All posts by stu

Accommodation, Construction, Disabilities, EEOC, Post offer medical questionnaire, Reasonable Accomodation

Using Post Offer Medical Questionnaires? Be Careful, Use Correctly

If your company uses post-offer medical questionnaires for new hires, listen up.  How you use the form and when you use it matters to the EEOC.  Additionally, make sure your company knows how to use the medical information and discuss results with the employee.  This month an Alabama contractor that used post-offer medical questionnaires and subsequent physical examinations to terminate several employees with past histories of injuries & surgeries was sued by the federal agency.  The EEOC lawsuit states that medical forms and exams revealed that several employees had disabilities, and the company doctor’s concluded (after a fitness for duty exam) that the employee was not able to perform their job duties.  The problem for Zachry Construction, a San Antonio-based construction and industrial contractor, was that these employees had already been working in their positions and did not have any problems performing their duties.

Reginald White applied for a Boilermaker position at the Chevron refinery and when he was hired, Zachry required him to complete a medical questionnaire.  One month after he began work, the company required White to undergo a fitness-for-duty examination.  After a brief exam and review of White’s medical information, the examining physician found White unable to perform his job duties, even though he had satisfactorily performed those duties for the past month.  The company fired White the next day.

In May 2016, the company required Jasper Johnson to undergo a fitness-for-duty examination.  During the examination, Zachry’s physician learned of a past surgery and lingering neck pain.  The company refused to allow Johnson to return to work and fired him.  Also, Zachry hired Isaacson as a skilled laborer in July 2015. and he had undergone a past surgery on his right shoulder and had multiple right shoulder dislocations post-surgery.  Almost one year later, the company required Isaacson to undergo a fitness-for-duty examination. During the exam, Zachry’s physician learned of Isaacson’s past surgery and multiple shoulder dislocations. The company refused to allow Isaacson to return to work and then terminated him.

The Americans with Disabilities Act (ADA) protects employees and job applicants from discrimination because of their disabilities. If an employee requires a reasonable accommodation, an employer must engage in a good-faith interactive process with the employee to determine if he or she can perform the essential functions of the job with or without a reasonable accommodation.  If a post-offer medical questionnaire and/or physical examination is used, the inquiry should be at the time of hire, or when evidence arises that question an employee’s ability to perform the essential functions of the job.  Just as important to the employer is the requirement to have an individualized accommodation discussion with the employee – and not just terminate after the doctor’s opinion.

The ADA requires an interactive discussion about the limitations and possible accommodations before the employer can conclude that the employee cannot perform a job successfully or safely because of a medical condition.  The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability unless doing so would cause significant difficulty or expense for the employer.

 

Employee Injury, HR Costs, Injury Statistics, Insurance, OSHA, Record Keeping, Safety

Alternate OSHA DART Rate Calculation Formula for Small Businesses

 

We’ve come across a very interesting Interpretation letter published by OSHA, regarding the unfair impact to small companies of using standard injury rate calculations. Traditionally, DART, as well as any other type of OSHA incident rates, are based on a single year’s sum of incidents, multiplied by 200,000 and then divided by the total number of hours, to yield a rate representational of 100 full time employees.

For companies with less than 100 employees, having a workplace accident that causes recordable injury to two, three, or more employees can spike the DART rate dramatically, resulting in additional costs, dropped coverage, or contract disqualifications.

OSHA received a letter from Big Sky Industrial pointing out that this formula imposes a bias against smaller employers, and asking if there might be “a different benchmark for smaller companies” that would be more fair.   In typical “Official Interpretation” fashion, OSHA keeps its language as neutral as possible and is careful not to redefine any statutes, standards or regulations.  But with the stated purpose of publishing these letters to indicate how OSHA requirements “apply to particular circumstances,” they appear to have given their blessing to small businesses to use a three year aggregate of incidents to maintain a more stable incident rate.

