All posts by stu

EEOC, Pregnancy, Reasonable Accomodation, Title VII

Can a pregnant employee use hazardous chemicals at work?

Employers are concerned about the well-being of employees.  Companies are required to follow hundreds of federal and state safety rules, including OSHA regulations, and are financially responsible for workplace injuries and illnesses suffered by employees. So, it is not surprising that company owners and managers are concerned for the well-being of pregnant employees at work.  What if a pregnant employee wants to continue working even though she is regularly using a hazardous chemical that may cause a risk to her and her unborn child?  Rooms to Go Furniture Corporation, a Florida company with a nationwide network of retail stores and distribution centers, recently settled an EEOC complaint (and agreed to pay $55,000 and provide other relief) to settle a pregnancy discrimination lawsuit (Equal Employment Opportunity Commission v. RTG Furniture Corp. of Georgia, Civil Action No 5:16-CV-00663-BO).  The Company fired a pregnant employee from her job because she was required to use lacquer thinner, and the Safety Data Sheet (SDS) stated that it posed a risk to pregnant women and unborn children.

According to the EEOC’s complaint, the company hired a Chantoni McBryde on June 1, 2015 and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde.  The EEOC alleged McBryde was told that because she was pregnant, she could no longer work at the facility.

What can an employer do in such a situation?  Removing a pregnant employee from a job because of a concern for her safety is not permitted under  Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA).  These laws prohibit employers from terminating workers because they are pregnant. In short, pregnant employees have the right to make their own decisions about working while pregnant, including the risks they assume.  First, once the pregnancy is disclosed, the company may speak to the employee about the chemical exposures and workplace safety.  Due to current EEOC accommodation rules, discuss her duties involving those chemicals and if there are ways to minimize her exposure, or temporarily adjust her work.  Second, the company should provide her with a copy of the SDS sheet so that she can discuss the exposure with her doctor.  If there may be a potential health concern, it is up to the woman and her doctor to evaluate.  A company may not impose paternalistic notions on a pregnant employee, even though it wants the best for the employee’s health. Lastly, the company should verify that it is fully complying with the Hazard Communication regulation (1910.1200) under OSHA, and providing all necessary personal protective equipment (PPE) to all employees using these chemicals.

RTG entered into a three-year consent decree requiring it to develop and implement a policy that prohibits pregnancy-based discrimination.  It also requires the company to conduct annual training for employees, supervisors, and managers at certain facilities on Title VII and its prohibition against pregnancy discrimination in the workplace, and provide periodic reports to the EEOC.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Medical Exams, OSHA, Record Keeping

OSHA Recordability for employee injuries – test your knowledge

The OSHA general recordability criteria are listed in Section 1904.7 of the Code of Federal Regulations (CFR), and every non-exempted employer should carefully review the criteria so that the requirements are followed, but that injuries are not over reported.  Over-reporting of employee injuries will create a higher injury rate, and may lead to an OSHA inspection or loss of contracting opportunities with large companies or municipalities that consider injury rates when awarding construction contracts. An injury is recordable if it results in any of the following: (1) death, (2) days away from work, (2) restricted work or transfer to another job, (4) medical treatment beyond first aid, (5) loss of consciousness, or (6) a significant injury or illness diagnosed by a physician or licensed health care professional. Test your knowledge on these twelve events and determine if the employee injury is recordable.

  1. Is an injury recordable if a worker is injured on Friday and comes back to work Monday?  Yes, but only if medical provider states employee should not work or perform restricted work over the weekend (even those are no work days).
  2. What is the maximum number of days away from work to record? 180 days.
  3. Do I stop counting missed days if an employee leaves the company? Yes, if he/she leaves for a reason other than the injury (such as term for positive drug test, or taking another job) you stop counting.
  4. If a doctor prescribes non-prescription medication (over the counter), is that recordable? No.  Non-prescription medication should be preferred, if effective.
  5. Are chipped or broken teeth recordable? Yes, these cases are considered significant by OSHA if diagnosed by a health care professional.
  6. What about an employee that complains of muskoskeltal soreness or pain from work activity, and company assigns lighter duty? No, if a doctor does not restrict the employee’s job functions (full release) and the doctor only administered first aid and no prescriptions were written.
  7. Is surgical glue used to close a wound recordable? Yes, surgical glue is a wound closing device. All wound closing devices except for butterfly and steri-strips are by definition “medical treatment,” because they are not included on the first aid list.
  8. If an employee slips and falls on the way to work on company property, is this recordable? Yes, company parking lots and sidewalks are part of the employer’s establishment for recordkeeping purposes.  The event does not meet any of the work-related exceptions contained in 1904.5(b)(2). The employee was on the sidewalk because of work; therefore, the case is work-related regardless of the fact that he had not actually checked in.
  9. What if 2 employees get into a fight in the company parking lot, and one employee breaks his arm, is that recordable? Yes, the company parking lot is considered the employer’s establishment, and there is no exception for workplace violence events.  Even though it happened before work, it is still recordable.
  10. If an employee bumps his knee and it told by his physician that he may stay out of work until MRI, but later MRI shows no injury to the knee – can this injury be deleted from the 300 log? No, the event met the definition of recordability at the time because the employee had sustained a work-related injury–a bruised knee–involving one or more days away from work. A subsequent MRI result does not change these facts.  MRI was not a basis for lining out the entry.
  11. Which of the following is recordable? X-rays (no, not included in medical treatment); non-prescription medication (no, first aid); non-rigid means of support, such as knee wrap or back belt (no, first aid); removing splinters by irrigation or tweezers (no, first aid); drinking fluids following heat stress (no, first aid); fractured toe (yes, even with no medical treatment because it is significant); burns (yes, if more serious and treated with prescription cream or other medical treatment).
  12. If an employee’s signs and symptoms (from an injury or illness) disappear for a day and then re-surface the next day, is this a new case? No, an employee has “recovered completely” from a previous injury or illness, when he or she is fully healed or cured.  Due to the short time, the evidence supports the fact that the injury was not fully healed.  The employer must use his best judgment based on factors such as the passage of time since the symptoms last occurred and the physical appearance of the affected part of the body.

