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Don't HR Alone #53 - COBRA for Divorce, Stinky Smokers, and Long Bathroom Breaks

Employees Who Smoke

Question: We have a couple of employees who smoke and have recently moved into an office next to someone who doesn't smoke and finds the odor unpleasant. What are best practices for handling a situation like this? Answer: A best practice is to discreetly coach and counsel the employees who have the offending odor and to offer accommodations to the employee with the complaint. An accommodation could be a fan or air purifier if the complaint continues. As an employer, you can treat this as you would any other performance issue. The best practice is to point to any dress code and/or hygiene policy you may have that (hopefully) provides language about odors or a clean appearance. Hand washing, wearing a jacket outside to smoke and removing it before coming back in, and/or waiting a few moments before coming back inside after smoking are other ways smokers can try to lessen the odor.

When to Offer COBRA

Question: During open enrollment, one of our employees dropped her husband from our group health plan. Do we have to offer COBRA in this case? Answer: No. COBRA is only offered to persons who lose their group health coverage due to specific events, such as the employee’s termination of employment or reduction in hours, or the dependent’s involuntary loss of eligibility because of the employee’s death, divorce, or a child reaching the age limit. In this employee’s case, there is no COBRA qualifying event. The husband’s loss of coverage is simply due to the employee’s voluntary enrollment choice. On the other hand, a special COBRA rule will come into play if the couple later divorces. For example, let’s assume that Mary (the employee) makes an open enrollment change to drop her husband John from her plan coverage as of January 1. On April 1, Mary and John’s divorce is finalized and the plan administrator is notified within 60 days. According to COBRA regulations issued by the IRS, the plan administrator should consider that Mary made the open enrollment change “in anticipation of divorce” and offer COBRA to John. That is, the divorce is a qualifying event with respect to John even though he was not covered under the plan when the event occurred. If John elects COBRA and pays the required premium when due, his coverage will be retroactive to April 1 (the date of divorce) and may continue for up to 36 months. Coverage cannot be reinstated for the months before the qualifying event so there is no coverage for January, February and March.

Long Bathroom Breaks

Question: I have an employee who is taking unusually long bathroom breaks. The frequent restroom use is disrupting work. What should I do to prevent the long bathroom breaks? Answer: If you believe that an employee’s bathroom breaks are longer than average, consider that there may be other issues, such as a medical condition, causing the behavior. As a best practice, have a Human Resources representative or a manager talk to the employee privately to determine if there is a reason for the lengthy breaks. If a health condition exists and reasonable accommodations are necessary, ask the employee to provide medical certification from their healthcare provider and Family and Medical Leave Act (FMLA) paperwork, if applicable, to ensure the additional time is protected. If it turns out the employee has a different type of issue, then you should involve Human Resources for a resolution. Consider the following to manage break periods:

  • Schedule rest breaks every number of predetermined hours as indicated by your state’s law, if applicable.

  • Make a good faith effort to provide rest periods in the middle of each work period.

  • Draft written rest period policies that comply with the federal and state laws.

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