Occupational Therapy New Grad California Labor Laws and FAQ – COVID-19 Update

Occupational Therapy New Grad California Labor Laws

 

COVID-19 Update
Some employers are offering Emergency Time Off (ETO) for COVID-19, which may even be retroactively provided. The specifics will depend on your employer and local laws. At my work, for example, if you are a full-time you may be eligible for up to 80 hours off. If you are part-time, prorated based on FTE, e.g., 40 hours. If you are per diem, prorated based on average hours worked per pay period. This is great news! Your employer may require that you exhaust your PTO first. ETO can be used for:
  • Recovery for COVID-19 subject to quarantine or isolation.
  • Caring for someone with COVID-19.
  • Experiencing symptoms and seeking a diagnosis.
  • Caring for a minor because school or daycare is closed.

Introduction

Congratulations on getting hired on your first occupational therapy job! If this is your first time working full time as an occupational therapist, then this post will inform you of the labor laws in California. Each state has its own laws and this post cannot describe all such laws. However, it should give you a good idea of labor laws in other states for Occupational Therapy. Even if you have been working as an occupational therapist and it’s not your first rodeo, you may still learn a thing or two as laws constantly change.

Productivity Pressures

When I was a new grad who got hired as an OT, I did not know much about the labor laws and my rights. This is important as occupational therapists may experience high pressure to meet productivity goals for their employers. Occupational therapists facing this productivity pressure may be tempted to forgo their rights as an employee and do things such as taking shorter meal breaks and go back to work, not take a meal break at all, or working overtime (“off the clock”) and not get compensated appropriately. Occupational therapists are also likely not to be part of a union, which may advocate for them on their behalf or inform them of their rights as an employee.

Many new grad occupational therapists may face ethical dilemmas, no matter what their personal background or intentions are. These ethical dilemmas come from scheduling, the work environment, and hourly/salaried pay requirements combined with the job responsibilities of occupational therapists. Depending on the ethical issue and circumstance, it could lead you to make employment decisions that are not in your best interest while on or off the clock.

Example

You are on lunch break and a spouse (who therefore has a right to know) sees you and asks about how their spouse (your patient) is doing. Your choices are:

  • Talk to them (off the clock) while on lunch (unpaid).
  • Tell them you will talk to then later (knowing that you won’t have the time since you have a full caseload; and not talk to them).
  • Talk to them after lunch but not meet your productivity goals.
  • Talk to them and get “creative” with your documentation for the time you’re supposed to be seeing a specific scheduled patient to continue meeting your productivity goals.

The answer is not easy. Knowing labor laws and your rights can help guide you in the right direction. As employers face fierce competition themselves, they may put high productivity demands and pressures on their employees. Knowing your rights can hopefully prevent a systematic issue from occurring, or if it occurs, allows employees to seek the compensation they deserve.

While on the grand scheme, this may not seem like an issue if it occurs once in a while if an OT employee repeatedly follows this practice, the compounding effect can be quite significant for lost wages. Also, not being aware of your rights and legal issues could result in discipline or termination even if you have the best intentions and were not intending to commit fraud.

Protect your License

The most important thing to learn from this post is to protect your license. We outlined more specific recommendations in this post. Document timely, accurately, and do not falsify information. Follow the OT code of ethics and if doubt, seek advice from someone you trust (who may not necessarily your supervisor). Ask your mentors, peers, or ask an online forum such as our Facebook Page and Community Group.

During your onboarding process, read up on your company policies.

Besides reading this post, (and with COVID-19) stay up to date with OT best practices and changes with AOTA, etc.

Warning to OT Students & New Grads…

…Coaches/Consultants/Bloggers/YouTube, Instagram, TikTok, Facebook Gurus/Vloggers:

Outside of work – many OTs, even OT students who are still in an OT program I see quite often have social media accounts, blogs, YouTube or are influencers that are good intentioned and share OT/healthcare/lifestyle/fitness advice. Essentially, you are offering the public free or paid consultation. You could be held financially liable and your license could be at risk for the advice or recommendations you give if it results in bodily injury or other damages. For this reason, if you frequently give advice, you should protect your license and your personal assets by getting professional liability insurance.

