February 13, 2017
By Georgeann Yara
Question: Health records
I was at work and became ill and fainted. They called 911 and an ambulance took me to the emergency room. After a few days, I returned to work, but now my employer is asking to see my medical records. The fainting was due to a combination of getting over pneumonia and a touch of food poisoning. It was not a workman’s comp situation or had anything to do with my work. Do they have a right to see my records?
Answer: Employer may need to investigate
The federal Americans With Disabilities Act (ADA), as well as the Arizona Civil Rights Act, require employers with 15 or more workers to provide reasonable accommodations to qualified individuals with disabilities to assist them in performing the essential functions of their jobs. Because covered employers are charged with the knowledge of these obligations, they must be vigilant when it comes to situations in the workplace that might trigger the need to assess whether a worker requires a reasonable accommodation.
In other words, even if the worker does not request an accommodation, circumstances may obligate an employer to investigate and at least start a dialogue about it. Notably, one consideration an employer must make in this process is whether an employee’s disability might put the employee or co-workers at risk.
In your case, your fainting spell could just as easily be explained by an underlying disability, like epilepsy, as it could be by the factors you describe. As a result, your employer may believe it’s necessary to investigate what caused the fainting and to assess whether there is a risk of it happening again.
Although your employer has no legal right to obtain your medical records, reviewing them would provide an efficient way to evaluate your condition. If you are unwilling to provide the records, your employer could require you to undergo an independent medical examination to secure the same information. The ADA allows an employer to insist on such an examination so long as it’s job-related and consistent with business necessity.
— John J. Balitis, Fennemore Craig
Answer: Employer must respect confidentiality
As a general matter, your employer does not have the right to review your confidential medical records. The Americans with Disabilities Act restricts employers’ right to ask employees whether they have a disability, or about the nature or severity of a disability or medical condition, unless such inquiry is job-related and consistent with business necessity.
If you perform a safety-sensitive job, where a condition causing recurrent fainting may pose a substantial safety risk to you or others, your employer may make inquiries into your ability to perform job-related functions but must keep such information confidential and separate from your other personnel records. Your employer may also inform supervisors or safety personnel about potential restrictions on your work duties and necessary accommodations, or if a continuing condition may require emergency treatment in the future.
If you were requesting an accommodation for a disability, your employer may request information about the nature of your disability and how the accommodation would help you perform the essential functions of your position. If you were requesting time off under the Family and Medical Leave Act for the days you missed work due to your health condition, your employer may request a health-care provider certification as to the nature of the condition, your need for time off and any continuing limitations. However, these inquiries generally do not obligate you to produce your medical records for your employer’s review.
Because this was likely a one-time illness, it should not be necessary to provide your medical records, as the condition is not likely to interfere with your performing your job duties in the future.
— Laura Lawless Robertson, Squire Patton Boggs
Question: Should we get a shift differential?
I work for a company that has business hours from 8 a.m. to 5 p.m., Mondays-Fridays. But on Tuesdays, some of us work from 10 a.m.-7 p.m. I’m just wondering, should we be getting shift differential pay for the 5-7 p.m. time frame?
Answer: No law requires it
There is no Arizona or federal law that requires shift differential pay. Therefore, an employee has a right to shift differential pay only if the employer has a policy of paying shift differential pay, or if it is required by an applicable collective bargaining agreement with the employee’s union representative.
However, your question indicates that you may be working up to nine hours per day, five days per week. Assuming that your employer is covered by the federal Fair Labor Standards Act, and most are, you may be entitled to premium overtime pay if you are working more than 40 hours per week. You may want to speak to an experienced employment attorney about whether you are entitled to overtime pay and any statutory penalties.
The Arizona Employment Lawyers Association is composed of attorneys who frequently represent individuals in employment-related matters, including payment of unpaid overtime wages. You can find a list of their members at www.azela.org. In addition, the U.S. Department of Labor has a number of helpful references relating to wage and hour matters on its website at dol.gov.
— Michelle Matheson, Matheson & Matheson
Answer: Documenting agreements is a must
Unless you have an agreement with your employer, then you are not entitled to more money for working different hours on one day. Shift differential is more pay an employer grants to employees for working a less desirable work schedule. These days, one person’s less desirable shift is another person’s more desirable shift.
