Policies & Procedures

Governance Documents (aka Handbook)

Let’s talk about it. A company’s handbook is basically a formal understanding of the ‘what, why, and how’ at work. It needs to include the federal and state (and local if applicable) laws, plus policies and procedures customized to the organization. It should explain the purpose of the organization, its standards, and how it plans to get there with its employees.

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The framework of the handbook is standardized:

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• Welcome Policy – generally a letter from the CEO or Owner about the organization

• At-Will Employment – explains the rules of engagement, no guarantee of length of employment.

• Ethics Code – a set of principles to guide employees and the business to operate with integrity and fairness

• Mission Statement – a concise declaration of the organizations core purpose and defining what each means

• Revisions to Handbook – statement about updates

• Employment Eligibility Verification (I-9)

• Federal Policies (ex: FLSA, ADA, Title VII of the Civil Rights Act of 1964, FMLA, OSHA, ADEA, EPA, etc.)

• State Policies (ex: Wage & Hour, Workplace Leave, Anti-Discrimination & Harassment, Safety & Workers Compensation, Hiring & Firing, Nursing Mother, etc.)

• Conflicts of Interest

• Employment of Relatives

• Job Descriptions

• Introductory Period

• Job Postings

• Training Programs

• Attendance, Schedules & Payroll

• Business & Travel Expenses

• Disciplinary Process

• Employment Verification

• Conflict Resolution Process

• Pay Raises, Performance Reviews & Training

• Standards of Conflict

• Workforce Reductions or Layoffs

• Use of Company Vehicles, Phones, Computers, etc.

• GPS & Other Monitoring

• Solicitation

• Personal Appearance & Uniforms

• Social Media

• Benefits, Jury Duty & Voting

• Time-Off, Sick, Leave & Military Leave

• Drug, Violence & Alcohol Policies

• NDA, Confidentiality & Trade Secrets

It’s important that every employee reads the company’s handbook and understands their rights. If you have questions or need clarification, ask Human Resources, they write the manual and have the knowledge to explain the federal, state, and local laws.

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How do you know which to follow?

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Let’s talk about it. Human Resource Professionals and Employment Attorneys must navigate and evaluate based on what the situation is. This can get messy and confusing fast, especially if you are a new HR professional. Your opinion and belief need to step aside, and you need to reach out to an employment attorney to assist with the rabbit hole you are about to enter.

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Based on the situation, you need to know who has precedence, federal or state. Some situations cross three different laws, how do you determine which one do you start with or can you do at the same time…it’s a lot.

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Example 1: Hiring manager bypasses the hiring process and standard interview questions. Hires the individual and starts them. No new hire paperwork is completed, no timecard or payroll training completed, no safety training completed, no uniform issues that includes safety equipment mandated to wear, and on day 2 (two) tells the manager he can’t perform the work asked because of a disability (this is not reported to HR) and on day 3 (three), a Thursday, is injured on a worksite and wasn’t sent to Urgent Care. He was told to go home and rest it off and report on Monday. Monday is when payroll is processed. No hours were input, because HR had no record of the employees. Manager forgets about the individual completely, until HR calls them to inquire about a person who is threatening to sue the company.

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Example 2: Employee was found passed out in the stairwell, by a late working employee leaving for the night and called 911, as the female was unresponsive. It was determined by the hospital that she had a high BAC and suffered a seizure. Given the severity of her health condition, she was out on Short Term Disability. During those 8 weeks her behavior became erratic, with her refusing to go to her medical appointments. She did not return at the end of STD, her medical team did confirm that additional treatment was needed, and she was placed on Long Term Disability. She left the area, later determined that she was evicted from her apartment and she still needed medical help. She was having grand mal seizures. An internal investigation determined that her behavior with drinking alcohol at work began about 7 (seven) months earlier, when her manager was sexually harassing her. Long Term Disability, like Short Term Disability requires medical oversight and reports. Company attempted to reach out to emergency contacts on record and to the employee.

