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Legal Briefs for HR #5 - 2009
by: Audrey E. Mross
Legal Briefs for HR is an update on employment issues sent to over 4,000 HR professionals, in-house counsel, and business owners to help them stay in the know about employment issues. Anyone is welcome to join the email group, just contract Audrey Mross at amross@munckcarter.com and let her know you’d like to be added to the list and you’re in! Back issues are posted on Audrey's firm’s website at www.munckcarter.com under E-Newsletter.
Here's the news for this edition:
- Lights Out for Legislators – June 1 was the last day of the 81st regular session of the Texas Legislature, so we’ve got a fair idea of what will become law and what died on the vine. Bills that are presumed dead include those which [a] would’ve forced employers to allow guns in vehicles on their premises; [b] lowered the standards for workers to qualify for unemployment compensation, in order to qualify for federal stimulus dollars; [c] statewide ban on smoking in indoor workplaces; and [d] change in workers’ comp rules relating to lawsuits by contractors’ employees against the worksite owner. Bills on their way to the Guv for signature include those which exempt some small businesses from the state’s business tax, require back seat passengers to wear seat belts and no use of cell phones by drivers in active school zones, unless using hands-free equipment.
- Déjà vu All Over Again – The rule requiring certain federal contractors to begin using E-Verify on all current and new employees who would provide services under the contract has been pushed back . . . for the 4th time. The latest effective date (take this with a grain of salt) is September 8.
- Mandatory Sick Days – The Healthy Families Act (HR 2460) was filed by Rep. DeLauro (D-Conn.) on May 18 and has 101 co-sponsors. If passed, employers with 15+ employees will be required to provide one hour of paid sick time for every 30 hours worked & may cap the accrual at 56 hours per calendar year, per employee. There is no carry-over of unused time between years & you don’t have to pay it out when employment ends. The accrual begins upon hire but paid sick time isn’t available for use until after the 60th calendar day on the job (except for rehires with less than a 12-month break in service, who will have unused time reinstated and can use it immediately). Exempts are presumed to work 40 hours/week and those regularly scheduled to work less than that accrue sick time for actual hours worked. The paid sick time can be used for [a] the employee’s own illness, injury or medical condition; [b] appointments for employee’s preventive or diagnostic care; [c] to care for employee’s child, parent, spouse “or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”; or [d] absences arising from domestic violence, sexual assault or stalking. Employees are to provide reasonable notice of the need to use paid sick time and employers can require medical certification. There will be a required poster which explains, in excruciating detail, how the employee can take legal action against the employer who fails to comply. Employers may not count paid sick time used toward any no-fault attendance policy or other type of absence control. Enforcement, penalties and limitations periods mimic those available under the FLSA. The companion bill in the Senate is S. 1152. If you want to read full text of this and other federal bills, go to http://thomas.loc.gov and type in the bill number or name. You can also follow the status of bills via this website, assuming you have a strong stomach.
- And Mandatory Vacation, Too – Rep. Alan Grayson (D-Fla.) filed H.R. 2564 on May 21, to provide one workweek of paid vacation in each 12-month period for employees of employers with 50+ employees and two workweeks, if the employer has 100+ employees. The effective date would be three years after enactment. Employees would be required to give not less than 30 days’ notice, unused vacation would not roll over to the ensuing year and the time off must be taken in a block of at least seven consecutive calendar days. To be eligible, the employee must have been employed for at least 12 months and worked at least 1250 hours in that 12-month period. Are you thinking that Rep. Grayson would sure like those vacationing employees to come to his home state of sunny Florida? J
- Harkin Up the Wrong Tree? – Sen. Tom Harkin (D-Iowa) is fixin’ to reopen the debate surrounding the Employee Free Choice Act (S. 560, H.R. 1409) in the next month. At least eight Democratic senators have questioned or opposed the bill, as written, but Sen. Arlen Specter says he thinks a compromise version is possible.