Check out the latest OSHA Recordkeeping  Handbook for Employers and review other important interpretations.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

CHIP Notice, Department of Labor, Employee benefits, Group Health Insurance

New updated CHIP model notice released in 2017

In February 2017 the Department of Labor issued an updated model notice for employers to provide information on eligibility for premium assistance under Medicaid or the Children’s Health Insurance Program (CHIP) is now available for employers.

Employers that provide insurance coverage in states with premium assistance through Medicaid or CHIP must inform employees of potential opportunities for assistance in obtaining health coverage.  The CHIP notice must be provided annually before the start of each plan year.  Most employers are given the model CHIP notice from their employee benefits consultant.  An employer may provide the notice applicable to the state in which an employee resides concurrent with the furnishing of either: (1) health plan eligibility materials; (2) Open enrollment materials; or (3) in the Summary Plan description.

The updated model notice includes information on how employees can contact their state for additional information and how to apply for premium assistance, with information current as of January 31, 2017.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

I9 Form, Immigration, New Hire, USCIS

USCIS publishes new Handbook for Employers (M274) on Completing the I9 Form

The USCIS has released an updated Form I-9 Handbook for Employers (M-274) and posted it on its website January 22, 2017. The updated manual provides updated guidance on the new form I9, that was updated November 2016.  It offers valuable information to employers on completing and retaining the Form I-9.  All employers should download and retain the new M-274 Manual and refer to it if questions arise.  Click here to access the updated handbook.

The Handbook answers common questions on the I9 form – so your I9 forms are always correct. For instance: How are minors (under age 18) handled? What to do about future expiration dates? When are you required to reverify the Employment Authorization for a current employee? How to make corrections to errors on the I9?  And many more questions.

There is also guidance to federal contractors on the use of E-Verify, the web-based verification system.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

EEOC, Employee Handbook, Harassment, Training

10 point checklist: Improve your Harassment policy and program in 2017

Your company’s efforts to prevent workplace harassment is still a very important step in controlling the risk of employment lawsuit liability in 2017.  In a 2016 report, the EEOC stated that harassment is still a significant workplace issue and one-third of the 90,000 annual charges have an allegation of harassment. So, even though harassment is not a new risk topic, the statistics show that thousands of companies, large and small, are still being sued for alleged incidents of harassment. Your company should already have a written non-harassment policy communicated to employees. However, in addition it is a good idea to review your company’s entire harassment prevention process annually. To help you, the EEOC recently released some proposed guidance on how to review your company practices and implement practices that reduce the likelihood of employee complaints and protect your company, should an incident arise.

Here is a 10 point checklist to review your company harassment prevention program. It also serves as a roadmap for strengthening your current written policy and current practices.

  1. Does the Company have a written harassment policy – clearly written, easily understood and regularly communicated (translated into languages commonly used by employees)?
  2. Is the policy discussed at new hire and posted for employee common areas?
  3. Has the Company conducted employee training on workplace harassment and/or workplace civility?
  4. Can the Company show resources are devoted to harassment prevention training?
  5. Is there a harassment complaint process? Has it ever been used?
  6. Are there multiple ways to complaint or people to complain to?
  7. Are supervisors trained about identifying, preventing and responding to objectionable conduct (to keep small incidents from becoming prohibited harassment)?
  8. Is non-retaliation specifically addressed in the policy and during training?
  9. Does the Company have a documented process for complaints (intake, steps to follow, written report and disciplinary action form)?
  10. Does ownership/senior leadership assess the program and effectiveness regularly?