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These examples are not simple; the navigation is not clean or clear cut. Example 1 on the surface looks easy, get the paperwork done, pay him and make sure he receives medical treatment for the injury. His disability and the manager bypassing the accommodation request and failure to review the job description, and workers compensation injury which directly impacted his impairment. Example 2 makes is a challenging situation that led to a termination.

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Policies & Procedures

Let’s talk about how important they are. While no one likes to read lengthy policies or procedures, it’s important that you do. You need to know what the process is and why you need to do and what the company needs to do. Relying on a false myth you heard on your favorite TikTok Influencer who doesn’t have a clue what they’re speaking about is just as bad as your cousin who knows it all but doesn’t know anything.

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Anyone in the workforce needs to have a basic understanding of:

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• At-Will employment means, that as employees they don’t need to give an employer notice to resign. However, if your employer allows you to take any unused sick, vacation or paid time off – then it’s best to give notice. Also, consider the industry you are in and balance that out on working out your last weeks. Also, understand if you do give 2+ weeks’ notice, your employer may release you immediately.

• Wage & Hours laws and regulations mean, employees need to know what their employment classification is, are they exempt or nonexempt from overtime, how overtime is calculated, what the pay week is, when payroll is processed, payday, recording of hours, what’s on their pay statement, what can and cannot be legally taken out of their paycheck, and more.

• Attendance Policy, what you need to know on calling out, requesting time off (whether paid or unpaid), and how to accumulate paid time off and how to use it. I’ll include holidays the company pays for or no holidays paid for. It’s important to understand vacation, holidays, and sick days (some states) are not legally mandated – this mean a company is not required to have these.

• Use of Company Vehicles, make sure you understand the license monitoring, GPS monitoring, and drug testing policies associated with driving for an employer. Just because cannabis is legal in your state, doesn’t mean you can drive under the influence of it, just like alcohol

• Code of Conduct, make sure you understand what you will be terminated for, what the company will not tolerate.

• Drug, Violence & Alcohol policies mean at your company. These are important for everyone to understand. These are for everyone’s safety.

Make sure you understand your rights during pregnancy and nursing mothers in your state and company. If your company refuses to accommodate or comply, it's important to contact your state Department of Labor.

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Workers Compensation

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Let’s talk about it. Going beyond that Workers Compensation is an insurance utilized when employees are injured at work. It does not matter if the employee did something dumb and injuries themselves – it comes down to the employee injured on the job - period. For any crafty fraudsters, either on the employer or employee side, looking of creative loopholes – stop. The Workers Compensation system and the legal system has seen it all. So, like a casino, the odds aren’t stacked in your favor.

Workers Compensation is an insurance and a process. It has requirements. Covers costs related to the work-related injury; those costs are lost wages and medical expenses. Medical expenses include doctor or specialist visits, physical therapy, devices (crutches, braces, etc.) and prescriptions. Wage compensation averages 66% (check with your state for specific percentage) and insurance is slow in paying, because they need to verify the medical first.

Degrees of Injuries 

The standard degrees of injury disability are commonly grouped as the following:

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• Mild or 25% disabled – this means that the injury was minor, there may or may not be after treatment any ongoing functional restrictions to that body part.

  • Example – cut to arm that required stitches or slight numbness that does impair function of pinky finger

• Moderate or 50% disable – this mean that based on the injury and healing process there may be limitations. Employee can still work, but now they may require light duty or other accommodation.

  • Examples:

    • Systemic condition – occupational asthma or COPD which reduces an individual's breathing capacity. It would cause limits to physical exertion.

    • Spine condition – chronic pain from degenerative disc. It would prevent heavy lifting, movements and maybe require stopping for over a 30-minute period or more.

    • Neurological condition – neuropathy in neck or limb that causes loss of dexterity or gripping capacity. It would prevent the individual from performing many duties in a work environment.

    • Orthopedic condition – malunion in a joint fracture. It would limit full range of motion or cause the individual to wear a brace or have support.

