Your Compliance Partner

K B Squared

Your Compliance Partner

1040 West Marietta St. NW, Atlanta, GA 30318

Sample Documents

Table of Contents

Legislative Updates

EEOC Issues New Enforcement Guidance on Pregnancy Discrimination...... 3

DOL Proposes Rule to Expand FMLA Protections for Same-sex Spouses...... 4

Compliance Resources

HR Q&A: FMLA Notice Requirements...... 5

DOL Audit Guide: Employee Benefit Plans...... 6

Genetic Nondiscrimination Rules for Employers...... 8

2014 Open Enrollment Checklist...... 9

NLRB Guidelines for Acceptable Social Media Policies...... 10

EEOC Issues New Enforcement

Guidance on Pregnancy DiscriminationProvided by K B Squared

On July 14, 2014, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidelines on the treatment of pregnant employees under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). The guidance is the EEOC’s first comprehensive update on the subject of pregnancy discrimination in over 30 years and is effective immediately.

In addition to the guidance, the EEOC released a fact sheet for small businesses as well as a Question and Answer document explaining the laws and policy changes. In doing so, the EEOC has clarified its position on a number of key topics related to pregnancy discrimination.

Extent of PDA Coverage

The EEOC’s guidance clarifies which individuals are covered by the PDA. According to the EEOC, the PDA prohibits discrimination based not only on an employee’s current pregnancy, but also on past pregnancies and an employee’s potential or intention to become pregnant in the future.

Additionally, the EEOC reinforced that the PDA covers all aspects of employment, including firing, hiring, promotions, health benefits and treatment, in comparison with non-pregnant

persons in their similar ability or inability to work.

Medical Conditions Related to Pregnancy or Childbirth

The EEOC points out that the PDA prohibits employers from discriminating against women with medical conditions related to pregnancy or childbirth, and requires employers to treat them the same as other employees who are similar in their ability to work but are not affected by pregnancy, childbirth or related medical conditions.

Significantly, the EEOC’s guidance states that lactation and breastfeeding are pregnancy-related medical conditions protected under the PDA. Accordingly, employers must ensure that employees have the same freedom to address lactation-related needs as other employees have to address other similarly limiting medical conditions.

For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs.

DOL Proposes Rule to Expand FMLA Protections for Same-sex Spouses

Provided by K B Squared

On June 20, 2014, the Department of Labor (DOL) issued a proposed rule that would expand protections under the federal Family and Medical Leave Act (FMLA) for same-sex spouses. This proposed rule would revise the definition of “spouse” under the FMLA to:

Adopt a “place of celebration” rule (which is based on where the marriage was entered into), instead of the “state of residence” rule that currently applies; and

Expressly include same-sex marriages in addition to common law marriages, and encompass same-sex marriages entered into abroad that could have been entered into in at least one state.

Thus, under the proposed rule, eligible employees in legal same-sex marriages would be able to take FMLA leave to care for their spouses or family members, regardless of where they live.

This proposed rule updates guidance regarding FMLA protections for same-sex spouses that was issued following the U.S. Supreme Court’s decision in United States v. Windsor. The Windsor decision, issued on June 26, 2013, invalidated Section 3 of the federal Defense of Marriage Act (DOMA), which barred same-sex couples from being treated as married under federal law.

Background

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The FMLA also includes certain military family leave provisions.

Following the U.S. Supreme Court’s ruling on DOMA, the DOL issued Fact Sheet#28F to clarify the scope of an employer’s obligation to make FMLA available to same-sex spouses. This fact sheet confirmed that, under the FMLA, the term “spouse” includes a same-sex spouse if the marriage is recognized under the laws of the state in which the employee resides.

As a result, employers in states that allow same-sex marriages were required to treat employees’ same-sex and opposite-sex spouses equally for purposes of federal employee benefit laws. However, these protections applied only to same-sex marriages that are valid under state law. They did not apply to same-sex couples in civil unions or domestic partnerships, or same-sex couples living in states that do

Employers must provide employees with the following notices regarding the FMLA: General Notice, Eligibility Notice, Rights and Responsibilities Notice, and a Designation Notice. The notices are explained briefly in the following paragraphs.