Read all the entire EEOC proposed draft Guidance on Harassment.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Employee benefits, ERISA, Group Health Insurance, Wrap Plans

What is a Wrap Plan Document, and does my company need one?

A plan document is a comprehensive written instrument describing the operation and administration of an employer’s plan, from the perspective of the carrier and it is written in legalese.  One of the requirements under the Employee Retirement Income Security Act (ERISA) is that employee welfare benefit plans must be written and maintained in a written document, and must clearly identify specific basic information about the plan, including: name of fiduciary administering the plan, procedures for amending and terminating the plan, source of plan contributions and allocation of responsibilities between the employer and the insurance carrier (or third party administrator).  The plan document describes the benefits that an employee is entitled to under the plan and the guidelines to be used for plan administration and decision making.

The summary plan description (SPD) is simply a summary of the plan document required to be written in such a way that the participants of the benefits plan can easily understand it.  Unlike the plan document, the SPD is required to be distributed to plan participants.  The SPD is required because ERISA requires specific content, and required style and format.  The SPD summarizes the plan document, and so the plan document encompasses the content required for the SPD.  Day to day administration of the plan will use the plan document, because it contains more detail than the SPD. Read more about the contents of an SPD.

Why doesn’t the insurance carrier provide an SPD for a full insured plan?  Employers receive a plan document and a certificate of coverage document for their fully ensured plans, but not an SPD.  A written contract of insurance with an insurance company does not normally contain all of the rules required by ERISA and is therefore not a plan document.

What is a “wrap plan”? A “wrap” document is a drafting device used to supplement already-existing documentation.  To comply with the requirements of ERISA, the “wrap” document  contains the mandatory information and wraps around the plan document.  The insurance document remains part of the wrap document, and together they form the complete plan document.

Why is a “wrap plan” needed?  The insurance carrier plan document does not contain all the ERISA required information, because the insurance carrier is focused on complying with state insurance requirements (not federal law).   By using a wrap document, an employer meets the requirements of ERISA, and the accurate insurer-provided benefit description contained in the insurance policy or contract.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

CHIP Notice, COBRA, Employee benefits, HR Compliance

DOL extends Expiration Dates for COBRA and CHIP notices (until 2019)

Washington DC – The U.S. Department of Labor (DOL) has quietly extended the effective date of its model Employer CHIP Notice, General Notice of COBRA Rights, and COBRA Election Notice so that all three notices are effective through December 31, 2019.  The previous forms and model notices had an expiration date of December 31, 2016.

Even though there were no other changes made to these notices (except the expiration date), employers should download the newest versions of these forms for continued use.  For the latest guidance regarding these notices please visit the DOL’s Children’s Health Insurance Program Reauthorization Act and COBRA Continuation Coverage webpages.

What is CHIP?  The federal CHIP program mandates that employers that maintain a group health plan in a state that provides premium assistance under Medicaid or CHIP (includes Florida) must notify all employees of potential opportunities for premium assistance in the State in which the employee resides.

What is COBRA?  Under the federal Consolidated Omnibus Budget Reconciliation Act (COBRA), certain former employees, retirees, spouses former spouses, and dependent children the right to temporary continuation of health coverage at group rates.  Employers with 20 or more employees are usually required to offer COBRA coverage and to notify their employees of the availability of such coverage.  COBRA applies to plans maintained by private-sector employers and sponsored by most state and local governments. Read more FAQs for employers about COBRA.  Additionally, there is a non-mandatory COBRA poster (Job Loss Poster) available through the Department of Labor.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Disabilities, Drug Free Workplace, Medical Marijuana

Florida publishes new rules for Medical Marijuana

Tallahassee – The implementation of the Constitutional amendment passed by Florida voters in November is moving rapidly.  The Office of Compassionate Use (part of the Florida Department of Health) published a notice of Rule Development on January 17, 2017.  The proposed rule expands the Office of Compassionate Use’s (OCU) regulation of the compassionate use registry and licensing of Florida businesses that cultivate, process, and dispense medical cannabis to qualified patients.  Read the proposed rules.

Some of the highlights include:

  • Debilitating medical condition (qualifying for a cannabis prescription) includes: “conditions eligible for physician ordering contained in s. 381.986(2), F.S., or cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis.  This list may be expanded to include “any debilitating medical conditions of the same kind or class as or comparable to those enumerated, as determined by the Florida Board of Medicine.”
  • There will be a 45 day cannabis supply limit.
  • Everyone must be registered in the Compassionate Use Registry (doctors, patients and caregivers and medical marijuana treatment centers).
  • Security, product testing, labeling, inspection and safety standards are forthcoming, as outlined in Florida Statutes 381.986
  • Any caregivers will be a legal representative as defined by s. 381.986(1)(d), F.S., who is at least twenty-one (21) years old and has successfully passed a Level 1 background screening as defined in s. 435.03, F.S.

