Building a Dynamic Relationship with HR Professionals

Building a Dynamic Relationship with HR

ProfessionalsLori Swanson, PHR

Understand employment law policy updates as they impact HR professionals

Learn & understand what HR professionals expect from their EAP

Learn how HR & EAPs can collaborate better

Learning Objectives

Employment LawLeaves / FMLA

Enforcing agency: DOL Employers with 50+ employees To be eligible, employee must:

◦ Have worked at least 1,250 hours for the employer◦ Have been employed for at least 1 year◦ Be employed within 75 miles of at least 50 other

employees

Family Medical Leave Act (FMLA)The Basics

12 weeks of unpaid job-protected leave for:◦ Employee’s serious health condition◦ Employee’s family member’s serious health condition◦ Birth or adoption of a child

FMLA leave is:◦ Unpaid, unless employer’s policy provides otherwise◦ Job protected – employees have reinstatement rights

Also prohibits retaliation against employees for exercising their rights under FMLA

Family Medical Leave Act (FMLA)The Basics

Military revisions◦ In effect March 2013◦ Up to 12 weeks of military exigency leave for

those with spouse, parent, son, or daughter on active duty or called to serve – May include: attending military-sponsored functions making appropriate financial and legal arrangements arranging for alternative childcare

◦ 26 weeks of leave for “next of kin” to care for an injured veteran (military caregiver leave)

FMLA – Updates

Employment LawLeavesRecent Cases

Brown v. Automotive Components Brown on FMLA leave for stress PCP referred to psychiatrist – first available

appointment day after she was to return to work Asked doctor to send leave extension – he forgot

& she did not follow up Company sent certified letter, which she did not

pick up & they terminated her employment Employee failed to meet FMLA notice

requirements Judgment for employer

FMLA – Recent Case Law

Ruble v. American River Transportation Employee made statements that he ‘wanted to

see’ his grandmother because she was going to pass away soon and that she had ‘cared for him’

Did not provide all details necessary to show he was entitled to FMLA

However, should have been sufficient to trigger employer’s duty under FMLA to investigate further (in loco parentis)

Responsibility on employer to determine if leaves are FMLA qualifying

Judgment for employee

FMLA – Recent Case Law

Test Your Knowledge

FMLA

Employee tends to mother’s basic medical & nutritional needs on a daily basis: administers insulin shots & medicine, removes fluids from her heart, cooks meals

Mother granted Las Vegas trip by charitable organization that grants ‘wishes’ to people with terminal illnesses

During trip, employee to perform same duties she does at home (but also shop, gamble)

Can employer deny FMLA leave?

Facts

In Ballard v. Chicago Park district, court upheld that the fact that employee provided services while on a trip does not detract from fact that her basic medical & nutritional needs could not be met without assistance

As long as the employee provides “care”, where the care takes place has no bearing on whether employee receives FMLA protections

Judgment for employee

Findings

Employment LawLeavesColorado Updates

Domestic Violence Leave◦ Enforcing agency: CO DOL◦ Employers with 50+ employees◦ Up to 3 working days, with or without pay in 12 month

period◦ For victims of domestic abuse, stalking, sexual assault,

or any other crime related to domestic abuse to: seek medical treatment or counseling for the employee or

the employee’s child seek a civil protection order seek legal assistance or attend court-related proceedings, or seek new housing or make an existing home secure

Remember: Employer also subject to FMLA

Colorado Law Update

Colorado Small Necessities Leave◦ Enforcing agency: CO DOL◦ Employers with 50+ employees◦ Up to six hours of unpaid leave in any month & a

total of 18 hours of unpaid leave in any school year

◦ For parent-teacher conferences, meetings related to special education, dropout prevention, attendance, truancy, disciplinary issues

Remember: Employer also subject to FMLA

Colorado Law Update

Test Your KnowledgePart I

Leaves – Colorado Law Update

Colorado-based employer with 1,000 employees

Employee has worked for company full-time (40 hours) for 2 years

In September 2013, employee requests leave to care for domestic partner (registered under the Colorado Civil Unions Act, May 1) with serious health condition

Eligible for Leave?

Facts

Colorado Family Care Act◦ Signed by Gov. Hickenlooper last week◦ Expands the group of family members that

employees can take family leave to care for to include parties to civil unions and domestic partners

◦ Goes into effect 90 days after end of current legislative session (estimated August, 2013)

Leaves– Colorado Law Update

Test Your KnowledgePart II


Same employee from Part I Has taken 10 weeks to care for domestic

partner Returns to work December 1, 2013 In April 2014, employee requests 12 weeks

FMLA for the adoption of a child

Eligible for FMLA?

Facts

Leave under Colorado Family Care Act will not count against the employee’s entitlement to federal FMLA leave

Partners in civil unions and domestic partners are not considered spouses under the FMLA

So employees taking leave for this purpose may still have 12 weeks of FMLA remaining for any FMLA-qualifying reason

Disclaimer: If a referendum petition is filed against the Act or a section of the Act, the Act or that section must be approved by voters in the November 2014 general election


Employment LawDiscrimination

Enforcing agency: EEOC Employers with 15+ employees (ADEA –

20+) Various laws:

◦ Title VII – race, color, religion, sex, nat’l origin◦ Pregnancy Discrimination Act (amends Title VII)◦ ADEA – age (40+)◦ ADA

disabilities◦ GINA (Genetic Information Nondiscrimination Act)

discrimination on basis of genetic

Discrimination, Harassment & Retaliation – The Basics

Claims from hiring to post-termination Adverse action, hostile work environment Not all unfair treatment is discrimination or

retaliation

Discrimination, Harassment & Retaliation – The Basics

Employment LawDiscrimination Under the ADA

The ADA prohibits employers from discriminating against qualified individuals with disabilities

The law defines a person as disabled if he or she:◦ has a physical or mental impairment which

substantially limits one or more major life activities;

◦ has a record of such an impairment; or◦ is regarded as having such an impairment

ADA 101

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question

ADA 101

Reasonable Accommodation:

Any change or adjustment to a job orwork environment

…that permits a qualified employee with a disability

…to perform the essential functions of a job, or to enjoy the benefits of employment

ADA 101

ADA 101Essential Function:

Employer has burden to show that a function is essential

Employee must show that he/she can perform the job’s essential functions

(Essential? Written job descriptions, amount of time spent performing function, consequences of not requiring performance of function)

EEOC Disability Charges RisingWhy?

