Case illustrates how to get yourself sued for ‘associational ADA bias’

Employers know they need to comply with the ADA when a worker is disabled. But not everyone knows that also can hold true when an employee’s relative is disabled.

Case in point: A technical school recently learned about associational ADA bias the hard way â€” with a lawsuit.

‘Your daughter or your job’

Elizabeth Manon was a receptionist at 878 Education LLC, also known as the Globe Institute of Technology. Manon also had an infant daughter who often experienced medical issues due to an asthma-like condition called Reactive Airway Disease.

That meant Manon often came late, left early or missed whole days of work to attend to her daughter. Over the six months she worked for 878, Manon left early 54 times, came late 27 times and was absent for 17 days, total.

Manon did her best to give notice of when she would be absent to her manager, Alphonso Garcia.

Garcia knew about her daughter’s condition, and despite Manon’s pattern of absenteeism, only reprimanded her once for being late.

But finally enough was enough. Garcia fired Manon after she returned from unexpectedly being out several days to care for her daughter.

During the termination meeting, Garcia told her he needed someone “who does not have kids who can be at the front desk at all times.” He also asked her, “How can you guarantee me that two weeks from now your daughter is not going to be sick again … So, what is it, your job or your daughter?”

‘Smoking gun’ comments

Manon then sued for associational ADA bias, claiming she was fired because of caring for her disabled daughter.

The company tried to get the case thrown out on summary judgement. It claimed that Manon’s absenteeism was the main reason for her termination.

But a judge ruled the case should go to trial for two reasons:

  1. A jury could reasonably believe the manager’s comments were the “smoking gun” showing that Manon was indeed fired because of her daughter’s illness.
  2. Manon’s frequent communication about her daughter’s condition could also lead a jury to conclude that Garcia knew about her disability when he fired Manon.

Plus, despite claiming absenteeism as the main reason for terminating her, the court noted there was no evidence to show that anyone had discussed these performance issues with her other than one passing warning about being late.

Now, 878 is facing a costly lawsuit or settlement.

But there are some good lessons for other employers that come out of this case.

The school could have saved itself a lot of trouble by taking to time to address Manon’s absences earlier on. That could have prompted a more thorough conversation about limitations due to her daughter’s disease, and possible accommodations to fix the issue.

It’s an important reminder to other employers that they may have to approach work issues related to an employee’s disabled relative with the same tact and sensitivity as a typical ADA case.

The case is Manon v. 878 Education LLC.

For more HR News, please visit: Case illustrates how to get yourself sued for ‘associational ADA bias’

Source: News from HR Morning

Feds unveil final Obamacare out-of-pocket limits

The U.S. Department of Health and Human Services (HHS) just released the final regs on 2016 out-of-pocket maximums under the Affordable Care Act.
But the information the agency tucked away in the reg’s preamble is something employers are really going to want to take note of.

Each covered family member

For 2016, the out-of-pocket maximum for self-only coverage will be $6,850; and for non-self-only (family) coverage it will be $13,700.

Despite the clear distinction between self-only and family coverage, HHS said that all plans will now have to have “embedded” out-of-pocket limits for each individual covered under a family plan.

In other words, each member in the family plan would only be subject to the individual cost-sharing limit for his or her expenses instead of the higher family limit of $13,700.

With the 2016 limits in mind, here’s an example of how the embedding rule would apply to family plan with a $10,000 out-of-pocket maximum, courtesy of at Bryan Cave Benefits and Executive Compensation Blog: If one person in the plan racked up $20,000 in medical expenses, that individual could only be asked to pay the self-only $6,850 max – and the plan would be responsible for the other $13,150.

Because the family max in this example is $10,000, other family members should be responsible for the remaining $3,150 under the family cap but this wasn’t spelled out in the HHS preamble.

In terms of compliance, the HHS said that “2016 plans must comply with this policy” – although the final regs take effect on April 28, 2015. So it’s not entirely clear whether plans have to comply with the embedding clarification for the 2015 plan year.