General Notice

Employers covered by the FMLA must prominently post a general FMLA notice where it can be readily seen by employees and applicants for employment. The general notice explains an employee’s rights and responsibilities under the FMLA. The Department of Labor (DOL) has developed a model general notice for employers to use.

Covered employers must post this general notice even if no employees are eligible for FMLA leave. Covered employers that have any eligible employees must provide this notice to each employee by including it in any written guidance to employees or distributing a copy of the general notice to each new employee upon hiring.

Eligibility Notice

When an employee requests FMLA leave, or when the employer learns that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of his or her eligibility to take FMLA leave within five business days, absent extenuating circumstances. The DOL has provided a sample eligibility notice for employers to use.

Rights and Responsibilities Notice

Each time the eligibility notice is provided, employers must provide a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The DOL has provided a sample rights and responsibilities notice for employers to use. This notice is often combined with the eligibility notice.

If the information provided by the rights and responsibilities notice changes, the employer must notify the employee of the change.

DOL Issues Final FMLA Regulations

This Legislative Brief is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

2013 Open Enrollment Checklist

PREPARING FOR (AND AVOIDING) A DOL AUDIT

Because a DOL audit can disrupt an employer’s day-to-day business operations and possibly result in penalties (or other corrective action), it is important for employers to know how to prepare for, and potentially avoid, a DOL audit of their health plan.

As a general rule, the best way to prepare for a DOL audit of your health plan is to confirm that your plan complies with all applicable federal laws, such as HIPAA and the ACA. It is also important to have documents showing your compliance and to maintain these documents so they are easy to access in the event of a DOL audit. If an employer takes these steps before being selected for audit, it can reduce its exposure to penalties. It can also make the audit process more manageable and less time-consuming.

It is also important for an employer to understand why the DOL selects certain health plans for audit and take steps to minimize that audit risk.

AUDIT TRIGGERS

A DOL audit can be triggered for a variety of reasons. In most cases, the DOL investigator will not disclose to an employer why its health plan was selected for audit. However, there are some common audit triggers that an employer should keep in mind.

Common triggers for a DOL audit include:

Participant complaints to the DOL about potential ERISA violations. In 2013, according to a DOL audit summary, 775 new investigations were opened as a result of participant complaints.
Answers on the plan’s Form 5500. For example, if a plan’s Form 5500 is incomplete, or if inconsistent information is reported from year to year, the DOL may investigate the issue further.
The DOL’s national enforcement priorities or projects, which target the DOL’s resources on certain issues. For example, the DOL’s Health Benefits Security Project focuses on making sure health plans and health insurance issuers comply with the ACA’s mandates.

Genetic Nondiscrimination Rules for Employers

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and health plans from improperly collecting, using and disclosing individuals’ genetic information.

GINA’s health plan provisions (Title I), which went into effect for plan years beginning after May 21, 2009, are designed to protect individuals from genetic discrimination with respect to their health coverage.
The employment provisions of GINA (Title II), which became effective on Nov. 21, 2009, are designed to protect job applicants, current and former employees, labor union members, apprentices and trainees from genetic discrimination in employment.

The Equal Employment Opportunity Commission (EEOC) issued a final rule in November 2010 to implement GINA’s employment provisions. The final rule became effective on Jan. 10, 2011.

This Legislative Brief provides an overview of GINA’s nondiscrimination rules for employers.

overview

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. In general, GINA:

Prohibits the use of genetic information in making employment decisions;
Restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs) from requesting, requiring or purchasing genetic information; and
Strictly limits the disclosure of genetic information.

covered entities

GINA’s employment provisions apply to “Covered Entities.” A Covered Entity is an employer, employing office, employment agency, labor organization or joint labor-management committee.

The Covered Entities that are subject to Title II of GINA should not be confused with those covered by the HIPAA Privacy and Security Rules, such as health plans and health insurance issuers. While the terminology is the same, the definitions are different.

