Building a Dynamic Relationship with HR Professionals

1. Building a Dynamic Relationship with HR Professionals Lori Swanson, PHR

2. Learning Objectives • Understand employment law policy updates as they impact HR professionals • Learn & understand what HR professionals expect from their EAP • Learn how HR & EAPs can collaborate better

3. Employment Law Leaves / FMLA

4. Family Medical Leave Act (FMLA)The Basics • Enforcing agency: DOL • Employers with 50+ employees • To be eligible, employee must: • Have worked at least 1,250 hours for the employer • Have been employed for at least 1 year • Be employed within 75 miles of at least 50 other employees

5. Family Medical Leave Act (FMLA)The Basics • 12 weeks of unpaid job-protected leave for: • Employee’s serious health condition • Employee’s family member’s serious health condition • Birth or adoption of a child • FMLA leave is: • Unpaid, unless employer’s policy provides otherwise • Job protected – employees have reinstatement rights • Also prohibits retaliation against employees for exercising their rights under FMLA

6. FMLA – Updates • Military revisions • In effect March 2013 • Up to 12 weeks of military exigency leave for those with spouse, parent, son, or daughter on active duty or called to serve – May include: • attending military-sponsored functions • making appropriate financial and legal arrangements • arranging for alternative childcare • 26 weeks of leave for “next of kin” to care for an injured veteran (military caregiver leave)

7. Employment Law Leaves Recent Cases

8. FMLA – Recent Case Law • Brown v. Automotive Components • Brown on FMLA leave for stress • PCP referred to psychiatrist – first available appointment day after she was to return to work • Asked doctor to send leave extension – he forgot & she did not follow up • Company sent certified letter, which she did not pick up & they terminated her employment • Employee failed to meet FMLA notice requirements • Judgment for employer

9. FMLA – Recent Case Law • Ruble v. American River Transportation • Employee made statements that he ‘wanted to see’ his grandmother because she was going to pass away soon and that she had ‘cared for him’ • Did not provide all details necessary to show he was entitled to FMLA • However, should have been sufficient to trigger employer’s duty under FMLA to investigate further (in loco parentis) • Responsibility on employer to determine if leaves are FMLA qualifying • Judgment for employee

10. FMLA Test Your Knowledge

11. Facts • Employee tends to mother’s basic medical & nutritional needs on a daily basis: administers insulin shots & medicine, removes fluids from her heart, cooks meals • Mother granted Las Vegas trip by charitable organization that grants ‘wishes’ to people with terminal illnesses • During trip, employee to perform same duties she does at home (but also shop, gamble) Can employer deny FMLA leave?

12. No

13. Findings • In Ballard v. Chicago Park district, court upheld that the fact that employee provided services while on a trip does not detract from fact that her basic medical & nutritional needs could not be met without assistance • As long as the employee provides “care”, where the care takes place has no bearing on whether employee receives FMLA protections • Judgment for employee

14. Employment Law Leaves Colorado Updates

15. Colorado Law Update • Domestic Violence Leave • Enforcing agency: CO DOL • Employers with 50+ employees • Up to 3 working days, with or without pay in 12 month period • For victims of domestic abuse, stalking, sexual assault, or any other crime related to domestic abuse to: • seek medical treatment or counseling for the employee or the employee’s child • seek a civil protection order • seek legal assistance or attend court-related proceedings, or • seek new housing or make an existing home secure • Remember: Employer also subject to FMLA

16. Colorado Law Update • Colorado Small Necessities Leave • Enforcing agency: CO DOL • Employers with 50+ employees • Up to six hours of unpaid leave in any month & a total of 18 hours of unpaid leave in any school year • For parent-teacher conferences, meetings related to special education, dropout prevention, attendance, truancy, disciplinary issues • Remember: Employer also subject to FMLA

17. Leaves – Colorado Law Update Test Your Knowledge Part I

18. Facts • Colorado-based employer with 1,000 employees • Employee has worked for company full-time (40 hours) for 2 years • In September 2013, employee requests leave to care for domestic partner (registered under the Colorado Civil Unions Act, May 1) with serious health condition Eligible for Leave?

19. Yes

20. Leaves– Colorado Law Update • Colorado Family Care Act • Signed by Gov. Hickenlooper last week • Expands the group of family members that employees can take family leave to care for to include parties to civil unions and domestic partners • Goes into effect 90 days after end of current legislative session (estimated August, 2013)

21. Leaves – Colorado Law Update Test Your Knowledge Part II

22. Facts • Same employee from Part I • Has taken 10 weeks to care for domestic partner • Returns to work December 1, 2013 • In April 2014, employee requests 12 weeks FMLA for the adoption of a child Eligible for FMLA?