Different high-deductible limits

Firms should also keep in mind the different limits agencies have for HDHPs. For 2015, the HHS’ limits under Obamacare are $6,600 for self-only coverage and $13,200 for family coverage, whereas the IRS’ 2015 high-deductible limits are $6,450 self and $12,900 family.

Currently, the IRS don’t require family plans to apply the embedded out-of-pocket limit approach, and it hasn’t released its 2016 limits.

For more HR News, please visit: Feds unveil final Obamacare out-of-pocket limits

Source: News from HR Morning

So it begins: Can your business survive an IC audit?

Remember how the DOL earmarked a ton of money to  help states root out businesses that misclassify their employees to avoid paying fringe benefits and payroll taxes?  
Well, at least one of these states has made good use of those funds – and you can bet the rest will soon follow.

New York’s Joint Enforcement Task Force on Employee Misclassification  discovered 133,000 workers who were misclassified as independent contractors or “off-the-books” workers in 2014.

Regulators conducted over 12,000 audits uncovering $316 million in unreported wages and over $40 million in unpaid unemployment insurance contributions.

New York is not alone in its efforts.

Eighteen other states have partnered with the DOL in its misclassification initiative.

What does all this mean?

For one thing, businesses can no longer afford to casually issue 1099s and hope an investigator does not come knocking.

Here are some tips to avoid misclassifying workers:
•    Employers should audit their labor pool. It’s important to remember that independent contractors will generally be free from supervision, direction and control.
•    Other indications of an
employee-employer relationship include setting the rate of pay and hours of work, requiring attendance at meetings and evaluating job performance.
•    If you want to make sure your company is on the same page with the IRS, ask the agency to determine whether your worker is an employee or independent contractor.
•    Excuses like, “He works only a few days a week,” “I have him use his own tools” or “He’s been doing this work so long he doesn’t need my supervision,” won’t fly with investigators.

For more HR News, please visit: So it begins: Can your business survive an IC audit?

Source: News from HR Morning

Getting Started with Elearning: Eight Questions to Consider

The face of corporate learning has changed. It is no longer possible to develop your human capital with a single approach. Today’s corporate environment calls for out-of-the-box thinking, incorporating the advantages of many types of learning to benefit your company’s single biggest investment: your people. This handy guide will help you navigate the growing number of learning solutions and equip you with eight must-ask questions as you develop your learning program.

Click here to learn more!  

For more HR News, please visit: Getting Started with Elearning: Eight Questions to Consider

Source: News from HR Morning

So is March Madness just a time-waster, or does it pay off in higher morale?

So is March Madness just a time-waster, or does it pay off in higher morale?

march madness

It’s time for March Madness. Do you know where your employees’ heads are? 

According to a new CareerBuilder survey, approximately one in seven (15%) of U.S. workers said they plan to participate in office pools this year. That’s up from the 11% who planned to do so in 2014.

Twenty percent of all U.S workers said they’ve participated in an NCAA Tournament office pool in the past.

With an estimated 50 million Americans participating in March Madness office pools, companies stand to lose at least $1.2 billion for every unproductive work hour during the first week of the tournament, according to calculations by global outplacement firm Challenger, Gray & Christmas.
But there’s an ongoing argument over whether those “unproductive work hours” actually have value in terms of raising employee morale.
In a recent OfficeTeam survey, managers were asked: Do you feel March Madness activities in the workplace, such as watching games or participating in pools that don’t involve money, have a positive or negative impact on employee morale? Their responses:
  • Very positive — 9%
  • Somewhat positive — 41%
  • No impact — 43%
  • Somewhat negative — 5%, and
  • Very negative — 1%.
What about getting their work done? OfficeTeam asked managers: Do you feel March Madness activities in the workplace have a positive or negative impact on employee productivity? The responses:
  • Very positive — 6%
  • Somewhat positive — 30%
  • No impact — 49%
  • Somewhat negative — 13%, and
  • Very negative — 2%.

That’s 36% of survey participants who feel that the national basketball championship can actually spark productivity.

Who’s a player?

