking’ Under the IRC

Under the IRC, an employer-provided fringe benefit is presumed to be taxable income to employees unless it is specifically excluded from income by another section of the IRC. Under IRC § 132(a)(5), “qualified transportation fringe benefits” are excluded from employees’ gross income. “Qualified parking” that is “provided” to employees on or near an employer’s work premises is excluded from gross income under IRC § 132(f)(1)(C). Under IRC regulation § 1.132- 9(b) Q/A 4, parking is “provided” by an employer if:

  • It is on employer-owned or -leased property;
  • It is paid for by the employer; or
  • The employer reimburses employees for their parking expenses.

Taxable Arrangement

In its information letter responding to the employer’s inquiry, the IRS concluded that in the employer’s particular situation, the parking benefits are not “qualified transportation fringe benefits” and, therefore, are taxable to the employees. To be considered “qualified”, and therefore tax-free, the employer would have to reimburse the employees for their parking expenses by providing the reimbursements either:

  • In addition to the employee’s regular wages; or
  • In place of pay.

Reimbursements provided in place of pay are called “compensation reduction arrangements.” Under such arrangements, an employer permits employees to elect to reduce their taxable compensation in order to receive tax-free reimbursements for parking expenses they have actually incurred.

This particular employer’s arrangement, under which the employer purchases parking spots from a parking vendor and then permits employees to pay the employer for the parking spots using the employees’ own after-tax compensation, does not meet the definition of “qualified parking” under the IRC and regulations.

If you should have any questions, please contact your HR Specialist at 925-556-4404.