Here’s an example of how it works.  Let’s say a company with 30 full time employees (62,400 hours annually) has 1 recordable injury in 2015, 0 in 2016, and 4 in 2017.  Using the traditional calculation, they would go into 2018 with an whopping 12.82% incident rate.  But applying the three year aggregated formula:

2015 + 2016 + 2017 = 5 injuries x 200,000, divided by 187,200 hours  = 5.34%

Using this formula will smooth out the impact of injury spikes over a longer period of time.  Even if the company achieves an injury-free 2018, they must continue to aggregate the previous two years of data, so at the end of 2018:

2016 + 2017 + 2018 = 4 injuries x 200,000, divided by 187,200 hours = 4.27%

If your company is small, take a look at how this aggregated method can help represent a more realistic measurement of your company’s safety indicators.  Here again is the link to the original OSHA interpretation.   And, as always, never forget the importance of adding training and other proactive safety controls to reduce risk and enhance your overall safety management posture.

 

 

 

 

Form W-4, HR Compliance, IRS, Personnel File

IRS Releases new 2018 W4 form

On the last day of February, the Internal Revenue Service (IRS) released an updated tax withholding calculator on IRS.gov and issued a new Form W-4, Employee’s Withholding Allowance Certificate.  Employers should update their hiring packages to include the new 2018 W4 form and can notify employees about the ability to use the IRS online calculator to check their 2018 tax withholding following passage of the Tax Cuts and Jobs Act in December.  We suggest that all employers annually provide current employees with an opportunity to adjust their federal withholding.  Employees can revise their withholding by submitting a completed 2018 Form W-4 to their employer.  The tax withholding tables were already updated in IRS Notice 1036.

Additionally, the IRS released Publication 15 (Circular E), Employer’s Tax Guide, for use in 2018.  The publication provides employers’ federal tax responsibilities, including the tax tables to figure taxes to withhold from each employee.   The social security and Medicare tax rates are unchanged for 2018.

The withholding changes do not affect 2017 tax returns due this April.

Americans with Disabilities Act, Construction, Drug Free Workplace, Employee Policies, Opioids, Safety

How to Handle an Employee Taking Prescription Narcotics (legally)

Many Americans are addicted to powerful narcotics to treat chronic pain.  According to HHS data, opioids were involved in 42,249 deaths in 2016, and opioid overdose deaths were five times higher in 2016 than in 1999.  In 2016, the prescribing rate had fallen to the lowest it had been in more than 10 years, but was still at 66.5 prescriptions per 100 persons (over 214 million total opioid prescriptions annually).  What can employers do to protect themselves from workers who perform dangerous work and may be taking strong narcotics?  There are restrictions from the Americans with Disabilities Act (ADA), but employers must follow a recommended course of action to legally respond to job-related safety concerns.

A recent Ohio case shows employers the roadmap for addressing an employee taking prescribed narcotics (and unprescribed ones) when the employee works in a dangerous environment or has job duties that directly impact safety.  The employee, a manufacturing production manager, worked around heavy machinery for a portion of his day.  The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours.  Some of his painkillers were unprescribed and obtained from co-workers. The employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely.  The employee failed to do so.  A co-worker reported his Vicodin use, the employer drug tested the employee – and he tested positive for hydrocodone (the opioid found in Vicodin).  The employee was put on leave to obtain a release from his doctor (and sent to the company EAP).  The employee disclosed his morphine prescription, and the employer informed him to confer with his doctor about alternative treatment options to opioids because he could not remain working while using morphine.  The employee refused and told his employer that he would not stop taking morphine medication.  The employer then terminated his employment.  Of course, the lawsuit followed.

What are an employer’s legal obligations?  Painkillers pose a significant safety risk to employees in dangerous jobs and work environments.   In fact, the label on his prescription morphine warned against operating heavy machinery.  The ADA says that employers must make individualized assessments by reviewing the medication, job duties and work environment (in each case) and not make generalized assumptions about the use of certain drugs without medical evidence.  A blanket “no prescription medication use” rule violates the ADA.  Employers may request an employee to disclose medications that impact safety or negatively impact or restrict their job duties.  Then, when prescription drug use is disclosed, the employer must engage in an interactive process so the employee can explore and discuss alternative treatments with their doctor (to lessen the safety risk) and be forced to disclose the restrictions and impacts of their current medications.  An employee cannot decide unilaterally that he can safely perform his job while using the prescription and his employer should conduct a direct threat analysis before denying him work.  The employee can not impede the employer’s process by refusing to participate in the situation.  An employer is legally permitted to investigate the extent of the employee’s disability (disc disease and arthritis) and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication or alternative treatment could reasonably accommodate his disability.

