Imagine you are the Hiring Manager for a distribution warehouse and you are interviewing applicants for a materials handler position. The first candidate enters the room, standing at a height of 5’4”, weighing more than 500 pounds. You continue the interview and learn that he has high qualifications, but you can’t help considering how his weight may affect his work performance.
You anticipate that his obesity might put him at a greater risk of developing serious illnesses that may lead to absenteeism. You also consider that accommodations may be required for him to use the fork lift and other machinery, and you worry he may pose a safety threat if he were unable to move quickly enough to evacuate in the event of an emergency.
Based on these considerations, you decide not to hire this candidate. Was this proper or did you put too much emphasis on his obesity and risk liability? This is the question many business employers have had to face in light of the Americans with Disabilities Act (ADA). Recent cases brought by the EEOC may shed light on whether severe obesity is a protectable disability, but the question still remains: when is obesity “severe” enough to constitute an ADA-protected disability?
In the last ten years, we have seen the largest armed forces deployment since WWII. Soldiers have returned from Iraq, and thousands more are scheduled to return from Afghanistan over the course of 2013. It is expected that by the end of 2014, nearly 1.5 million will have returned from combat operations in those two countries alone. Many will apply for reemployment with physical or mental impairments that can oftentimes trigger a host of statutory obligations, varying from the Uniformed Services Employment and Reemployment Rights Act (USERRA) to the Americans with Disabilities Amendments Act (ADAAA).
It is essential to reconsider the legal and practical ramifications for reintegrating them into your workplace. Effective reintegration calls for a commitment from upper management, with an focus on appropriate training and education for supervisors and managers alike.
Any such program must start with a review of the legal obligations required by laws such as USERRA, which establishes rigid timetables for reemploying our returning reservists, veterans and other uniformed service members, along with the accommodation requirements imposed by the ADAAA. If you employ the spouse or close family relative of a returning veteran (as opposed to the veteran him or herself), the Family and Medical Leave Act (FMLA) may also apply.
USERRA
USERRA is the primary federal statute governing the reemployment rights of returning veterans. Returning employees need to only submit a timely reemployment application (typically within 14 or 90 days, depending on their length of service) and otherwise establish that they were discharged from duty under honorable circumstances.
Upon receipt of the application, an employer must reinstate uniformed service members (typically within two weeks) to the position they would have held if they had never taken military leave (their “escalator” position) in the first place. Before you decide whether or not they are qualified to return to their escalator position, you must provide refresher as well as any other training that would have been furnished during their leave of absence.
Exemptions from this reemployment obligation are few and far between. An example would be where the circumstances have changed so significantly, such as an intervening reduction in force, that reemployment would be impossible or unreasonable under the circumstances. Following reemployment, the returning veteran can only be terminated “for just cause” for 180 days (if their deployment was for more than 30 but less than 180 days), or for one year following reemployment (if the length of deployment exceeded 180 days). USERRA also restricts employers from discriminating against employees on the basis of military service, or from retaliating against those who pursue enforcement assistance.
FMLA
The FMLA was recently revised to provide both “military caregiver” and “qualifying exigency” leave to close family members (i.e., the spouse, child, parent or “next of kin”) of covered servicemembers. Military caregiver leave allows eligible employees to take up to 26 workweeks of unpaid leave during a 12-month period to care for close family members who have sustained serious injuries or illnesses in the line of active duty. FMLA also allows eligible employees to take up to 12 workweeks of qualifying exigency leave each year to tend to certain “exigencies” (i.e. attending military ceremonies, arranging for alternative childcare arrangements, etc.) brought about by their close family member’s federal active duty commitment.
In other words, FMLA applies only in those circumstances where your employee is affected by virtue of their relationship to a uniformed servicemember. When the employee actually is a uniformed servicemember, USERRA will outline your legal rights and obligations.
ADAAA
USERRA outlines a bottomline for employer’s legal responsibilities to returning veterans. You may also be operating under additional obligations imposed by laws such as the ADAAA (and any state law counterparts). The ADAAA prohibits employers from discriminating against qualified employees who are known, regarded as, or have a history of being disabled.
Full compliance with USERRA will not eliminate the need for additional obligations in the form of reasonable accommodation for any known, service-connected physical or mental impairments that significantly restrict the ability to perform one or more major life activities.
Excluding undue hardship, employers must provide reasonable accommodation to disabled veterans to aid them in performing the essential functions of their pre-duty positions, and to allow them to enjoy equivalent benefits and privileges of employment (including access to sponsored training programs, break areas, social events, etc.).
With recent amendments widening the extent of the term, “disability,” the ADAAA has cast a wide net around this concept, covering millions of Americans in statutory protection. As a result, it is more important than ever to properly engage in the process with regard to service-connected injuries such as mobility, cognitive, sensory, and psychiatric impairments.