• Permanent Partial Disability (PPD) or 67% disabled – based on state or insurance it’s either referred to as marked, partial or residual. The individual can perform some of the duties or be reduced to a part-time status because of the injury. There is an impact to normal function.

  • Examples:

    • Limb impairment – a complex knee reconstruction with a result of failed medical intervention or surgery wasn’t successful as hoped. Employee is left with severe loss of mobility from the joint’s structural weakness.

    • Spine impairment –after multiple back surgeries, the individual is left with restricted range of motion and/or chronic nerve pain resulting in unable to work without accommodations because can only move for short intervals.

• Total or 100% disabled – this is when there is a complete temporary or permanent inability to work. Complete temporary that the employee is unable to work or earn money because of their work-related injury, but they are expected to improve – so they could possibly work in the future. There is an unknown of what that would look like.

  • Employees qualify for long-term or lifetime indemnity benefits because they have a loss of earnings or are unable to work because of the injury.

IMPORTANT: Working safely and safety training in any environment must be a priority on the employers side. Workers Compensation is not a windfall, even with an attorney. If 100% disable that lump sum needs to last a lifetime for continued medical and earnings loss., understanding on the employee's side.

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Employees with a serious injury will have an immediate financial impact and strain, because of immediate loss of pay and how long it takes between scheduled medial visits. It could take up to 3 months or longer before workers compensation validates and starts issuing the 66% of your normal wages (notice I didn’t say all wages – overtime is not factored into the calculation).

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Employers, with a small or large workforce, need to install a plan, process and procedure. Making sure working safely is always a part of normal conversation. On permanent repeat. Have an action plan in place so everyone knows what to do, where to go, and how fast to act if an accident or injury happens. Later in this read, pre-existing or aggravated injuries/issues will be covered.

Business Size Requirements

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What size of business is required to carry Workers Compensation insurance? This varies by state, so double check with yours. Majority of states require it immediately at one employee, sole proprietors, LLC members or corporate officers, can or often do exempt themselves. The one employee count starts at the first hire. At one employee or anytime during the businesses lifespan if you do not have this coverage, you will face severe financial penalties and possible insurance fraud as well.

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• Examples:

  • Optional (for most private or not-for-profit employer) - Texas

  • 1+ Employees – all other states not listed

  • 3+ Employees – North Carolina, Virginia, Georgia, Arkansas, and New Mexico

  • 4+ Employees – South Carolina and Florida

  • 5+ Employees – Tennessee, Alabama, Mississippi, and Missouri

Ghost Policy

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For self-employed individuals may need what’s called a Ghost Workers Compensation policy. It’s a low-cost premium insurance policy. Based on the work that you do, like traveling consultant, the organization who’s contracted you may required a Certificate of Insurance (COI) for legal reasons.

A ghost policy doesn’t have any real coverage, no medical or wage benefits – this policy is the COI. You are paying for that certificate. Sometimes needed for state compliance. Insurance will do an annual audit. Understand that if you do hire an employee, you will need a full Workers Compensation policy.

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Pre-Existing Issues, Aggravation and Apportionment Clauses

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Let’s talk about it. A pre-existing condition does not automatically disqualify an employee from Workers' Compensation. If that employee’s condition was made worse, aggravated, or accelerated by the work they perform and it’s reported to you or they file a workers compensation claim themselves, here is some information you need to understand.

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This information can be misunderstood quickly and is easily complicated. It’s why businesses of all sizes needs to be set up with workers compensation insurance, have a plan when an injury happens, and talk about prevention or aggravation of injuries at work by having safety training.

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An employer cannot refuse to hire an individual because of a pre-existing condition; the applicant must be able to safely perform the essential functions of the job. Under the Americans with Disabilities Act or ADA, which heavily protects against discrimination and any state anti-discrimination laws. Employers get this wrong, specifically untrained hiring managers and human resources staff. An interview needs to stick to the facts of the job and can the essential function be performed.

