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December 2003 — Vol. 81, No. 10
YOUR QUESTIONS ANSWERED
Have a personnel-related or business tax question? Members
can get free information from CBIA’s experts. The phone number is
860-244-1900.
Q. Are winter’s “slips
and falls” covered under workers’ compensation?
A. According to the Workers’
Compensation Commission, employee injuries resulting from slips and falls
on property owned or controlled by the employer are usually considered
work related. While each accidental injury must be evaluated in its own
right, it’s safe to say that no case may be excluded from consideration
just because it happened in the parking lot, or en route to or from the
parking lot, or simply because the employee had not yet “punched
in” or had already “punched out.” If you’re notified
of a “slip and fall,” you should provide immediate medical
care and then report the injury to your workers’ compensation insurer,
whether or not you believe the injury to be covered under workers’
comp. It’s the insurer’s responsibility to investigate the
claim and make that decision. In the case of a dispute, either your company
or the employee may request a hearing before the Workers’ Compensation
Commission.
Q: Now that state law bans smoking in our
workplace, a few employees have been going to their cars for a smoking
break. When they return to work, they smell like cigarette smoke, which
has offended some co-workers and customers. Can we restrict their smoking
off the clock and off-premises?
A: The new law banning smoking
in workplaces with five or more employees retains a nondiscrimination
provision that was in the old law. It is still illegal to deny employment
or to otherwise discriminate against an employee based on his or her use
of tobacco products outside of the workplace. However, if smoking outside
of the workplace causes a disruptive or offensive consequence in the workplace,
you may be able to address this as a disciplinary matter. But avoid unnecessarily
targeting just smokers. Instead, develop a generic policy stating that
employees must follow proper grooming and personal hygiene so they can
productively interact with co-workers and customers in a professional,
inoffensive manner.
Some companies have adopted such a policy because of concerns about offensive
body odor or the possibility that the use of strong perfumes, colognes,
aftershave and other lotions can cause an allergic reaction in certain
individuals.
Keep in mind that offensive body odors can arise from a variety of sources
besides poor bathing habits, such as diet or medical problems. Although
excessive body odor by itself generally is not considered a disability
under the Americans with Disabilities Act, you should be prepared to deal
with an employee whose body odor could be a symptom of a serious health
condition. Offensive body odor may also be a result of cultural differences,
necessitating careful discussion with the employee to steer clear of possible
national-origin discrimination issues.
When dealing with such issues, focus on legitimate job-related expectations
concerning productivity and the need for effective interpersonal interactions
with co-workers and customers. Do not attempt to diagnose the problem.
If asked for assistance, you may suggest the employee consider a variety
of solutions, including grooming, diet or medical input. Also, be open
to exploring reasonable accommodations if it’s determined that a
medical problem is involved.
With sensitivity to these issues and a flexible approach, you should
be on firm legal ground if you follow your normal disciplinary policy
for infringements of a grooming and personal hygiene policy.
Q: My business recently received a notice
from another state that we need to register our business there. We are
a Connecticut company, and our only connection to that state is that we
have a salesperson there. Why should we have to register with the other
state?
A: Under federal law, simply having
a salesperson in a state and soliciting sales there is not enough for
a state to claim a business has “nexus” (that is, sufficient
connection to the state). However, the law often has been interpreted
very narrowly. For example, if an out-of-state business sells a product
that comes with a warranty, that might be enough to support a claim that
the business is actually selling and providing services as well as a product,
and therefore has nexus. If a state can establish that a business has
nexus, the business can be held liable for not complying with state law.
States recently have become more aggressive in trying to prove nexus so
they can collect taxes and other fees from out-of-state companies.
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