For those in Tampa, participate in the rulemaking by attending a public meeting: February 8, 2017, 9:00 a.m. – 11:00 a.m., at the Florida Department of Health, Tampa Branch Laboratory, 3602 Spectrum Blvd., Tampa, FL 33612.

Follow this blog to stay up to date with developments on medical marijuana in Florida.

 

Business Expenses, Compensation, Employee Policies, IRS

What is an Accountable Plan (IRS) for Employee Business Expenses?

A business expense reimbursement or allowance arrangement is a system by which a company pays advances, reimbursements, and charges for an employee’s business expenses.   How your company reports a reimbursement or allowance amount depends on whether the company has an accountable or a non-accountable plan. According to the IRS, if a single payment includes both wages and an expense reimbursement, you must specify the amount of the reimbursement.  The IRS Publication 15 (newly updated for 2017) contains the guidelines for handling both accountable and non-accountable plans.  The rules apply to all ordinary and necessary employee business expenses that would otherwise qualify for a deduction by the employee.

To be an accountable plan, your reimbursement or allowance arrangement must require your employees to meet all three of the following rules.

  • The employee must have paid or incurred deductible expenses while performing services as your employees. The reimbursement or advance must be payment for the expenses and must not be an amount that would have otherwise been paid to the employee as wages.
  • The employee must substantiate these expenses to you within a reasonable period of time (120 days to return or account for it).
  • The employee must return any amounts in excess of substantiated expenses within a reasonable period of time.

If expenses covered by this arrangement are not substantiated (or amounts in excess of substantiated expenses aren’t returned within a reasonable period of time), the amount paid under the arrangement in excess of the substantiated expenses is treated as paid under a non-accountable plan. This amount is subject to income, social security, Medicare, and FUTA taxes for the first payroll period following the end of the reasonable period of time.

Payments to your employee for travel and other necessary business expenses under a non-accountable plan are wages and are treated as supplemental wages and subject to income, social security, Medicare, and FUTA taxes. Your payments are treated as paid under a non-accountable plan if:

  • Your employee isn’t required to or doesn’t substantiate timely those expenses to you with receipts or other documentation,
  • You advance an amount to your employee for business expenses and your employee isn’t required to or doesn’t return timely any amount he or she doesn’t use for business expenses,
  • You advance or pay an amount to your employee regardless of whether you reasonably expect the employee to have business expenses related to your business, or
  • You pay an amount as a reimbursement you would have otherwise paid as wages.

Check here for additional guidance from the IRS on how to withhold taxes on supplemental wages (such as allowances paid under a non-accountable plan), which depends on whether the supplemental payment is identified as a separate payment from regular wages.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Construction, Fall Protection, OSHA, Safety

Four Miami Contractors cited almost $100k after fatal fall in Kendall

Miami, FL – On June 26, 2016, a construction worker performing punch-list activities at a Kendall Square housing complex construction site in Miami, fell 11 feet to his death through an unprotected stairway opening.  An OSHA investigation revealed that the stairway opening had no guardrails or cover as required by OSHA standards, and that his employer was aware that the opening was unprotected.  As a result of the fatality, OSHA issued eight citations to Southern Chills Inc., Capri Construction Corp., SB Painting & Waterproofing Inc. and Brothers Carpentry Corp. for alleged safety violations. Combined, the four contractors face $91,536 in penalties (citations dated December 21, 2016).

The project’s developer, Lennar Homes LLC contracted with Miami’s Capri Construction as the shell contractor at the job site. Capri then contracted with Homestead-based Southern Chills to perform carpentry work such as installing second-floor deck trusses and sheathing. Following the fatality, Capri contracted with Brothers Carpentry, a West Park finish carpentry contractor, to replace Southern Chills and Lennar hired SB Painting, of West Palm Beach, to paint the exteriors and interiors of the homes.  OSHA issued multiple citations for this event.

  • OSHA issued Southern Chills two repeated citations for failing to protect workers from falls up to 11 feet with a guardrail or personal fall system and not training employees to recognize fall hazards or procedures while working at elevated levels.
  • OSHA issued serious citations to Capri, SB Painting, and Brothers Carpentry for failing to protect workers from fall hazards with a guardrail or personal fall system.
  • OSHA cited SB Painting and Brothers for not training workers to recognize fall hazards while working at elevated levels.
  • OSHA cited Capri for exposing workers to fall hazards due to a lack of frequent inspections to ensure hazardous conditions did not exist or were corrected.

Read about OSHA’s multi-employer citation policy that allows OSHA to cite multiple employers for the same hazard. Employers that create, control, correct or expose employees to a hazard can all be issued citations as long as the compliance officer can establish that an employee of the cited company was exposed to the safety hazard.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

 

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