This Week’s HR Tidbits

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Dear Clients and Friends,

For this week’s issue of HR Tidbits, we are going to discuss some clarifications of FMLA and continue to address HR issues such as Employee Wage Tracking, GINA, and hygiene issues.

There are four articles contained inside this newsletter that we would like for you to take a look at your leisure. The first (labeled FA on the right pane) is the feature article. Once you click it, you will open up the rest of the newsletter. There is a navigational button at the bottom of each page to bring you back to the homepage. Also, this newsletter is print-friendly for easy distri-bution to managers who could use this information.

I hope that you are finding the new format very rewarding and easy from which to pull valuable information. The objective of this newsletter is to meet your needs!

If you have any questions, comments, or concerns about the new document, direct them to Matt Wells, our Business Development and Marketing Liaison at matthew-wells@hc-resources.com.

For archived issues and our brochure, visit:

Please Enjoy!

Sarah Nickell, Jeremy Nickell, and Matt Wells

June 16, 2011; Vol. 1; Issue 2

Smartphone savvy employees are using apps to help ensure their employers are compensating them correctly. What else don’t you know?

Learn more about the Genetic Information NondiscriminationAct and how it affects employers on a daily basis.

Human Capital ResourcesOne Rock At A Time: It’s Our Vision, It’s Our Passion

119 S. Washington St.Marion, IN 46952765-382-3220

Most Employers Unknowingly Affected By GINA

3FMLA is one of the most important HR issues to face employers. Stay up-to-date with this key information.

FMLA Clarifications- Medical Re-Certification

4Hygiene is an uncomfortable situation to deal with in the workplace. Read some tips on how to address these issues.

Hygiene Issues! Sharing Best Practices

http://hc-resources.com/newsletter

Time Keeping and Compensation-

Your Employees AreTracking More Than YouThink (& So Is The DOL!) By: Sarah Nickell

If you visit the US Department of Labor Website under the Wage and Hour Division (www.dol.gov/whd), you will find the newest Smartphone App on the market! No kidding!

On May 9th, the DOL launched its first application for smartphones allowing employees toindependently track the hours they work. The free application is intended for employees to track theirhours to ensure their employers are paying them the wages they are owed. The app is available in both English and Spanish and is compatible with the iPhone and iPod Touch. They are still working on an Android and Blackberry-compatible version, so stay tuned!

What Does This Mean?The DOL has taken the following stance on this new tool, as quoted on their website,“This information could prove invaluable during aWage and Hour Division investigation when an employer has failed to maintain accurate employment records.” As one blogger has already frankly commented back to the DOL, “It is hard enough to get employees to clock in/out of the actual system that pays them without confusing them with an app that markets itself to be ‘invaluable in wage and hour investigations’. I’m

now waiting to hear from an employee who claims their pay is wrong because it doesn’t match the amount on the app.”

Prepare In The PresentThere is no time like the present to prepare for what this may mean to your corporation. Smartphone savvy employees love to talk about their new apps and we have heard of at least two situations where this app has been openly discussed by hourly employees. Unions love this app by the way, so beware!

It is now time to review your corporation’s policy and procedures on employee clocking and timekeeping expectationsand ensure that theyare being uniformlyadministered andfollowed. As one ofour current clients hasalready commented, “I don’t want to get audited by Wage and Hour because our supervisors don’t enforce our handbook language that says employeesare supposed to clock in and out or they may be subject to disciplinary action. I can’t remember the last time we actually enforced that. I guess it’s oneof those rules that makes sense in the beginning, but no one thinks is important until something likethat happens.”

Need help? Let Human Capital Resources assist youwith reviewing your current time keepingprotocols. Give us an exploratory call and we will do our best to meet your needs in a waythat works for you!

June 16, 2011; Vol. 1; Issue 2 2

continued on next page >>

Unions love this app, so beware!

Genetic Information Nondiscrimination Act-

Most Employers Unknowingly AffectedBy GINA By: Robert G. Brody and Allison E. Smith

Have you asked an employee about her mother’s fight with breast cancer, or the employee’s recent charity work with the American Heart Association?

Knowing this information could subject you to legal liability under the Genetic InformationNondiscrimination Act (GINA). Most employers believe GINA does not apply to them because they never make employment decisions based on someone’s DNA. However, many employers seem to have missed the hidden part of GINA that applies to practically everyone.

