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Monthly Archives

November 2012

AUTOMATIC TRANSFER TO VACANT POSITION MAY BE REQUIRED AS REASONABLE ACCOMMODATION

By Your Employee Matters | No Comments

A question that often comes up during the Americans with Disabilities Act interactive process is whether a disabled individual must be reassigned automatically to a vacant position as a reasonable accommodation, or whether a company can require the employee to compete for the position.

The federal appellate courts have split on this this issue. Although the courts have all acknowledged that an employer need not violate other important employment policies in order to provide a transfer; the question turns on what each court would consider a legitimate employment policy. Collective bargaining agreements and entrenched seniority systems are clearly such policies; however, a policy of hiring the best-qualified applicant is viewed differently by the different Circuit Courts that have addressed this issue.

The EEOC as well as the 9th, 10th, and D.C. Circuits, require automatic transfer, regardless of the relative qualifications of the disabled employee compared with other candidates for a vacant position. The 7th and 8th Circuits, on the other hand, have not required automatic transfer, holding that a reasonable accommodation offered the opportunity to compete for the position. However, the 7th Circuit recently took the unusual step of having the full bench review this position in EEOC v. United Airlines (although decisions are usually issued by a three-judge panel).

The full bench has now issued its decision to overturn its prior ruling in EEOC v. Humiston-Keeling on this issue. Now the law in the 7th Circuit states, as it does in the 9th, 10th and D.C. Circuits, that the ADA requires employers to transfer employees to a vacant position, provided that the transfer does not create an undue hardship, such as contravening a collective bargaining agreement or valid seniority policy. The Court specifically stated that a “best-qualified” hiring policy is not the same as a seniority policy.

At this time, the 8th Circuit remains the only federal appellate court to hold that automatic or mandatory reassignment is not required as a reasonable accommodation. However, because the 8th Circuit’s position was based on the 7th Circuit’s ruling in Humiston-Keeling, it has now become open to question.

For employers, this means that, even if it’s clear that a disabled employee can’t perform the essential functions of his or her position, you probably can’t just terminate the employment relationship. Rather you should review your open positions to determine whether there are any that the employee can perform (with or without accommodation); if the employee is qualified for the position, offer it even if the employee is not the best qualified person for the job. It’s also important to note that the EEOC takes the position that there are no geographic limitations on the open position, meaning that the company must consider positions at other company locations — even those in other states.

Article courtesy of Shawe Rosenthal (www.shawe.com).

WHAT IS HPM?

By Your Employee Matters | No Comments

Next year I’ll be speaking for the American College of Occupational and Environmental Medicine (ACOEM) on helping employers and employees manage the “Bermuda Triangle” (the intersection of Workers Comp Return to Work, the ADA, and FMLA). The ACOEM website has this to say about the concept of Health and Productivity Management (HPM):

“The American workplace continues to be at a crossroads. Global economic competition demands increased productivity; technology is rapidly influencing the dynamics of industries and marketplaces; and major demographic shifts are changing the face of the American workforce.

“At the same time, work-related illness and injuries continue to impose a tremendous burden. Each day, an average of 137 Americans die from work-related illness and an additional 17 die from work-related injuries. According to the National Safety Council, work injuries cost Americans more than $132 billion a year — or $970 per worker — in lost wages, lower productivity, higher health care expenses and other costs.

“Now a new factor — chronic disease — has entered the picture. As the percentage of older workers in the United States grows, it’s expected that chronic diseases such as diabetes and cancer will cost employers heavily, as they provide medical benefits for employees and absorb the costs of long and short-term disability claims. One study found that of the nation’s $2 trillion in medical spending, 75% goes toward care for chronic conditions.

“Caught in the middle of this continuously evolving workplace, employers grapple with a growing issue: The impact of worker health on company productivity. As the link between health and productivity has been studied a new discipline has emerged, known as Health and Productivity Management.

“Simply defined, Health and Productivity Management, or HPM, is a concept which directs corporate investment into interventions that improve employee health and business performance. It can also be described as the integrated management of health risks, chronic illness, and disability to reduce employees’ total health-related costs, including direct medical expenditures, unnecessary absence from work, and poor performance at work — also known as “presenteeism.”