Due to the complexities of these situations, employers should speak to an experienced human resources professional or their attorney about these situations, and to develop the written workplace policies that impact opioid and prescription drug use situations.

Discrimination, HR Compliance, I9 Form, Immigration

What employers need to know about DOJ’s Immigrant and Employee Rights (IER) office?

There are many federal agencies that regulate some part of employer conduct.  All employers should know that there is a legal obligation to complete the Form I9 for all new hires (not independent contractors).  When completing the form, an employer must allow a newly hired employee to present any of the lawful documents to show eligibility to work in the United States.  Employers must treat all new hires in a non-discriminatory manner, and cannot ask extra questions, or offer heightened scrutiny to the documents provided by individuals from certain countries.  The Immigrant and Employee Rights Section (IER), enforces the anti-discrimination provision of the Immigration and Nationality Act (INA) and the INA regulations for this law are found at 28 C.F.R. Part 44.

Federal law prohibits: 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and 4) retaliation or intimidation.

A recent example of enforcement involved a Settlement Agreement with a Florida restaurant (Rustic Inn Crabhouse) in Fort Lauderdale, Florida.  After terminating a new hire that did not present requested documents, the IER completed an investigation into whether Rustic Inn discriminated against work-authorized immigrants by verifying their employment authorization, in violation of the Immigration and Nationality Act (INA).  The restaurant routinely requested that work-authorized non-U.S. citizens present specific documents, such as Permanent Resident Cards or Employment Authorization Documents, to verify their citizenship status information, but did not subject U.S. citizens to such verification.   This is prohibited discrimination based on employees’ citizenship, immigration status or national origin. The restaurant paid a $4,000 civil penalty, as well as train its staff, post notices informing workers about their rights and be subject to IER monitoring for three years.

If you are unsure about how to properly complete the Form I9, or have a question about employment authorization for a new hire, just call our office at 727-350-0370.

 

EEO-1 Form, EEOC, Federal Contractors, HR Compliance

2018 EEO-1 Survey website now open (due March 31)

Starting in February, the EEO-1 Joint Reporting Committee’s website began accepting online submissions of demographic data from qualifying companies.  Earlier, qualifying entities were mailed notices explaining the reporting schedule and instructions.  The 2018 EEO-1 reports (for data in the last quarter of 2017) must be filed by March 31, 2018.

Who is covered? Private employers with 100 or more employees and federal government contractors or primary subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more are required to file the EEO-1 report by federal law.  Employers provide employment data by race/ethnicity, gender, and job categories.  The data is used to develop affirmative action plans and to guide enforcement decisions regarding Title VII of the Civil Rights Act.  Employers with questions about reporting, or if your company reported last year, but did not receive a notification letter from the Joint Reporting Committee should call 1-877-392-4647 (toll-free) or e-mail [email protected].  More information is available on the EEO-1 Joint Reporting Committee website.

1095C form, Affordable Care Act, IRS

Compliance Reminder – March 2 deadline to issue 1095-C forms

At the end of December, the IRS extended the 2018 due date for certain entities to provide 2017 health coverage information forms to individuals.  The IRS maintains an employer resource section for Affordable Care Act (ACA) compliance information.

Insurers, self-insuring employers, other coverage providers, and applicable large employers now have until March 2, 2018, to provide Forms 1095-B or 1095-C to individuals, which is a 30-day extension from the original due date of Jan. 31.

Insurers, self-insuring employers, other coverage providers, and applicable large employers must furnish statements to employees or covered individuals regarding the health care coverage offered to them. Individuals may use this information to determine whether, for each month of the calendar year, they may claim the premium tax credit on their individual income tax returns.

