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Monthly Archives

February 2018

New Year’s Resolutions for Risk Managers

By Construction Insurance Bulletin

New Year’s Resolutions for Risk Managers

Whether your business has downsized or grown over the past few years, the waters seem a bit calmer now; and it’s a good time to overhaul your risk management program.

Resolve to address the trends in liability claims:

•             Cyber liability is a rapidly growing source of claims.  These claims tend to be costly in terms of reputation as well as expensive to mitigate.  Spend some money avoiding these risks, particularly when you are on shared access on-site.
•             Building Materials and supplies.  The insurance industry is scared of finding the next asbestos claim.  Do not use known toxic products in construction.  Keep in mind environmental issues are an increasing source of claims.  Indoor air quality is a near-future catch-all vector for asthma, CPOD, and other respiration conditions lawsuits.  The formaldehyde sheet rock incident was quickly remediated; but use that as a lesson for mastic selection or supply sourcing.
•             Keep your work space dry.  Mold and mildew flourish at 15-18% moisture content.  Before buttoning up closed spaces, take time with a moisture meter and record the results.  This step is vitally important for new or replacement roofs.  Dry these areas thoroughly until moisture content is below 15%.
•             Employment practices.  With a greater number of women entering and thriving in the construction industry, resolve to treat these valuable employees on equal terms with their male associates.  And educate all employees about sexual harassment and bullying.  Zero tolerance is your best written policy for this liability.
•             The officers and directors of every public company are under attack from customers, employees, and regulators.  Review your D&O coverage thoroughly.

Resolve to be more proactive than in the past.  Check behind every delegated task.  Personally walk sites, shops, offices, and site trailers to assure fire and life safety equipment is available and properly functioning.  Verify OSHA logs and internal safety data is up-to-date and communicated properly.

Resolve to review your risk management program thoroughly and begin shopping your insurance coverage, including new insurance carriers early, at least 120 days before your preferred expiration date.  Get in sync with your agent or new agent on this matter.

The turmoil of the construction industry has sent shockwaves through the insurance industry as well.  Calmer times are ahead.  Just be sure your one of the first ones settled.

Why Construction Companies Need a Safety Committee

By Construction Insurance Bulletin

Construction is the industry with the most injuries and fatalities in the United States. To make the industry safer and cut the number of employee injuries and fatalities, the federal government, state governments and even local government passed laws mandating safety committees, their make-up, and even meeting content. Nevertheless, there are many reasons why construction companies should embrace safety committees.

How Safety Committees Benefit Construction Companies

Talk to a safety professional and you soon realize that the most effective committees are committees that involve members from every level of the company or a company facility or job site.

When company executives and laborers and everyone between them participate, safety committees help prevent unsafe work practices and environments. Committees also cut employee exposure work-related injuries and illnesses. These accomplishments spur other employees to get involved in the company’s workplace injury and illness programs.

An active safety committee shows employees that the company care about employee health and safety; itself a motivator that improves productivity.

Another bottom line enhancer is that a strong safety record cuts workman’s compensation claims and in turn, reduces workman’s comp premiums.

When safety records are impressive, construction job sites are safer and accidents to visitors and passersby go down. In turn, premiums for commercial general contractor policies may plateau or even go down.

Moreover, a safe workplace record impresses project owners and makes a construction company a more attractive candidate for selection.

Measuring Safety Committee Value

Many companies mistakenly undervalue the value of environmental health and safety programs (EHS). Companies usually do not measure EHS correctly if at all. But, by using standard tools in the toolbox of business managers and in a way that executives understand company financial statements. Results of EHS can integrate and display as part of the overall EHS business strategy. Some popular tools used by EHS professionals to measure the return on investment (ROI) of EHS include:

  • Six Sigma
  • EMS/ISO 1400
  • Baldwin Measurement

OSHA offers a tool called Safety Pays that helps figure out the ROI for a company’s safety program.

No matter what tool a company uses, construction companies that are committed to safety almost always sees a higher ROI for its efforts when compared to companies for which the safety committee is simply a means for compliance.

