Skip to main content
Category

Your Employee Matters

Ways To Improve Focus In The Office When Spring Fever Strikes

By Your Employee Matters

A rise in temperatures this month can signal spring fever in your office. Your human resources department staff can improve focus and keep everyone on task in several ways.

1. Provide New Challenges

Your employees may feel distracted in part because they’re bored, so provide challenges. Ask them to work in a different department for a day, take on a special project or work with a high school intern. The challenge can provide a welcome distraction and jumpstart focus and concentration.

2. Offer a Class

Give employees the opportunity to learn a new skill. You can poll your staff for suggestions or offer foreign language, management or coding classes. While learning something new, your employees will focus on something other than the nice weather.

3. Promote Exercise

Physical activity improves focus, an excellent reason to host a fitness class over lunch, offer discounts to the local gym or encourage employees to bike or walk to work. As your staff members add more exercise into their daily routines, they also focus better on their work-related tasks.

4. Encourage Breaks

Remind employees that breaks can improve their mental health, productivity and focus. Set a timer for hourly stretch breaks, and share the value of regular lunch breaks away from the desk.

5. Change the Scenery

Hang colorful artwork around the office or commission a floral mural in the break room. You can also allow employees to meet at a local coffee shop, play disc golf during lunch or hold walking meetings outdoors. Employees will appreciate the opportunity to enjoy the warm weather, and the change of scenery boosts creativity, productivity and motivation.

6. Stock Healthy Snacks and Beverages

Fill your break room with healthy food and beverage options, including fruit, veggies, whole grains and water. These snack options boost mood and creativity and improve your employees’ overall health.

7. Play a Game

Challenge employees to participate in a March Madness basketball bracket, host a chili cook-off or reward teams who reach productivity goals. Games keep employees entertained and as a bonus, you’ll see a stronger spirit of cooperation.

8. Bring the Outdoors Inside

Plants can purify the air and improve mood. Arrange plants around the office as you bring a bit of the outdoors inside your office.

9. Adjust Work Hours

If your employees can arrive early and leave work early, they get to enjoy the warm, sunny afternoon weather. Adjust work hours, if possible, and allow employees to indulge their spring fever while completing their work.

Spring fever might try to curtail productivity in your office, but you can improve focus with these steps. Everyone will be happier and work smarter thanks to your efforts.

Top Topics To Avoid Discussing At Work

By Your Employee Matters

After spending 40 hours a week together at work, you and your coworkers may become close friends. Unfortunately, certain conversation topics can cause awkward situations and increase stress, decrease productivity, motivation and performance, and threaten your job. Protect your health and career when you avoid talking about these topics.

Politics

Whether you avidly follow or purposely avoid politics, political conversations should be off-limits at work. The subject ignites tempers and undermines team spirit.

You may announce that you vote. However, avoid candidating for a specific party, and change the subject if your coworkers introduce the topic.

Pay Rate and Benefits

Under federal law, you may openly discuss your pay rate, insurance coverage and other benefits with coworkers. These discussions may benefit others if they lead to equal pay for equal work, but they could also cause hard feelings and hinder cooperation.

Discuss your paycheck and benefits only if the conversation will benefit your team, and never brag about or belittle someone else’s paycheck. Always err on the side of respect.

Personal Relationship Problems

Maybe your spouse stopped sleeping with you or your child is bullied at school. Share these personal relationship problems at work, and you undermine your authority as a supervisor or manager. The information could also fuel the rumor mill or anchor a sexual harassment complaint.

Restrict personal conversations to neutral topics. Then discuss and resolve your personal relationship problems outside of work.

Health Concerns

You may decide to tell your coworkers about your struggle with chronic pain or depression, especially on challenging days. Consider how your health concern affects your reputation and even your ability to promote, though.

If you must share health information, don’t talk daily about your challenges or discuss every detail. Rely on your family and friends for support and focus on your job when you’re at work.

Career Aspirations

Career aspirations can motivate you to better yourself. Your coworkers may question your loyalty or resent you, however, if you share your goals with them.

Tell your boss privately that you want to move up the ladder. Then do your best work every day as you demonstrate that you’re a team player and committed to the company’s success.

Religion

Faith is a personal and sensitive subject. Even an innocent comment about church or a holiday can make your coworkers feel uncomfortable.

While you can mention your faith, avoid in-depth religious conversations. Take care to never belittle or disagree with someone else’s beliefs, and don’t try to convert anyone.