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Candidates need to understand this as well. There is a difference between a diagnosis of OCD or Obsessive-Compulsive Disorder and a non-diagnosis (self-diagnosis) statement of OCD. Currently, on social media everyone is ‘obsessed’ that’s not medical condition. Be honest and straightforward.

Under ADA, the interactive process covers the identification of reasonable accommodation. To repeat – if the individual, after review of the job description and essential duties of that role, can perform that role there should not be a reason they aren’t hired. Under ADA the employer must have a minimum of 15 or more workers, some states have a lower threshold than 15 (full and/or part time and meeting duration requirement).

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Let’s review right and wrong, pre-existing issues examples:

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• Right – candidate applies for a dishwasher job, the job description/role is reviewed in detail, individual confirms they can do the duties but can’t work on Tuesday or Thursday, and employer offers the job.

  • 3 weeks later, employer needs to have employee work on Tuesday because of staffing shortage and schedules them. Employee states they can’t work on Tuesday, because they have physical therapy for foot and ankle injury. They aren’t asking for any additional accommodation, and the employer was told upfront about when they weren’t available to work.

  • Employers find someone else to cover that shift.

  • Business employs 18 workers

• Wrong – candidate applies for a dishwasher job, no job description or role duties are reviewed, employer believes it is self-explanatory, individual confirms they can do the job (not knowing what it entails) and employer offers the job.

  • Employees are told his schedule verbally or on paper, informing employer he can’t work on Tuesday or Thursdays. Employer gets angry that he can’t work and demands to know why.

  • Employee informs him that he has physical therapy for a foot and ankle injury.

  • Employer terminates him on the spot.

  • Business employs 18 workers

    • This isn’t an ‘at will’ termination over a schedule dispute or anything else the employer wants to call it.

    • It’s suspicious that at disclosure of a medical need a termination occurred

    • Employer thought the ‘throw-a-way employee’ protocol was a better plan than reviewing duties or presenting a job description (on a job description it would list hours of operations, which opens the dialog on availability).

    • Employer isn’t safe under ‘at will’ termination.

Back to pre-existing Issues, this comes down to the individual, tolerance, and reaching a point where the injury is impacting job performance and in need of care. There are some employees who power through pain every day and it doesn’t affect them to the point of treatment. Others may or may not have wavering tolerance, on the low days is exhausting sick days or out on unpaid days. Then the ones who are struggling on the daily or weekly, based on which tasks are most difficult to perform and need to be seen for additional medical care.

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Let’s cover this in examples, using Carpel Tunnel Syndrome:

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• Gunner – a former army private, has had two surgeries of carpel tunnel in both hands. Does his stretches and manages through the pain to get things done.

• Megan – does a lot of crafts at home and is an added bow hunter, at work uses a lot of tools that require her hands and wrist to twist in way that causes numbing and pain up her arms. Was diagnosed three years ago for carpel tunnel, in both hands with her dominant hands more severe. Tends to take off work. Has requested better ergonomic tools, which her employer ordered for her.

• Richard – grew up on a farm, used to long days of physical activity. Works through just about everything to get the job done. At the start of his employment two years earlier, he sent an email to is manager about hand and arm pain. His manager dismissed it because he was raised on a farm and didn’t think to report it as required by the company policy. Employee kept voicing complaints; asked to have certain tasks removed and suggested tools he found online. The manager laughed it off and didn’t adjust work tasks or review to order any tools that would help Richard. Richard went to HR on advice from his provider to file for workers compensation for carpel tunnel syndrome.

Three different employees with three different methods of coping with carpel tunnel syndrome and aggravated injuries that are impacting normal function at work. We are going to focus on Megan and Richard and how they are viewed under workers’ compensation, but also about the best practice an employer should follow when a situation occurs.

Megan, based on the facts had carpel tunnel starts elsewhere than her current job. The syndrome has progressed to a point where it is impacting her job. That impact is loss of production, given her outages and an impact on her personal life, given she uses her hands to do endless activities.

