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April 2015

Leave and the ADA

By Your Employee Matters | No Comments

One of the more confusing reasonable accommodation issues that employers must handle under the ADA is permitting the use of accrued paid leave, or providing unpaid leave, when an employee’s disability necessitates it. The concept can be difficult to grasp because it doesn’t align with the idea of providing an accommodation that keeps an employee on-the-job. However, the goal in allowing the use of leave time as a reasonable accommodation job-protected time in order to enable a qualified employee with a disability to manage his or her medical impairment and ultimately remain in the workforce.


There are many situations that will require an employer to consider allowing an employee with a disability to use leave as an ADA accommodation, barring undue hardship. Some situations include, but are not limited to:


when there is no other effective accommodation;

when an employee is not eligible to take leave under the federal Family Medical Leave Act (FMLA) but has a qualifying disability under the ADA;

when an employee is FMLA eligible but requires additional time off beyond the twelve-week allowance under that statute; or

when an employee has exhausted paid vacation and sick leave and requires additional intermittent time off because of a qualifying medical impairment.


As a practical matter, an employer may want to first determine if an employee is eligible for leave under FMLA, a state leave law, or company leave policy before granting leave as an accommodation under the ADA. Why? Because FMLA, state laws, and company leave policies traditionally include leave entitlements that are more clearly understood. It can be challenging to determine if, and how much, leave is reasonable under the ADA.


JAN Consultants respond to a variety of questions related to leave and the ADA. Here are some examples of common questions and responses:


Question #1: Can an employer apply its “no-fault” leave policy to everyone?


No. According to the Equal Employment Opportunity Commission (EEOC), if an employee with a disability requires additional unpaid leave as a reasonable accommodation, an employer must modify its “no-fault” leave policy to provide the employee with additional leave. However, if an employer can show that 1) there is another effective accommodation that will enable the employee to perform the essential functions of the position (and does not interfere with the employee’s ability to address his/her medical needs), or 2) granting additional leave will cause an undue hardship, then the additional leave will not be required. Modifying workplace policies, including leave policies, is a form of reasonable accommodation (EEOC, 1999).


Question #2: Is leave provided as an accommodation required to be paid or unpaid under the ADA?


Under the ADA, employees may be permitted to use their own accrued paid vacation or sick leave, as-needed, or be granted additional unpaid leave as an accommodation. Paid leave beyond that which is provided to similarly-situated employees is not required. EEOC states that an employee with a disability should be permitted to exhaust accrued paid leave before using unpaid leave as an accommodation.


Question #3: What duration of leave is required under the ADA?


Unlike the FMLA, the ADA does not require an employer to provide leave for a specified duration of time. Thus, it is up to an employer’s discretion to determine how much leave is reasonable as an accommodation. This determination must be fact-specific and will often depend on whether a particular amount of leave time imposes an undue hardship on the employer. An employer should conduct a case-by-case assessment to determine what is reasonable, just like with any other accommodation. This is where it’s important to not simply apply a no-fault leave policy. Under the ADA, an employer must be willing to allow an exception to a fixed leave policy as a reasonable accommodation, barring undue hardship. Employers should document how an employee’s leave impacts business operations. If providing additional leave poses an undue hardship, an employer should be prepared to demonstrate why.


Question #4: Does the EEOC provide any information about how to determine undue hardship related to leave?


In its Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, the EEOC offers a number of factors to be considered in determining whether an accommodation imposes an undue hardship. Regarding leave as an accommodation, an employer will often need to look at the impact the employee’s absence has had/will have on the operation of the business. The most useful undue hardship factors to consider in evaluating leave as an accommodation are those provided by the EEOC related to attendance issues – factors that put a strain on the employer’s operations, such as:

an inability to ensure a sufficient number of employees to accomplish the work required;

a failure to meet work goals or to serve customers/clients adequately;

a need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them; or

incurring significant additional costs when other employees work overtime or when temporary workers must be hired.


For more information, see q. 20 in the EEOC’s Enforcement Guidance on Applying Performance and Conduct Standards to Employees with Disabilities.


It is suggested that employers make an effort to document the impact employees’ absences have on operations. Not from a morale perspective, but rather, an operational perspective. For example, how was the employee’s work completed while s/he was absent? Were production goals met? Was overtime paid to other employees to complete the work? Was the employer unable to provide a service to its customers? Keep a confidential log of this type of information in order to make a fact-specific judgment of undue hardship, if necessary.


