‘Cadillac’ tax delayed: What it means for HR pros

Employers got an early Christmas present when President Obama signed a budget bill that delayed the implementation of the Affordable Care Act’s tax on high-value or “Cadillac” health plans. 

How long is the delay? The 40% excise tax on high-value health plans (individual plans with premiums that exceed $10,200 and family plans with premiums exceeding $27,500) is now slated to kick in Jan. 1, 2020. It was originally scheduled to kick in two years earlier — Jan. 1, 2018.

Did the bill change the tax? Yes. The tax will now be deductible. So any amounts employers/plan sponsors end up paying toward the tax will be tax-deductible expenses. Also, the budget bill, which will fund the government through fiscal year 2016, calls for the U.S. comptroller general and the National Association of Insurance Commissioners to study whether the ACA uses “suitable” age and gender benchmarks to determine the “Cadillac” tax thresholds. So more changes could be on the way.

Did the bill alter the ACA in any other ways? Yes. It did so in two ways:

  • It suspends the tax on medical devices for two years. The ACA requires medical device manufacturers to pay a 2.3% excise tax on all medical devices they sell. It took effect in 2013. The budget bill suspends the tax for two years, so it’ll kick back in on Jan. 1, 2018.
  • It imposes a moratorium for one year on the collection of the ACA’s annual health insurance provider fee, which took effect in 2014. The fee will kick back in Jan. 1, 2017.

Did the bill push the “Cadillac” tax closer to death? Yes. For a while now, the Obama administration has been adamant that it would oppose or veto any legislation that would delay, weaken or kill the “Cadillac” tax. So what changed? Legislation to repeal the tax has been getting overwhelming support from both sides of the aisle in Congress. That, combined with pressure to get a budget deal passed by year-end — a deal Republicans insisted include some alteration of the tax — forced President Obama’s hand to delay the tax. The delay now gives opponents of the tax more time to either alter the tax or get it repealed altogether. Its fate will now will likely be left up to the next president and Congress.

Auto-termination policy was illegal, but employer’s actions weren’t: Court

Companies with automatic termination policies, policies that automatically terminate employees after they exceed a certain amount of leave time, have come under fire in recent years.  

Reason: Under the ADA, employers must engage in the “interactive process” to see if the employee on leave can still do his or her old job with some type of reasonable accommodation — and additional leave time may be considered a reasonable accommodation.

Salem v. Houston Methodist Hospital is a recent court case that centered around the idea of an automatic termination policy.

Here’s some background: Fatima Salem worked as a nurse and suffered from a number of medical and psychological conditions. Salem’s medical issues led to her requesting and getting approved for a 59-day leave of absence that was covered by the FMLA. Following her return from that leave, Salem took another leave of absence.

Then the problems occurred. According to Houston Methodist’s leave policy:

“[a]ll leaves of absence of any kind when combined cannot exceed six (6) months in any rolling twelve (12) month period, measured backward from the date the leave begins.”

Salem had asked her employer to make an exception to the auto-termination leave policy when she discovered she wouldn’t be able to return within the six-month time frame. However, Salem was unable to provide the company with any type of estimate as to when she’d be able to return to work. Because of the company policy and the fact no estimate of a return date was given, Houston Methodist denied the request and fired Salem.

EEOC takes over

Salem’s first move was to file a charge with the EEOC, claiming Houston violated the ADA by refusing to grant her leave request. The EEOC determined that Houston’s policy violated the ADA …

“… in that it deprives certain employees of a reasonable accommodation, dispenses with respondent’s obligation to engage in an appropriate interactive process and impermissibly relieves [the Hospital] of its burden to establish undue hardship as a defense to a request for a reasonable accommodation that would extend a leave beyond six months.”

Despite its stance on the leave policy, the EEOC was unable to conclude that Houston violated the ADA by terminating Salem. According to the agency, simply having a policy that violated the ADA wasn’t enough to prove that Salem’s ADA rights had actually been violated.

So then Salem took up her case against Houston with a district court. Her suit claimed that, among other things, Houston failed to accommodate her disability by not providing additional unpaid leave and retaliated against her request, which violated the ADA.

Houston Methodist fought to get the suit dismissed.

What the court said

In an unexpected turn of events, the court granted summary judgment for the company on all of Salem’s claims.

Although the court acknowledged that Houston only engaged in “minimal participation” of the interactive process with Salem, it didn’t change the end result: There was no evidence the reasonable accommodation Salem requested was a feasible reasonable accommodation for the company to make.