• At her first complaint or struggle point, that injury needed to be reported and on record.

  • If her manager knew about it - document, it.

  • It shouldn’t be a ‘why bother’ it’s not covered under workers’ compensation, as she had it already.

  • It shouldn’t be a Megan is trying to ‘screw’ the company either.

• Documenting it is a factual record. As we process this will make sense as to why do the right thing.

• At either the start or notice of a pattern, be proactive as an employer and see if another tool helps alleviate discomfort or change of duties. Figure out a solution.

• As she uses sick time or unpaid time and mentions why she’s out – document, it.

• Now we have a pattern, Megan isn’t taking off for her enjoyment. She’s out because of an aggravated injury. She isn’t trying to ‘cheat’ the company or system but figure out a way to manage with increasing pain and discomfort.

• She might not be able to afford a doctor’s visits, testing and specialists; her focus is on being functional and paying her bills.

HEARD: Those reading this who go directly to workers’ compensation is free medical care, it’s not. It would be the worst option to use for medical care. Like pouring molasses outside in the arctic circle.

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• Significant point here is that you do have an aggravated medical issue; an issue that will most likely be covered under an apportionment clause in your workers’ compensation policy.

  • Employers consider this, you have an employee that has been with you and not prior issues with handbook violations who is heading to a place where either you lose her as an employee or have the potential to do the right thing and get her care for an injury aggravated at work. You have the documentation.

Let’s move on the Richard, he openly admits to how he was raised and his additional hobbies that require even more physical activities. His manager was informed. His manager made the decision, based on casual conversation and no medical knowledge, to pronounce that Richard did not have an injury. Richard was just a complainer. Richard was labeled ‘lazy’ when he voiced his discomfort and still completed all his work. Odd label given to an employee who always gave over 100% since his start.

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• At that first complaint, his manager should have completed an injury report to document it. Given the company protocol send him to Urgent Care to be medically reviewed. A diagnosis or rule would have occurred it that happened.

• With each voicing, it established a pattern. His manager should have recorded it and opened a conversation with HR on the issue.

• If that happened, the manager’s opinion would have been tossed out. Duties should have been changed and ergonomic equipment make it possible to assist.

• Instead, Richard walked into HR’s office disrupting a close door meeting with another employee to demand workers’ compensation paperwork his surgeon need now. Spouting big words and threats.

• Based on the state, an employee or employer can file the claim. In this case, HR was at a disadvantage, lacking reporting, date of injury, urgent care notes, and more.

  • Richard didn’t produce documentation, nor could he provide dates, times, activity, witnesses, etc.

  • His manager told a tale about it all being ‘fake’.

  • HR completed an incomplete filing with investigation request.

INVESTGATION

Let’s not go immediately to wrongdoing. An employer or insurance carrier may request a investigation. Purpose is to verify legitimacy on the claim.

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• In Richard’s case, there was literally no information to complete the insurance filing, therefore an investigation was needed.

I’ll tie up Megan and Richard in a moment; I want to review insurance investigations and the common reasons for them.

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Common Reasons – Investigations

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• Delayed Reporting – employee waited an extended time to report the alleged injury. There are time frames for reporting claims, outside of those periods and investigation would be done.

• Inconsistent Details – the injury or accident report doesn’t match physical evidence, statements conflicting with medical evaluations, etc.

• No Witnesses or Co-Worker Reports – when there are no witnesses to the incident. No in-person witnesses by anyone, no camera or video footage, etc. Also, co-worker statements where maybe the employee hurt themselves at a second job or playing sports, etc.

  • There are legitimate circumstances where there may be no witnesses, for example a surveyor in the woods. In this or similar example, did the injured call or text out for help, that would be a record.

• Suspicious Timing or Fraud – a claim that was filed right after disciplinary action, poor performance review, layoff, or workplace conflict. Fraud comes into play when the injury appears to be fabricated or exaggerated or limitations don’t align.