“A growing body of evidence suggests that worker health can be measured and managed more effectively for increased profitability and organizational effectiveness. More and more employers have begun to embrace this concept, as the relationship between the health of workers and the bottom line of American business has become increasingly clear.

“Proponents of HPM view the workforce as human capital, which should be managed with the same level of focus and interest applied in the management of financial capital. They recognize the value of managing human capital by focusing on health in the workplace environment. With healthier employees, companies perform better.

“At the heart of the HPM process lies the measurement of workplace health costs, accurate evaluation of the factors that are driving those costs, and the creation of health enhancement programs and strategies for workers. Occupational and environmental physicians can play a pivotal role in helping the workplace understand these concepts and the relationship between health and productivity.

“HPM promotes better individual health, which in the long term improves the overall health of our nation and the stability of our health care system. HPM becomes a win-win, benefiting both the employee and the employer.

“The bottom line: good health is good business, and HPM helps achieve both.”

Just as you need to use lawyers to help prevent HR risks at the front end, you want to use doctors to help prevent Workers Comp and other risks. My longtime friend, Dr. Russ Dunnum in San Diego, has shown companies how to save millions in health and Workers Comp-related overhead. He has also helped many employees in the process.

I would encourage you to go to the http://www.acoem.org/ website to learn more about how to use doctors more effectively in the front end of your business.

ANYONE NOT STRESSED OUT?

By Your Employee Matters | No Comments

According to the National Institutes of Health, “We all have stress sometimes. For some people, it happens before having to speak in public. For other people, it might be before a first date. What causes stress for you might not be stressful for someone else. Sometimes stress is helpful — it can encourage you to meet a deadline or to get things done. However, long-term stress can increase the risk of such diseases as depression, heart disease, and a variety of other problems.”

To help your workforce find that healthy balance with stress, check out this excellent web site: http://www.nlm.nih.gov/medlineplus/stress.html — and the tools are free!

RAISE THE FINANCIAL AWARENESS OF YOUR EMPLOYEES

By Your Employee Matters | No Comments

“Think of saving as well as getting.” – Benjamin Franklin

The past five years have been difficult for companies and employees alike. One in seven workers currently faces debt collectors. One in three is living paycheck to paycheck. The “true” unemployment rate remains above 15% and is unlikely to change in the near future. Because of today’s financial challenges, one in four employees don’t expect to retire by the time they turn 65. I believe that this figure is wishful thinking and will end up far higher.

What are we to make of these facts as owners and managers? My answer: Provide financial and accounting education to all of your employees — and don’t wait to do it! Ten years ago, companies began to realize that they couldn’t leave employees on their own when it came to managing their health. As a result, wellness initiatives exploded. It’s time for a similar explosion when it comes to this other malaise of our time: How we manage our money.

To create a financial education initiative in your business, I’d recommend taking these steps, all of which you can find on HR That Works:

  1. Make sure that management understands how the financial stress of individual employees affects the company as a whole. We did an excellent webinar on this topic with Coach George from Dave Ramsey’s organization. He gave the workshop Overextended: A Special Program on How the Personal Financial Stress of Your Employees is Impacting Your Business.
  2. Give employees a basic education in accounting. This is why we brought in the best teachers in the business — the folks from The Accounting Game. I would recommend having every employee watch their webinar; and then follow up with a workshop so that employees commit to taking action.
  3. Provide financial planning. On average, half of your employees don’t have a budget and half don’t have a retirement plan (probably the same half). The webinar Financial Planning 101 features a member of the Certified Financial Planners Board sharing the fundamentals of good finance.
  4. Expose every employee to the concept of ownership thinking and open book management. Two of the best webinars for this are Jack Stack’s Great Game of Business and Brad Hams’ Ownership Thinking.
  5. Stress overall business acumen. To place employee financial education in its larger context, have every employee watch Kevin Cope’s webinar Seeing the Big Picture: Business Acumen to Build Your Credibility, Career, and Company.

I guarantee that doing all of the above will transform your workplace. You’ll see less stress, improved focus, higher profitability — and greater financial security for owners and employees alike. You can’t ask for much more than that.

