Workplace policies: fit-for-work, drug testing & E-Verify

Employers are not required to compensate a person for any time spent on pre-employment drug testing.

By G. Phillip Shuler

Shuler

Absent a collective-bargaining agreement or employment contract covering the subject, employers generally have broad authority to send a sick employee home.

Nonetheless, it is advisable for employers to have a detailed policy regarding sick leave and a fit-for-work policy, which addresses the problems created by employees who report to work sick. This policy should be based upon the following two principles: 1) employers have the responsibility to provide employees with a safe work environment; and 2) employers have the right to require employees to show up to work both fit and ready to work.

Allowing sick or injured employees to remain at work poses several problems for employers. First, employers who routinely allow employees that are visibly ill to report to work could be construed as tolerating or even promoting an unsafe work environment.

This is especially true in circumstances where the employee works in or around machinery or vehicles. Second, sick employees affect productivity. If a contagious employee is allowed to stay at work and infect other employees, the employer does not just lose the productivity of that one person but also the productivity of any other employee that later becomes sick and misses work.

Employers should be very specific when drafting their fit-for-work policy. A concise definition of what sick means is critical (i.e. uncontrollable coughing or sneezing, visible infection, etc.). The policy should also set up a mechanism for resolving disputes. As with any personnel policy or employee handbook, employers should avoid arbitrary provisions in the policy and ensure the consistent application of the policy to avoid charges of discrimination.

One of the biggest concerns for employers regarding fit-to-work policies is payment of the employee. If an employee is exempt from minimum wage and overtime (salaried employee) and agrees to take a partial day to recover from an illness, the federal Fair Labor Standards Act (FLSA) generally requires the employer to pay the employee for the whole day/ Unlike exempt employees, hourly employees must only be compensated for hours actually worked.

Employee Drug Testing
For various reasons (regulations, drug-free workplace, position relevance etc.), some employers require employees to participate in mandatory drug testing prior to the beginning of employment and/or after hire. Employers are not required to compensate a person for any time spent on pre-employment drug testing. However, once the employee is hired, FLSA guidance requires employers to compensate employees when they go for such testing because the drug testing is mandated by the employer.

According to the DOL website, “Whenever you impose special tests, requirements or conditions that your employee must meet, time he or she spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is probably hours worked.” Because the employee must participate in the testing as a condition of employment, it will restrict the employee from performing other responsibilities. Therefore, the time of day an employee is  scheduled for the testing (e.g., before work, during work hours or after work) does not determine whether the employee will be compensated. The facts that the testing is under the employer’s control, related to the company business and a condition of employment will meet the standard for that time being counted towards hours worked.

Employers should consider scheduling employee drug testing during normally scheduled work hours.

This practice could avoid any potential overtime issues because of the additional compensable time spent participating in the drug testing.

Implementation of E-Verify
A federal district court has upheld the DHS E-Verify rule and a Court of Appeals has denied an effort to enjoin the implementation of the rule, thereby making compliance by federal contractors a reality.

Implementation of E-Verify will result in a host of compliance issues for federal contractors.

The rule will began to apply to federal contracts Sept. 8 and requires departments to amend, on a bilateral basis, existing indefinite delivery or indefinite quantity contracts to include the E-Verify requirements for future orders if the remaining period of performance extends at least six months.

Federal contractors would be well advised to “take steps immediately” to comply with the rule, even if their contract has not yet been amended to require compliance.

Employers should begin by identifying those workers who will likely work on federal contracts, and conduct an I-9 audit of their records.

The audit should ensure that all I-9 documents are facially valid and correct any problems that are encountered. It takes a great deal of time to conduct an internal I-9 audit, so federal contractors should start early. Audits also need to build in time for employees to resolve documents.

Under the rule, federal contractors participating in E-Verify for the first time will have 30 days to enroll in E-Verify and another 90 days from enrollment to begin using the system for new and existing employees. Contractors will have another 30 days after enrollment to initiate verification of existing employees who have not previously gone through E-Verify when they are newly assigned to a covered federal contract.

Federal contractors already enrolled in E-Verify will have the same extended timeframe to initiate verification of employees assigned to the contract, but the time limits will be measured from the contract award date instead of the contractor’s E-Verify enrollment date.

However, contractors already using E-Verify will have the standard three business days from the date of hire to initiate verification of new hires.

These windows will give federal contractors time to comply with the rule, but contractors whose contracts are up for renewal or anticipate bidding on a contract over the next year should take steps as soon as possible to prepare for compliance.

The rule requires the insertion of a new clause in certain federal contracts and subcontracts. Prime contracts below the simplified acquisition threshold of $100,000 and those with performance terms of less than 120 days are excluded.

The clause requires the contractor to use E-Verify to confirm employment eligibility of all new employees hired during the contract term and all current employees assigned to work on a federal job within the U.S. It also allows, but does not require, the federal contractor to use E-Verify to confirm eligibility of all employees, regardless of whether they are assigned to work on a federal job.

Currently, use of E-Verify to confirm anyone other than a new hire (including applicants and current employees) is prohibited.

The rule applies only to employers with direct contracts with the federal government and, via a flow-down requirement, to their subcontractors. It does not apply to employers working only on federally-funded projects or on other projects not under contract with a federal agency.