The conversations you have at work influence your job performance, reputation, success and health. Aim to promote respect, cooperation and peace as you talk to your coworkers.

How To Use Your Mental Health Insurance Benefits

By Your Employee Matters

You’re familiar with the physical health benefits your insurance provides, but you may not be familiar with your mental health benefits. These benefits address numerous mental and behavioral health challenges you may face, and you can use them in several ways.

Therapy and Counseling

See a licensed therapist or counselor and discuss any work, family or personal stressors, past or present trauma, and other challenges you face. You can see a therapist for a specific issue for a limited number of sessions or maintain an ongoing relationship as part of your long-term self-care.

Group Support

Join a support group for a specific health or wellness condition. Group sessions can address grief, substance use, anger management, and a variety of other concerns.

Medication

If you need prescription medication for anxiety, depression or another condition, see your physician or psychiatrist. Your insurance should include prescription medication coverage.

Screenings

Receive an alcohol misuse or depression screening as you improve your overall health. The screening results can help you decide if you need additional treatment.

Alcohol Misuse or Substance Use

Get help for an alcohol misuse or substance use concern. With insurance, you can attend detox or rehab and individual or group therapy sessions and receive other beneficial support.

Inpatient Services

Sometimes, you need the intensive treatment an inpatient behavioral stay can provide. Use your insurance benefits to pay for your stay in an approved inpatient program.

Excluded Mental Health Diagnoses

Some health plans exclude certain physical, mental or behavioral health diagnoses. Review your policy so you understand any exclusions and the out-of-pocket expenses you’ll owe if you decide to pursue treatment.

Understand Parity Protection

You may hesitate to use your mental health benefits because you worry that it will cost more than regular health treatment. Typically, insurance policies provide parity protection for mental health benefits. It ensures you don’t pay more for mental health treatment than you pay for regular health treatment, so use the benefit if you need it.

Check your Policy for Coverage Details

Almost all insurance plans provide mental, behavioral and substance use health benefits. However, your specific coverage and benefit limits depend on your policy and even state laws. Check your policy carefully so you know details like:

  • Covered services
  • In-network providers
  • Counseling session annual or lifetime limits
  • Co-pays for services
  • Deductible
  • Pre-authorization requirements
  • How claims are paid

If you have questions about your coverage, read your policy. You can also talk to your human resources professional or contact the insurance company to clarify anything you don’t understand.

The mental health benefits included in your health insurance coverage can help you manage mental and behavioral challenges. Understand how to use your coverage as you get and stay healthy.

Avoid Computer Eye Strain

By Your Employee Matters

Employees who work all day at a computer are at risk for eyestrain. To help your workers protect themselves, we recommend that they follow these basic precautions.

  • Look away from the monitor for 30 seconds, every 15 or 20 minutes. Look at or scan things at least 20 feet away to allow your eyes to focus in a rest position.
  • Reposition the monitor 20” to 26” from your eyes (roughly the distance from your eyes to the end of your index finger with arm outstretched). Otherwise, you’ll be forced to sit or lean too close to the screen, or sit too far away. If your eyeglass prescription doesn’t allow clear vision at the 20” to 26” range, get it adjusted.

Reset monitor height so that the top edge is even with your view when looking straight ahead. Then tilt the screen upward so that you’re not looking at the image at an angle. The optimal screen position is 10 to 20 degrees below eye level.

  • Reset the monitor screen resolution, the Internet browser text size, and the zoom and font default in the operating system and in software applications so that text is easy to read. Start with a screen resolution of 800×600 for older CRT monitors and 1024×768 or higher for LCD (flat screen) monitors. Set the monitor refresh rate at or above 75 hertz (Hz) on older CRT models. Refresh rate is irrelevant for LCD monitors and is factory set, usually 60 Hz.
  • Blink often (put a sticky note on your monitor!). The average blink rate is 22 times per minute. The rate goes down to seven per minute when looking at a monitor – which causes the eye lens to dry out. If you can’t get into the habit of blinking more often, use an eye moistener (saline solution).
  • Relax your eye muscles. Put the palm of your hands over your eyes for a minute or so, once every half hour. This warms the muscles around the eyes, relaxing them.
  • Minimize glare. Make sure the background light level around the monitor is about the same as the screen light level. Minimize direct sunlight or bright lights in front of the monitor or directly behind it.
  • Adjust the contrast and brightness to levels you use when reading a book comfortably. A bright screen causes eyestrain.
    Use a paper holder to hold documents. Put the document at the same level as the monitor, or attach it to the monitor. This prevents repetitive neck and eye movement from paper to screen.