Question #5: Can leave be intermittent?


Yes. Intermittent leave often involves allowing the use of unscheduled, accrued paid leave or unpaid leave, as-needed, due to a qualifying medical impairment. Granting this type of accommodation will typically also require a modification to an employer’s attendance policy to excuse absences permitted as an ADA accommodation. An employer may determine the number of absences that will be considered reasonable and may request medical documentation that includes an estimation of the number of absences that may be anticipated due to the medical impairment. Note, if employees without disabilities are permitted to use their accrued paid leave intermittently, at-will, then employees with disabilities should not be treated differently. Also, FMLA may apply in situations where intermittent leave is required.


Question #6: Does an employer have to hold open an employee’s job while using leave as a reasonable accommodation under the ADA?


Yes, otherwise the accommodation of leave will not be effective. The ADA requires that the employer hold the employee’s position open while on leave, unless it can show that an undue hardship will result. Upon returning to work, an employee must be permitted to return to the same position, if the employee is still qualified and able to perform essential job functions. This is where a fact-specific assessment will be necessary to determine how long the position can be held before hardship results. Courts have held varying opinions regarding the amount of time that is reasonable for holding a position open; anywhere from several months, to six months, to one year. According to the EEOC, if it is an undue hardship to hold an employee’s position while the employee is on leave, then the employer must consider reassigning the employee (absent undue hardship) to an equivalent, vacant position for which s/he is qualified, for the duration of the leave period. The employee would then return to that position when ready to return to work.


Question #7: Does an employer have to grant indefinite leave as a reasonable accommodation?


According to the EEOC, although employers may have to grant extended medical leave as a reasonable accommodation, they have no obligation to provide leave of indefinite duration because granting indefinite leave, like frequent and unpredictable requests for leave, can impose an undue hardship on an employer’s operations. Also, repeated extensions of leave can become a request for indefinite leave. Employers are encouraged to request an anticipated date of return, even if it’s not an absolute return date. Having an anticipated date of return will help the employer make a determination regarding the amount of leave that will be reasonable.


– Tracie DeFreitas, M.S., Lead Consultant, ADA Specialist, Job Accommodation Network




Rejecting the stated arguments of both parties in Young v. United Parcel Service, Inc., the Supreme Court overturned the U.S. Court of Appeals for the 4th Circuit’s decision affirming the dismissal of the plaintiff’s claims of pregnancy discrimination.  The plaintiff claimed that UPS’s policy of providing light duty to some non-pregnant workers but not to her violated the Pregnancy Discrimination Act (PDA).  The Court found that the plaintiff had proffered sufficient evidence that UPS’s policy was discriminatory, such that her claims should not have been dismissed as a matter of law.


Facts of the Case


The PDA provides that pregnancy discrimination is a form of sex discrimination prohibited by Title VII.  It further specifies that employers must treat “women affected by pregnancy…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”


UPS had policies that provided light duty for workers in three categories:  (1) those who had suffered on-the job injuries, (2) those who had “permanent” disabilities covered by the Americans with Disabilities Act (ADA), and (3) those who had lost Department of Transportation certifications.  Light duty was not available for any other reason, including pregnancy.  The plaintiff, a part-time driver, was required to lift up to 70 pounds.  However, she had a pregnancy-related lifting restriction of no more than 20 pounds.  UPS would not permit her to work while under a lifting restriction, and refused to provide light duty for her.  Therefore, the employee remained at home without pay for the majority of her pregnancy, and lost her employee medical coverage.  She then sued, arguing that UPS’s refusal to accommodate her pregnancy-related restriction was illegal disparate treatment under the PDA, since it had accommodated other workers who were similarly unable to work.


The trial court dismissed the plaintiff’s claims before trial, finding that, as a matter of law, UPS had not discriminated against plaintiff because of her pregnancy.  It found that the workers in the three categories against whom the plaintiff sought to compare herself were too different to be appropriate comparators.  The 4th Circuit affirmed the dismissal, stating that UPS had implemented a “pregnancy-blind policy” that treated all workers who did not fall into one of the three categories, which included the plaintiff, in the same manner.