While at work, although your employer may offer insurance for liabilities as a practitioner, it may be a good idea to get your own professional liability insurance policy, which protects you while at work or if you have a student and they make an error. These are not very expensive (less than $75/year or even cheaper) and will protect you in case your employer fails to do so. I like using HPSO [not sponsored]. If you are an AOTA member, they often offer discounts through AOTA for companies such as HPSO. Keep in mind that if you have a small business or DBA, you may not be covered under a personal liability policy and must have a professional liability policy.

The Basics

Occupational therapists are most often employed as per-diem, part-time, or full-time employees. Know that the laws are different for each type such as when overtime is paid. For example, per-diem employees may work less than a full-time employee per week. Therefore, when each goes into overtime is different for the per-diem vs. full-time employee.

Wages

Learn what your minimum wage for your county is and make sure you are being paid the minimum. Most new grad occupational therapists will be paid an hourly wage rather than a salary. To get an idea of what the average salary is for your area, we have a salary survey of user-submitted data to help you get an idea of how much OTs may be making in your area. You should also be thinking about salary negotiation during the hiring process. Raises depend on your employer and may not be guaranteed. You may have a semi-annual or annual check-in with the possibility of a raise.

Scheduling

Learn about your expected work schedule. Per-diem employees can be called to work anytime and their schedule may be random or somewhat predictable and arranged ahead of time. Your employer may ask you which days you are available to work (better for work-life balance). If you are “on call”, you may be eligible for wages at a special rate of pay for being on call but was not called to work. Part-time and full-time employees will have a more consistent schedule. As part of the healthcare industry, you may be asked to work or be on-call for holidays (subject to holiday pay). Occupational therapists may work weekends: Saturdays (more often) than Sundays for therapy. The work week for pay periods may depend on your employer. Some work weeks start on Sundays and some may start on Mondays.

This is important to know because you should be checking your timecard (paper or digital) before the pay period ends for errors or missed time punches. As an hourly worker you should check every pay period. Don’t get underpaid paid for your work! Check your paystubs and direct deposits to make sure the numbers add up. For example, with COVID-19 and recoding for emergency time codes, some employees have been underpaid due to a coding error in the timeclock for the hourly rate (aka software bug). If the OT did not check this, they would have been grossly underpaid.

Overtime

Per-diem workers can get overtime, but the requirements may be different than the usual “more than 8 hours/day” or “5 days/week” as each week a per-diem worker may not work consistently. Ask HR about how this works. For full-time workers: work over 8 hours a day or more than 5 work days/week is 1.5 your usual rate. Working over 12 hours a day is double time (this is rare for occupational therapists).

Your employer may “deny” / not authorize overtime, but what if you have a high work-load and do not finish your work? You will likely encounter this situation. While your employer has the right to dictate your work hours, you are still required to be compensated for hours work (not on meal break). However, the employer has the right to terminate at their discretion. See FAQ below.

Sick Time and Vacation

There is no legal requirement in California that an employer provides its employees with either paid or unpaid vacation time. However, if an employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the employer as to how it fulfills its obligation to provide vacation pay.

Your employer may elect to have separate sick time and vacation time OR combined (PTO). Learn if you have separate time off work or if it comes from a combined bank. While you are allowed to accrue vacation time (which may be subject to a cap), your employer has the right to schedule the vacations, but not restrict you from taking sick time off work. This pertains more to employees with combined sick and vacation times. See FAQ below.

In California, because paid vacation is a form of wages, it is earned as labor is performed. An employer’s vacation plan may provide for the earning of vacation benefits on a day-by-day, by the week, by the pay period, or some other period basis.

You should know that part-time employees may likely not earn vacation time off work.

Kin Care PTO

In California, employees have the right to Kin Care.

Kin Care is a law that provides employees with the ability to use half of their sick leave for the care of a family member. With the enactment of the California Paid Sick Leave Law (PSL) nearly all employees are eligible for sick leave. You should know that kin care applies to circumstances not directly related to illness.

Employees can use this time to help family members who have suffered from domestic violence, stalking or sexual assault with the any of the needed help. This includes, but is not limited to seeking court relief, relocating for safety, seeking counseling from the abuse, medical care, or other domestic abuse services offered by shelters.

Additionally, Kin Care can now be used for the preventative care of a family member, and not just the treatment of an illness.

The previous provisions allowed for employer policy to require the use of doctors notes upon returning to work. However, the recent updates to the law remove the specific mention of doctors notes in employer policy. This leaves the law open to interpretation on whether or not an employer can still require a doctor’s note when an employee has used Kin Care.