Workers in IT and sales lead all industries/professions in office pool participation. Here’s an expanded rundown from the CareerBuilder survey:

  • IT – 40%
  • Sales – 33%
  • Financial Services – 30%
  • Retail – 27%
  • Health Care (offices with more than 50 employees) – 19%, and
  • Leisure/Hospitality – 14%.

Other March Madness demographics from Career Builder:

Senior management (C-Levels, VPs, directors/managers/supervisors/team leaders) are far more likely to participate in office pools than entry-level, administrative, professional staff and technical employees – 27% vs. 19%.

Workers in the South and West participate at lower rates (18% and 17%, respectively) compared to workers in the Midwest and Northeast (26% and 23%, respectively).

Count your blessings

If you’re not charmed by the prospect of employees diving into the March Madness pools, look at it this way: It could be worse. CareerBuilder compiled a list of non-sporting related workplace pools, and some of them get a little, well, odd. Here’s the list:

  • Employees bet on who would become the next pope of the Roman Catholic Church.
  • Employees predicted when a colleague’s current relationship would end.
  • Employees made Bingo cards of common complaints made by a coworker.
  • Employees guessed the number of protein coding genes in the human genome.
  • Employees bet on who would hookup with who at the company holiday party.
  • Employees predicted the weekly eliminations on the Bachelor reality TV competition.
  • Employees predicted the next coworker to quit.


For more HR News, please visit: So is March Madness just a time-waster, or does it pay off in higher morale?

Source: News from HR Morning

Don’t let temporary ADA accommodations turn into never-ending perks

When employers grant accommodation requests, those accommodations should always be made on a temporary basis. Unfortunately, many firms unknowingly turn these temporary accommodations into permanent ones.

Preventing employers from trapping themselves in permanent accommodation situations was one of the major themes of Building a Better Mousetrap: Trends in FMLA & ADA Administration, a presentation by Ophelia W. Galindo at the Mid-Sized Retirement & Healthcare Plan Management Conference in San Diego.

Act early to prevent confusion

Ms. Galindo stressed the importance of making sure employers act early to prevent any confusion about the nature of the accommodation.

Here’s why that’s so important: Say an employee’s accommodation has been in place for a long period of time. The company decides the arrangement is no longer working out and tells the worker.

The worker then sues under the ADA, and the court sides with the employee. Its reason: The accommodation has been in place for this long without it impacting the company, so there’s no reason why it should all of sudden be an undue hardship.

In any communication about the reasonable accommodation during the interactive process and/or hardship analysis, it should be clearly stated that the accommodation is being made on a temporary basis.

From there, employers should revisit the accommodation regularly to see if the circumstances are still the same or if changes have taken place that could alter the accommodation.

How regularly? A 30-day increment usually works well, so HR pros should shoot for check-ins every 30 days, 60 days, 90 days, etc.

Another area that should be reviewed regularly: Job descriptions. Many job descriptions are poorly written, so “essential job functions” are difficult to pin down, says Galindo.

For example, if a job requires a high stress tolerance that should be listed in the description because it would impact the accommodation process.

Galindo also offered what she called “The Reasonable Test,” which is a very simple test to determine whether or not an accommodation is reasonable. If the accommodation will have a negative impact on the company as a whole, chances are it’s not a reasonable accommodation.

And chances are, the smaller the company, the easier it’ll be to prove the accommodation negatively impacts the entire workforce.

Of course, this test should never be used to make actual employment-based decisions. When the ADA is in play, the interactive process is always the way to go.

6 forms accommodations take

Galindo’s presentation also touched on the six major types of accommodation types employees generally request under the ADA, which include:

  1. Physical (a different chair, a special keyboard, etc.)
  2. Functional (being temporarily relieved of certain job functions, providing “sheltered” work environments for staffers with anxiety issues, ADHD, etc.)
  3. Environmental (Moving the employee to a different work environment, limiting his or her exposure to hot or cold)
  4. Work Hours (modified or reduced hours, alternate shift assignments, etc.)
  5. Time Off (intermittent absences, continuous leave), and
  6. Other (work aides, coaching, respite from attendance or discipline or attendance, service dogs).