Without any evidence the extra leave time was a “feasible” accommodation for the company to make, the court was able to dismiss the failure-to-accommodate claim. And because Salem couldn’t prove that enforcing a six-month leave limit was a retaliatory action, that claim was dismissed as well.

Are auto-termination policies OK?

A pro-employer ruling in an ADA leave case is always welcome news for HR pros, but the company here actually was very lucky to end up in the position it did.

Reason: The EEOC found the hospital’s leave policy unlawful, and the court that ruled in the hospital’s favor did criticize its engagement in the interactive process.

What saved the company here was the fact that, by not providing an estimation of a return date, Salem was essentially asking for indefinite — not extended — leave as her accommodation. A number of courts have ruled that indefinite leave is not a reasonable accommodation under the ADA. Had she been able to provide a return date, this case could have turned out a lot differently.

To avoid leaving to anything to chance, employers should always fully engage in the interactive process whenever an employee requests additional leave as an ADA accommodation.

FMLA abuse: A lesson in standing up to it

Handling intermittent FMLA leave can be intimidating. Here’s a case that shows it pays to act decisively when you suspect the employee-centric regs are being abused.  

The story revolves around Mingyi Rowe, a flight attendant for United Airlines. She and her husband — also a United flight attendant — live in Colorado, but Mingyi’s parents and other relatives live in Taiwan.

Rowe suffered from migraine headaches and had used intermittent FMLA leave for several years — more specifically, on 78 different occasions between 2007 and 2011. All her absences were approved by United.

United allows employees to fly for free or at a reduced cost.

Rowe and her husband planned a multi-week trip to visit her family in Taiwan. United approved their vacation from March 2 through March 27, 2011.

In January and February of that year, the couple searched on United’s internal computer system to determine which flights were likely to have seats available. But they were looking for flights leaving Feb. 22 to Feb. 25 — as was later revealed through a search of the United website.

Ah, the old ‘sick uncle’ trick

Later, Rowe testified that she had received a call from her family in Taipei on the evening of Feb. 23, saying that an uncle had been taken to the hospital and was close to death. Rowe and her husband flew out of Denver for Taiwan Feb. 24.

There was another small problem: Mingyi was scheduled work a three-day standby shift beginning Feb. 27. But she said she developed a migraine on the flight to Taiwan, and called in sick Feb. 27 under pre-approved FMLA leave.

Later, when her supervisors questioned her about the absence, Mingyi said she had originally planned to return for her shift, taking a flight Feb. 26 — less than 12 hours after arriving in Taipei. Unfortunately, she hadn’t bothered to put herself on the standby list for the Feb. 26 flight.

United terminated Rowe on grounds that she had been dishonest, “falsely claim[ing] illness as the reason for her absence from work.”

An ‘honest belief’

Rowe sued, claiming she’d been fired in violation of the FMLA and the ADA.

The judge was not impressed. The undisputed evidence, the court said, showed that Rowe was discharged because [her bosses] did not believe her claim that she planned to return to Denver for her Feb. 27 shift when she left for Taipei on Feb. 24.

That disbelief was bolstered by the facts:

  • The flight Rowe said she intended to take out of Taipei on February 26 would have required her to leave Taipei less than 12 hours after she arrived
  • Rowe and her husband performed multiple computer searches for flights to and from Taipei for several weeks prior to their departure and up until the day they left, but neither she nor her husband ever searched for flights that would have returned Rowe to Denver for her three-day shift, and
  • Rowe never sought to place herself on a flight “standby” list for a flight that would have returned her to Denver for her shift.

In addition, the judge said it was not the court’s role to determine whether the employer’s “proffered reasons [for terminating an employee] were wise, fair[,] or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.”

And United clearly believed in good faith that Rowe was being dishonest in her use of her migraines to dodge coming in to work, the court said.

Case dismissed.

Cite: Rowe v. United Airlines, Inc.

DOL quietly drops big news on new overtime rules

The DOL’s been pretty quiet about what it’s doing behind the scenes about changing the overtime exemption rules and salary threshold. But it has finally spoken. 

This week, at the American Bar Association’s Labor and Employment Law conference in Philadelphia, the Solicitor of Labor M. Patricia Smith shared some insider info that elicited “gasps” from the audience, according to a report by The Wall Street Journal.