Can Kin Care be used for minor sickness?

Kin Care is allowed for any minor or major illness. This would include minor colds, flues, and another sickness as well as chronic or major illness.

Meals

Most OTs will take a minimum 30-minute (unpaid) meal break for an 8 hour work day.

“In California, an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.”

“Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight (8) total hours in a workday may voluntarily waive their right to one of their two meal periods. In order to be valid, any such waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. “

If the employer requires the employee to remain at the worksite or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period.

You are also entitled to a sheltered place to heat up and consume your meals.

FAQ

Overtime

Q. Can an employer require an employee to work overtime?

A. Yes, in general, an employer may dictate the employee’s work schedule and hours. Additionally, under most circumstances, the employer may discipline an employee, up to and including termination, if the employee refuses to work scheduled overtime. However, an employer cannot discipline an employee for refusing to work on the 7th day in a workweek and is subject to a penalty for causing or inducing an employee to forego a day of rest. An employee who is fully apprised of the entitlement to rest may independently choose not to take a day of rest.

Q. If an employee works unauthorized overtime is the employer obligated to pay for it?

A. Yes, California law requires that employers pay overtime, whether authorized or not. An employer can discipline an employee if he or she violates the employer’s policy of working overtime without the required authorization. However, California’s wage and hour laws require that the employee be compensated for any hours he or she is “suffered or permitted to work, whether or not required to do so.”

Q. Are salaried employees entitled to overtime?

A. It depends. A salaried employee must be paid overtime unless they meet the test for exempt status as defined by federal and state laws, or unless they are specifically exempted from overtime by the provisions of the California Labor Code or one of the Industrial Welfare Commission Wage Orders regulating wages, hours and working conditions.

Sick Time and Vacation

Q. My employer has combined its vacation and sick leave plans into one program that it calls “paid time off” (PTO). Under this program I have a certain number of paid days each year that I can take off from work for any purpose. Does this allow my employer to circumvent the law as it relates to vacations?

A. No, a “paid time off” (PTO) plan or policy does not allow your employer to circumvent the law with respect to vacations. Where an employer replaces its separate arrangements for vacation and sick leave with a program whereby employees are granted a certain number of “paid days off” each year that can be used for any purpose, including vacation and sick leave, the employees have an absolute right to take these days off.

Q. I am a part-time employee, and am excluded from my employer’s vacation plan (only full-time employees get vacation). Is this legal?

A. Yes, it is legal. If an employer’s vacation plan/policy excludes certain classes of employees, such as part-time, temporary, casual, probationary, etc., such a provision is valid, and the agreement will govern. To avoid any misunderstandings in this area, the vacation plan/policy should state clearly and specifically which employee classification(s) are excluded.

Q. Can my employer tell me when to take my vacation?

A. Yes, your employer has the right to manage its vacation pay (but not sick time) responsibilities, and one of the ways it can do this is by controlling when vacation can be taken and the amount of vacation that may be taken at any particular time.

 Q. Can my employer discipline me for taking a paid sick day or for using paid sick leave for part of a day to go to a doctor’s appointment? 

A. In general, no, an employer may not discipline an employee for using accrued paid sick leave.

Q. My employer’s vacation policy provides that if I do not use all of my annual vacation entitlement by the end of the year, that I lose the unused balance. Is this legal?

A. No, such a provision is not legal. In California, vacation pay is another form of wages which vests as it is earned (in this context, “vests” means you are invested or endowed with rights in the wages). Accordingly, a policy that provides for the forfeiture of vacation pay that is not used by a specified date (“use it or lose it”) is an illegal policy under California law and will not be recognized by the Labor Commissioner.

Meals

Q. My employer is not allowing me to take a meal period. Is there anything I can do about this situation?

A. Yes, there is something you can do if you are covered by the meal period requirements of the law. If your employer fails to provide the required meal period, you are to be paid one hour of pay at your regular rate of compensation (this is referred to as meal period premium pay) for each workday that the meal period is not provided. If your employer fails to pay the additional one-hour’s pay, you may file a wage claim with the Division of Labor Standards Enforcement.

Q. Can my employer require that I stay on its premises during my meal period?

A. Yes, your employer can require that you remain on its premises during your meal period, even if you are relieved of all work duties. However if that occurs, you are being denied your time for your own purposes and in effect remain under the employer’s control and thus, the meal period must be paid. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers.

 

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