The Worst Construction Mistakes Ever Made

By Risk Management Bulletin

Forgetting one hurricane tie before drywalling probably isn’t going to see a house going up in a tornado like in The Wizard of Oz. Some mistakes aren’t that big a deal. Others… well, here are some of the biggest mistakes ever made in construction, engineering and architecture:

The Aon Center

The Aon Center, completed in 1973, was known for its beautiful exterior made of Italian Carrara marble. A fetching addition to the Chicago skyline, it turns out that there’s a reason they don’t use Carrara marble on most buildings. It’s a very thin material. Just one year after the building was completed, pieces started to crack and fall off, one of them smashing through the roof of the nearby Prudential Center. Replacing the exterior with granite cost over $80 million. There’s something to be said for using the right materials the first time.

NASA and Lockheed Martin’s Mars Orbiter

Long story short: in 1999, Lockheed Martin used the English system of measurement on a project with NASA, while NASA used the metric system. The Mars orbiter was then unable to transfer its coordinates to the lab in California. Now there’s a $125 million chunk of useless metal floating around the galaxy. You might not be building a satellite any time soon, but it’s important to get on the same page with your crew and your client when it comes to how many inches are in a meter.

Vdara Hotel & Car Dashboard

The Vdara Hotel & Spa is a classic example of a designer putting form before function. All those reflective surfaces on the windows surrounding the pool looked absolutely stunning, but at mid-day, they created a sort of magnifying-lens-on-an-ant effect, scorching people in the swimming pool and turning the whole area into a car dashboard on a Summer afternoon. One man even claims to have had some hair singed right off his head while going for a swim.

Piper Bravo Oil Rig

The smallest mistakes can have major complications. The Piper Bravo Oil Rig exploded, killing 167 people, simply because safety inspectors forgot to replace a single safety valve after a routine check of the rig. The repairs cost more than $3 billion in 1994 USD. This is something worth thinking about the next time a worker decides that he doesn’t need to wear his goggles if he’s only going to be using the table saw for a couple minutes.

Source

http://www.businessinsider.com/worst-mistakes-in-history-2011-4?op=1

STAYING OFF OSHA’S HIT LIST

By Risk Management Bulletin

The Occupational Safety and Health Administration (OSHA) has a list of companies that face inspection and enforcement – and your company might well be on it!

Here are five ways to evaluate your chances of getting a visit from OSHA:

    1. Check your own injury and accident rates. Use the OSHA Form 300 log and Form 300A Summary to review your accident statistics, injury and illness logs, and incident rates, particularly your Days Away, Restricted, and Transferred (DART) rate, and Days Away from Work Injury and Illness (DAFWII) rate.
    1. Look at OSHA trends in citations and violations for your industry. Go to the OSHA Web site at http://www.osha.gov/pls/imis/citedstandard.html and browse through the regulations that cover your industry for the number of citations under a particular regulation
    1. Compare your incidence rate with those of your competitors. You can find the history of your competitors’ inspections on the OSHA site at http://www.osha.gov/oshstats/index.html. The database also contains the list of citations by regulation number.
    1. Determine whether you’re making the news. OSHA inspectors respond to media stories about an organization, even if the coverage is positive. If a news agency wants information about you, carefully screen any comments or photographs you provide. Even a positive story can sting you inadvertently when it comes to workplace safety and health.
    1. Monitor what’s new with OSHA. Keep an eye on the agency’s Special Emphasis program (http://search.usa.gov/search?affiliate=usdoloshapublicwebsite&query=Special+Needs+Program&x=34&y=8) for targeting certain high-hazard industries)

Why You Need a Workplace Assessment

By Risk Management Bulletin

Why You Need a Workplace Assessment

In last month’s newsletter, we looked at some of the risks associated with obesity in the workplace. This month, we’ll focus on how to conduct a workplace assessment to identify and mitigate a wide range of health issues so you can reduce your overall health-related risk exposure.

The Value of Workplace Assessments

The Centers for Disease Prevention and Control (CDC) promotes workplace assessments to help businesses understand the issues their company is facing with regard to lost productivity and workers’ comp issues, as well as potential discrimination claims that can arise when workers feel they’re being targeted or their health needs are not being met.