Why You Should Pay Attention To GINAGenerally, GINA prohibits discrimination on the basis of genetic information with respect to health insurance and employment. Further, GINA prohibits employers with 15 or more employees from using genetic information to make employment-related decisions. Genetic information includes information about the individual’s or family member’s genetic tests, family medical history, requests for genetic services and genetic information about a fetus carried by an individual or family member.

June 16, 2011; Vol. 1; Issue 2 3

Many employers do not realize how easy it is to acquire genetic information. Surprisingly, genetic information may be revealed when you kindly inquire about an employee’s family member who is suffering from heart disease, cancer or Alzheimer’s disease. Employers may also be surprised to know they can even obtain genetic information through publicly available sources, such as the newspaper or the Internet. A manager might see in the news that an employee is heading to a local chapter of a lung cancer foundation, or see an obituary of an employee’s father who just passed away from a long battle with kidney disease. These notices provide information about an employee’s family medical history. Also, be careful when searching for information about a job candidate. It is unlawful to make a hiring decision based on such genetic information.

Preventing Inadvertent Acquisition of Genetic InformationEmployers often unknowingly request genetic information. Many routine forms used for voluntary wellness programs, requesting reasonable accommodations under the Americans with Disabilities Act (ADA) and medical certification under the Family and Medical Leave Act (FMLA) may illegally ask employees questions that relate to their genetic information.

The new GINA regulations require that employers change many of their standard employment policies and forms. For example, if an employer uses a health

continued on next page >>

risk assessment form for its voluntary wellness program, it probably includes a section asking an employee to check a box if a family member has had any of the specified conditions. In order to avoid requiring an employee to provide this genetic information, employers should include a disclaimer saying the employee is not required to fill out that portion of the form, and will not be penalized for not answering those questions. Employers cannot provide a financial incentive for filling out the genetic information section of the form.

Employers should also include a notice on all health-related information requests, including FMLA medical certification forms, stating the employer does not want the health care provider to provide any family medical history or other genetic information to the employer. There is an exception for FMLA forms where the employee is requesting leave to care for the serious illness of a family member. GINA recognizes that to properly substantiate a claim, the employee must provide some genetic information. An employer will not be found to violate GINA in this limited circumstance.

Employers need not worry that a mistake by a health care provider will subject them to liability. While knowingly obtaining an employee’s genetic information is illegal, there are some situations where an employer may inadvertently obtain genetic information. If an employer inadvertently acquires genetic information, possibly by overhearing a conversation in the workplace, or by a health care provider’s accidental inclusion of genetic information on a form, the employer will not be penalized. If the healthcare provider ignores the employer’s genetic information disclaimer, the employee will not be liable. However, if this keeps happening with the

same health care provider, it is the employer’s duty to take additional preventive steps. This may include changing medical providers routinely used for employee medical tests.

Maintaining Separate FilesGINA also creates additional record keeping requirements. All written genetic information should be kept separately from the employee’s personnel file. (Any geneticinformation already inpersonnel files before Nov. 21,2009 does not need to be removed.) If you receive a request to view an employee’spersonnel file, be sure not to disclose the employee’s geneticinformation.

What ChangesShould You Make?Managers and supervisors needto choose their words carefullywhen engaging in conversationthat could lead to the discovery of genetic information. They should follow a “don’t ask, don’t tell” policy. This means they can ask general questions about an employee’s health or the health of a family member, but should not directly ask a question that would solicit information about the person’s genetic information. Acceptable statements include “How are you feeling today?,” “Is your son recovering well from treatment?,” or “You should get tested to be safe.”

All written genetic information should be kept separately from an employee’s personnel file.

June 16, 2011; Vol. 1; Issue 2 4

Unacceptable questions include “Do you/your family members have the condition?” or “Have you been tested for that?”

Employers need to update all forms used to request medical information. Each request or form should include the disclaimer discussed above. Also, be sure all employers have the proper GINA posters posted in their businesses. Since this area is so nuanced, it is important to train managers and supervisors on how to avoid liability under GINA. One wrong question or Internet search could subject a company to liability.