• Prolong Absence - this one typically happens during an active workers compensation case; when the employee stops communicating, goes to medical appointments, or doesn’t return to work.

A key point is that the workers’ compensation system is well versed and operates with firm parameters. It’s well-versed in employers and employers who do wrong. Employees and employees who do wrong. Medical providers and medical providers who do wrong. It may not appear that someone who is bragging about doing wrong is on their radar, but it’s on the radar. Credible facts are vetted and actions are taken from there.

Apportionment Clauses

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It’s a mechanism in insurance, this one handle pre-existing issues and aggravated symptoms. I allows employers and insurers to separate these claims and reduce their financial liability for the portion of the disability caused by a prior or underlying non-work condition. Essentially, the costs are split, generally decided by a percentage, of medical causation. It’s determined by an evaluating physician.

Remember the degrees of medical disability above. At the point where medical determination is made, from a medical review of the employee’s history and the current aggravated issues. It’s determined and assessed a weight in the form of a percentage.  

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Examples:

• Pre-existing – an employee has degenerative spine issues, doctor states that 40% is due to natural degenerative issues and 60% for what the employee does at work, such as lifting movements.

  • Employer is responsible for 60% of the disability award, not the full 100% of the award

• Prior-injuries – these injuries are either accidents outside of work or previous work related. Knee injury that caused a cartilage tear that healed. Injured at work and the meniscus is torn again. If the doctor determines that the old injury was responsible for the current injury at a percentage of 50%.

  • Employer is responsible for 50% of the disability benefits, not the full 100% of the award.

• Cumulative trauma – this refers to repeated exposure over time across employers. Let’s use carpal tunnel, which is considered an occupational illness. The liability will be apportioned among multiple past employers based on the length of time worked at each employer.

  • Employers (from the employee’s past) will be assigned a percentage based on length of employment/exposure. Employer A 75% and Employer B 25%.

HEARD: for those screaming and outrages over wondering how this all could be conceivable in your overthinking minds. Breathe. Wokers’ compensation has framework in place to handle these cumulative and long-term injuries and illnesses. They treat the injured worker and sort it all out behind the scenes.

Apportionments does vary by state; some have limits, others have restrictions and others have different viewpoints on definitions.

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Workers’ Compensation insurance, attorneys, carriers, boards and courts handle this, my point is to break down the myths and provide a glimpse into how things work and maybe educate and inspire you to do a deeper dive. Your insurance broker or carrier is a wealth of knowledge and is there to help you with questions. Like any HR matter, they can be stumped to and learn as well. I’ve had cases, so far removed from comprehension, they stumped attorneys.  

Let’s finish the Megan and Richard cases. Starting with:

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Why document when someone voices an injury or references a problem related to one? It’s a record of the facts. You may not need to know when, how or will you need it, but you have it and can presented when needed. Just because the injured didn’t use what you considered to be the right ‘formal words, signs, and symbols’, doesn’t mean you ignore it.

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My point and opinion will always be to do the work upfront (proactive), then reactive. Reactive is always more expensive in terms of money, time, and business impact. Set the business up the insurance. Take the extra time to create and use tools like job descriptions, handbooks, consistent training and avoid illegal practices. Small to large businesses; everyday will bring challenges with a sprinkling of chaos to derail you. Set yourself up for success and it will allow you to flow back to center with more ease.

Claims for Megan and Richard, from separate companies in New York, both received care under workers’ compensation.

Megan had surgery and was back at work quickly and up to full capacity within a short time frame.

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Richard’s case didn’t go as he expected. The company, his manager and Richard were interviewed by the investigator, then an additional investigation related to his claim. The company, because of the manager was sited for not handling the reporting and documentation correctly, plus correspondence was discovered clearly showed unprofessional conduct by the manager. Richard’s claim was denied with restitution orders for the medical bills’ workers’ compensation paid. The judgment was based on Richard’s statements and his provider’s offices correspondence.

Workers' Compensation has framework and uses it. Always allow a process to run its course.

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