Smith said during a panel discussion that the finalized changes to the FLSA’s overtime eligibility rules likely won’t be issued until late 2016. From that juicy piece of info, one could surmise that they won’t take effect until 2017.

This is huge news for the business community, which hasn’t been shy about expressing outrage over the proposed overtime rule changes the DOL issued this summer. The delay means employers have more time to prepare, even though they don’t know what the finalized rules will look like yet.

The period during which the public can comment on the proposed rules ended Sept. 4, and the DOL received roughly 270,000 comments during that period. That’s about three times the amount of comments the agency received when it last updated the overtime rules back in 2004. About 50,000 comments came in during the last week alone.

But despite that last-minute outpouring of commentary, the DOL announced it wouldn’t extend the comment period. It said the standard 60-day comment period — combined with its outreach efforts prior to the proposal being published — was enough to “produce a quality regulation.”

So all signs pointed to the final rules being issued sometime in early 2016. But Smith cited the amount of comments it received and the complexity of the law as the two main reasons the agency’s looking at a later date for releasing the rules.

What we do know

While the DOL’s been mum on whether or not it’ll make significant changes to its proposed rules, we do know a few things for certain about what’ll be in the final rules.

For starters:

  • The minimum salary threshold will rise … significantly. The current threshold a worker must hit to be overtime-exempt is $23,660. The proposed rules seek an increase to $50,440. And while it may not climb quite that high, it will climb — likely to at least $40,000 or so.
  • The threshold will automatically increase. For the first time ever, the salary threshold will be tied to an automatic-escalator, so it can keep pace with inflation — and so major legislative changes aren’t needed every time lawmakers want it to increase.
  • The DOL is looking at making changes to the duties tests. The DOL hasn’t suggested changing the executive, administrative, professional, computer or outside sales duties tests (see them here) yet. But the agency did specifically ask for comments on whether the tests should be changed and whether they’re working to screen out employees who are not bona fide white collar exempt employees.

The X factor

There is one X factor in all of this that no one has mentioned yet: the effect the upcoming presidential election will have on the rulemaking process.

Originally, the DOL had set a tentative deadline of November 2014 for issuing the proposed rules. Then, they didn’t come out until more than six months after that soft deadline had passed.

Then, it was expected the finalized rules would be issued sometime in early 2016. Now, that’s clearly not what’s going to happen. All of these delays have butted the rulemaking process right up against the presidential election.

This begs the question: Would the Obama administration really issue a highly controversial set of finalized rules just prior to the election?

After all, business groups, employers and even a former DOL administrator (who oversaw the last rule changes) have staunchly opposed the proposed rule changes, saying they’ll stifle companies’ ability to operate, drive prices up and/or actually hurt the very people the rules are trying to help. This could potentially give the GOP more ammunition to use on the campaign battlefield.

On the other hand, if public opinion polls reveal that the rule changes are something the voting public wants and views as beneficial, the Democrats may try to push the final rules through prior to the election to give their political campaigns a shot in the arm.

Time will tell which scenario will play out — but a lot of it likely depends on how Democrats feel the voting public will react to the rule changes once they’re finalized.

One final thing to consider: Since the entire rulemaking effort was spurred by the Obama administration, and heavily backed by Democrats, it’s entirely possible any finalized rule changes will be repealed should a Republican win the White House next fall.

2 benefits never to put on the chopping block

With healthcare costs continuing to skyrocket — along with fears of triggering the “Cadillac” tax in 2018 — employers are looking into what kinds of benefits they can cut. 

But there are two benefits that should remain a last resort for cuts: dental and vision benefits.

Three reasons for this:

  • When structured correctly (as stand-alone options) key ACA regulations don’t apply to these benefits. In other words, the coverage won’t count toward your Cadillac tax thresholds. Remember, the 40% excise tax will kick in for any health plans for which premiums exceed $10,200 for individuals and $27,500 for family coverage. If you create dental and vision plans separately from health plans, you can avoid having their premiums count toward those thresholds.
  • Routine eye and dental exams can be instrumental in diagnosing underlying health issues before they spiral into long-term problems. Examples: Vision checkups can help employees detect diabetes or hypertension earlier (and more cheaply) than they would through a primary care physician. The same is true of dental check-ups, which can often help uncover early warning signs of heart disease.
  • When employees have vision and dental coverage, emergency room visits for such problems can be significantly reduced, saving health plans a ton on ER visits.

What workers want

Another reason dental and vision should become (or remain) a core part of your benefits package: Employees’ interest in these offerings is increasing.