According to the CDC, “Employee health is determined by a complex set of interactions between the individual and their social, cultural, and physical environments and can be influenced in many ways.” That means that to be effective, your workplace assessment must involve much more than a cursory review of your company’s past healthcare expenditures.

Conducting Your Assessment

Most evaluations begin with a site visit and evaluation with a focus on identifying health risks like low lighting or habits that can promote problems like low back pain. The evaluation should also include interviews with managers and employees and a review of any health promotion programs or incentives that may be in place.

Employee questionnaires are another important component, providing a first-person perspective on health and safety issues, employee satisfaction and any other health-related concerns.

Reviews of both health claims and pharmaceutical costs from the past few years can provide important information about the prevalence of medical issues and whether your company is moving in the right direction with its health policies. You can also identify which employees have the greatest number of claims and highest costs to pinpoint occupations that may be most prone to injury. Similar data can be extracted from records of employee sick days and absences.
Once data are gathered and evaluated, a decision can be made regarding the value of your current health plan and whether or not it needs to be altered, as well as any steps you can take on site to reduce injury and illness.

One word of caution: When developing employee health questionnaires ore reviewing medical claims data and sick days, be sure your actions don’t run contrary to any privacy or HIPAA regulations to avoid potential claims of discrimination or other violations. The CDC offers a comprehensive guide to workplace health assessments for businesses with single or multiple locations to help guide you. You can find an overview of the guide here, as well as a list of supporting documents and guides to help you carry out your evaluation.

 

Employment and Labor Resolutions for the Coming Year

By Your Employee Matters

While the year is still young, here are 15 resolutions that employers may want to make:

    1. Make sure your “independent contractors” are really independent contractors. “Independent contractors” are under scrutiny by the Internal Revenue Service, the U.S. Department of Labor, the National Labor Relations Board, state and local agencies, plaintiffs’ lawyers, and union organizers. A misclassification can cost you back taxes, back pay (including overtime), and back benefits, as well as penalties and interest.

 

    1. Review your email policies. The NLRB recently found that employees generally have a right to use employer email systems during non-working time in support of union organizing and concerted activity. The Board’s decision means that many employer email use policies, as currently drafted, would probably be found to violate the National Labor Relations Act if an unfair labor practice charge were filed or a union tried to organize employees and argued that the employer’s email policy interfered with the organizing efforts. In light of the new “quickie election” rule that the NLRB issued last month, both union and non-union employers would be well advised to review their email policies and revise as needed. (The “quickie election” rule is scheduled to take effect on April 14, but the U.S. Chamber of Commerce and other employer groups, including the Society for Human Resources Management, filed suit on Monday seeking to block the rule.)

 

    1. Review your policies on social media, confidentiality, and “courtesy.” The NLRB is going after garden-variety employer policies, taking the position that the policies interfere with and have a chilling effect on employees’ rights to engage in concerted activity. Among the commonplace policies under attack are those requiring that information about the company or employees be kept confidential; policies requiring that employees treat each other with courtesy, respect, and civility; and even some policies requiring that employees not disclose confidential and proprietary information. As with the email policies, a non-compliant policy could result in an unfair labor practice charge or the setting aside of an employer victory in a union election.

 

    1. Review your severance agreements. The U.S. Equal Employment Opportunity Commission has taken the position that certain standard provisions in employee separation agreements unlawfully interfere with employee rights to bring or cooperate in the investigation of discrimination charges before the EEOC, and has filed suit against some employers using agreements with terms that the EEOC doesn’t like. One of the lawsuits has already been dismissed, but the court in that case did not make a ruling as to whether the EEOC’s position had merit. Even if you decide to take your chances with your current agreement, it’s not a bad idea to consider toning down provisions that you know the EEOC will find objectionable.

 

    1. Review your leave policies and their administration. It’s not just the Family and Medical Leave Act anymore, although that’s enough in itself. You’ve probably seen that a number of states – most recently, Massachusetts – have enacted paid sick leave laws. Do your leave policies comply with the laws of the all the jurisdictions where you operate? And what do you do when an employee reaches the end of a sick leave or disability leave period? If you automatically terminate, then you could be in violation of the Americans with Disabilities Act as well as state or local disability rights laws.