The 30-day extension was automatic, and employers didn’t have to request it. The due dates for filing 2017 information returns with the IRS are not extended. For 2018, the due dates to file information returns with the IRS are Feb. 28 for paper filers and April 2 for electronic filers. Read the full IRS press release.   The tax year 2017 version of IRS Publication 5223 is now available, which sets forth the general rules and specifications for preparing substitute Forms 1094-B, 1095-B, 1094-C, and 1095-C.   Read here.

300 Log, OSHA, Posters, Record Keeping

OSHA 300A Workplace Posting

Image

 COMPLIANCE REMINDER

OSHA 300A WORKPLACE POSTING REQUIREMENT: FEBRUARY 1st to APRIL 30th

Unless your company employed fewer than 10 individuals at all times throughout 2017, or, your company’s NAICS code is recognized as a “low-hazard” industry by OSHA, your company must maintain a written record of work-related injuries and illnesses on the OSHA’s Form 300.  Additionally, you must then post your 2017 OSHA 300A Summary of Work-related Injuries and Illnesses form by February 1st in a conspicuous location where notices to employees are typically posted.

Have you determined your company’s NAICS code?  If not, then you won’t be able to confirm an exemption.  So it’s time to let go of those old SIC code(s) and identify which 6-digit NAICS code best describes your primary income-producing line of business.  Call us here at ConsultStu if you need assistance.  Once you know your NAICS code, look HERE to determine if you are exempt from OSHA 300 workplace posting.  (Notice that OSHA defines this industry list as “partially” exempt, because certain OSHA exemptions do not apply in cases of employee fatality, in-patient hospitalization, amputation, or loss of an eye.)

If you have more than 10 employees and your NAICS code does not appear on the list, you are required to post the 300A summary data per OSHA regulation.  The easiest thing to do is just print off a signed copy of the 300A log (do NOT include the overly detailed 300 or 301 logs), and attach to the bulletin board in the break room or wherever you display other workplace postings.

If you have any questions about OSHA logs and compliance, OSHA or ITA reporting, or any other workplace posting requirements, ConsultStu is here to assist you!  Call or email us anytime.

Employee benefits, HR software, I9 Form, Social Security card

How HR handles an Employee Name Change

Name changes occur among employees for all kinds of reasons. After marriage, either spouse may elect to change his or her last name, or, both might agree to assume a new hyphenated version. Other scenarios include divorce, religious or gender conversions, or …. just simple dislike of the name one was given. Here is some guidance for you to effortlessly handle employee name changes at your company.

Payroll – Payroll records must match the name on an employee’s Social Security Card. Do not make updates to payroll, withholding, or any IRS-related documents, until a copy of the new SSA card has been provided. Advise employees to download the SSA card application and visit their local SSA office as soon as possible, as it may take an additional 10-14 days to then receive a new card. Unlike almost everything else in our daily lives, there is no online process for SSA name changes, so this link to the SSA office locator may come in handy for your employees.  Not only should a new W-4 withholding form be signed specifying the new name, it’s likely that withholding calculations should be updated to reflect marital status.

Employee Benefits – If an employee name change is related to a qualifying life event such as marriage or divorce, there will be an array of benefits administration tasks required in addition to simply updating the name. Most plans allow sixty (60) days from the date of the life event for enrollment or selection changes. Whether or not changes are made to any benefit programs, an employee’s beneficiary forms should be reviewed and re-signed to minimize confusion and conflict in the event of future claims.

I9 Form – Assuming an employee’s name changes at a time other than during a rehire or re-verification, employers are encouraged to update Form I-9 in the space provided in Section 3, in order to maintain correct information. The employer may ask about the basis of the name change and to request and accept supporting documentation to be used only as evidence of the name change. However, new I-9 documentation to prove eligibility to work in the U.S. may not be requested due to name change only.

Other considerations – (1) update the employee’s email (set up forwarding from old email address, have employee send a name change to all contacts from new email, if forwarding can’t continue indefinitely, provide a transition period during which email is not forwarded but sender receives an auto-reply with new address); (2) implement cross-referencing capabilities in your HR software for continuity of employee records and employment history.