ACCOMMODATIONS RELATED TO COMMUTING TO AND FROM WORK

By Your Employee Matters | No Comments

A frequent question at the Job Accommodation Network is whether the ADA requires employers to provide accommodations for a disabled employee who has trouble getting to and from work because of his or her condition. A related question is whether it makes any difference if the employee’s only disability-related problem is the commute; if once at work, he or she has no problem performing the job.

The answer to the first question is “yes”; employers must consider some accommodations related to commuting problems. The answer to the second question is “no;” it doesn’t matter whether the employee is able to perform the job fully without the need for accommodations at work.

According to informal guidance from the ADA Policy Division of the Equal Employment Opportunity Commission, although employers don’t have to actually transport an employee with a disability to and from work (unless the employer provides this as a perk of employment), employers might have to provide other accommodations, such as changing an employee’s schedule so that he or she can access available transportation, reassigning an employee to a location closer to home when the length of the commute is the problem, or allowing an employee to telecommute.

The underlying reason why employers might have to provide such accommodations is that the employer usually controls employee schedules and work locations; so, when a schedule or work location poses a barrier to an employee with a disability, the employer must consider reasonable accommodation to overcome this problem. As with any accommodation under the ADA, when considering accommodations related to commuting, employers can choose among effective accommodation options and do not have to provide an accommodation that poses an undue hardship.

Linda Carter Batiste, J.D.
The Job Accommodation Network

EDITOR’S COLUMN: TIME TO START DELEGATING!

By Your Employee Matters | No Comments

I can’t seem to say this enough: You need to stop doing things in order to grow in your career. This is true for me, you, and anyone else. How do you know when to stop doing something? When should you outsource it, delegate it, or ignore it completely? Here are some potential indicators:

  • You’re exhausted, burnt out, a piece of toast.
  • You’re spending more than 50 hours per week at the office and taking work home.
  • You spend more than half of your day doing low-value work. For example, if you make roughly $50 per hour, this means you spend more than half your day doing work worth $8 to $49 per hour.
  • You find yourself doing other people’s jobs for them. This means you clearly haven’t defined a standard operating procedure (SOP) for the job and its benchmarks. The opportunity that lies dormant in your career is not being realized. This is true whether you are in HR, not in HR, or run the company! You know that there are cool, exciting, profitable things that can get done, but you’re not able to get to them.
  • You’re bored with your work. When you have these fantasies of quitting and moving on, you’re in a dangerous place. It’s time to figure out what excites you and delegate your way to reaching this position.
  • You’re not meeting the expectations of ownership. You’re not contributing to the bottom line as they had hoped because you find yourself mired in nonessential, non-strategic work.

In coaching HR executives, I stress that finding the first five hours of a week to delegate are the easiest. Put it this way: if I put you in a life or death situation that required you to stop doing five hours of work, do you think you could do it? Of course you could! Delegation is all about the choices we make. Think of it this way: Find five hours of low-denominator, nonessential, uncool work you do — and then delegate it, outsource it, or stop doing it altogether. You could probably find at least another two hours per week if you stop wasting time in social chat forums, online shopping, checking out scores, texting your friends, etc.

Make sure that the work you delegate is done properly. Don’t give it to someone who’s already overwhelmed, doesn’t have the talent, or lacks the understanding of how to do the job right. Make delegation a process, rather than an event.

Once you’ve found your initial five hours, hunt for an additional hour per month that you can delegate for the rest of the year. At the end of the year, you’ll have made a 16-hour a week difference in your work tasks. You should be able to keep at least two or three of those hours for yourself and focus the rest on adding value to your career and company.

DISABILITY INSURANCE: LTD, STD AND ALL THAT

By Life and Health | No Comments

The U.S. Census Bureau estimates that an American worker has a one in five chance of becoming disabled. The average long-term disability absence from work lasts 2.5 years, according to the Council for Disability Awareness. That’s a long time to survive without a salary.

If illness or injury unrelated to your job left you incapacitated, Long-Term Disability (LTD) insurance can provide an ongoing source of tax-free income for you and your family for anywhere from two to five years, or until you turn 65. If you’re “partially disabled” — meaning you can still work, but only in a job that pays less than 20% of what you previously made — you’ll probably get full disability benefits based on your pre-disability income.