Based on “Building a Better Mousetrap: Trends in FMLA & ADA Administration,” by Ophelia W. Galindo, the national leader of absence and productivity solutions at Buck Consultants, as presented at the Mid-Sized Retirement & Healthcare Plan Management Conference in San Diego.

For more HR News, please visit: Don’t let temporary ADA accommodations turn into never-ending perks

Source: News from HR Morning

3 best practices to keep telecommuting programs productive

More employees want the option to work remotely from home, but telecommuting can bring up hurdles companies have to plan for. 

Some employers have held off on giving workers chances to telecommute, believing the perk is more beneficial for the employees than their companies. They worry that working remotely makes it harder to keep staffers productive and accountable.

However, research over the last few years has shown that telecommuting can be a great perk for workers and their companies.

A great perk, but …

Recently, ConnectedSolutions, a cloud-based storage provider, surveyed hundreds of workers to investigate how telecommuting affected their performance. The study suggests that telecommuters don’t shirk their duties, but actually work harder to hold onto the perk.

For example, researchers found:

  • 77% of respondents said they were more productive while telecommuting
  • 30% said they accomplish more in less time
  • 24% said they accomplish more in the same amount of time
  • 23% were willing to work longer hours while telecommuting, and
  • 52% said they were less likely to take off when working remotely, even if they were sick.

But although there are a lot of advantages to telecommuting for both employees and companies, working remotely can also make it difficult for managers to communicate with telecommuters. And feeling disconnected can leave telecommuters unmotivated and less productive, negating the benefits.

3 steps to maintain productivity

Employment law attorney Doug Oldham from the firm Barnes & Thornburg LLP ( suggested some steps managers can take to overcome this problem in an article he penned for The Metropreneur Columbus.

According to Oldham, employers can reduce telecommuting problems by:

  • setting up times for regular updates and feedback. Consistent communication is key because telecommuters may feel like if they’re out of sight, they’re also out of mind. Setting up regular update and feedback sessions can help them feel like they still have a voice, as well as help managers keep tabs on workers’ progress. It’s also important that managers use these communications to recognize telecommuters’ hard work to keep their morale from dipping.
  • spelling out goals and expectations ahead of time. Be sure telecommuters understand what’s expected of them from the get-go. In addition to setting performance goals, this may mean explaining your expectations that an employee be reachable during certain hours of the day, regardless of their location. Ideally, you’ll want to put these details in writing, and have telecommuters read and sign the document so it’s clear they understand what’s expected of them.
  • hiring independent self-starters. As you know, telecommuting’s not for everyone. So if you plan on expanding your telecommuting opportunities, you need to make sure your workforce has the right qualities to use the program effectiely. You’ll want to find workers with strong communications skills and the ability to stay motivated without someone looking over their shoulder.

For more HR News, please visit: 3 best practices to keep telecommuting programs productive

Source: News from HR Morning

Why HR pros should be concerned with workers’ sleeping habits

There are plenty of reasons for HR to encourage employees to get a good night’s rest. Here’s one that’s bound to resonate with the C-Suite: Workers lack of sleep could have disastrous consequences on the company’s bottom-line. 

A Gallup survey recently took a closer look at workers’ sleep and discovered that workers weren’t getting enough Z’s — and it was ultimately impacting their employers.

Overall, the Gallup survey found that four in 10 U.S. workers (nearly half) don’t get at least seven hour of sleep per night, which is the recommended minimal number.

Specifically, here is the percentage of employee who get at least seven hours of sleep per night by age group:

  • 59% (ages 18-29)
  • 55% (ages 30-44)
  • 57% (ages 45-64), and
  • 66% (ages 65 and older).

And quantity is the only thing that’s a problem when it comes to sleep. According to a separate sleep study by by the Virgin Pulse Institute, around 30% of employees reported being unhappy or very unhappy with the quality or quantity of their sleep

That study found that 76% of workers said they felt tired most days of the week, 40% doze off during the day at least once per month and 15% admit they doze off during the day at least once per week.

