September 2010

Surveys Indicate Pay Increases Will Return in 2011

Are You Complying With the New ADA?

While the Americans with Disabilities Act Amendments Act (ADAAA) became effective January 1, 2009, many employers may not be in compliance with its expanded provisions.  Employers with 15 or more employees are affected and need to have up-to-date policies and procedures for addressing a need for reasonable accommodation, ensure all managers have been trained on provisions of the revised law, and are avoiding inadvertent discrimination in employment practices.
 
The original Americans with Disabilities Act of 1990 (ADA) prohibited discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment. If an employee claimed to be disabled and asked for a reasonable accommodation, employers focused primarily on determining whether or not an employee had a qualifying “disability” under the limited definition of the term.

The new ADAAA dramatically expands the definition of disability and thus significantly increases the number of persons now protected. Furthermore, the new ADAAA requires employers to focus not on whether a person meets the definition of disability, but what the employer will do to initiate and provide reasonable accommodations for all manner of disability.
 
While a person with a disability still must be able to perform the essential job functions, with or without reasonable accommodations, the term “disability” has been expanded beyond the old definition of “a physical or mental impairment that substantially limits a major life activity” and now:

Employers cannot wait for an employee to request an accommodation.  If the employee has an obvious disability under the newly expanded amendment, and it is interfering with his/her ability to perform the job, the employer must start the interactive process and raise the possibility of reasonable accommodation.

Many employers historically have not been open to providing reasonable accommodations and have not attempted to engage in the interactive process to consider reasonable accommodations.  Focus will now be on allowing employees to work with restricted duty, to accurately identify essential job functions (not all job functions are truly “essential”), and implementing accommodations that previously may have been considered impractical or too expensive.  Examples of reasonable accommodations may include making existing facilities used by employees readily accessible, job restructuring, schedule changes, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and appropriate adjustment or modifications of exams, training materials or policies.  For example, employers can still demonstrate that essential functions include regular attendance at work.  However a reasonable accommodation may be an unpaid leave of absence for a defined period of time.
 
HR Experts On Demand recommends employers carefully review and update essential job functions in job descriptions, review their disability policies and update their employee handbooks for the ADAAA, and train their managers regarding the ADAAA. 

Plan/Prevent/Protect:  DOL’s Newest Regulatory and Enforcement Initiative

The Department of Labor (DOL) has announced its Spring 2010 Regulatory Agenda to include a “Plan/Prevent/Protect” strategy that mandates employers prepare, implement and share with employees their comprehensive compliance programs for wage and hour, workplace safety and health, affirmative action, and pensions.  All employers will be impacted under the wage and hour, and workplace safety and health mandates. This new strategy would place the onus on employers to, in effect, certify their own compliance.  Small businesses with limited resources will find compliance especially difficult.

“Plan” would require employers to create a Plan for identifying and remediating potential violations and other risks to workers, and to make the Plan available to workers so the workers can fully understand them and help monitor their implementation.  It would apply to the areas mentioned above, including wage and hour, workplace safety and health, affirmative action, and pensions.

“Prevent” would require employers to thoroughly and completely implement the Plan in a manner that prevents legal violations, rather than just creating plans on paper that are not carried out.

“Protect” would require employers to ensure that the Plan’s objectives are met on a regular basis, that is, actually protect workers from violations of their workplace rights.

Employers who fail to take these steps to Plan, Prevent and Protect will be considered out of compliance and could be subject to remedial action. These initiatives are considered only to be the beginning as Congress continues its major emphasis on promoting protection of workers’ rights.  These changes by federal agencies regarding rulemaking and new enforcement programs will attempt to achieve what hasn’t been accomplished by other groups through congressional acts.
 