Case in point: A 2014 SHRM study found that 83% of the workers who were offered vision coverage enrolled in the plan, compared to the 78% who did so the prior year.

A separate study by MetLife also found that 76% of employees would be interested in voluntary dental coverage if it was offered by their employer.

5 times it’s OK to fire an employee on FMLA leave

Of course, you’d never to fire someone for taking FMLA leave. But perhaps the termination had been in the works long before the person took FMLA leave. It’s still a sticky situation, but a court recently outlined when it’s safe to say goodbye to someone on FMLA leave. 

The danger is, obviously, FMLA interference and retaliation claims. You never want to make it look like the taking of FMLA leave was a motivating factor in the decision to terminate someone (not that it would be).

Still, an FMLA lawsuit may likely be forthcoming if you terminate someone while they’re on, or just returning from, FMLA leave. It’s kind of a go-to move for employee-side attorneys: “Oh, you were on FMLA leave when they fired you. That’s interference and retaliation.”

But courts will side with you if you can prove the employee, FMLA leave aside, had it coming — e.g., the person was embezzling money, harassing the secretary or lying to customers.

When it’s safe to cut the cord

The U.S. Court of Appeals for the Tenth Circuit recently highlighted five separate cases in which it threw out a worker’s FMLA lawsuit against an employer after finding “undisputed evidence that the employee in question would have been terminated even if FMLA leave had not been taken.”

In then pointed out the element each employer in those five causes had on its side that allowed the court to toss the claims against it. If you can prove one of these elements exist when weighing your decision to terminate an employee on FMLA leave, it’s generally safe to say “you’re fired”:

  • employee failed to comply with a direct and legitimate order from supervisors
  • there was overwhelming evidence of performance issues that predated the leave
  • employee had repeatedly been tardy and was non-compliant with absence policy on the date she was terminated
  • employee, prior to leave, had been tardy, absent from her desk, failed to timely pay invoices or update list of services received from vendors, and
  • evidence was unequivocal that the reduction-in-force decision had already been made before the employee took FMLA leave.

The court of appeals cited these while issuing its ruling in an FMLA interference and retaliation lawsuit brought against Tulsa Winch Inc. (TWI).

Fired after returning from leave

Paul Janczak was the general manager of Canadian operations for TWI when he took FMLA leave to recover from an auto accident.

Immediately upon his return from FMLA leave, Janczak was fired. He then filed an FMLA interference and retaliation suit.

The company tried to get his lawsuit thrown out claiming it was considering a reorganization of its management structure and eliminating Janczak’s general manager position prior to his taking leave.

As the court documents indicate, it does indeed appear as though the company had started evaluating whether or not to eliminate Janczak’s position prior to his leave.

But here’s where TWI’s case fell apart: The decision to eliminate the general manager position hadn’t yet been made prior to Janczak’s leave — thus leaving room for doubt as to whether or not his need for leave actually factored into the final decision to eliminate the position.

As a result, the court said Janczak’s interference claim should proceed to trial, where TWI faces either a costly court battle or settlement.

The court said in order for it to dismiss Janczak’s interference claims before a trial, TWI had to show that his termination would’ve definitely occurred regardless of his leave.

Takeaway: Don’t evaluate whether or not someone should be eliminated while he or she’s on FMLA leave. That’s a decision that must be made prior to the person’s leave — or well after, to enable enough time to pass for the resulting termination not to appear linked to the person’s FMLA leave in any way.

The retaliation claims?

Janczak’s retaliation claim, however, didn’t survive. Why?

The court noted that, typically, retaliation occurs after an employee has been restored to his or her position only to suffer an adverse employment action after that fact.

But in Janczak’s case, he was never restored to his prior position; therefore his claims fell under the interference theory.

Another ADA checklist: The common interactive process pitfalls

The reasonable accommodation process “can be tricky,” she says in a masterpiece of understatement, and mistakes are easy to make. Some of the most common:

Not recognizing an accommodation request was made. Sounds outrageous, but think about it: Managers don’t always pick up on what employees say, and employees don’t always express themselves clearly. “A best practice is to have a policy that requires employees to consult with your human resources department – rather than supervisors – if they need an accommodation,” says Gemelli.  “By doing so, companies limit the amount of confidential information being reported to supervisors.”

Asking for too much medical information. Federal and state law limit how deeply employers can dive into employees’ medical files. The guideline: Ask only for information that directly relates to the employee’s limitations in performing the essential duties of his/her job.