 

    1. Audit your wage-hour compliance. Unintentional overtime and wage-hour law violations have a new name in many quarters: “wage theft.” Federal and state agencies and plaintiff’s lawyers, sometimes encouraged by labor unions and their affiliate groups, are saying “show me the money” and finding it. In addition, the U.S. Department of Labor has said that it will attempt to narrow the white-collar exemptions this year. (Although the DOL says the changes will not be drastic, they are expected to be drastic.) Among other things, a good wage-hour audit will include ensuring that lower-wage employees are getting at least the applicable minimum wage; that employees are not being required or “pressured” to work off the clock, or “winked at” when they do so; that the employees classified as “exempt” really are; and that any “independent contractors” really are (see also Resolution No. 1). Be sure that the review includes compliance with applicable state and local minimum wage laws, too. Many states now have a higher minimum wage than the Fair Labor Standards Act rate.

 

    1. Update your EEO/no-harassment policies, and get that training done! In just the past year, the EEOC has taken the position that pregnancy and related conditions (including lactation) must be reasonably accommodated. The EEOC and the Office of Federal Contract Compliance Programs, which enforces the affirmative action laws that apply to federal contractors, both agree that “gender identity” is a protected category and that discrimination based on sexual orientation or gender identity violates Title VII. Do your policies reflect this? Do your employees know the new rules? Do victims of harassment and discrimination know that they have recourse?

 

    1. Review your use of criminal background and credit information in hiring decisions. Many state and local laws prohibit employers from asking about criminal history on employment applications, and the EEOC has taken an aggressive position on the use of criminal or credit information in making employment decisions. You can still get this information, but are you getting it properly? If you find that an individual has a criminal or credit problem, are you making the required “individualized analysis” that takes into account, among other things, the nature of the conviction, the years that have passed, and the particular position for which the individual is applying? Did you grab some “canned” rules from a website, or are your rules customized to fit your industry, your workforce, and the people you serve?

 

    1. If you’re a federal contractor, make sure you are up to date on all of the OFCCP’s new requirements. For example, the new requirement that you prohibit discrimination or harassment based on gender identity. The new minimum wage (applicable to some, but not all, federal contractors). The new scheduling letter and itemized listing. The proposed rule prohibiting employers from requiring that employees avoid discussing their pay. The rule requiring employers to “air their dirty linen” by disclosing certain violations of federal labor and employment lawsThe new rule on disability discrimination/accommodation and veterans. (“Perform compensation analysis” is another good resolution if you haven’t done one lately.)

 

    1. Make sure you’re in compliance with the new injury and illness reporting requirements under the Occupational Safety and Health Act, which took effect on January 1. We reported on this new rule back in September.

 

    1. Are your non-competes enforceable? And are you using them judiciously? Laws on the enforceability of non-compete agreements vary from state to state. If your agreements have not been reviewed in a while, this would be a good time to have them reviewed to ensure that they’ll do you any good if you need them. You may also need to review your territorial or customer restrictions to ensure that they are serving your current business needs, as opposed to the needs you had 10 years ago. It’s also a good idea to take into account how your non-competes are being used, even if they are generally in compliance with the law. A national sandwich chain recently had a public relations nightmare after it came to light that some restaurants were requiring hourly, minimum wage delivery employees to sign non-competes.

 

    1. Keep on monitoring the “legal pot” issue. A patchwork of state and local laws is developing that permits medical or recreational use of marijuana. Right now, it’s still all right under federal law for employers to ban marijuana use, even in states where it’s legal, because use of marijuana violates federal law. But that doesn’t mean you couldn’t run afoul of state law. This issue is developing quickly, so keep watching, and be ready to make appropriate adjustments to your substance abuse policy depending on what happens.

 

    1. Make sure you’re ready for the Affordable Care Act. Review your current compliance with your benefits counsel and consultants. If you have collective bargaining agreements coming up for re-negotiation or renewal, consider building in some sort of “flexibility mechanism” to deal with the huge uncertainty that the ACA is generating. As examples of the moving target that the ACA has become, the Supreme Court agreed in November to hear a case challenging the subsidies to states that did not set up their own insurance exchanges. (A decision is expected this summer.) And just this week, the Republicans in Congress introduced two bills designed to mitigate parts of the employer mandate.