The Court’s Ruling


Of particular note, the Court began its legal analysis by observing that, since the plaintiff’s pregnancy, Congress expanded the definition of “disability” under the ADA to include impairments substantially limiting an individual’s ability to lift, among other things.  It further noted that the EEOC has interpreted this expanded definition to require employers to accommodate employees with temporary lifting restrictions, including those that were not related to on-the-job injuries.  The Court, however, specifically declined to express any view regarding these statutory and regulatory changes.


The Court then turned to the interpretation of the PDA clause requiring the same treatment for pregnant employees as “other persons…similar in their ability or inability to work.”  On the one hand, the plaintiff argued that an employer violated the PDA if it provided an accommodation only to a subset of workers and not to pregnant workers, even if other non-pregnant workers do not receive the accommodation.  On the other hand, UPS argued that this clause simply defines sex discrimination to include pregnancy discrimination, such that accommodations provided to pregnant workers are compared to the accommodations to others within a “facially neutral category (such as those with off-the-job injuries).”  The Court expressly rejected both interpretations.


The Court found that the plaintiff’s interpretation would grant pregnant workers “most-favored-nation” status, meaning that if an employer provided only one or two employees with an accommodation, it would then be required to provide similar accommodations to all pregnant employees regardless of any legitimate differences between the workers – such as the type of job, the criticality of the affected employee’s presence, seniority, or age.  The Court determined that Congress did not intend to grant unconditional most-favored-nation status to pregnant workers.  In fact, as the Court noted, an employer is normally permitted “to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so.”  The Court also specifically rejected the EEOC’s 2014 pregnancy guideline on which the plaintiff and the government relied.  In the guideline, the EEOC stated that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitation (e.g., a policy of providing light duty only to workers injured on the job,”) and provided an example of such discrimination that was clearly based on the fact pattern in this case.  The Court noted that the EEOC’s guideline was questionable based on its timing (issued after the Court accepted this case for consideration), consistency (it takes positions inconsistent with those previously advocated by the government), and thoroughness of consideration (the EEOC failed to explain the basis for this interpretation).


The Court also refused to accept UPS’ interpretation, finding that the clause provides more than a simple definition of sex discrimination to include pregnancy.  The Court noted that the PDA was passed specifically to overturn the Court’s prior holding in General Elec. Co. v. Gilbert, which had found a company plan that provided nonoccupational sickness and accident benefits to all employees, but failed to provide such benefits for pregnancy, did not violate Title VII – and thus permitted employers to treat pregnancy less favorably than other conditions resulting in a similar inability to work.


Instead, the Court adopted a third approach.  It applied the McDonnell Douglas framework, under which a plaintiff alleging that a denial of accommodation was disparate treatment under the PDA must first establish a prima facie case of discrimination, by demonstrating “that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’”  The burden then shifts to the employer to demonstrate a legitimate nondiscriminatory reason for its refusal to accommodate her – in this case, its light duty policies.  The burden then shifts back to the plaintiff to establish that the employer’s reason is actually pretextual.  The Court stated, “We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – give rise to an inference of intentional discrimination.”


In the present case, the Court stated that the plaintiff potentially can demonstrate a significant burden by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.  The Court also suggested that the plaintiff could also argue the fact that UPS has multiple policies to accommodate non-pregnant employees suggests that its reasons for failing to accommodate pregnant employees are not sufficiently strong, and a jury could possibly infer intentional discrimination.  The Court referenced its “longstanding rule” that plaintiffs can rely on circumstantial evidence to rebut the employer’s proffered reason – and more specifically, that the plaintiff can rebut such reason by showing how the policy works in practice.  Finding that the plaintiff offered sufficient evidence to sustain a claim of discriminatory treatment and her claims should not have been dismissed as a matter of law, the Court returned the case to the lower court for further proceedings.


It is worth noting that this opinion was not unanimous.  The dissent, which would have upheld the light duty policies as being “neutral,” castigates the majority for “craft[ing]…a new law that is splendidly unconnected” with the PDA.  The dissent argues that the majority’s interpretation – that the PDA requires employers to refrain from adopting policies that impose “significant burdens” upon pregnant women without “sufficiently strong” justifications – is pure invention, not grounded in in the PDA or legal precedent.