23. Yes

24. Leaves – Colorado Law Update • Leave under Colorado Family Care Act will not count against the employee’s entitlement to federal FMLA leave • Partners in civil unions and domestic partners are not considered spouses under the FMLA • So employees taking leave for this purpose may still have 12 weeks of FMLA remaining for any FMLA-qualifying reason • Disclaimer: If a referendum petition is filed against the Act or a section of the Act, the Act or that section must be approved by voters in the November 2014 general election

25. Employment Law Discrimination

26. Discrimination, Harassment & Retaliation – The Basics • Enforcing agency: EEOC • Employers with 15+ employees (ADEA – 20+) • Various laws: • Title VII – race, color, religion, sex, nat’l origin • Pregnancy Discrimination Act (amends Title VII) • ADEA – age (40+) • ADA • disabilities • GINA (Genetic Information Nondiscrimination Act) • discrimination on basis of genetic

27. Discrimination, Harassment & Retaliation – The Basics • Claims from hiring to post-termination • Adverse action, hostile work environment • Not all unfair treatment is discrimination or retaliation

28. Employment Law Discrimination Under the ADA

29. ADA 101 • The ADA prohibits employers from discriminating against qualified individuals with disabilities • The law defines a person as disabled if he or she: • has a physical or mental impairment which substantially limits one or more major life activities; • has a record of such an impairment; or • is regarded as having such an impairment

30. ADA 101 • A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question

31. ADA 101 Reasonable Accommodation: Any change or adjustment to a job or work environment …that permits a qualified employee with a disability …to perform the essential functions of a job, or to enjoy the benefits of employment

32. ADA 101 Essential Function: Employer has burden to show that a function is essential Employee must show that he/she can perform the job’s essential functions (Essential? Written job descriptions, amount of time spent performing function, consequences of not requiring performance of function)

33. EEOC Disability Charges Rising Why?

34. Discrimination Law – Updates • Expanded ADA (ADAAA) – Americans with Disabilities Amendments Act • Expanded definition of a “disability” • New major life activities include: • Concentration • Communicating • Interacting with others • Sleeping • Created a greater responsibility for employers to provide reasonable accommodations to qualified individuals with disabilities

35. Accommodating Mental Impairments • Effective Accommodation Practices (the other EAP!) Series – Job Accommodation Network • Accommodation examples: • Leaves of absence • Delaying start of a PIP, especially when medication adjustment issues present • Modified scheduling • Re-assignment of “marginal” functions • Minimizing distractions

36. Soar (Searchable Online Accommodation Resource)

37. Employment Law ADA (ADAA) Recent Cases

38. ADA (ADAAA) – Recent Case Law • Sheppard v. Autozone • John Sheppard held sales manager position – 80% duties sales & customer service • One requirement: mopping floor, which aggravated existing back injury • Despite medical documentation, accommodation not granted, Sheppard left on medical leave and eventually terminated • $100k compensatory damages, $200k punitive damages, $115k back pay • Could not prove essential job function & did not make reasonable accommodation

39. ADA (ADAAA) – Recent Case Law“Individualized Assessment” • Keith v. Oakland County • Nicholas Keith, deaf since birth, applied as lifeguard w/Oakland County • Offered position, contingent upon medical exam • Doctor: “He’s deaf; he can’t be a lifeguard” • Offer withdrawn • Court held that county failed to perform individualized assessment • Must determine ability to perform essential job functions, not rely on general assessments (deaf people cannot be lifeguards)

40. Employment Law Other Discrimination Recent Cases

41. Discrimination – Recent Case Law • Sex Discrimination – Expansion of the law • EEOC reviewed Macy case against Bureau of Alcohol, Tobacco, Firearms & Explosives • ATF rescinded offer after discovering Macy transitioning from male to female • EEOC ruled discrimination against a person b/c they are transgendered is discrimination based on sex • Opens door for more charges to be filed, courts to review & federal law to be amended • Important: Employers need to know state law where they do business re: discrimination based on sexual orientation & gender identity & train managers

42. Discrimination – Recent Case Law • Pregnancy Discrimination • “The baby is taking its toll on you” – Those words & termination of employment cost Reed Pierce grill $20,000 • The Price IS right – Former model on the TV show was called names & had inappropriate comments made during her pregnancy, refused re-hire = $8.5M award

43. Employment Law Other – Recent Cases

44. Workers Compensation, Disability & Undocumented workers Test Your Knowledge

45. Facts • Warehouse employee injured when forklift runs over & injures his foot at work • Audit conducted & determined employee does not have appropriate documents for working – Employment terminated • Loss of earning capacity analysis by rehabilitation consultant shows 100% loss of earning capacity (physical restrictions + inability to speak English) Eligible for disability benefits?

46. The Nebraska Supreme Court says… Yes

47. Findings • “Excluding undocumented workers from receiving disability benefits creates financial incentive for employers to continue hiring them, in contravention of federal law” • “Furthermore, allowing an employer to escape liability for work related injuries of undocumented employees gives the employer an unfair advantage relative to competitors who follow the law”

48. Expectations What HR Professionals Expect From Their EAP

49. Expectations • Staff training and qualifications • Staff with advanced training or degrees • In-house intake personnel (vs. outsourced) • Counselors available 24/7 • Industry knowledge • Other clients in same or similar industry

50. Expectations • Crisis management • Critical incident assistance • Manager training re: spotting an employee in crisis, in addition to counseling and referrals • Health and wellness • Access to a health advocate • Wellness programs or seminars