Unique Challenges Presented By Mental Impairments
Around 25% of all veterans serving in the middle east conflict have returned home from active duty with physical disabilities. Due to the nature of the conflict, nearly 20% of them are returning with diagnoses consistent with Post-Traumatic Stress Disorder (PTSD) or depression as well as traumatic brain injuries.
It is also fair to assume that a significant number of veterans are returning with symptoms that have yet to be formally diagnosed, perhaps due to an unwillingness to acknowledge or disclose the disorder. While most will return fit to immediately undertake the essential functions of their positions, others may require a period of adjustment that calls for a gradual reintegration.
Public Resources Are Available
A number of public resources are available to assist in the readjustment process, including the ESGR, a federal ombudsman service devoted to Employer Support for the Guard and Reserve, the Disability Management Employer Coalition, the Veterans Administration, and a host of private third-party programs. The Society for Human Resource Management has even recently partnered with the U.S. Army to provide additional resources to facilitate the reemployment process.
The ADAAA suggests evaluating each reintegration on a case-by-case basis when it comes to accommodating returning veterans and other disabled employees. Accommodating for those afflicted with impairments such as PTSD can often be implemented for a relatively small expense. However, in other cases, enhanced supervisory training may be required to help ensure that the return-to-work transition is a smooth one.
Every veteran who returns for reemployment potentially triggers a broad range of practical and legal factors, and every situation must be evaluated on a case-by-case basis. In many cases, challenging obstacles await those who encounter these considerations. But with a sufficient amount of investment in planning, supervisory training and legal analysis, there are rewards for employers and employees alike.
The 2010 health care reform law requires health plans to provide women’s preventative care and services without cost sharing. Regulations issued August 1, 2011 included all FDA-approved contraception for women in the definition of women’s preventive care and services. That includes abortion and abortifacient drugs (like the so-called “morning-after” pill). The regulations were effective for the first plan year beginning on or after August 1, 2012. The government released proposed regulations on January 30, 2013, that would amend those regulations.
On January 24, 2013, the DOL published Part XI of the FAQs about Affordable Care Act (ACA) Implementation. This delayed the March 1, 2013 deadline for employers to send an Exchange Notice.
The DOL provided two reasons for delaying the Exchange Notice.
(1) The notice will be coordinated with educational efforts by the IRS and HHS on the subject of minimum value
(2) A later deadline will ensure that individuals receive a notice with meaningful information
The new deadline will be in the late summary or early fall of 2013. Open enrollment for the Exchange- now known as the Health Insurance Marketplace- begins on October 1, 2013.
The DOL also addressed several pending issues for Health Reimbursement Arrangements (HRAs) related to when they are considered to be integrated with other coverage. Further guidance will be forthcoming.
The DOL had the following comments on HRAs:
Please feel free to contact our office with any questions.
On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued a long-awaited ruling refusing to enforce the National Labor Relations Board’s (NLRB) bargaining order against a petitioning employer. The basis for the court’s decision was the improper appointment of three members of the NLRB (Noel Canning v. NLRB).
The decision was unique in that it was ultimately decided on purely constitutional grounds, holding that President Obama’s attempted recess appointments of three Board Members in January 2012 were constitutionally impermissible.
What does this mean for the NLRB and for cases pending before it? Although the Board Chairman issued a terse press release on late on January 25th, the NLRB should be very concerned about its short term prospects.
Our payroll stuffer this month will focus on the important topic of Blood Donation. It covers topics imporant to your employees such as:
For the full version of this document, please contact luann@visitaag.com.
Thank you.
The topic for this month focuses on Health Care Reform Updates. It covers regulations including the 2014 Play or Pay penalty as well as the new Summary of Benefits & Coverage (SBC) requirements.
Please contact us directly for more information on this topic.
All 2012 W2’s that will be distributed in January 2013 are required to report the aggregate cost of insurance coverage. Currently, if you filed less than 250 W2’s in 2011 you are exempt from this W2 reporting requirement this year.
The value of health care coverage will be reported in Box 12 of the W2 with code DD to identify the amount. You are required to report the total cost of both employer and employee contributions for major medical and any other nontaxable “group health plan” coverage for which COBRA is offered, except if dental or vision coverage is offered on a stand alone basis. A copy of the full chart from the IRS outlining the types of coverage that employers must report on the W2 can be accessed here.
Please contact our office with any questions.
All OSHA 3000A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.
Please note the 300 logs must be completed for your records only as it contains employee details. The 300A log is a summary of all workplace injuries and does not contain employee specific details. It is the only log that should be posted for employee viewing.
If you need a copy of either the OSHA 300 or 300A log, please contact our office.
With all of your generosity, we were able to exceed our goal of adopting 20 kids this year.
We fulfilled the wishes of over 30 children in foster care with Community Partnership for Children. In addition, we provided monetary donations totaling $700.00 to help even more children.
We would like to send a BIG THANK YOU to the following individuals/companies who helped us surpass our goal this year:
The children and AAG appreciate all of your support this holiday season!
~The AAG team