HR & Compliance |9 min read

You Asked, We Answered – HR AMA With Paul Edwards (April 2023)

Hello AADOM Tribe! Welcome back to the monthly LIVE Ask Me Anything with Paul Edwards, CEDR CEO & Founder, and Heather Colicchio, founder and president of AADOM. Throughout the upcoming year, you can submit HR issues that are happening right now in your practice to Paul and CEDR’s team of HR professionals for them to answer. Our team will pick from the dozens that are being submitted and choose several to give guidance on within our Monthly HR Article. Then, Paul and Heather will expand on the written answers during every HR Tuesday Livecast. To submit your questions, click here!

For the in-depth, expanded, and detailed answers…
Watch the video above! For future HR Tuesdays live, mark your calendar for the second Tuesday of each month, or go here to check out the archived recordings.

All your daily human resource issues likely have some state, federal, or local employment laws that you must comply with while, at the same time, trying to find the best human way to solve the core problem. In this series, we will fit the two together and help you all come up with some great resolutions.

Here are three of your best submissions this month:

  • Are you required to pay out sick and vacation time if an employee quits?
  • When an employee quits via text message, is there any different way this needs to be handled?
  • Are you allowed to ask why an employee is requesting personal time off?

Let’s get to your questions

Question: I have a practice in Massachusetts with 14 total employees. We recently had an employee ask us if she would get her PTO paid out to her if she were to give notice that she was leaving. She has a combination of sick time and vacation time, and I am not sure if she is supposed to get paid for both or only one or neither at all.

  • The legal side of things: Federal law does not require you to pay out unused PTO, vacation, or sick time upon separation unless promised otherwise. This means that what you do with unused time off at separation is so long as your handbook is correct and complies with local and state laws, dependent upon what your handbook says.Since your practice is located in Massachusetts, there are state laws that override the federal rules at play that you must comply with. In Mass, a Payout of unused vacation time is required upon separation, as the law states that all vacation time given needs to be treated like any other wages earned.Massachusetts has a mandatory paid sick leave law, but this law does not require that you pay out unused time at separation. So you would only be required to do so if you elected to offer this and stated so in your policies.The big exception to that sick time rule is if you combine your vacation and sick time benefits into a single PTO category, then you must cash out all unused PTO, as the state’s vacation time rules will apply to that. This highlights why many employers in states with mandatory sick leave laws chose to separate and address Vacation and Sick time as separate items.Now for the human approach: Many employers choose to do so under certain circumstances, even if you are not legally required to cash out unused time at separation. The situation posed here is a perfect example of why a well-written policy outlining those conditions is advised. In today’s scenario, we have an employee who is leaving in good standing, and we’d like as much time as possible to find a replacement, so more notice is much appreciated.We all know how difficult it can be to handle staffing with a sudden and unexpected employee departure. The solution is not to require but to ask and incentivize employees to give a certain amount of notice. If you enact penalties for failure to give notice, it can, under certain circumstances, mess with your at-will relationship, possibly causing another set of problems.

    Once more, incentivizing someone to give notice, such as by saying you’ll pay out unused sick time under a set of specific conditions, even though you aren’t required to do so, can be helpful. Big picture, it’s a small price to pay to get a little more time to prepare for this change in staffing.

    Quick takeaways – Each state is different when it comes to whether paying out PTO is required, your handbook must comply with those rules, it is better to incentivize good employees to give more notice than try to punish them if they don’t.

Question: I recently had an employee resign via text message… pretty disappointing to see as they were only with us for 45 days. What should I do when someone resigns this way? Especially if they say it is effective immediately. Does this count as a written notice even though it’s an “informal” communication method? My practice is in Seattle and I have 9 employees.

  • The legal side of things: First, putting the time in to onboard someone only to have them resign so suddenly is always hard to swallow. However, this issue is quite common, so you are not alone.There are no laws (either state or federal) that prevent an at-will employee from quitting over text messages or that they have to give you any sort of extended notice time. In fact, there’s no requirement that they put their resignation in writing at all. What’s important is that you document the separation properly. And, if possible, get the employee to tell you of their intent to resign and when. So, in a literal sense, that text serves just fine as a form of documentation.The only aspect here that would involve the law is the delivery of the final paycheck…Click to read more in a new window…, both how and when that needs to be taken care of, and we look to Federal, state, and local laws to know what employers must do with regard to the final paycheck. You must ensure you adhere to these laws when severing a working relationship with a former employee.Now for the human approach: No one can expect to be prepared for a situation where an employee walks off the job without notice. It sucks, and we completely understand. Unfortunately, abrupt quits by text message are the norm, and sometimes, if not most of the time, it lands hard, and because it leaves you instantly shorthanded, it can be frustrating.However, resist the urge to let your upset get the best of you. Keep your text interaction brief and professional. You can respond to the message simply like, “I am in receipt of your text and accept your immediate resignation effective . We will be mailing you a copy of your separation documents.” Make sure you save a screenshot of these text communications for your records. A reasonable take on this is to give them about as much of your attention as they give you.We always tell our members to contact CEDR…Click to contact CEDR in a new tab… when an employee resigns, regardless of the circumstances. You can’t control what they do or do not put in writing, but you can control having consistent documentation on your end for every separation.

    We recommend sending the employee a letter confirming your acceptance of their resignation, which details any information they gave you (the date they gave you notice, their last day of work, their reason for leaving, etc.) That letter can also explain how their final pay will be issued, if it will include any PTO payout, when their health insurance benefits will end, a reminder to maintain confidentiality over PHI, and any other relevant details. We also provide lots of other guidance and helpful things to think about when it comes to them possibly being patient, owing your money, offering an option for giving feedback on why they quit, COBR, and other matters.

    Though resignations are usually the easiest form of separation an employer can face, no separation is without risk. If you have any questions about final pay laws in your state, or about minimizing your risk and making sure all of your legal bases are covered when separating from an employee, reach out to an HR expert for help.

    For more general guidance on employee separations, download our free Separation Guide…Click to download guide in a new tab… here.

Question: I have a practice in Tennessee with 6 employees. We are always very busy, as hiring has been quite difficult and our practice is getting more popular with patients. I recently had an employee request “personal” time off rather than vacation or sick, and it is for an entire week. I want to ask her why she needs this time off, as I am hesitant to approve it since we are already short-staffed. Am I allowed to do that?

  • The legal side of things: In Tennessee, there is no requirement to provide any type of time off, and likewise, there are no laws outright preventing you from asking for a reason for a time for the request. Note this is not true in every state.However, the best practice is to avoid asking the question in a manner whereby you learn something that you don’t need to know.Now for the human approach: They asked for “personal” time off, which you are understandably interpreting to be something different from wanting time off for vacation or some type of medical issue. But the employee may not have been that intentional in their wording, and this may in fact be for vacation.Taking time off for vacation or non-medical reasons are truly “personal” reasons for taking time off. For this reason, we recommend taking a more objective approach to this rather than focusing on precise wording.If the employee didn’t follow your policy about requesting time off, such as requesting it a certain amount of time in advance, then you can tell the employee that since you’re short-staffed and didn’t get this request far enough ahead of time, you need to deny the request.At that point, if they have a pressing need to take that particular week off, they can let you know, and that can be a new discussion.

    But if they followed your protocols and they have the paid time off available to them, we do caution against being strict here. You do have discretion over whether to grant the request, and you can tell the employee it would be difficult to allow that week off and see if they’re able to move their time off to a later date.

    But you want to be careful to not open the door to them telling you a lot of personal/medical information you really didn’t need to know, and you don’t want to risk making this employee feel very burnt out and looking to leave for a practice that may appear more flexible.

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