Practical Impact of the Ruling


The Supreme Court majority’s decision recognizes that the PDA does not require employers to ensure that pregnant employees receive preferential treatment as compared with other employees, but the standard devised by the majority appears to require just that.  In addition, the Court effectively has created a new and lower burden of proof for pregnant employees seeking to show that a denial of accommodation is disparate treatment under the PDA; a standard that permits discrimination to be inferred if the employer’s justification for a policy is not “sufficiently strong” to impose the burden on pregnant workers. We note, however, that because of the expansion of the ADA to include temporary conditions, such as pregnancy-related conditions that substantially limit a major life activity, employers will be subject to a reasonable accommodation obligation under the ADA for pregnant employees – and that the ADA’s mandate does not require consideration of whether such accommodations have been provided to other, non-pregnant employees.


Article courtesy of Shawe Rosenthal www.shawe.com

Handling Suspected Employee Drug Use

By Your Employee Matters | No Comments

A problem faced by everyone from Highway Patrol Officers to employers is what does it mean to be “under the influence “and how can you test for it? Unlike alcohol, no breathalyzer can be used. At least not yet. All you can determine is marijuana is in the bloodstream (and it can last up to a month). Authorities are trying to establish a threshold for determining intoxication. Given this difficulty, how does an employer handle a potential issue where an employee is suspected to be using illegal drugs?
In most states you would want to have “just cause” or reasonable suspicion prior to accusing or testing an employee for marijuana use. In some states you are still permitted to do random testing. Either way, nothing bars you from discussing observed behavior in the work place. Exercise caution as to the business necessity, if a prescribed medication may be the cause, as this can be covered under the Americans with Disabilities Act (ADA).
Reasonable suspicion is not merely rumor or speculation but rather based on specific, objective facts and rational inferences from observing an employee’s behavior. Specific objective facts and rational inferences drawn from those facts must justify reasonable suspicion. Evidence sufficient to justify reasonable suspicion need not rise to the level of full probable cause. This may include marijuana on the breath, lapses in performance, inability to appropriately respond to questions, and physical symptoms marijuana influence.
Indications of marijuana use include, but are not limited to, the following signs:

  • Odor of marijuana
  • Slurred speech
  • Red eyes
  • Pupils dilated or constricted, or unusual eye movement
  • Lack of coordination
  • Weariness, exhaustion, sleepiness
  • Frequent breaks outside of the building

In reference to testing for substances based upon this, even with an accumulation of facts and rational implications to be used for conducting a “reasonable suspicion” test, it can be dangerous for the employer to order an employee to submit to drug testing. It is wise to have two separate witnesses to the behavior, including a supervisor; to have all supervisors trained to detect signs of usage (this does not have to be a certified training); and to escort the employee to and from the lab involved. Important to note is that the employer should have a substance abuse plan and policy in place before taking any such action related to testing.

To learn more about medical marijuana use in your state please go to your Comply state law section.


How Do You Maintain a Drug-Free Workforce in Marijuana-Legal States?

By Your Employee Matters | No Comments

First it was just for “medicinal” use. Now it’s expanding to “recreational” use. Either way it is causing headaches for employer in pro-marijuana states. 23 U.S. states have legalized medical marijuana, with Colorado and Washington voting to legalize recreational marijuana in 2012 for those 21 and older. Voters in Oregon, a state which allows medical marijuana use, rejected recreational use in 2012. You can see a list of these states at http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
The question is how do these statutes affect employers? Answer is it depends on the state. The Colorado law states that “nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the work place or to affect the ability of employers have policies restricting the use of marijuana by employees.” The Washington statute does not mention using marijuana in the employment setting. Connecticut’s law bans employers from acting against workers who use medical marijuana off-duty.
Federal law prohibits marijuana use, whether medicinal or recreational. The Department of Transportation does not accept medical marijuana for medicinal use. Since marijuana is illegal under federal law, institutions that receive federal funds will still be subject to testing consistent with the federal Drug Free Workplace Act.
The handful of court decisions interpreting these laws have come down on the side of the employer. They can discipline, terminate, or not hire employees who test positive for marijuana, even if properly used under state law. However, it will be interesting to see how these laws are interpreted either by way of state regulations or court decisions. In a state like Connecticut, where you can’t fire somebody for non-workplace use, what if somebody smoked a ton of weed one evening, and they come to work fuzzyheaded, would an employer have the right to test them? Or suppose they smoked on the way to work or during a break on their “own” time? There are no definitive answers to these questions and there may not be for years.


