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| HR and the Law in the News August 2011, Volume 10, Issue 8 |
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| HR and the Law in the News August 2011, Volume 10, Issue 8 |
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Records, Recordkeeping & Right to Know The U.S. Equal Employment Opportunity Commission (EEOC) and Department of Labor (DOL) have recently given consideration to a variety of employment practices that deal with employment records and recordkeeping, including employers' retention of employees' medical information, wage and hour recordkeeping, and use of criminal (arrest and conviction) records. May 31st - The EEOC published an informal discussion letter that addressed how and where employers should retain records containing medical and/or genetic information about an employee. Such records have compliance implications under the Americans with Disabilities Act (ADA) as well as the Genetic Information Nondiscrimination Act (GINA). In summary, the letter reminds employers that such records, whether paper or electronic, are to be maintained in a file that is separate from the employee's personnel file. If these files are electronic they may be maintained in the same EMR or electronic medical record as the personnel file but the employer must ensure that a firewall or other protection is applied so that access to the medical and genetic information is restricted and available only to those who are permitted access in accordance with the corresponding regulations. The letter reminds employers to use the safe harbor policy provided in the GINA regulations on any request or release for medical information to ensure that acquisition of any genetic information is inadvertent. Need a copy of the safe harbor statement? Click here. July 7th - The U.S. Department of Labor made its regulatory agenda for the next six to twelve months available online. On July 13th it held a live web chat during which participants asked questions about a variety of proposals included in the agenda. Many focused on the Right to Know proposal under the Fair Labor Standards Act (FLSA). Proposed changes under consideration include requiring employers to provide employees with notice of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how his or her pay is computed. Also included is a proposal to require an employer to perform a classification analysis for any employee it classifies as exempt from the FLSA, to disclose the analysis to workers so classified, and to retain the analysis. The Notice of Proposed Rulemaking (NPRM) is expected to be published in October of this year. July 26th - The U.S. EEOC held a public meeting on employers' use of criminal (conviction and arrest) records. Topics generally addressed ways employers may strike a balance between workplace fairness and safety and how to remove arbitrary bars to hiring people with arrest and conviction records. What's Next? Stay tuned as federal agencies continue to give consideration to these proposals and issues. Want the latest updates before the next edition of this newsletter? Follow Ms. Walters at www.hrpeeps.net for timely updates of legislative, regulatory and legal news. Hot Hits!! Education Corner Visit the calendar of events for a full listing. Monday, August 8th, "HR Risk Management & Mitigation," presented during PKFNA's annual HR conference, Las Vegas, NV. (members only). Recent & Upcoming Client Training Programs "Perception & Communication Across Generations" "Maintaining an Inclusive Workplace" "HR & the Law for Managers" NEXT WEBCAST: August 24th, 10:00 - 11:00 a.m. EST "Generations in the Workplace & in the News!" Join this interactive program as we review the latest trends in regulatory and legal developments that address proactive strategies and pitfalls to avoid in employment practices that impact individuals based on age. Topics will include several 2010-11 U.S. EEOC hearings addressing employers' use of credit information; today's economy and its impact on older workers; reasonable accommodation under the ADA; and disparate treatment THIS WEBCAST IS PRE-APPROVED BY HRCI FOR 1.0 GENERAL CREDIT HOUR. Click here to register.
In the News: ADA - Policy and Practice The Americans with Disabilities Act (ADA) generally covers employers with 15 or more employees. In the last few months courts have addressed a couple of employment policy and practice issues that have compliance implications under the ADA. Simultaneously, the EEOC has settled multiple suits including no less than five in July alone one of which produced the largest ADA settlement in history announced on July 6th for $20 million! So let's briefly consider the policy and practice issues addressed. Wellness Programs. Does an employer's wellness program that requires participants to complete a biometric screening (finger stick for glucose and cholesterol) and an online Health Risk Assessment and imposes a bi-weekly fee upon employees who do not participate in the program violate the ADA, which prohibits making certain disability-related inquiries or conducting medical exams? On April 11th the U.S. District Court, Southern District of Florida found in favor of the employer stating, "...it is hard to see how the wellness program relates to discrimination in any way. In fact, the program is enormously beneficial to all employees...It is clear to this Court that the wellness program is not a subterfuge: it was not designed to evade the purpose of the ADA. Rather, it is a valid term of a benefits plan that falls within the ambit of the ADA's safe-harbor provision." Attendance Policies. Does an employer's strict "no fault" attendance policy that imposes points that may lead to corrective action for each occurrence of absence violate the ADA? It may. This was the issue that led to the largest settlement referenced above. Under the employer's policy, if an employee accumulated a designated number of “chargeable absences,” the employer placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination. The policy was strictly applied meaning the employer did not make exceptions to its policy for individuals whose chargeable absences were caused by their disabilities. The EEOC held that as a result, the employer failed to consider or provide a reasonable accommodation as required under the ADA. This newsletter has addressed issues related to wage and hour administration as well as absence management. So now I have a favor to ask... Help Me Choose the Topic for My Next Book! If you have not yet voted please do! It's easy - just click here. Thanks!! Don't have a copy of my first book yet? Click here! This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly.
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