Human Resource Management Services, LLC

Hot Topics of Human Resources

Michigan Primary Care AssociationSeptember 28, 2009

By Andie Creamer, CHRSandiecreamer@HRMServices.biz

American Recovery and Reinvestment Act of 2009

• The following are part of the stimulus package that was signed into law in February 2009:

• Extending Unemployment • Health Care Technology• COBRA Coverage Expansion• More Stringent HIPAA Regulations• E-Verify

Unemployment Benefits

• Normal unemployment benefits = 26 weeks• Federal Emergency Unemployment (from the

Recovery Act) = 33 weeks • In Michigan, Gov. Granholm signed a bill effective

April 13, 2009 to extend additional benefits for 20 weeks. These dollars also came from the Recovery Act.

Total number of weeks someone could be on unemployment is 79 weeks.

In addition, payments went up $25.00 per week.

Health Care Technology

• Recovery Act will provide:– $19 Billion dollars to improve the nation’s health

care information systems.– Goal: Reduce errors and streamline

administrative process

• How? – Nothing has been released from the Obama

Administration on how, when, etc. nor is there any information on how this will work with HIPAA regulations.

COBRA Coverage Expansion

• Provides 65% federal subsidy of COBRA premiums for (Assistance Eligible Individuals) AEI’s for 9 months

• Requires employers pay 65% upfront, then recover the money by taking a credit on their quarterly employment tax return. (Gov’t would reimburse if taxes due are less than the 65% paid)

• Retroactively allows workers who become jobless as of Sept. 1, 2008 to receive COBRA benefits

• In Effect until December 31, 2009

COBRA Coverage Expansion

• Challenges currently being experienced;– What is considered involuntary termination

• Creating an environment that is intended to make the ee quit ~ this has been decided to not be a quit but instead an involuntary termination therefore eligible for COBRA subsidy.

– 2 different COBRA programs • 1 is the regular COBRA benefits• 1 is for the SUBSIDY of the COBRA benefits

– Those eligible for health care coverage through another employer (spouses) are not eligible for the subsidy

HIPAA Regulations

• Recovery Act Changes:– More inclusive of 3rd party administrators

that must comply with HIPAA– Duty to Notify in Case of Breach– Accounting for Disclosures now includes

electronically maintained records and can go back 3 years.

– Remuneration for Exchange of PHI (18 mo’s to establish final regulations, effective 6 mo’s later)

– Access to Electronic PHI (effective 12 months after Act signed)

– Right to Restrict Disclosures (for out of pocket payments)

– Greater Enforcement

HIPAA Regulations

• Duty To Notify in Case of Breach– As of August 19, 2009– Covered entities must notify the individual, HHS

Secretary and the media if more than 500 individuals have been affected. (For less than 500 HHS must be notified annually)

– Must be done within 60 calendar days– Notification must be written in letter or email format– Federal Trade Commission issued a companion

regulation for all entities not covered by HIPAA to notify the individual in case of a breach.

HIPAA Regulations

• A covered entity will have knowledge of a breach if the breach is known, or by exercising reasonable diligence would have been known to any “workforce member or agent of the covered entity”

• Exception:– Encryption and Destruction

• When using these approved methods of securing PHI, if there is an attempted breach, notification is not necessary

HIPAA Regulations

• Title XIII of the Recovery Act is known as the Health Information Technology for Economic and Clinical Health Act (HITECH)

• Revised and Increased Civil Monetary Penalties– Before the ACT, violations were $100 per violation with $25,000 cap (for

similar violations) now, $50,000 per violation with $1.5 million cap.• Enforcement

– Before the Act, enforcement was done only by HHS now, the State Attorney General can also enforce if they have reason to believe that the violation threatens or adversely affects any resident of the state.

• Sharing of Penalties with Persons Harmed– Before the Act, no right to sue. Now, still no right to sue but the

individual will share in any monetary penalties or settlements collected as a result of the violations.

