HR Compliance Questions of the Week

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FMLA Expiration and COBRA

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Question:

We have an employee who is on FMLA to receive an organ donation and the leave is expiring soon. At what point do we offer the employee COBRA, and for how long?

Answer:

It is generally required by employers to offer health care coverage under COBRA law when the employee is:

  • No longer eligible to receive benefits of employer-provided group health plan
  • No longer protected by federal or state leave laws

It is common for employee coverage eligibility to expire after 12 weeks of leave under FMLA and any additional leave where the employer is reasonably accommodating the employee under the Americans with Disabilities Act.

Strategic HR has the answers to all of your tough Benefits and Compensation related questions. Whether you need an analysis of your current benefit offerings or are looking to create a cost-effective recognition and rewards program, Strategic HR can do the job. Please visit our Benefits & Compensation page for more information.

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Can I backdate FMLA paperwork?

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Question:

Can I backdate FMLA paperwork to the date at which the employee went on Workers’ Compensation?

Answer:

In a word, “no” – FMLA cannot be backdated. That’s why it is so critical that HR is on top of any types of absences that may qualify for FMLA. If an injury that falls under Workers’ Compensation also qualifies as a “serious medical condition” under the Family and Medical Leave Act, any time missed can be counted against the 12 week leave allotment an FMLA qualified employee is entitled to receive. When such an event occurs, send the appropriate notifications (found on www.dol.gov), and make sure you document that you have done so.  Then follow up appropriately for the certifications. The clock does not start ticking on FMLA until the notifications have been sent – whether it is immediately after the incident, or two months later. Keep in mind, if an employee returns to work on light duty, from a Workers’ Comp injury, that is no longer time counted against Family Medical Leave.

The world of employee leave is a complex one, often involving Family Medical Leave, Workers’ Compensation and the Americans with Disabilities Act. Many times, the different types of leaves overlap. Make sure you consider all appropriate legislation when an employee is absent from work before taking any type of adverse employment action.

FMLA, the ADAAA and other labor laws can be difficult to interpret, let alone enforce. That’s where Strategic HR has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

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Summary of Benefits Coverage

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Question:

It sounds like the Health Care Reform is requiring employers to distribute Summary of Benefits Coverage documents for plan years beginning September 23. What do I need to know?

Answer:

You are right!  Starting September 23, the Accountable Care Act (aka Health Care Reform) requires employers to distribute the new Summary of Benefits Coverage (SBC’s) documents.

At first glance, the SBC’s seem like an easy task to check off your to-do list. Most health care vendors are filling in the government-designed templates for their clients. All you have to do is hang them on your site or mail to employees. Easy, right?

Well, not so fast.

Since we create and maintain Summary Plan Descriptions for our clients, many have asked us to review the SBC documents sent to them by their vendors. We have found some vendors are providing base documents, but are not including the specific nuances designed into the plans.

When you get your SBC’s, closely check some of the following areas:

  • Penalties: If you have penalty fees, e.g. for not pre-certifying a hospital stay, the fees need to be in the Limits and Exceptions box on the same line where the coverage is listed.
  • Limitations: If your plan has unique limitation amounts, e.g. for speech and physical therapy or home health and hospice service, make sure they are listed correctly, again on the same line where the coverage is listed.
  • Prescription carve outs: If your prescription coverage is carved out from your medical plan, your medical vendor probably won’t complete that section. You will need to complete that part of the template and ask your prescription vendor to review it for accuracy.

For the initial year, the Department of Labor has indicated it wants to work with plans to get to compliance and is not focusing on imposing penalties. Therefore, you might not be concerned about meeting every regulation spelled out in the government’s 15-page instructions. However, keep in mind that you will probably pick up the same document next year, so it would probably be worth the time and effort to get it as accurate and complete as possible. As is true with most benefits and HR communications, the devil is in the details.

A special thanks to Elizabeth Borton, President of Write On Target, for sharing her expertise with us.  Sign-up on her website at to receive future communication blogs at www.writetarget.com. Or, you can contact her with questions at EBorton@WriteTarget.com or  937.436.4565 at extension 28.

Are you hesitant when it comes to navigating federally mandated rules and regulations? Strategic HR understands your uncertainty. Ask us for assistance for any of your benefits and compensation needs. Please visit our Benefits & Compensation page for more information on any of these services.

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Excessive Absenteeism

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Question:

I have an employee with excessive absenteeism and tardiness due to her pregnancy. She has been with the company less than eight months. Per her physician’s request she has been asked to stop working and has asked us for a leave of absence for six to eight months.  The company can not afford to hold this position for such a long time. What are our legal obligations?

Answer:

Since each State has different State-specific laws, we’ll address your question from a federal perspective. You should also confirm your obligations with your respective State as they could be more restrictive.

From a federal viewpoint, you should be concerned with the Family Medical Leave Act (FMLA) and Pregnancy Act. Because this employee has not been employed an entire year, she is not eligible for FMLA protection. The Pregnancy Act only requires that you provide the employee the same treatment provided others with medical disabilities. So, as long as you are treating her equal to other employees with a short-term disability, you do not need to hold her position. The real issue to be addressed is her absence not her pregnancy.

Based on the limited information you have shared, unless your State has different laws, it appears your company has no obligation to hold the position for the employee.