- Risky Business and the ADA -
- In a non-binding opinion letter, EEOC legal counsel advised an unnamed county that its policy of conditioning health insurance participation upon each employee’s completion of a health risk assessment (HRA) would violate the Americans With Disabilities Act’s requirement that medical exams and inquiries aimed at current employees must be job-related and consistent with business necessity. The March 2009 letter also provided clean-up of an earlier EEOC response to the same question, which had implied that the HRA might be OK under the ADA’s bona fide wellness plan exclusion, so long as the inducement to take the HRA did not exceed 20% of the cost of coverage. The March letter rescinded that suggestion and reiterated the EEOC’s position . . . that it has yet to take a formal position on whether health risk assessments are OK under the ADA. While the Departments of Treasury, Labor and Health & Human Resources said, in Dec. 2006, that wellness programs that met certain requirements (including but not limited to the 20% rule above) would be exempt from ERISA nondiscrimination requirements, it’s very important to note that EEOC did not sign off on that regulation and appears to be rattling its saber again to get employers’ attention.
- Where the link between workplace injuries and employee drug use was merely rumored, required drug tests of current employees were prohibited medical exams under the ADA. The manufacturing facility tested employees for illegal and legal, prescribed substances and fired anyone who tested positive, even if provided with a doctor’s note confirming the prescription and the worker’s need to use the drug and his or her ability to work, unimpaired, while using the substance. Bates v. Dura Auto Sys. Inc. (M.D. Tenn. 4-23-09). Drug testing of employees implicates a barrel full of federal and state laws, not to mention common law claims like invasion of privacy. Although “zero tolerance” may sound good, the way you get there can be a case of the medicine being worse than the disease. If you’re not savvy on testing rules, get help.
- Healthy Choice? – Rep. Jim McDermott (D-Wash) and Sen. Chuck Schumer (D-NY) introduced the Tax Equity for Health Plan Beneficiaries (H.R. 2625 & S. 1153) on May 21. If enacted, the measure will apply the same income tax/FICA/FUTA exclusion applicable to the cost of health insurance for employees’ dependents and expand the tax break to cost of coverage for domestic partners and other folks who do not qualify as dependents, such as adult children living at home.
- School’s Out and Summer Jobs are In – If you plan to hire summer help under the age of 18, now is the time to refresh on federal and state child labor laws. All the info you need is on the U.S. Department of Labor website at www.dol.gov/esa/WHD/ under Youth Employment. If you click on Youth Rules! you’ll find a handy chart that connects to state laws, too. Be sure to look at both.
- School’s Out (Not)! – Join me at one of my upcoming speaking engagements:
- June 10 – International Game Developers Association, Dallas chapter, at 7:30 p.m.; SMU campus in Plano (www.dallasigda.org)
- June 18 – North Texas Compensation Association at 11:30 a.m.; Maggiano’s at Northpark (www.ntcassoc.org)
- June 25 – State Bar of Texas Annual Meeting at 8:45 a.m.; Hilton Anatole Hotel (www.texasbar.com/annualmeeeting)
- For the Birds – If you like being “tweeted” and want breaking news on employment law changes, follow me on Twitter. I’m at @amross.
Until next time,
Audrey E. Mross
Labor & Employment Attorney
MunckCarterLLP
600 Banner Place
12770 Coit Road
Dallas, TX 75251
972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)
amross@munckcarter.com
www.munckcarter.com
Legal Briefs for HR (“LB4HR”) is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters. For answers to your specific questions, please consult with counsel.
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Comp Doctor Archive
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Comp Doctor Archive
Audrey E. Mross
Munck Carter LLP
amross@munckcarter.com
www.munckcarter.com
Audrey E. Mross is a Shareholder at Munck Carter, and leads the Firm’s Labor and Employment section. Ms. Mross has 11 years of experience as a human resource professional prior to the practice of law, where she represents employers in claims of discrimination, harassment and retaliation, advises employers on proactive measures to avoid litigation, and updates employment agreements, handbooks and other employment-related documents to comply with federal, state and local law, for single and multi-state employers.
Ms. Mross is a frequently requested speaker for legal and human resources conferences and has given more than 450 speeches, radio broadcasts, and webcasts since 1995. She is quoted and has articles published in USA Today, CNN/Money, The Washington Post, National Law Journal, Texas Lawyer, Dallas Business Journal, HR magazine, SHRM Legal Report, HR Matters magazine and Dallas Bar Association’s Headnotes.
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