Requiring Test for Constant Cougher Is a Ticklish Issue

Q: At work there is a person who is constantly coughing. My co-workers and I are wondering if we have the right to demand that she be tested for tuberculosis.

--T.B., Costa Mesa A: Your question involves the conflict of two important rights--your right to a healthy workplace and your co-worker’s right not to be discriminated against based on her disability.

You clearly have the right to complain to your employer. Both federal and California law protect the right of employees to point out health and safety hazards in the workplace.

The more difficult issue is whether your employer may insist that your co-worker be tested for tuberculosis. There are two ways of looking at that.

First, if your co-worker really has tuberculosis, that likely would be a “disability” covered by the Americans with Disabilities Act.

Nonetheless, the ADA permits an employer to conduct a “fitness for duty” examination when there is a question about whether an employee poses a direct threat to the health or safety of others.

Such an examination might include a tuberculosis test.

Second, if your co-worker turns out just to have a bad cold, as opposed to tuberculosis or some other serious disease, she would not qualify for the ADA’s protection.

The ADA does prohibit discrimination against people who are not actually disabled but who are regarded as such by others.

She may raise that issue if she does not want to be tested.

While the law is not yet altogether clear on the subject, it would appear that an employer’s mere requirement that an employee be tested based on a reasonable suspicion that she may pose a direct threat to the health of her co-workers would not be illegal.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor, UC Irvine

Trucker Overtime Depends on Situation

Q: I drive a tractor-trailer. With driving and loading and unloading, I work 45 to 65 hours a week. All of my driving is done in California. The company says it does not have to pay me overtime because it is not an interstate business. Is that correct?

--M.J., Fullerton

A: This is a complicated issue and cannot be answered completely without more facts. California’s wage orders provide that motor carriers regulated by the U.S. Department of Transportation are exempt from California’s overtime laws. The Department of Transportation sets forth restrictions on the number of hours a motor carrier can work in a day and in a week.

Some exceptions exist if the driver faces adverse driving conditions or emergency situations. Further, different rules apply to drivers who are “driver-salesmen,” those engaged in “oil field operations” and those in “retail store deliveries.”

Also, the secretary of labor has the authority to exempt certain motor carriers from complying with the federal overtime laws if its drivers and loaders are engaged in interstate commerce. The general definition of interstate commerce is that the employee’s activities must directly relate to the transportation of materials moving in interstate or foreign commerce.

There is no requirement that the driver actually cross state lines. Instead, the focus is on whether the goods being transported are moving in interstate commerce. A product is considered in interstate commerce if it forms a part of a “practical continuity of movement across state lines from point of origin to point of destination.”

If the goods you deliver fall within that definition, your work is not covered by the general overtime laws. There are limitations on what is considered moving in interstate commerce, and the labor secretary has disclaimed jurisdiction over the transportation of certain goods.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers

Work Survey Results Should Be Shared

Q: Our company surveyed all of its employees last year, asking us what we thought of the company and about management. We never saw any results, though, or heard anything more about it. The company is planning another survey this year, but most of the workers are very cynical about its usefulness. Is it fair for the company to keep asking us for our opinions but never doing anything to respond?

--M.R., Yorba Linda

A: Employee surveys can be an important tool to evaluate where problems lie or to gauge workers’ feelings about all aspects of the organization and their jobs. Survey results can be the starting point for positive changes or serve as a “report card,” telling the organization how it is doing.

Yet an employee survey is only going to be effective with the full participation of the workers. That means providing feedback about the results. Moreover, that feedback should be done as soon as possible so that employees feel the time they took to complete the questionnaire was not wasted.

When survey feedback is given, it is important that the company then make a good-faith effort to address concerns and problems, either by telling workers what is being done or why nothing can be done at the present time.

--Ron Riggio, Professor of industrial psychology, Cal State Fullerton

Job-Loss Benefits Sometimes Overlap

Q: Can an employee who is injured on the job and receives workers’ compensation also file for unemployment compensation? In other words, can he or she double dip? In New York state that is permitted. Can a worker do that here?

--F.Z., La Habra

A: To a certain extent, job-loss benefits do have overlapping benefits. For example, your own company may have a disability insurance plan that provides better coverage than what you might get through the workers’ compensation system. Your workers’ comp benefits might offset to a degree the greater benefits received under the private plan.

Also, disability benefits you might receive under the state system in the event of injury do not analyze whether such injury happened during the course of your employment. Thus, if you are ineligible for payments under the workers’ comp program, you might get benefits through this other system. There also are different standards for Social Security benefits than for workers’ comp.

In regard to unemployment compensation, the rule is “either one or the other.” To receive jobless benefits, you must be able to show that you are ready and able to work. To gain compensation under the workers’ comp rules, you need to show just the opposite. Some people file under both systems and let the state figure it out. In the event that one system says you are ineligible, then you would receive benefits from the other.

You may receive compensation through one of the governmental systems and also through a private claim. The reasons behind the job injury or job loss must be evaluated. If those reasons include discrimination or retaliation for complaining about some illegality or slander, you might have an additional basis to recover more money than would be provided by government benefits. In fact, those other claims might not only compensate for your wage loss but also give you the equivalent of punitive damages because of wrongful acts by your employer.

--Don D. Sessions, Employee rights attorney, Mission Viejo