Unless there is a union contract or other agreement to pay you different rates for the same job done on different shifts, then your employer is not obligated to pay you more to work different hours one day per week. If you believe you have an agreement with your employer to pay you a shift differential, then ask them about it.
For employers, this question highlights your need to document wage agreements with employees. Do not leave them guessing or arguing that they are being paid improperly. And make sure your employee handbooks state there are no oral agreements on wages. Also, please check your at-will employment language and that all employees have signed it.
But remember, if you do pay your employees a shift differential, then that differential must be included in any overtime calculations.
— Jay A. Zweig, Bryan Cave
Question: Can company demands to see my personal phone bill?
My employer reimburses us for the portion of our cellphone use that is used for work. But now they want us to submit full copies of our monthly bills with the work calls highlighted so they can make sure we aren’t cheating them. I am uncomfortable with giving them access to private numbers of my friends and family that appear on these bills. But if I don’t, I won’t get reimbursed. Can they force me to give up these private numbers in order to get reimbursed?
Answer: Company is free to impose requirements on reimbursement
The basic legal requirements related to business expenses in Arizona is simply that an employee’s regular rate of pay cannot drop below the applicable minimum wage because of mandatory work expenditures, an issue that often arises in the context of the purchase of required work tools or uniforms. As of Jan. 1, the minimum wage rate in Arizona is $10 per hour, following approval of Proposition 206.
As long as cellphone costs for business use do not drop an employee’s regular rate of pay below minimum wage, the company has no obligation to repay those costs. Assuming that is the case, if the company voluntarily chooses to reimburse the pro-rated costs of the use of your personal cellphone for business calls, it is likely free to impose any requirement it deems appropriate before making the discretionary reimbursement, including that you submit un-redacted monthly bills.
If you do not wish to submit your bills for reimbursement, you can either use a different mobile phone exclusively for work calls or not use your personal mobile phone for business calls at all. You can also try to submit a redacted version of your complete phone bill with only the numbers for which you do not seek reimbursement redacted while leaving their date, duration, etc., visible to the reviewer to show that your allocation of work to personal calls is genuine.
This response purposefully does not contain a debate of the merits of the policy itself or alternatives to that policy your employer might consider.
— Laurent Badoux, Buchalter Nemer
Answer: Don’t expect privacy at work
When it comes to privacy in the workplace, employees often do not have as many rights as they think. In this instance, you are receiving a financial benefit from the employer and that benefit comes with a price: loss of privacy with regard to your phone bill.
There are different approaches an employer can take to cellphone reimbursement. If the employer owns the phone, or pays 100 percent of the bill, then the company has a right to see the entire bill. If the employer chooses to reimburse a flat rate, the company is still legally entitled to see the bills to ensure the reimbursement rate is reasonable and appropriate. The bottom line is that an employer has a right to review a bill – think of it like a receipt – for anything they reimburse. If a company finds that it is significantly over-paying an employee’s bills, the employee is potentially gaining a fringe benefit that could then be taxable to the employee, as opposed to having it treated simply as a reimbursable expense for tax purposes.
The employer should have a clear written policy explaining the guidelines for cell phone reimbursement. And while some employers ask the employee to highlight business calls, another option can be to black out personal phone numbers, leaving only the business calls visible when the bill is submitted.
Ultimately, if you are overly concerned with loss of privacy, consider making personal calls from your home phone, or purchasing a second phone for personal calls.
— Amy Lieberman, Insight Employment Mediation
Question: Can companies limit smoking when workers are off-duty?
Is it legal for an employer to prohibit smoking within sight of their building if the employees that are smoking are not on company time?
A: Arizona smoking ban extends 20 feet
It seems likely that the company’s prohibition on smoking within sight of its building is an effort to comply with the prohibitions outlined in the Smoke-Free Arizona Act. With limited exceptions, the Smoke-Free Arizona Act prohibits smoking within and around places of employment.
Smoking must be banned in and within 20 feet of any enclosed area, and even outside of 20 feet, the employer responsible for the building must ensure that smoke does not enter the enclosed area and that individuals using the entrances do not have to breathe smoke.