Link to lower well-being

The Gallup survey also found a link between lack of sleep and low overall well-being scores, which is determined by factors such as diet, exercise, rest, etc.

As the Gallup researchers pointed out:

“Not getting enough sleep is not only linked to lower well-being for individuals, but it is also costly to the U.S. economy. Employees may not have enough time to sleep because of working long hour, family obligations, insomnia  or having poor well-being in other areas. For example, poor physical well-being, social isolation or financial strain could adversely affect quantity of sleep.”

So what can HR pros do to help employees get more sleep? The Gallup researchers recommend flexible scheduling, whenever possible, which can make it easier for staffers to balance work and family demands — and still get enough rest.

Another tactic: Talk to your broker or wellness vendor about providing employees with information on healthy sleeping habits, guides on getting more restful sleep, online programs geared toward improving sleep habits or sleep-tracking tools.

For more HR News, please visit: Why HR pros should be concerned with workers’ sleeping habits

Source: News from HR Morning

Can prescription meds alone trigger FMLA protections?

Can prescription meds alone trigger FMLA protections?

FMLA interference

An employee misses work without warning for a week. His reasoning? He was just diagnosed with high blood pressure, was put on prescription medication and his doctor told him to schedule a follow-up (which he didn’t do). Can you fire him for unexcused absences, or do they count as FMLA leave? 

Answer: You can fire him for unexcused absences, said the U.S. Court of Appeals for the 8th Circuit.

It ruled in an FMLA interference lawsuit brought by Kendrick Johnson against his former employer U.S. Steel Tubular Products Inc. that the medical scenario outlined above didn’t trigger FMLA protections.

Why? Because Johnson didn’t have a serious health condition, which must involve inpatient care or continuing treatment buy a healthcare provider, according to the FMLA.

But doesn’t a regimen of prescription drugs count as continuing treatment, you may wonder? Only if the patient receives direct treatment from a healthcare provider two or more times — or the prescription regimen is performed “under the supervision of the health care provider.”

The appellate court found none of those to be the case with Johnson, so his lawsuit was thrown out.

What exactly went down?

Johnson left his post one day at a U.S. Steel plant. He told his employee relations supervisor he was going to see a doctor because he had a major headache, a stiff neck and blurred vision.

He went to a nearby health clinic where he was treated by a physician assistant, who diagnosed Johnson with high blood pressure. The physician assistant then prescribed blood pressure medication for Johnson and told him to schedule a follow-up appointment with his regular physician, which Johnson never did until well after his termination (well get to that shortly).

From there, court documents seem to indicate Johnson was given a fairly generic note from the physician assistant that said Johnson couldn’t return to work for the reminder of the week.

Johnson took the note to his employee relations supervisor, who told him the note was not sufficient. Johnson was then asked to obtain a second note. He returned to the clinic, but the assistant who treated him was busy, so he obtained a note signed by a paramedic instead.

Again, the U.S. Steel supervisor said this was insufficient and sent Johnson to obtain a third note. Johnson received a third note, but the clinic didn’t give a more detailed explanation for his absence.

After missing several days of work, Johnson was suspended and later terminated.

Johnson then sued for FMLA interference.

U.S. Steel fought to get his cause thrown out on summary judgment.

No serious health condition, no FMLA protection

U.S. Steel claimed Johnson couldn’t sue for FMLA interference because he never established that he had a serious health condition that triggered FMLA protections.

In reviewing the case, the court noted that for Johnson’s case to proceed, he had to show he either received inpatient care or continuing treatment by a healthcare provider.

Johnson claimed his prescription medication regimen and the request to follow up with his regular physician qualified as continuing treatment.

But the court ruled in favor of U.S. Steel Tubular Products and dismissed his case. It said none of that met the FMLA’s standard for “continuing treatment” — which requires either direct treatment from a healthcare provider two or more times, or for a prescription regimen to be performed “under the supervision of the health care provider.”