Denying an accommodation request because the employee did not provide a solution. Even if the employee can’t define what he or she is seeking, the employer is still required to go through the interactive process. It’s entirely possible a reasonable answer might be found during the process.

Ending the accommodation dialogue because you can’t find a reasonable accommodation that would allow the employee to perform the job’s essential functions. “If an employee cannot perform the essential functions of the job, the employer should see if other accommodations can be made such as reassigning the employee to an open position, allowing the employee to work part time or providing the employee with an unpaid leave of absence,” says Gemelli.

Invoking the “we’ve never done things that way before” defense. No way that flies in court. A reasonable accommodation is a reasonable accommodation, no matter what company history says.

Failing to document the process. You saw this one coming, right? As the saying goes, “No paperwork, no defense.”

Stretching the “undue hardship” parameters. It’s important to remember, Gemelli says, that cost alone rarely qualifies as an undue hardship on an employer.

Overtime crisis nearing: 6 steps to avoid pitfalls

It would be hard for any regulatory change to be as impactful as the passage of the Affordable Care Act. But the DOL’s impending changes to the overtime exemption rules may be exactly that. 

As if that wasn’t stressful enough, you’ll have far less time to prepare for the fallout of the overtime rule changes than Obamacare gave you.

The new rules won’t be phased in over the course of a decade like the ACA’s mandates. All signs point to the overtime rules taking effect before the end of 2016.

They’ll affect 2016 budget, staff plans

That means the time to start prepping is now, since the overtime rules will affect your budget and staffing plans for the 2016 calendar year.

And even without the final rules in hand yet (the comment period for the proposed rules just ended), there are steps employers would be wise to take now to brace for them — no matter what form the rules ultimately take:

1. Audit employees’ work hours

As you know, the DOL’s poised to raise the minimum salary threshold to be exempt from overtime to $50,440. So the first step is calculating how many hours your employees who earn less than that are actually working.

Reason: You don’t want to assume they work 40 hours per week only to be blindsided by the fact that they actually work 50 hours per week after the rule changes have reclassified those employees as non-exempt.

Next, you’ll want to weigh the cost of giving raises to those under, but near, the threshold — and who are most likely to work more than 40 hours per week — to avoid overtime obligations.

Note: The DOL may allow you to count nondiscretionary bonuses, and possibly commissions, toward 10% of workers’ salary levels. That may help to drag a few of your fence-sitters over the threshold without you having to give them a raise. But we won’t know until the final rules are issued.

2. Assess the effect on benefits offerings

One question you’ll want to ask yourself: Will being reclassified as non-exempt make some employees no long eligible for certain benefits that they once had?

If so, do you want to change your benefits plans to enable those workers to keep their benefits — or might you want to eliminate those benefits to make up for any costs resulting from having to now pay those workers overtime?

3. Expand time-tracking

No matter how you slice it, companies’ non-exempt employee populations are about to swell.

That will require expanding systems to track more workers’ hours to ensure proper overtime pay.

It couldn’t hurt to visit with your tech department now to start discussing ways to implement or expand time-tracking systems.

4. Revisiting remote work arrangements

It’s time to ask yourself what the rule changes could mean for remote work — checking work email, taking phone calls after hours, etc.

You can dissuade or even prohibit non-exempt employees from doing these things after hours all you want. But here’s the bottom line: Some are still going to do it — and when they do, you need a way to track that work time and compensate them for it.

Again, get together with your IT folks to determine the best ways to track employees’ after-hours/at-home work.

It’s worth noting that the DOL, in its Spring 2015 Regulatory Agenda, said it’s seeking information on “… [T]he use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours …”

As a result, expect some rulemaking on this subject as well — like perhaps a definition of what qualifies as “de minimis” work.

Currently, the FLSA does say that “de minimis” work (typically five minutes or less) done beyond the 40-hour workweek by non-exempt employees is not compensable.

However, the common practice of workers reading and responding to emails off the clock on their smartphones has complicated the issue of “de minimis” work.

5. Create a communication plan

If you’re not going to raise some workers’ salaries — and they’re about to be reclassified as non-exempt — you need a plan in place for how you’ll break this likely upsetting news to them.

Some issues you’ll need to tackle:

  • Punching a clock. More workers are going to have to do it, and it may seem like a demotion. How will you explain why it’s now necessary?
  • Loss of flexibility. For your current salaried workers, being turned into hourly employees means taking time off to go to the doctor or attend a child’s event could result in less pay. Again, how will you break this news to them? And will you let them make up the time?