 

    1. Review your contracts with staffing services and true independent contractors. This is a good time to examine your contracts with staffing providers and genuine independent contractors to be as certain as possible that you have properly allocated risks and responsibilities, including insurance obligations, indemnification rights and obligations, compliance with wage and hour and other recordkeeping obligations, employee supervision, employee safety, discrimination or other required training, benefits compliance, anti-discrimination compliance, and recordkeeping obligations and procedures. (If you aren’t sure whether your “independent contractors” are true independent contractors, then go back to Resolution Nos. 1 and 6.)

 

    1. Review your alternative dispute resolution policy, or consider adopting one. If you already have an arbitration agreement, is it drafted, published, and executed through agreements with employees in a manner to be enforced by a court? The NLRB still refuses to recognize arbitration agreements that eliminate the possibility of class or collective arbitration, but the Board’s position has been rejected in three federal circuits. The courts generally favor arbitration agreements, so if you do not have one, it might be worth consideration. For employers with collective bargaining agreements, consider whether you should negotiate to obtain grievance and arbitration provisions that would help to meet the NLRB’s new standard for post-arbitration deferral.

 

Courtesy of David Phippen, Esq. Metro Washington D.C. Office of Constangy, Brooks & Smith, LLP

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

Affordable Ways To Supplement Your Dental Insurance

By Your Employee Matters

Your benefits package from work probably includes dental insurance. With this valuable coverage, you can access regular preventative care and dental procedures that protect your smile and health. Your dental insurance coverage may not extend to your spouse, children or other dependents, though. Consider several affordable ways you can meet your family’s dental needs and protect their health, too.

Purchase Private Dental Insurance

Research private insurance companies that offer dental insurance, and choose one that offers the dental care your dependents need. With this option, you can save money by choosing a policy with a higher deductible or a limited number of in-network dentists.

Find Group Dental Insurance

Certain organizations like AARP, Costco and the Veterans Administration offer group dental insurance for members. In most cases, these options are affordable because numerous members purchase coverage.

Choose a Discount Dental Plan

As an alternative to private or group dental insurance, participate in a discount dental plan. Pay an annual fee that allows your loved ones to access a dental network that offers numerous preventative and other dental services, such as cleanings, orthodontia, root canals and cosmetic dentistry, at reduced rates.

Pay Out-of-Pocket

You could choose to pay only for the dental services your family members receive. When you pay out-of-pocket, you may be able to negotiate with the dentist and receive a discount for services.

Visit a Dental School

A local dental school often offers free or reduced cost dental services. Students perform the procedures under supervision, and you save money.

Find a Dental Clinic

Dental clinics provide a variety of oral care services for adults and children who don’t have insurance. Search the U.S. Department of Health & Human Service website to find a clinic near you.

Take Care of Your Teeth

While regular cleanings are important for oral health, your family members will also want to maintain good daily oral hygiene. Reduce bacteria, plaque, gum inflammation, cavities and decay when they:

  • Brush at least twice a day.
  • Floss daily.
  • Rinse with an antibacterial mouthwash in the morning.
  • Rinse with a fluoridated mouthwash in the evening.

Tips to Choose the Best Option

To choose the most affordable dental care option for your loved ones’ needs, compare the annual cost of their dental services to the amount you would pay for a private, group or discount plan. Then be sure the coverage is right for them when you check details like the plan’s:

  • Maximum yearly benefit
  • Availability, location and customer reviews of covered dentists
  • Coverage restrictions that may limit your ability to get fluoride treatments, sealants or orthodontia
  • Restricted coverage for pre-existing conditions

Even without dental insurance, your family has affordable options that protect their health. For more assistance, talk to your insurance agent.

DOL’S Companionship Rule Gets the One-Two Punch

By Your Employee Matters

Employers of companionship and domestic employees can breathe a little easier, now that a court has set aside major portions of a rule that may have required that such employees receive the minimum wage and overtime under the federal Fair Labor Standards Act.