In addition to prohibiting smoking in any enclosed area and within 20 feet of any entrance, employers must also educate employees about the law, clearly post “no smoking” signs at every entrance, remove ashtrays from areas where smoking is prohibited and not discriminate against employees for complaining about smoking violations.
If employees wish to smoke, one possible practice is for the employer to create an outdoor space at least 20 feet from any entrance and ensure that the smoke has no way of entering the building or affecting the people using the building entrance. If you are unsure where you can smoke during your breaks, it may be a good idea to discuss this with your employer in a constructive, respectful way.
— Ty Frankel, Bonnett Fairbourn Friedman & Balint
A: Designation not limited by workers’ hours
Arizona law generally prohibits smoking in all public places and places of employment.
“Places of employment” means an enclosed area under the control of an employer that employees normally frequent during the course of employment, including office buildings, work areas, auditoriums, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, cafeterias, hallways, stairs, elevators, health-care facilities, private offices and vehicles owned and operated by the employer during working hours when the vehicle is occupied by more than one person.
Smoking is permitted in outdoor patios, so long as tobacco smoke does not enter areas where smoking is prohibited either through entrances, windows, ventilation systems or other means.
The law allows an owner, operator, manager or other person or entity in control of an establishment, facility or outdoor area to declare that entire area “non-smoking.” If the employer owns or controls an area that is “within sight,” the employer can legally prohibit smoking in that area.
Although the statute, A.R.S. 36-601, mentions the phrase “during the course of employment” and “during working hours,” a non-smoking designation of an area is not expressly required to be limited to hours during which the employer is doing business, or where the employee is not on company time.
The intent of the law is to protect others from exposure to smoke. An employee may be at lunch and not on company time, but another employee may be working nearby. An employer is allowed to designate an area as non-smoking and have that designation apply 24 hours, seven days a week.
— Amy Lieberman, Insight Employment Mediation
Question: Drug testing
I work as a tech for an installation company. The other day at a job site, the supervisor approached us while we were on our lunch break and one tech was told he had to take a random drug test. Legally, how long do we have to do the test? I thought it was 24 hours, but the tech was told it needed to be done immediately, even though we were in the middle of lunch.
A: Immediate drug testing allowed
Employers are allowed to conduct drug tests to ensure a safe work environment, identify workers with substance-abuse issues, facilitate treatment and reduce employer liability. Drug tests can be required of applicants and of current employees.
An employer can drug test after an accident or if there is “reasonable suspicion” of drug use, and an employer can conduct random drug tests. Random testing is often required of employees who perform “safety-sensitive” positions.
Although job applicants are often directed to report to a certified testing facility within a certain time period, which can be 24 hours, current employees are generally required to be tested “as soon as practicable” during their shift, just before or just after. There is no legal right to any specified notice period, such as two hours, or 24 hours, and employees can be directed to report for testing immediately. This is done to preserve the integrity of the testing process, decreasing the chance of drugs being excreted and becoming undetectable.
Employers who test are required to have written “drug-free workplace” policies and to include them in their employee manuals, and/or post the policies in the same way that other personnel policies are posted. The policy must provide employees with notice of the testing requirements and procedures for gathering specimens, testing and confidentiality, and of the consequences of a positive test or an employee’s refusal to submit to testing.
For more information on Arizona law relating to drug-testing, look to A.R.S. 23-493.
— Amy Lieberman, Insight Employment Mediation
A: Drug testing would be paid time
Arizona has a robust set of employee drug-testing statutes, which give employers a fair amount of latitude in drug testing their employees as long as the employer and the employer’s drug-testing policy, if it has one, complies with the requirements set out in those statutes.
The statutes, found at A.R.S. 23-493 et seq., do expressly allow for your employer to require that you submit to a drug test on a random basis. Additionally, the statutes allow for your employer to require you to submit to drug testing without any advance notice, so long as the testing occurs “during, or immediately before or after, a regular work period.”
Your employer requiring you to submit immediately to a random drug test during your lunch break would be allowed by the statute. Keep in mind, however, that drug testing for an employer is considered work time under the statute, and you should be paid for all of the time you spent submitting to the required drug test.
— Craig O’Loughlin, Quarles & Brady
Source: AZ Central