New Year Resolutions: How Healthy are your HR Systems/Policies?
As we begin a new year, the time is ripe for assessing your HR systems to ensure that your policies and procedures are legal, up-to-date, and relevant to your business. The following are some areas to consider:
Traditionally, a new year results in many people with resolutions to become healthier. This means that more employees may choose to take part in offered wellness programs and/or employers may feel more pressure to offer such programs. In offering such a program, employers must be aware of certain potential downfalls. For instance, under the ADA/MHRA, there may be limits on medical inquiries and/or acquisition of information, and an employer must not discriminate in offered incentives based on achieving certain physical goals. Likewise, employers with identified physical goals must offer reasonable accommodation by setting less stringent objectives or permitting the employee to engage in an alternate program. In the workers’ compensation realm, an injury sustained by an employee while participating in a wellness program may constitute a work-related injury, depending on whether it arises out of and in the course of employment. Under GINA, while an employer is generally not permitted to require or request genetic testing or information, an exception is made for wellness programs. However, GINA still requires that the production of the information by the employee be entirely voluntary and accompanied by a written authorization signed by the employee before the information is revealed. Finally, employers should remember that Maine state laws protect some off-duty behavior of employees, such as smoking, and that wellness programs must not penalize employees for such conduct.
Employers must be sure their policies and procedures reflect any changes to leave laws made during 2015, including the FMLA. On a broader level, employers should also ensure that they are clear about which leave laws apply to any particular workplace and that those laws are being properly applied. One issue relating to leave laws that we often see applied incorrectly is the concurrent application of more than one form of leave at a time. Employers should be aware of ways in which leave laws can overlap and ensure that written policies reflect these interactions.
One change in 2015 pertains to pregnant employees. The US Supreme Court case, Young v. UPS, held that a workplace policy that does not provide accommodation to pregnant employees in the same manner as non-pregnant employees may violate the Pregnancy Discrimination Act. In light of this decision, the EEOC revised its Enforcement Guidance on pregnancy accommodation to clarify that impairments resulting from a pregnancy may require reasonable accommodations. The Guidance also confirms that medical and sick leave policies must be applied uniformly to pregnant and non-pregnant employees.
NLRB Application to Non-Unionized Employers
This issue garnered a lot of attention within the last year but is again worth a reminder to all employers. The National Labor Relations Board has been very active in prohibiting employment policies that may infringe on an employee’s Section 7 rights, which gives even non-union employees the right to engage in protected concerted activity and collectively discuss topics such as wages, hours and working conditions. One area the NLRB has focused on in the last year is handbook policies which may be viewed as infringing on these rights. Specifically, attention has been focused on policies addressing confidentiality of wages and other traditionally limited information, employee activity on social media, confidentiality of workplace investigations, employee contact with media, use of cameras and other technology in the workplace, and no distribution/no solicitation policies. To avoid problems in these and other areas, policies must be reviewed to ensure that they are not overly broad or written in a way that can be interpreted as interfering with the right to engage in protected concerted activity.
Independent Contractor v. Employee
In July 2015, the federal DOL issued a new administrative interpretation of the test for whether a worker is an independent contractor or an employee, generally making it more difficult to classify a worker as an independent contractor. It is worth an assessment of any worker currently classified as an independent contractor, and, of course, careful consideration must be given to any worker so classified in the future. Employers should also remember that a predetermination may be sought from the Workers’ Compensation Board as to characterization of an independent contractor but that this presumption is rebuttable. This means that it is not binding on the Board, which can still find that a worker is an employee despite that predetermination.
Training/Policy Review/Other updates
The beginning of a new year is a good time for all employers to review workplace policies and handbooks for continued applicability to the workplace as well as ensuring that the policies reflect any updates or changes in the law. Posters and forms should be assessed for the same reason. Finally, this is a good time to be sure you have conducted an initial or updated harassment training. While sexual harassment training is only mandatory under Maine law for certain employers, it is a good idea and recommended for all employers to ensure that all employees receive this training, as well as training on all other forms of prohibited harassment.
Happy New Year!