At issue was a Final Rule issued by the U.S. Department of Labor in 2013, which was to take effect January 1, 2015. Companionship workers have historically been exempt from the FLSA’s minimum wage and overtime requirements. But under the Final Rule, the definition of“companionship services” not only was substantially narrowed, but also employees of third-party home health-care agencies (as opposed to employees who were employed directly by the individuals needing care or their family members) were excluded from the exemptions. If the Final Rule had not been vacated, many more companionship workers would be entitled to the FLSA minimum wage and, if applicable, overtime.

Even though the 2013 Final Rule was scheduled to take effect on January 1 of this year, the DOL announced that it would not begin taking enforcement action until June 30. However, as we previously reported, the delay in DOL enforcement action would not have prevented individuals from bringing private lawsuits starting January 1.

This has all become a moot point, though, because of the two court rulings that came about in late December and early January.
On December 22, Judge Richard Leon of the District of Columbia vacated the part of the Final Rule that excluded employees of third-party providers from the minimum wage and overtime exemptions.

Judge Leon noted that the statutory language supporting the use of the exemptions by third-party employers had been in place since 1974, and specifically upheld by the U.S. Supreme Court. In addition, despite “efforts by legislators in the majority party in both the House and the Senate in three consecutive Congresses” to change the law, Judge Leon said, no bill excluding third-party employers had ever made it out of committee. On this basis, he rejected the DOL’s attempt to substantively change the law through the administrative process:

Undaunted by the Supreme Court’s decision . . ., and the utter lack of Congressional support to withdraw the exemption, the Department of Labor amazingly decided to try to do administratively what others had failed to achieve in either the Judiciary or the Congress.
Then, on January 14, Judge Leon vacated the DOL’s narrow definition of “companionship services,” granting a motion for emergency injunctive relief filed by a number of home care providers.

Under the Final Rule, “the term companionship services also includes the provision of care if the care is provided attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed 20% of the total hours worked per person and per workweek.” Once again, Judge Leon found that the DOL had overstepped its bounds by trying to administratively change longstanding interpretations:

Home care workers have been providing care to the elderly and disabled, under the umbrella of the companionship services exemption, since the enactment of the 1974 amendments. Here, I am once again faced with a long-standing regulation left untouched by Congress for 40 years…Congress has not shown one iota of interest in cabining the definition of companionship services which has been interpreted by the Department in the same way for 40 years…

Thus, the judge found that there was no indication that Congress had intended to impose a “20-percent limit” on caregiving services to elderly and disabled individuals.

As a result of Judge Leon’s two orders, the DOL’s Final Rule, as it applies to third-party employers and companionship services, will not go into effect. It remains to be seen whether the DOL will appeal. It should be noted that there are some other provisions of the DOL’s Final Rule that were not addressed in the Court’s ruling and will therefore remain in effect unless stayed or vacated by a future court order. These involve certain definitions and recordkeeping requirements.
Courtesy of Tony McGrath, Esq. Madison Office of Constangy, Brooks & Smith, LLP

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

The Significance of Dress Codes under the Americans with Disabilities Act (ADA)

By Your Employee Matters

Dress codes may entail something simple like a requirement that employees wear a specific type of clothing because of the environment or because of the type of business. In a medical facility, for example, registered nurses might be required to wear a certain color and type of medical scrub. In a manufacturing facility, managers may have to wear shirts with their names on them and a different color hat. A transportation company may require a specific uniform or type of shoes. Dress codes may also forbid any jeans or sneakers while requiring business formal attire. Or, dress codes could forbid the wearing of hats, sunglasses, or open-toed shoes. Dress codes establish guidelines for the workplace, but they can vary among industries, regions, and even based on whether the facility is open to the public. According to the Equal Employment Opportunity Commission (EEOC) (2011):

Employers may require employees to wear certain articles of clothing to protect themselves, coworkers, or the public (e.g., construction workers are required to wear certain head gear to prevent injury; health care workers wear gloves to prevent transmission of disease from or to patients). Sometimes employers impose dress codes to make employees easily identifiable to customers and clients, or to promote a certain image (e.g., a movie theater requires its staff to wear a uniform; a store requires all sales associates to dress in black). A dress code also may prohibit employees from wearing certain items either as a form of protection or to promote a certain image (e.g., prohibitions on wearing jewelry or baseball caps, or requirements that workers wear business attire).