What You Need To Know About Employee Sick Leave

By Your Employee Matters

Federal laws may not mandate that your employer gives you sick leave, but some states require it, and individual employers may offer this benefit as part of a comprehensive benefits package. Learn more about this valuable benefit as you maximize your employee sick leave.

What is Employee Sick Leave?

If you’re ill or injured, you can’t perform to the best of your ability and may compromise safety. For these reasons, some employers offer paid or unpaid time off work so you can seek medical treatment or rest and recover.

To accumulate sick leave, you may first need to work a certain number of hours or achieve a certain level in the company. You may lose unused sick leave time at the end of the year or roll it over to the next year. Sometimes, employees also reimburse you for any sick time you don’t use.

Reasons to use Your Employee Sick Leave

Depending on your employer, you may be restricted and only allowed to take sick leave if you’re ill or injured. Other employers offer paid leave if you need to care for sick children or nurture your mental health. Also, some employees lump sick leave in with your personal or vacation days, allowing you to use your time for whatever you want.

Remember that sick leave is different from Workers’ Compensation. If your illness or injury occurred because of a work-related task, file a Workers’ Compensation claim.

Options if you Need More Time Off

Even if your employer doesn’t offer sick leave, you do have options if you must take time off work for an illness or injury.

  • Take advantage of the Family Medical Leave Act (FMLA). You could receive up to 12 weeks off to care for yourself or a family member who faces an illness or another medical emergency.
  • Check to see if you have disability leave, particularly if you need to take an extended time off work.
  • Ask your employer if you can take unpaid leave until you feel well enough to return to work.

Where to Find Details About Your Sick Leave Benefits

The U.S. Department of Labor (DOL) requires all employers to prepare a description of their specific employment practices and policies. This written or posted description includes details about your sick leave, paid vacations, personal days, holidays, bonuses, severance pay and other benefits. Review your employer’s policy to verify the type of benefits you’re eligible to receive and details about how to request that time off.

The next time you’re too sick or injured to go to work, take a sick day. It’s a valuable benefit your employer may offer.

Can You Get Time Off Work And A Paycheck For Jury Duty?

By Your Employee Matters

United States citizens who receive a summons for jury duty must report to the courthouse and perform their civic duty. Your jury duty responsibilities could require anywhere from several hours to several months off work, though. What happens to your job and paycheck while you serve on a jury? Learn more about laws and your employer’s jury duty selection policy that affect your ability to get time off work and receive a paycheck when you’re called for jury duty.

Verify Your State’s Laws

The U.S. Department of Labor allows states to determine if jurors can receive time off work. Most states have established time off and paycheck guidelines employers must follow when an employee receives a jury duty summons, so verify your state’s specific jury duty leave laws.

In general, many states require employers to provide employees with time off work for jury duty. Some states also allow employers to offer different levels of time off based on the company’s industry and location and the employee’s job title.

Additionally, state laws determine if employers must pay employees who serve on a jury. The law may allow employers to provide unpaid leave or deduct jury pay from the employee’s paycheck. In most cases, though, employers cannot cut benefits, including insurance coverage and vacation time accrual, while employees serve on a jury.

Review Your Employer’s Jury Duty Selection Policy

Many companies include a jury duty selection policy in the employee handbook. It outlines time off and pay details for employees who receive a jury duty summons, so review the policy and follow it as you arrange for your jury duty service.

Keep in mind that federal law protects employees while they serve on jury duty. Employers may not discourage employees from serving or terminate, demote, harass, threaten or coerce an employee who reports for jury duty.

Steps to Take When you Receive a Jury Duty Summons

As soon as you receive a jury duty summons, notify your employer. Early notification gives your supervisor time to find coverage for your duties or time to write a letter and ask the court to postpone your jury duty date, which may be beneficial if you’re an essential employee or are involved in a major project.

You will also want to discuss your summons with the Human Resources department and review your employer’s jury duty selection policy. Your employer may require you to show proof of your summons before they grant you leave or pay.

Jury duty remains a privilege and responsibility for Americans but can disrupt your job. Understand your rights under state law and your employer’s jury duty selection policy as you perform your civic duty.

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.