6. Prepare for changes to the duties test

It appears the DOL may eliminate the “concurrent duties” rule and require employees to spend more than 50% of their time exclusively on exempt duties for them to maintain an exempt classification.

Assume those changes will be adopted and you could avoid unpleasant surprises down the road.

Handling the tricky questions in FMLA intermittent leave

It’s a given: Intermittent FMLA leave is a giant thorn in the side of HR people everywhere. But not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them.

The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members.

The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call.

It’s not always simple, however.

If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility’s not automatic

Companies can successfully dispute bogus employee claims to FMLA eligibility.

Consider this real-life example:

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time.

After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired.

She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her latenesses, she claimed, so each instance should have counted as a block of FMLA leave.

Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition.

The only time it affected her was when it was time to go to work.

Sorry, the court said. Intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.

 That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

Designating leave retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively.

Example: An employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia.

Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.”

The key here is that the company acted quickly – within two days of being notified of the qualifying leave.

The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation.

It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using employees’ PTO

First, a no-no: Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO).

Instead, you can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

The transfer option

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation.

The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same.

And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

A few restrictions: The move can’t be made if the transfer “adversely affects” the individual. Example: The new position would lengthen or increase the cost of the employee’s commute.

Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

Cooperation, please

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations.

Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

Sometimes, it’s as simple as taking an employee aside and saying, “I know you’ve got to go to physical therapy. But these 10 o’clock appointments are really affecting work flow. Could you see about scheduling them for after work hours?”

The firing question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights.

Obviously, workers can’t be fired for taking leave. But employers can lay off, discipline and terminate those employees who violate company policies or perform poorly.

When an employee on FMLA leave is terminated, the DOL decrees that the burden’s on the employer to prove the worker would have been disciplined or terminated regardless of the leave request or usage.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave.

So companies should be prepared not only to prove the business necessity of the move, but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave.

But companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence.

And courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave?

That answer’s not always difficult. Many times, employers don’t realize how badly an employee was doing until they see the mess he or she has left behind.

The good news: A number of courts have upheld employers’ rights to fire employees on FMLA leave – even when the employee’s problems were first discovered when the employee went off the job.

The next costly HR headache: Workers’ comp to double

It never ends. You’re already trying to comply with Obamacare. Then, you’ll have to deal with the DOL’s new overtime exemption rule changes. What’s next? 

A wave of workers’ compensation claims, according to one insider.

Our good friends over at SafetyNewsAlert.com recently attended the annual conference for the Association of Occupational Health Professionals in Healthcare and came back with some concerning info for HR pros.

‘It’ll double’

While presenting at the conference, Phil Walker, the founder of the Phil Walker Work Comp Savings Company and a national trial counsel for employers in California workers’ comp cases, said workers’ compensation claims will double over the next 10 years.

According to Fred Hosier, SafetyNewsAlert’s editor-in-chief, Walker said there are three reasons for this:

  1. Technology will eliminate low-paying jobs. We’re already seeing this at places like Amazon, which is using robots to eliminate warehouse jobs, and Wendy’s, which is starting to use order kiosks in place of warm-blooded order-takers, Walker said. And what happens when low-paying jobs are eliminated? People who occupied those positions file workers’ comp claims.
  2. Municipal bankruptcies. It’s no secret cities are having financial problems. As a result, retiree benefits are getting cut, which is already leading to a spike in workers’ comp claims. Walker said when United Airlines filed for bankruptcy, 100% of the people who “retired” filed a workers’ comp claim. And when United tried to enter negotiations to settle these claims, not one person did.
  3. Doctors are money-hungry. As a result, Walker said doctors are looking for excuses to perform surgery, are referring more patients to specialists and pain management providers, and billing above cost knowing they’ll settle with insurance companies for far less. Walker said docs are doing this because they’re finding it hard to survive on what Obamacare and Medicare plans are paying them.

What can employers do?

Is there a way to avoid the coming workers’ comp avalanche? Walker says there may be.

He said companies will start requiring their retiring or terminated employees to submit to pre-termination physicals. This will allow employers to screen for any employment-related health problems and, if none are found, provide employers with the ammo needed to refute bogus workers’ comp claims.

This may be an avenue worth exploring if you start to notice a spike in fishy workers’ comp claims.