So, may an employer require that an employee with a disability follow the dress code imposed on all workers in the same job? Most agencies treat dress codes as “conduct rules,” but classify them as the type of conduct rule that must be justified as “job-related and consistent with business necessity” before being enforced. So, if a person with a disability requests modification to a dress code as a reasonable accommodation, an employer must consider allowing the modification unless the employer can show that the dress code is required for the job in question.

The EEOC (2011) provides several examples of modification to a dress code as guidance.

An employee is undergoing radiation therapy for cancer which has caused sores to develop. The employee cannot wear her usual uniform because it is causing severe irritation as it constantly rubs against the sores. The employee seeks an exemption from the uniform requirement until the radiation treatment ends and the sores have disappeared or are less irritating. The employer agrees, and working with the employee, decides on acceptable clothes that the employee can wear as a reasonable accommodation that meet the medical needs of the employee, easily identify the individual as an employee, and enable the individual to present a professional appearance.

A professional office requires that its employees wear business dress at all times. Due to diabetes, Carlos has developed foot ulcers making it very painful to wear dress shoes. Also, dress shoes make the ulcers worse. Carlos asks to wear sneakers instead. The supervisor is concerned about Carlos’s appearance when meeting with clients. These meetings usually occur once a week and last about an hour or two. Carlos and his doctor agree that Carlos can probably manage to wear dress shoes for this limited time. Carlos also tells his supervisor that he will purchase black leather sneakers to wear at all other times. The supervisor permits Carlos to wear black sneakers except when he meets with clients.

If the employee cannot meet the dress code because of a disability, the employer may still require compliance if the dress code is job-related and consistent with business necessity. An employer also may require that an employee with a disability meet dress standards required by federal law. If an individual with a disability cannot comply with a dress code that meets the “business necessity” standard or is mandated by federal law, even with a reasonable accommodation, he will not be considered “qualified.”

Courtesy of Beth Loy, Ph.D., Principal Consultant, Job Accommodation Network

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

Start Your Renewal Process Early This Year

By Construction Insurance Bulletin

Turbulence in the contracting business, probably at an all-time high.  Businesses are shrinking or expanding constantly.  As a risk manager, you must embrace reality and try to resolve the current state of affairs.

Start your renewal process today by comparing your policy estimated payrolls with the summary W-2 sheet produced by your accounting department (must be completed by February 1).

Review the 1099s and check these recipients against your files to assure certificate compliance and proper risk transfer techniques.

After reassessing your payroll exposures for the coming year, estimate your current premium.  Talk to your agent about optional markets at that premium level, insurance companies have different appetites for different size risks.  Find several appropriate insurers.

Many insurers now demand loss control inspections prior to commitment to offering any quote.  Get your reports in order.  Make sure loss control measures are in place and working.  Order loss runs from your current carrier to have on hand.

Most important: leave enough lead time for the inspections to occur.  At least ninety days, so new insurers can inspect your operations.

The insurance markets retool every few years and create new identities, new brands within the industry.  Currently, insurance companies are deciding what size accounts they will seek, single lines like workers’ compensation or general liability, or supporting lines requirements: like workers’ compensation, general liability or automobile liability.  Ask your agent what the current view is among their companies.

The key to having choices is starting early now.  Don’t leave yourself at the mercy of the renewal carrier.

While your reassessing your policies, rethink your program as well.  Your program consists of the risk management decisions that have subtle but important impacts on your insurance costs.  For example: what is your best expiration date?  In the construction industry, January first or April first are popular choices in a well-managed risk management program.

One secret within the insurance industry: rates tend to change on calendar quarters.  If rates are increasing on April first, you can always renew on March thirty-first if you have enough lead time.  But you need to know in advance and have friendly underwriters, and proactive agents.

Calendar quarters allow for government filings to be used as a basis for the insurance auditors, and audits go smoother.  Corporate financial years can be good, especially if they fall on calendar quarters.  Decide your best expiration date (and you want all liability lines to share that date)and begin 120 days in advance gathering quote information and loss data.  Shop early.