Had Johnson scheduled a follow-up appointment with his physician within 30 days of his visit to the health clinic, he may have had a case. But there was no evidence he did so. Johnson did eventually see his regular physician, but he could only say it was “shortly after” his termination. He offered no specific details about the timing of his follow up.

On top of that, the court said “Johnson stated that Stewart [the physician assistant] did not indicate a time period within which he should follow up with his regular doctor. He therefore has not shown that Stewart, his health care provider, determined that a second visit was necessary within thirty days, as the regulations require.”

‘But I didn’t get an FMLA notice either’

Johnson also tacked a claim onto his suit that U.S. Steel failed to abide by the FMLA’s notice requirements. He said that at no point during this ordeal did he receive a notice of his rights and obligation sunder the FMLA.

The court had a brief response to this claim:

Assuming this is true, Johnson must show that U.S. Steel’s alleged failure to provide him with this information prejudiced him. Technical violations of the FMLA are not actionable unless they harm the employee. … Johnson has not demonstrated how any alleged technical violations could have prejudiced him if his condition did not qualify him for FMLA leave in the first place.

Case closed.

Cite: Johnson v. U.S. Steel Tubular Products Inc.

For more HR News, please visit: Can prescription meds alone trigger FMLA protections?

Source: News from HR Morning

Employee handbooks: Is yours keeping pace with the times?

It’s an easy task to overlook. But keeping your employee manual up to date is crucial in today’s ever-shifting maze of workplace rules and regs.

Need an example? Consider this: Paid sick leave tops the list of emerging issues most commonly addressed in employee handbooks, with an impressive 79.4% of respondents addressing this new legal trend in their handbooks, according to a new survey of HR pros from XpertHR.

Data privacy is the second most common issue addressed (67.2%) and social media is a close third (64.2%).

Pretty big difference from just five or 10 years ago, right?

Respondents find that keeping their handbooks current with an evolving workplace and workforce (41%) is the most challenging aspect, and keeping it current with the law at a close second (35.6%). A distant third (11%) is getting employees to comply with handbook policies. Addressing state requirements is the top challenge for a mere 3.4%.

Other issues begin to emerge

Other issues are just starting to rear their heads: Wearable technology, such as so-called smart watches, isn’t yet making its way into handbooks in any significant way, with only 4.1% of respondents indicating they have incorporated this budding technology into their handbooks. Medical marijuana, now legal in nearly half of the states, yet still against federal law, is a challenging issue for workplaces — but only 6.4% of respondents have explicitly addressed it in their handbooks. Bring your own device (BYOD) policies are addressed by 14.5% of handbooks; Lesbian/Gay/Bisexual/Transgender (LGBT) protection by 17.2%; and e-cigarettes by 20.6%.

Of the 521 individuals surveyed, 91.9% report having an employee handbook. Those with handbooks are generally diligent about keeping them updated, with 78% reporting updates within the last two years; 14.2% within three to five years; 3% within six to nine years; 2.1% within 10 or more years; and 2.8% unsure when updates were last made.

Sector plays a significant role in whether an employer has a handbook. 92.6% of the private sector reports having a handbook, while that figure is 86.1% for the public sector and 94.9% for nonprofits.

By far the majority (58.5%) of employee handbooks are prepared in-house by HR with review by a lawyer; 18.8% prepare handbooks in-house without review by a lawyer. Roughly one in five of the respondents produce multiple handbooks for various employee groups, generally for one of the following categories: seasonal employees vs. permanent employees, corporate vs. locations by state, hourly vs. salary, union vs. non-union, field workers vs. office workers, staff vs. faculty vs. administration, exempt vs. non-exempt, and manager vs. employee.

Handbooks continue to be distributed primarily via print (64.5%), although intranet is a close second at 55.3% and email at 28.2%.

The maintenance of the handbook falls squarely on HR’s shoulders, with 83.4% of respondents reporting that in-house HR is responsible for updating their handbooks, distantly followed by in-house legal (3.7%), outside law firms (1.4%), and outside consultants (2.5%).

For more HR News, please visit: Employee handbooks: Is yours keeping pace with the times?

Source: News from HR Morning