HIPAA Regulations

• HITECH (Con’t)• Mandatory Investigations

– Before HITECH, HHS had discretion to determine whether or not to investigate a HIPAA violation. Now, in the case of willful neglect, HHS no longer has discretion ~ they must investigate the complaint and impose civil monetary penalties. (Effective 2/17/11 with regulations due out on 8/17/10)

• Civil Enforcement of Criminal Matters– Before HITEC, HHS referred criminal matters to the Dept.

of Justice and ended their involvement. Now, if the DOJ has not prosecuted the individual, HHS Office of Civil Rights may still investigate and impose civil monetary penalties. (No time frame noted on how long the DOJ had to investigate before HHS could intervene)

E-Verify

• Computer software program that verifies that the applicant or employee is legally authorized to work in the United States.

• As of September 8, 2009 required for all companies that apply for or are granted work contracts from the federal government– Those opposed to this program suggest the data is

not accurate and could therefore result in someone not being employed due to poor information

– Those in favor suggest this program is saving jobs for the American workers. This also puts the “immigration policing” in the hands of the federal government instead of the employer

E- Verify

• Why should we understand E-Verify?– Many state legislators in favor of this program are

now or have already began to design similar bills for their state including Michigan

• Current Challenge – How to handle a No-Match letter

• Still being worked out but employers are being encouraged to allow time for the employee to resolve the issue before termination.

• Employers that knowingly employ illegal workers are being prosecuted

Family Medical Leave Act

• Additions to the current FMLA guidelines– Family Leave Due to a Call to Active Duty– 12 weeks in a 12 month period calculate backwards

• “qualifying exigency” defined as:– Short-notice deployment (7 day limit)– Military events and related activities– Child Care and school activities– Financial and legal arrangements– Counseling– Rest and recuperation (5 day limit)– Post-deployment activities (up to 90 days after termination of active

duty)– “Additional activities” (by agreement only)

Family Medical Leave Act

- Additions to the current FMLA guidelines- Caregiver Leave for an Injured Service Member

- 26 weeks in 12 months for family member or “next of kin” caring for service member. Next of kin as defined by military records.

- No age limit for child under this leave option- Serious injury or illness not Serious health condition- Other FMLA leave’s are part of the 26 weeks.- Calculated forward- Possible to have more than 26 weeks of FMLA

depending on when Caregiver leave takes place.- Effective January 28, 2009

Family Medical Leave Act

• Employer can make direct contact with health care provider for clarification of medical certification

• Must be HR professional, leave administrator or management official

• Cannot be employee’s direct supervisor• Employee give the chance to get clarification on own• In compliance with HIPAA, must get employee’s

permission to make direct contact• Same guidelines apply for family member with serious

health condition.

• Must respond to FMLA request within 5 days

Legislative Issues

• Federal Acts Passed– Lilly Ledbetter Fair Pay Act (wages, benefits, comp)

– Genetic Information Non-Discrimination Act (GINA)• Federal Acts being considered

– Employee Free Choice Act (Card Check)• Increase enrollment in unions• Recent set back with the removal of the changes to the card

check process– Healthy Families Act

• Requires employers with 15 or more employees to provide 7 days of sick time for full and part time employees

• Care for “any other individual related by blood or affinity that is the equivalent of a family relationship”

Legislative Issues

– Paycheck Fairness Act• Increase penalties for employers that pay less based

on gender• With the passing of Lilly Ledbetter, this has become

less of a priority– Reducing the number of employees for an

employer to comply with FMLA• Reduce from 50 to 25

– Health Insurance Restrictions and Limitations Clarification Act and Healthy Americans Act will both be impacted by the current debate regarding Health Care

Legislative Issues

– Employment Non-Discrimination Act• Would prohibit discrimination on “an individuals

actual or perceived sexual orientation or the sexual orientation of persons with whom the individual associates with”

Legislative Issues

• State Acts Passed– Unemployment eligibility extended

• State Acts being considered– Prohibiting the termination of employees for legal

conduct during non-work time– Ergonomics– Mental health parity– Expanding Unemployment Insurance coverage to

cover former part-time workers looking for part-time work and those enrolled in job training courses

– Mandated benefits– Non-smoking workplace (except on casino floors)

Policy Issues

• Use of cellular phone and email during work hours• Appearance and appropriate dress

– Revealing Clothing– Baggy Clothing– Tattoos and piercings

• Social Networking Sites– Facebook, Twitter, My Space– Confidentiality– Computer Use and Access– How this relates to legal conduct after working hours

Policy Issues

• Reducing Statute of Limitations As a condition of employment, I agree not

to commence any action or suit relating to my employment relationship with Company Name more than six (6) months (180 calendar days) after the date of the event or date of termination of employment. Further, I agree to waive any statute of limitation to the contrary.