Editors Column: Thinking about Training

By Your Employee Matters | No Comments

I read with great interest Training Magazines Top 125 in 2015. Here’s what I noticed:


  1. Award-winning companies spend an average of roughly 6% of payroll on training. For a $40,000 a year employee that’s roughly $2400. Which is more than twice the normal training spend of $1200 according to Association for Training and Development.
  2. Online training has now moved to a 50-50 position with classroom type training. This trend will continue for years to come as the cost of delivery lowers and quality improves.
  3. Successful training companies do three things: they conduct employee satisfaction surveys, help employees create competency maps, and tie management compensation to development of their direct reports. Rocket science – find out what people need, help them navigate a road to get it and make sure the managers support their journey.
  4. Two words that express what leaders most want from training: Value and an ROI
  5. The goal of any training is to change behavior that increases productivity and job satisfaction.
  6. Training succeeds where it is relevant, timely, and immediately applicable
  7. It is the learner that must be placed at the center of any training program or system
  8. Active learning involves role-playing, gaming, team-based, interactive, collaborative
  9. The greatest training budgets will be created by industry disruptors, innovators, and continuous improvement freaks
  10. All companies can do a better job of managing their compliance training. Both management and rank-and-file employees must undergo sexual-harassment training, diversity training and conflict resolution. Most workplaces have some safety training concerns that need training as well.
  11. Training programs do best where they have high completion rates, training adapted to various learning styles, where the training creates a desire for additional training, where it comes with coaching, and where it is active.
  12. You can measure success in terms of both quantity and quality of production, customer satisfaction, reduced errors and accidents, and other relevant benchmarks
  13. You can encourage training by branding your effort, creating the awards and rewards, contests, branding, etc.
  14. Not all employees should be trained equally. All employees should get basic compliance training but then employees should be trained in proportion to the value they bring to the company. Someone with twice the salary should have twice the training budget, if not even more. The most important employees to train and retain are your winners.


George Gilder wrote we are in a Knowledge Economy. Fact is: to earn and retain we have to train, train, train!


One more reason to take full advantage of ThinkHR Learn.

Environmental Issues Left Behind: Document These Conditions To Save Claims Later.

By Construction Insurance Bulletin | No Comments

Environmental liability, as a legal issue, is in its infancy; but maturing quickly. The challenge for contractors involves staying ahead of the evidence chain.

Since you don’t know what hidden environmental tort will arise next, prevention and documentation protocols challenge your risk manager.

The following list includes our best guesses:

Document the moisture content of the internal parts of any building structure. Mold, mildew and bacteria thrive when the moisture content on surfaces is between 16% and 19%. Your goal is to dry areas out to below 15% moisture content.

Invest in a moisture meter and record readings before walls or ceilings are enclosed. Rain or humidity can bring the moisture content up. If anyone opens the walls or ceilings, document the potential change in writing to that contractor.
Any chemicals, whether used on wood destroying pests, specialty paints or to vapor seal a slab, are prone to migrate through a vapor phase within or through a building.

Document the products used and any safety data available currently.

Vapor intrusion will be a highly litigated issue over the next twenty years. The challenge is to prove whose vapors they are. Similar products contain same chemical families which can change and vaporize.

It is your risk management challenge to disprove your products involvement. And, look into buying and keeping records on all environmental insurance policies. Keep these records because they are a long-term investment in risk management.
Materials and Supplies
Remember the formaldehyde sheetrock? Know your suppliers and vendors and ask for environmental insurance certificates.

Buy paints and oils that are low in volatile organic compounds like toluene or xylene. These chemicals are used as drying agents, and thus they do not add to aesthetics.

Try to avoid any additive that will vaporize over time if used correctly.
Concrete Additives
They are great for aesthetics and ease of placement. Vapor intrusion through concrete floors will be litigated heavily. If you use an organic chemical to improve the floor or seal the floor, you will be dragged into every lawsuit affecting that building regardless of the source of contamination.

Document the chemicals used and monitor the results right after placement, that will be the maximum flux rate.
Fuel Inventories
Document no fuel spills on any site where you use fuel. Keep an inventory and take pictures of proper fuel storage with secondary containment.

