Laws & Guidelines for Human Resource Management

1. Laws & Guidelines for Human Resource Management Peter J. Schroth, Director, Department of Human Resources Sharon D. Arndt, HIPAA Compliance Manager

2. Overview • Federal Employment Laws with Recent Changes • Employment Information and HIPAA • Employee Health Information and other Laws and Regulations

3. EMPLOYMENT LAWS • Fair Labor Standards Act (FLSA) • Age Discrimination in Employment Act (ADEA) • Immigration Reform and Control Act • Vietnam ERA Veterans Readjustment Act • Employee Retirement Income Act (ERISA) • Budget Reconciliation Act (COBRA) • Health Insurance Portability & Accountability (HIPAA)

4. EMPLOYMENT LAWS (cont’d) • Americans with Disabilities Act (ADA) • Drug Free Workplace Act • Family Medical Leave Act (FMLA) • Occupational Safety and Health Regs (OSHA) • Virginia Workers Compensation Act

5. THE FAIR LABOR STANDARDS ACT (FLSA) • Establish minimum wage requirements (currently $5.15 hour) • Sets overtime requirements; not less than 1 ½ times hourly rate for all time above 40 hours in work week (except “exempt” work) • Sets child labor; generally below age 18, 20 hours when school in session • Changed substantially in 2004

6. Age Discrimination in Employment Act (ADEA) • Companies with 20+ employees • Forbids discrimination in Employment, (Hiring/Termination) against applicants and employees 40 years or older • Backpay, Reinstatement, Damages • Major EEOC issue with retirees who are Medicare eligible

7. Immigration Reform and Control Act of 1986 • Unlawful to employ illegal alien • Requires completion of I-9 DOJ Form • Fines to $2,000 ($10,000 subsequent) • Virginia legislation (2005) denies health/medical social benefits for illegal aliens

8. The Vietnam Era Veterans Readjustment Assistance Act • Federal contractors or subcontractors ($25,000) • Requires equal opportunity and affirmative action • Served on active duty 1964-1975 • Virginia legislation (2005) provides for veterans consideration or preference in employment

9. Employee Retirement Income Security Act (ERISA) • Provides fiduciary responsibilities and requirements • Requires plan sponsors/administrators to keep employees informed (SPD’s etc) • Establishes minimum requirements for: participation, vesting, funding, benefits, etc.

10. Employee Retirement Income Security Act (ERISA) cont’d • Prohibits retaliation from whistle blowing and inappropriate actions (termination/vesting) • Recent amendments include: • Cobra • HIPAA

11. Consolidated Omnibus Budget Reconciliation Act (COBRA) • Companies with 20+ employees who worked 50% or more in previous year • Allows employees/dependent health coverage following: termination, layoff, disability, death, etc. • Coverage for 18 months (36 months if death, disability, or divorce) • Employer premium cost plus administrative fee of $2 month • Caution: States have enacted mini-COBRAS

12. Health Insurance Portability & Accountability Act (HIPAA) • Title I • The “P” stands for Portability • Certificate of Group Health Plan Coverage • Limitations on pre-existing condition waiting periods • Prohibits health status discrimination • Special enrollment opportunities

13. Health Insurance Portability & Accountability Act (HIPAA) • Title II - Administrative Simplification • Privacy, Security, and Enforcement • Covered Entities • Protected Health Information (PHI) • Patient Right’s Law • Sanctions

14. Who is covered by HIPAA? Covered Entities: • Health care providers who transmit any health information electronically in connection with certain transactions (insurance & billing) • Health Plans • Health Care Clearinghouses Business Associates of Covered Entities: • Indirect application of regulations

15. Health Plans All Health Plans are covered • Employer Group Health Plan, an HMO, Medicare, Medicaid, Long-term care policies, Flexible spending accounts Entities not considered health plans • Excepted benefit plans – life, disability, auto, worker’s compensation • Government funded – social service programs, food stamps

16. HIPAA: Protected Health Information (PHI) • A subset of “IIHI” • Excludes IIHI in employment records held by a covered entity in its role as employer • Excludes educational records

17. Employment Records: Health Information • Americans with Disabilities Act • Occupational Injury • Workplace medical monitoring • Fitness-for-duty test results • Family Medical Leave Act • Drug Screening Results • Disability Insurance Eligibility • Sick Leave Requests & Justifications • Authorized release of PHI

18. Employer Health Plans • A self-funded Health Plan, by itself, is a separate legal entity and a covered entity under HIPAA • An employer as a plan sponsor is not covered by HIPAA • Enrollment and dis-enrollment data may be exchanged

19. Covered Entity as Employer Covered entities are also employers, which may cause confusion about health information • Required employment information • Employees seeking treatment as patients of Employer’s services

20. Employee Health Information Individually Identifiable Health Information, not protected • The employer may be required by law or sound business practice to treat such medical information as confidential and maintain it separate from other employment records.

21. Employee Health Information and other Laws, Regulations, and Policies

22. Employee Health Information and other Federal Laws • Americans with Disabilities Act (ADA) • Drug Free Workplace Act of 1988 • Family Medical Leave Act (FMLA) of 1993 • Occupational Safety & Health Act (OSHA) • Workers’ Compensation Act

23. Americans with Disabilities Act (ADA) • Protects individuals with disabilities from discrimination in employment, public services, public accommodations, communications and transportation • Employee accommodations may be requested • The employer may require physician disability verification

24. ADA and Confidentiality • Provide information on a need-to-know basis • Maintain separate supervisory files for accommodation requests • Full medical history is not required

25. Drug Free Workplace Act • Federal contractors required to maintain drug free workplace: • Advisory material • EAP availability • Prompt reporting of convictions (employees) • Companion Law (Omnibus Transportation Testing Act) requires testing for drugs/alcohol in transportation industry

26. Drug Free Workplace Act • Information obtained related to drug convictions covered by the Act should only be shared within a direct supervisory chain and with Human Resources administrators. • The Act requires confidentiality for those with access to information.

27. The Family Medical Leave Act (FMLA) • Companies with 50+ employees • Allows up to 12 weeks of unpaid leave when employee/family member certifies need • Health insurance coverage on same basis as prior to leave • Reinstatement to same or similar job • No retaliation

28. The Family Medical Leave Act (FMLA) • Confidentiality Provisions: Documents related to medical certifications under FMLA must be kept separately and treated as confidential.

29. Occupational Safety and Health (OSHA) Regulations OSHA’s regulation for Recording and Reporting of Occupational Injuries and Illness on the OSHA 300 and 301 forms incorporates privacy considerations to enhance an employee’s privacy regarding sensitive health issues.

30. Virginia Worker’s Compensation Act Virginia law requires disclosure of medical records relating to an employee’s workers’ compensation illness/injury to an agent responsible for administering or adjudicating a claim.

31. Virginia Worker’s Compensation Act • Treat medical information as confidential • Maintain the workers’ compensation and medical status reports separate from employment records

32. Summary • Many federal employment laws have recently changed with significant impacts for employers • As a relatively new law, HIPAA imposes mandates on Employers related to the provision of health care coverage • Confidentiality for employment records is more than HIPAA

33. Comments & Questions?