Do difficult situations with employees keep you awake at night? Strategic HR understands how conflicts with employees can make or break your day (or a good night’s sleep). Call us when you encounter a difficult situation – we can help coach your managers, suggest solutions or advise you on a specific problem. Learn more about our Employee Relations services by visiting our Employee Relations page.

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H-1B Versus At-Will Employment

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Question:

We’re considering hiring an individual who needs sponsorship to work in the U.S. Do we need to be concerned that sponsoring an employee will alter the “at will” employment agreement?

Answer:

We asked immigration expert Christopher M. Pogue, Esq. with the Hammond Law Group, LLC to assist us with this question:

The holding in the case below re-affirms that sponsoring an H-1B employee alone does not change the nature of an employment agreement that is otherwise considered “at will.” The bottom line is that employer’s are not tying themselves to foreign national workers they employ simply by sponsoring the foreign national’s H-1B work visa.

On January 23, 2012, the United States Court of Appeals for the Third Circuit issued a decision in Edwards v. Geisinger Clinic. In this case, Dr. Philip Edwards, a licensed physician from the United Kingdom, argued that the at-will employment clause in his employment agreement with Geisinger Clinic was not valid. Instead, he stated that this contract guaranteed that he would remain employed by the Geisinger Clinic for at least three years because this was the time requested by the Geisinger Clinic when it petitioned for his H-1B. The Third Circuit rejected this argument. It noted that “sponsorship of an H-1B visa alone does not imply that the employer-sponsor has guaranteed employment for the visa’s duration.” Thus, an organization that sponsors an employee for an H-1B does not have a duty to employ the beneficiary throughout the duration of the H-1B validity period. Dr. Edwards’ other arguments also failed and the Third Circuit dismissed this appeal. The immigration effects of having an at-will employment agreement versus an express employment agreement can be crucial.

Our thanks to Christopher for providing a succinct response.

Don’t let immigration law worries keep you from hiring the most qualified individuals for your company. Sponsoring a foreign national worker can be easy with the right guidance. Let Strategic HR help you navigate the employment law minefield. Visit our Compliance page for more information on how we can assist you with Human Resource compliance issues.

 

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Return To Work / Fit for Duty

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Question:

We have an employee out on family medical leave (FMLA) for a serious health condition. If he provides medical certification from his physician that he can return to work with no limitations, can we require the employee to submit to further examination to see if he is fit for duty under the ADA? The employee is not claiming any disability and has requested no consideration under ADA, but we believe he might be unable to perform the job duties.

Answer:

Although the employee has provided medical certification that he is fit to return to work with no limitations, employers can request 2nd and 3rd opinions on FMLA issues.  Generally, we recommend that employers require everyone returning from FMLA to have an employer paid fit for duty physical by occupational health. To accomplish this, you would provide a job description to the physician and they physician reviews the employee based on the job requirements. From there you could pursue the ADA issue if necessary, but don’t be premature since no disability has been claimed yet.

FMLA, the ADAAA and other labor laws can be difficult to understand, let alone enforce. That’s where Strategic HR has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

Clark Schaefer Strategic HR's wheel of HR Services, including HR Strategy, Recruitment, Training & Development, Benefits & Compensation, Communications, Employee Relations, Recordkeeping, and Health, Safety & Security

H-1B Termination

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Question:

What is an employer’s obligation when terminating an H-1B employee?

Answer:

Terminating an H-1B employee doesn’t have to be hard as long as you follow the rules.  An interesting case came out this year on this very topic. It was in regards to a company that sponsored an H-1B professional. The petition was approved, but the company chose not to hire the foreign worker after all and terminated him. Unfortunately the employer did not offer to pay for the employee’s travel home. The foreign national paid their own way home and left the country.

Two years later USCIS learned of the termination and canceled the H-1B. USCIS then found the company liable for back wages for the entire period, despite the fact that the employee had found another job.

Had the original company:

  1. Provided written notice to the foreign national of termination,
  2. Provided written notice to USCIS of the termination as soon as possible after the termination stating the date of termination, and
  3. Provided a letter of termination to the foreign national (preferably to sign) offering to pay for the cheapest flight back to the foreign national’s home country within a reasonable amount of time…

The company would have been on the hook for nothing if they had provided these things (instead of two years worth of wages).

All three elements must be met in order for the employer to get off the hook for back wages.  Just as a point of clarification, in point 3, an employer’s obligation is to pay for a flight for the foreign national employee within a “reasonable” amount off-time, not necessarily the next flight out to their home country. This will allow the employer to save money on the ticket and the foreign national time to pack and settle issues such as lease agreements or car payments.

An important side note is that the offer of payment for travel does not extend to the family of the employee. Also, the offer of travel expenses need not be accepted by the foreign national. Therefore it is best to have them sign a letter of termination that notes whether the foreign national accepts or rejects the offer to pay for travel. This is the safest course given this decision.

Thank you to Christopher Pogue with Hammond Law Group for this response.  This advice is intended for general information purposes, and should not be relied upon in individual cases. Please contact attorney Christopher Pogue with the Hammond Law Group at (513) 549-4420 or cmp@hammondlawgroup.com for legal analysis of specific situations.

NOTE:  There is no charge for an initial consultation with Christopher Pogue if you reference that you were referred by Strategic HR

Strategic HR knows that keeping abreast of HR Compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by offering resources to help you identify and mitigate compliance issues, such as our HR Audit which helps identify trouble spots in your HR function.