If a spill occurs, mitigate the damage immediately by remediating the spill.
Document and maintain records on any potential environmental issue. Be sure to include evidence that you exceeded then state-of-the-art selection and prevention methods. Remember asbestos too.

Products, Completed Operations, and Design: Where are the Lines Drawn

By Construction Insurance Bulletin | No Comments

Consider sending in submittals which are slightly different than the plans require. Today’s energy requirements limit wattage for lights in new buildings, for example.

A fixture or a bulb can cause the energy plan to go over budget. Is the implication that you are using the wrong product or that you are redesigning the energy grid? Suppose you install the energy inefficient product and it holds up commissioning and the Certificate of Occupancy. Is the claim against the product, the completed operation or the professional design?

Every product has been designed for a purpose. If you install that product for that purpose, and your installation is per product specifications, defects are considered product liabilities.

The architect and engineer draw plans and specify products to be used. If you follow those plans and install those products, your work will be a completed operation.

If the plan calls for your specialty to design some aspect of the building, you will have a design liability.

The grey areas concern modifications to the product or design outside the scope of work.

Completed operations insurance does not cover design liability except in very minor cases.

Consider loss control for these situations. Either avoid them, wise choice, or purchase some professional liability insurance for design professionals, and get an architect or engineer stamp.

With energy codes, LEEDS certifications, environmental issues, and historically standard conditions to meet, alterations to any aspect of the project drawings can have devastating effects to the building commissioning.

Be hyper cautious when altering plans or using replacement products. Request a substitution change order if products are unfindable or at least the specifications are unmatchable. Suggest design changes in writing in change orders, even the most minor changes. Your not out to be thorough, not difficult. 

Inland Marine Coverage – Useful On-Site Forms

By Construction Insurance Bulletin | No Comments

For inland marine purposes, all terms such as contracting or equipment take on broad interpretations and definitions. Equipment means any tool, vehicle, material, supplies, or machine that serves in the trade of the policy holder and is not fit for highway use.

Highway use becomes fuzzy when empty vehicles are highway legal but the fully loaded vehicle is not. Consider the use of the vehicle rather than the vehicle itself.

Contractors eligible for this coverage can include ship builders, farmers, snow removal companies, even government agencies.

These are non-filed forms which means the underwriter and company have broad authority to fit coverage for individual companies.

Some standard language defines mobile equipment as mobile or floating nature. This definition allows quite large and semi-permanent machines to gain coverage under mobile equipment forms.

Blanket Form

Covers all tools, equipment, machinery, tracked mobile devices, drilling equipment, everything right down to a screw driver.

The contractor simply pays for one limit. If a list of equipment is required, the larger items are listed with serial numbers, the smaller items are grouped as hand tools, garden tools, or other general description.

Scheduled Form

A schedule form lists each item individually with a description and value. Accuracy counts. These forms will normally cover newly purchased, rented or leased property for thirty days.

Reporting Form

Requires the insured to send in a report of values for each month or quarter on each jobsite. The advantage is paying premium on only those values actually at risk. These forms will also cover newly acquired property for thirty days.

The equipment, tools and machinery investment on a site is significant. While in storage back at the yard, these items may be covered under your building and content policy. Look into the best inland marine form for your operations. 

Umbrella Liability: Why It’s Important To Contractors

By Construction Insurance Bulletin | No Comments

General liability forms now contain some detailed and extensive exclusions of coverage, particularly for contractors. The automobile exclusion is a few sentences while the environmental exclusions or personal injury wording can exceed a full policy page.

We draw a distinction here between excess liability and umbrella liability. Excess follows the underlying coverage form, it extends limits, not coverage. Umbrella liability extends coverage and limits.

So, how does umbrella coverage help contractors?

Scenario 1: Conflicting Liability Exclusions: inland marine or automobile

Liability for operating inland marine equipment, in this scenario, a truck mounted drill rig, falls under operations liability under the general liability policy.

In this case, the drill rig is mounted on a highway approved vehicle, a pick up truck.

If the truck were in an accident on the highway while carrying the rig to a site, no doubt the business automobile policy would cover the damage.

If the drill rig bit broke while operating and flew through a windshield on site, general liability would pay the damages.