This K B Squared Legislative Brief is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

2014 Open Enrollment Checklist

To prepare for open enrollment, health plan sponsors should become familiar with the legal changes affecting their plans for the 2014 plan year. These changes are primarily due to the Affordable Care Act (ACA). Many of the ACA’s key reforms will become effective in 2014.

Plan sponsors should review their plan documents to confirm that they include these required changes. In addition, any changes to a health plan’s benefits for the 2014 plan year should be communicated to plan participants. Health plan sponsors should also confirm that their open enrollment materials contain certain required participant notices, such as the summary of benefits and coverage under the ACA.

There are also some participant notices that must be provided annually or upon initial enrollment. To minimize cost and streamline administration, employers should consider also including these notices in their open enrollment materials.

health plan changes

□Grandfathered Plan Status

A grandfathered plan is one that was in existence when health care reform was enacted on March 23, 2010. If you make certain changes to your plan that go beyond permitted guidelines, your plan is no longer grandfathered. Contact your K B Squared representative if you have questions about changes you have made, or are considering making, to your plan.

If you have agrandfathered plan, determine whether it will maintain its grandfathered status for the 2014 plan year. Grandfathered plans are exempt from some of the ACA’s requirements. A grandfathered plan’s status will affect its compliance obligations from year-to-year.
If you move to a non-grandfathered plan, confirm that the plan has all of the additional patient rights and benefits required by the ACA. This includes, for example, coverage of preventive care without cost-sharing requirements.

□Annual Limits on Essential Health Benefits

Effective for plan years beginning on or after Jan. 1, 2014, health plans are prohibited from placing annual limits on essential health benefits.

The ACA’s prohibition on annual limits was phased in over a three-year period; restricted annual limits were permitted for plan years beginning before Jan. 1, 2014. Some plans received annual limit waivers from HHS during the phase-in period. These waivers all expire effective for the 2014 plan year.

□Pre-existing Condition Exclusions

This K B Squared Legislative Brief is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

NLRB Guidelines for Acceptable Social Media Policies

The adoption of social media as a communication forum has greatly enabled organizations to reach end users and establish an online presence in our communities. However, maintaining a reputable presence is not an easy task in cyber space, especially due to employee participation in social media, which has attracted the attention of employers and governmental organizations.

On one hand, employers are concerned about how their employees’ comments may affect their reputation and morale at the workplace. On the other hand, governmental organizations—such as the National Labor Relations Board (NLRB) and the Federal Communications Commission (FCC)—as well as state legislatures have been paying close attention to identify possible violations of employee privacy and protected activity rights.

Current Social Media Laws

For some time now, employers have been screening applicants’ social media involvement to assess their character and fitness for employment. However, recent news coverage has alerted the public of employers that have gone as far as requesting an applicant’s username and password to logon to a social media profile. This practice has been condemned by many, and has even led companies like Facebook and Google to threaten lawsuits against those who request username and password disclosures. State legislatures have also reacted to this phenomenon by passing and proposing legislation to prohibit this practice.

Despite the recent attention, there are still not that many laws or court decisions that address employers’ attempts to monitor and manage its employees’ participation in social media forums. However, the NLRB has recently published a set of guidelines to help employers develop policies that protect employee rights under the National Labor Relations Act (NLRA). These guidelines are the result of an analysis of specific social media employer policies reviewed by the NLRB.

Protected Concerted Activities

Employee participation in social media may be protected under section seven of the NLRA, even for non-unionized employees. Section seven of the NLRA gives employees the right to form unions and to engage in protected concerted activities. Employees engage in protected concerted activities when they act for their mutual aid and protection regarding their terms and conditions of employment.

The key to determine whether an employee has engaged in protected concerted activity is whether the employee was acting for the benefit, or on behalf, of others and not solely for his or her personal interest. Employees do not need to formally agree to act as a group or designate a representative to participate in concerted activities. Concerted activities can include spontaneous, non-eventful actions such as a discussion of working conditions and wages or questioning a supervisor on a company policy. In that sense, the NLRA protects any employee who:

Addresses group concerns with an employer;
Forms, joins or helps a labor organization;
Initiates, induces or prepares for group action; or
Speaks on behalf of or represents other employees.

This K B Squared Legislative Brief is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.