Policy Issues

• Michigan courts have affirmed that companies can reduce the statute of limitations, generally from three years to six months from the day of infraction

• Require the employee to agree to the reduction and sign this agreement

• Part of the employment application and employee handbook

• EEOC – does not like• Don’t know how long this will last with new Michigan

Supreme Court

Policy Issues

• Establishing a Right to Search– Of personal property brought onto company

property or used for company business– Can search anything but the person– Must include electronic storage devises –

PDA, Cell phones, Blackberries, Lap tops, Flash Drives, etc.

Privacy Issues

• Social Security Number Privacy Act– If you use the Employee’s social security

number as an identification number– Written and published privacy policy – Do not collecting the SSN until the applicant is

a final candidate or is hired – Limiting access to the SSN – Make sure all documents with SSN are

secured

Privacy Issues

• Fair and Accurate Credit Transaction Act– Federal Trade Commission has published final

rules on the proper disposal of personal information

– As of June 1, 2005, all personal information, including telephone numbers, addresses or social security numbers, must be properly disposed of when the files get purged.

– Best practice is to shred the documents.– Fines for failure to comply could be up to $2500

per violation.

Record Keeping Issues

• Personnel files –– Should only hold “job related information”– Employees have access under Michigan’s Bullard

Plawecki Right to Know Act.– Employees have the right to include any dispute they

may have to any disciplinary action taken against them.

– Should not include any medical information– Should be a “fire wall” between personnel file (job

related) and other information.– Web Site: www.HRMServices.biz – under resources– Does not protect all records from being included in

discovery – be careful what you keep

Discrimination Issues

• Harassment – All policies should include all protected classifications.– Be sure that the policy clearly prohibits retaliation

– Make sure you do not “unintentionally” retaliate

– Make sure your front line supervisors take all claims seriously

– EEOC – 30% of case load are harassment cases “aggressively enforcing these cases”

Dan Harter, District Director EEOC

Discrimination Issues

• Claims of discrimination based upon religion or national origin.

• Fastest growing area of claims• Requests for religious accommodation

– Employers have a duty to accommodate unless it is a hardship to the organization

– May be financial hardship or may cause employee discontent

• Requests for appearance accommodation– Reasonable accommodation unless it interferes

with the ability to do the job, especially if safety issue.

Immigration Issues

• Expect new legislation to address illegal immigration

• Need to make sure I-9 (evidence that employees are eligible to work in U.S.) are accurately completed

• Retain in a separate file or binder in a locked file with limited access

• Increase activity in audits – especially in certain industries and locations

Economy Issues

• Staffing– Hiring may be more of a challenge under these

difficult economic times.• Employee Relations

– Difficult employee situations tend to be on the rise, unhappy employees don’t leave

• Claims of action– Seems to be on the increase, where employees feel

they have no other option…can’t find a job• Health Care costs

– Impact on business growth and entrepreneurship

Management Issues

• Dealing with the problems of single parents – who are protected against discrimination

– Setting standards and expectations– More men are the primary care givers

• Effectively dealing with problem employees– Willingness to address behavior – relationship problems

• Potential liabilities– Need to handle appropriately– Need to support your actions with documentation– Need to address poor performers/behaviors for the sake of the good workers

Wage and Hour

• Fair Labor Standards Act Compliance– Determining Exempt Status – Salaried does not

equal no-overtime pay.

– Cannot reduce wages less then one day

– Many areas that can get an employer in trouble

– Need to be careful of unintentionally losing exempt status

– Safe Harbor published policy

– Expect an increase in regulation

Human Resource Management Services, LLC

Helping you solve your employee problemsHelping you solve your employee problems • Employee relations • Customized handbooks • Management and supervisory coaching• Job descriptions• Compensation systems• Staffing• Training• Performance appraisal systems• Performance development• Policies and procedures development and implementation• Personnel file system• Human resource audits• Federal and State regulation compliance