Expanded ADA (ADAAA) – Americans with Disabilities Amendments Act◦ Expanded definition of a “disability”◦ New major life activities include:

Concentration Communicating Interacting with others Sleeping

◦ Created a greater responsibility for employers to provide reasonable accommodations to qualified individuals with disabilities

Discrimination Law – Updates

Effective Accommodation Practices (the other EAP!) Series – Job Accommodation Network

Accommodation examples:◦ Leaves of absence◦ Delaying start of a PIP, especially when

medication adjustment issues present◦ Modified scheduling◦ Re-assignment of “marginal” functions◦ Minimizing distractions

Accommodating Mental Impairments

Soar (Searchable Online Accommodation Resource)

Employment LawADA (ADAA) Recent Cases

Sheppard v. Autozone John Sheppard held sales manager position –

80% duties sales & customer service One requirement: mopping floor, which

aggravated existing back injury Despite medical documentation, accommodation

not granted, Sheppard left on medical leave and eventually terminated

$100k compensatory damages, $200k punitive damages, $115k back pay

Could not prove essential job function & did not make reasonable accommodation

ADA (ADAAA) – Recent Case Law

Keith v. Oakland County Nicholas Keith, deaf since birth, applied as

lifeguard w/Oakland County Offered position, contingent upon medical exam Doctor: “He’s deaf; he can’t be a lifeguard” Offer withdrawn Court held that county failed to perform

individualized assessment Must determine ability to perform essential job

functions, not rely on general assessments (deaf people cannot be lifeguards)

ADA (ADAAA) – Recent Case Law“Individualized Assessment”

Employment LawOther DiscriminationRecent Cases

Sex Discrimination – Expansion of the law◦ EEOC reviewed Macy case against Bureau of

Alcohol, Tobacco, Firearms & Explosives◦ ATF rescinded offer after discovering Macy

transitioning from male to female◦ EEOC ruled discrimination against a person b/c they

are transgendered is discrimination based on sex ◦ Opens door for more charges to be filed, courts to

review & federal law to be amended◦ Important: Employers need to know state law where

they do business re: discrimination based on sexual orientation & gender identity & train managers

Discrimination – Recent Case Law

Pregnancy Discrimination◦ “The baby is taking its toll on you” – Those words

& termination of employment cost Reed Pierce grill $20,000

◦ The Price IS right – Former model on the TV show was called names & had inappropriate comments made during her pregnancy, refused re-hire = $8.5M award

Discrimination – Recent Case Law

Employment LawOther – Recent Cases

Test Your Knowledge

Workers Compensation, Disability & Undocumented workers

Warehouse employee injured when forklift runs over & injures his foot at work

Audit conducted & determined employee does not have appropriate documents for working – Employment terminated

Loss of earning capacity analysis by rehabilitation consultant shows 100% loss of earning capacity (physical restrictions + inability to speak English)

Eligible for disability benefits?

Facts

Yes

The Nebraska Supreme Court says…

“Excluding undocumented workers from receiving disability benefits creates financial incentive for employers to continue hiring them, in contravention of federal law”

“Furthermore, allowing an employer to escape liability for work related injuries of undocumented employees gives the employer an unfair advantage relative to competitors who follow the law”

Findings

ExpectationsWhat HR Professionals Expect From Their EAP

Staff training and qualifications◦ Staff with advanced training or degrees ◦ In-house intake personnel (vs. outsourced)◦ Counselors available 24/7

Industry knowledge◦ Other clients in same or similar industry

Expectations

Crisis management◦ Critical incident assistance◦ Manager training re: spotting an employee in

crisis, in addition to counseling and referrals Health and wellness

◦ Access to a health advocate◦ Wellness programs or seminars

Expectations

Account services and reporting◦ Training – specifically, a la carte manager training

(paid as needed) vs. part of package pricing◦ Dedicated account representative◦ Regular reporting

Communications◦ Assistance communicating benefits to employees

*Thanks to Nancy Kettering for providing info from Colleen Grady, a senior consultant with Longfellow Benefits, a Boston-based employee benefits consulting firm

Expectations

CollaborationHow HR & EAPs can collaborate better

How can HR professionals and EAPs collaborate better?

Your thoughts…

Challenge:HR often seen as cost center, under-staffed

Solution: EAP services can be an extension of HR team

HR ChallengesCollaboration as a Solution

Challenge:Employee retention

Solution: EAP can provide unique, differentiated

benefits, which can be a retention tool


Challenge:High expectations of service from employees

Solution:EAP can provide services or expertise that HR team can’t


Challenge:HR pros often “out of our element” with employee mental health

Solution: EAP can help with the ‘human perspective’,

not just the ‘legal perspective’

From MSEC conference:“Don’t diagnose your employees”


Questions?

Thank you!

[email protected]

Building a Dynamic Relationship with HR Professionals

Documents

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