Specifics regarding employer’s potential new obligations under the Fair Labor Standards Act, the Occupational Safety and Health Administration and the Office of Federal Contract Compliance are outlined below:

Under the Wage and Hour Division (WHD), a Notice of Proposed Rulemaking is expected this month that will increase employers’ record keeping obligations under the Fair Labor Standards Act (FLSA).  A Notice of Proposed Rulemaking is a public notice issued by a government agency that wishes to create, modify or delete rules in the Code of Federal Regulations (CFR) and typically allows 60 days for public comment and 30 days for reply comments before final enactment.  The WHD has suggested it will include a requirement that employers provide workers with information regarding how their pay is calculated, and that employers who classify any employees as exempt from overtime or persons as independent contractors, disclose a classification analysis to demonstrate compliance.  The Employee Benefits Security Administration (EBSA) is working with the WHD to ensure employee benefit plan issues are addressed in settlements with employers regarding misclassification of employees as independent contractors.  Watch Breaking News items at HRExpertsOnDemand.com for more information regarding the Notice of Proposed Rulemaking and how you can submit comments. 

The Occupational Safety and Health Administration (OSHA) has set a high priority for a new standard that would mandate employers to adopt an Injury, Illness and Prevention Program requiring proactive and continuous processes to address safety and health hazards.  Likely components would include management duties, employee participation, hazard identification and assessment, hazard prevention and control, education and training, and program evaluation and improvement.

For businesses who are government contractors, the Office of Federal Contract Compliance (OFCCP) has established goals focusing on pay equity, that is, individual pay differences rather than systemic problems, and scrutiny of hiring decisions through disparate treatment and disparate impact analyses, particularly with low-wage and entry-level jobs.  Other goals target recidivism of contractors entering into conciliation agreements, emphasizing outreach to and recruitment of veterans and individuals with disabilities, and a more robust statistical model to target alleged violators.    Further, there is a major emphasis on promoting union-only Project Labor Agreements, particularly for construction of nuclear power plants and “green jobs.”  Joe Biden’s Middle Class Task Force is expected to mandate that contractors pay a “living wage,” along with health insurance, retirement benefits, and sick leave, and will consider a contractor’s compliance record with labor and employment laws.  It could also establish a requirement that an employer be “neutral” regarding union organizing campaigns in order to receive a contracting “preference.”

While these initiatives have not yet been implemented, HR Experts On Demand recommends employers conduct an HR Audit of their current policies and practices in these and other areas and make appropriate changes to help ensure full compliance and to minimize the likelihood of federal enforcement actions under existing and new regulations, private lawsuits or union organizing.

Spotlight on Healthcare Reform:
Regulations on First-Dollar Preventive Care Issued

The U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury have issued Preventive Regulations requiring health plans to cover listed preventive services and eliminate cost-sharing requirements under the Patient Protection and Affordable Care Act (PPACA).  This provision is effective for all employers with non-grandfathered group health plan enrollments on or after September 23, 2010.  A plan is considered grandfathered if, for example, it does not increase co-insurance requirements or boost employee premium contributions by more than five percentage points.  A complete definition of grandfathered status can be found here.    While many plans currently cover some preventive services, they may not include all those required by the PPACA, and may not provide first dollar coverage.

Services covered by the new regulations include preventive services such as breast and colon cancer screenings, screening for vitamin deficiencies during pregnancy, screenings for diabetes, high cholesterol, high blood pressure, and tobacco cessation counseling.  Vaccines to be covered range from routine childhood immunizations to periodic tetanus shots for adults.  Pediatric care will cover services, recommended under the Bright Futures guidelines for children up to age 21 including regular pediatrician visits, vision and hearing screening, developmental assessments, immunizations, and screening and counseling to address obesity.  Prevention for women will include anemia and infection screening for pregnant women, breast cancer mammography screenings every 1-2 years for women over 40, and other requirements expected to be issued soon.  A list of covered preventive services can be found at the government’s website: http://www.healthcare.gov.
Regulations issued by the Departments of Labor, Treasury, and Health and Human Services identify circumstances when cost sharing will continue to be allowed.  Examples include:

HR Experts On Demand recommends employers follow up with their group health plan carriers to determine whether or not plans will be considered grandfathered, to ensure these provisions are included if applicable, and to discuss the impact on premiums.

DISCLAIMER: Any information, recommendations, advice and opinions provided are based on general human resource management fundamentals, practices and principles, and are not legal opinions or guaranteed outcomes.  We recommend, as part of a team approach to management, that you consider consulting with your legal counsel to address any legal concerns related to significant human resources issues and binding contracts.

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