 

Company Culture, Human Resources, Job Description, Performance Improvement Plan, SMART goals

How to Create an Employee Performance Improvement Plan (PIP)

What can be done to improve the performance of a struggling manager, supervisor or employee?  Answer – develop a written performance improvement plan (PIP).  A PIP is an action plan that provides for the four (4) key ingredients to successful employee performance: (1) clear expectations, (2) accurate and specific feedback, (3) solid two way communications and (4) a reasonable timeline to demonstrate performance.  Your employees have the opportunity to succeed when you have the means to hold them accountable for performance.  Your PIP dialogue can explore the reasons for the poor performance (i.e. excuses) – such as lack of appropriate training, unclear expectations of the job, unforeseen roadblocks etc…  Most importantly, you document the performance discussion and clarify that his/her performance must improve by a set date, in a way that can be objectively measured or calculated.  As a manager, you can use a PIP for substandard performance, minor-misconduct or even workplace behaviors that do not match your company’s culture or values.  Lastly, the PIP can also identify the consequences for failing to meet necessary improvements, such as reduction in pay, transfer, demotion, or termination of employment.  So, at the end of the PIP, everyone knows the potential outcome.  Because there are so many great uses for a PIP, let’s explore the steps to effectively implement a performance improvement plan for an employee.

Step 1: Document the Performance or Behavior Issues

Before initiating the PIP process, a manager should document the areas of the employee’s performance that need improvement.  Be objective, factual and specific.  Provide facts and examples to further clarify why it is a problem and needs to be addressed.  Do not nitpick or create a gigantic list, but focus on the main issues and key points.  This is the catalyst for needed action by the employee.

Step 2: Develop your Action Plan using SMART goals

Study the job description, performance goals and key performance indicators (KPIs) for the job.  As the manager, establish the framework for an acceptable action plan for improvement, which may be adjusted based on employee feedback in the meeting.  The employee meeting should be collaborative, with the employee being tasked with developing a plan to meet performance expectations.  The manager will coach the employee if stuck, or if there are legitimate obstacles to success.  Be prepared to clarify any confusion or misunderstanding on the employee’s part, to make sure the employee takes full ownership of the issue and solution in the PIP.  The PIP should include specific and measurable objectives that are built on SMART goals.  Also, make reference to any relevant HR policies that may impact future performance and behavior objectives.

Step 3: Review the PIP and Meet with Employee

Prior to meeting with the employee, the manager can seek assistance from his or her manager or Human Resources to review the PIP.  A third party review will help ensure the documentation is stated clearly, objective and without emotion.  The third party can also review the suggested PIP to make certain it is specific, measurable, relevant and attainable within the PIP timeline.  Provide a reasonable time for employee improvement, such as 30 to 60 days (time period may be longer depending on improvement needed and measurements).  Conduct a collaborative, supportive meeting with the employee to achieve the best chance of success.  The employee must embrace the PIP and agree to work toward goal achievement.  Have employee sign and date the PIP Agreement.

Step 4: Follow up with Performance Check-ins

The employee and manager will agree upon a schedule of regular follow-up meetings (weekly, biweekly, etc..), which should be described in the PIP.  These meetings should discuss and document progress toward goals, and actions taken by the manager to support the employee’s plan.  Ultimately, the employee should use the meetings to seek feedback, check on performance measurements and ask for coaching/training opportunities to strengthen areas of weakness.  The manager is available to remove roadblocks and ensure that employee has the necessary tools.  Progress meetings should be documented and added to the PIP documentation.

At the end of the PIP period, the manager documents progress toward required goals and makes a decision about any follow-up performance actions or consequences.  When the employee has responded positively and is meeting agreed upon objectives, the manager should formally close the PIP and allow the employee to continue employment. If the employee has not met agreed upon goals, then the manager has sufficient documentation to take action.

In January check out our website for the Performance Improvement Plan Agreement template.  Do you need help with a difficult employee performance situation?  Give us a call.

Need on-going HR support?
We have affordable HR retainers that offer a unique alternative to full HR outsourcing or the hiring of a full time HR employee. We design unique solutions to match your business strategy and budget. We have a proven track record of helping companies from many industries. We listen and probe to understand your needs and goals, before we offer recommendations and realistic solutions.
Contact Us Now