Now, suppose with the rig tower up, the pickup truck rolled in the project parking lot injuring the project owners. Business automobile might decline since the rig tower was extended, use; and general liability might deny the claim since the vehicle was on a travel surface and simply transporting the rig.

The umbrella carrier would have to respond in either case. That coverage will unify the liability limits even if they need to subrogate both other policies.

Scenario #2: No Underlying or Excluded Coverage

Employment Practices Liability (EPL) or environmental issues are the best examples now. Some general liability policies exclude personal injury liability, which overlaps EPL. Very few umbrellas exclude either coverage.

Most general liability policies have lengthy and detailed exclusions for environmental liability. Umbrella policies do not have detailed exclusions so some area of coverage exists.

You would pay a retention ($1000 to $25,000 typically negotiable) and turn the claim over to your umbrella carrier.

So much liability language aims to exclude contracting scenarios, it pays to capture broader and unifying coverage like umbrella liability. 

Five Ways to Support Parents of a Child With Special Needs

By Employment Resources | No Comments

One in 68 children is diagnosed with autism according to the Centers for Disease Control and Prevention. April is Autism Awareness month, and it’s the perfect time to look around your workplace. How many parents have a child with a physical, mental or emotional disability? You can support these parents in five ways.


  1. Provide Health Insurance


With therapy, medical treatments, specialist visits, specialized equipment and so much more, caring for a child with special needs is expensive. Both full-time and part-time employees need healthcare coverage to decrease the financial burden, give them peace of mind and allow them to meet their child’s needs. Encourage your employer to provide a health savings account option, too, that pays for medical expenses health insurance might not cover.


  1. Offer Child Care


Finding reliable child care for special needs children challenges most parents. Offering child care during work hours, summers and school vacations ensures parents don’t miss work because their babysitter’s sick or school’s closed. Trained professionals can provide respite care one or two nights a month, too, and give employees a much-needed mental, emotional and physical break.


  1. Give Financial Assistance


Even with adequate health insurance, most families who are affected by special needs have big financial burdens. Organize a fundraiser to cover expenses like gasoline, copays and dietary items or collect gift cards to grocery, convenience and department stores.


  1. Host a Support Group


Everyone needs support, and talking to people who understand is a healthy way for parents to handle stress, problem solve and recharge. Schedule regular support meetings as you also raise awareness and offer support.


  1. Share Referrals


From estate lawyers to assistive technology information, parents of a child with special needs require plenty of resources. Post and regularly update a list of general referrals in the break room. Customize it based on your coworkers’ needs to make an even bigger impact.


Being a parent to a child with special needs is tough. Advocate for five key supports at your workplace. The parents of a child with special needs will appreciate your efforts and help.

Are Workers Comp Benefits Taxable Income?

By Employment Resources | No Comments

While every state operates under different workers comp laws and regulations, most employers are required to carry workers comp coverage. It typically pays two-thirds of your regular income, and workers comp benefits cover medical treatment associated with work injuries.


Workers comp is usually temporary, but you can receive it for an extended time period depending on the injury you sustained. If you are injured and can no longer work, workers comp may cover job training and job search expenses.


Whether you received workers comp benefits in 2014 or are you currently receiving benefits, you’ll want to know if those checks are considered taxable income. This information helps you prepare to file taxes this year and decide if now’s a good time to buy a house or vehicle.


What are the IRS Rules?


In general, the IRS does not consider workers comp benefits to be taxable income. According to IRS Publication 525, “Any amount an employee receives as workers’ compensation is fully exempt from tax if they are paid under a workers’ compensation act or a statute in the nature of a workers’ compensation act.”


What do Lenders Think?


Mortgage companies and auto lenders look closely at your income as they determine your eligibility for a loan. However, they typically will not count your workers comp benefits as income, especially if you still have your job and your rehab and recovery time is short. In this case, they may use your regular income to decide if you’re a good credit risk.


If you’ll be off work for a long time period, lenders may look at your credit score to determine if you’re a good loan candidate. It definitely pays to keep that score up at all times, including as you receive workers comp benefits.


Understanding whether or not workers comp benefits are taxable income helps you during tax season and as you purchase a home or vehicle. Although these benefits are usually not considered taxable income, discuss the details of your specific case with your human resources manager, insurance agent or accountant.