However, LTD coverage usually has a waiting period of anywhere from two weeks to a couple of months before you can start collecting. In the meantime, how would you meet the expenses of daily living? Although sick days and full-paid leave (if your employer offers it) would provide some income, chances are that you will not meet the Social Security Disability eligibility requirement — an estimated inability to perform gainful employment for at least 12 months.

The solution: Short-Term Disability (STD) insurance can replace between 50% and 70% of your income for a period of three months to two years. The waiting period can vary from a single day (in case of injury) to as long as 14 days, if your disability results from an illness that will need time to diagnose. Bear in mind that an STD policy usually costs less than LTD coverage because benefits are paid for a shorter period of time.

Which of the two is better for you? We’d be happy to offer our professional advice.

HIGH-DEDUCTIBLE HEALTH PLANS, ANYONE?

By Life and Health | No Comments

More employers are offering high-deductible health care plans as an alternative to traditional health care coverage, which costs employers more. Under a high-deductible plan, the employee assumes some of the risk for health care expenses by agreeing to pay for a larger chunk of medical treatment. The employee’s benefit comes from the provision of a Health Savings Account (HSA) — a personal account of funds withdrawn from the employee’s paycheck by the employer and dedicated for the sole purpose of reimbursing out-of-pocket medical expenses. The portion deposited into the HSA is tax deductible.

At first, these accounts might seem like a reduction in employee benefits. However, in many cases employers would not be able to offer medical benefits without them. Although costs for small, non-emergency events are transferred to the employee and some other types of care might cost them more than under traditional plans, an HSA covers major health care needs that can quickly become unaffordable.

If your employer offers a high-deductible plan with an HSA or you’re considering switching jobs to an employer who does, consult with the company employee benefits department about the coverage. If you find that the plan doesn’t cover your dependents or if you have questions about private coverage alternatives, one of our Health insurance specialists would be glad to help. Just give us a call.

MAKE GOOD LIFE CHOICES

By Life and Health | No Comments

During the past decade, Life insurance companies have supplemented traditional Term and Whole Life policies by offering a wide variety of new coverages tailored to meet the demands of families and businesses for financial security. This wealth of new products means that buyers need professional advice more than ever.

If you’re looking to provide financial protection for your family, it’s usually better to buy Life insurance when you’re young and take advantage of periodic policy upgrades as your responsibility to dependents grows. Although a Term Life policy will cover your family should you die prematurely, the payout will normally decline and/or the premiums increase over time. On the other hand, premiums for Whole Life coverage (also called Permanent Life or Cash-Value Life) should remain level throughout the policy lifetime. You can also — depending on the policy — use it as a savings vehicle that accumulates cash value over time. In many cases, you can borrow against the policy value or even withdraw it if needed, subject to certain tax implications and costs.

If you’re looking for Life insurance coverage that you can use as an income source in retirement or to provide financial protection for your business in the case of your death, you have a variety of options (Annuities, Business Life, etc.).

To see what Life insurance solution best meets your needs, feel free to give our professionals a call for a consultation.

PROTECT YOURSELF AGAINST DATA LOSSES!

By Personal Perspective | No Comments

Although the political slogan used to be “a chicken in every pot,” a more accurate modern equivalent might be “a laptop in every home.” As these devices have spread into every corner of our lives, the amount of personal information stored in them has increased exponentially. Credit cards, bank accounts, financial records, legal documents, work projects, home businesses, and our kids’ pictures reside as digital data in smartphones and tablets. As the amount of such stored data has exploded, has our ability to protect ourselves from the fallout from the damage or destruction of this data kept pace?

As professional insurance agents, we recognize our responsibility to protect clients from losses. After all, the best claim is the one that never happens. When the possible loss involves electronic data, insurance might be among the least effective solutions. Talk with one of our personal risk staff about protecting your digital valuables through other alternatives, such as anti-virus software, firewalls for your home network, and updated backup procedures. For example, did you know that the DVD disks offer a high capacity backup for storing copies of your most valuable data?

Don’t risk deleting by delaying — call us today!