The Family and Medical Leave Act of 1993

Medical Recertification and Covered Employer WH Publication 1419; January 2009

When we can ask for recertification: There has been an update to this section in the new Federal Register (1/1/2009) on this issue to prevent harassing behaviors by employers. This was brought up at the last session I attended by the DOL. Basically, we have the right to ask for re-certification no more frequently than every 30 days, but if the doctor specifies duration, it cannot be more frequent than what is specified. If it is a lifelong condition, the employer should not request recertification no more than every 6 months in connection with the absence. See the Regulation below:825.308 Re-certifications for leave taken because of an employee’s own serious health condition or the serious health condition of a family member

(a) 30-day rule. An employer may request recertification no more often than every 30 days and only in connection with an absence by the employee, unless paragraphs (b) or (c) of this section apply.

(b) More than 30 days. If the medical condition indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification, unless paragraph (c) of this section applies (ed. note: paragraph (c) has been withheld for reasons of irrelevance). For example, if the medical recertification states that an employee will be unable to work, whether continuously or on an intermittent basis, for 40 days, the employer must wait 40 days before requesting a recertification. In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence by the employee. Accordingly, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition), the employer would be permitted to request recertification every six months in connection with an absence.

Hygiene Issues! Sharing Best PracticesBy: Sarah Nickell

We get questions every year on dealing with hygiene issues. Most of us lose sight of the fact that we should be training our managers on how to handle these issues when they occur and then consult HR for advice on the appropriate verbiage

and potential liabilities in these types of conversations. Easier said than done! We realize that in the age of lean leadership margins and even leaner HR presence, training may not be possible. Nonetheless, we do want to share a recent example of how one of our HR colleagues approached this very issue, followed by some best-practice techniques.

Recently, an HR colleague shared with us that her manager wanted to know what she was going to do about an employee that flatulates on purpose in front of patients and suffers from a severe case of body odor. Her response to her manager was, “I am not the Hygiene Police, I am HR, but I will help you with this and together we will address the issue. She then organized and conducted a one-hour supervisory training course on this very issue, which also included how to address dress code and grooming expectations.

The take home lesson from our colleague’s leadership strategy was that she developed three very distinctive policies to address all related concerns. She now has a policy on grooming expectations, dress code, and corporate hygiene standards. Most of us address hygiene as a simple line or a couple of references in the dress code policy or handbook. She took it a step further! She has also shared with us that many of her leadership staff expressed gratitude at finally having a stand-alone policy to refer back to on hygiene.

We have shared how one of our colleagues navigated her way through this difficult subject matter. What about your needs? Perhaps you are the lone HR person doubling as the Hygiene Police.continued on next page >>

Perhaps you just need practical advice on how to handle these issues. Listed below is a structure we have seen used as a generalized framework to help you get started in your approach. Please let us know if you would like to see some sample policies or if you would like to have HCR help you develop some specific language assist your corporation in dealing with these issues.

STEP 1: Make sure training (or your approach) is appropriately sensitive, confidential, and timely!

Sensitive: Each case is always different. This is why it will be important for your manager dealing with the case to be versed and or familiar with employment law language. The reasons for body odor may be a medical reason, poor hygiene, or an ethnic diet, to name a few examples. If these issues are not addressed correctly, they may lead to discriminatory claims.

Confidential: Many managers in this situation try to avoid a one-on-one confrontation, as this issue makes them personally uncomfortable. So, instead, they call a department meeting to issue a hygiene directive to the whole group.

This very rarely works , especially if the employee doesn’t realize he/she is the one with the problem. In addition to this, by addressing the issue to the group instead of the offender, the manager has compounded the issue by involving the entire department. If there were employees unaware of this issue, the manager has most certainly educated them all on the fact that there is a problem with one of

their peers. After all, this topic will be at the top of the list during the “water cooler” chat after the meeting that was called to address it!

Timely: If the manager does not handle the issue timely, your organization could be making it worse. By waiting, you risk someone else addressing the issue. Chances are that this peer may not be as sensitive or understand any of the legal ramifications in addressing this incorrectly. Don’t let your organization become this!

STEP 2: Design the conversation around the business impact. Bespecific and supportive!

Business Impact: To lessenthe likelihood of a negative reaction, we should begin theconversation by explaining thatthis is a difficult conversation for both parties. But, by having this conversation, the right thing is being done and it is the only thing to do in order to ensure that they are being treated fairly.

Explain to the employee how the issue/complaints are affecting the workplace (i.e. co-worker complaints, patient complaints, productivity impacts, etc.). Help the employee see how the issue has a domino effect into a larger context. For example, “Because your perfume was so strong, a co-worker’s asthma was aggravated and they had to go home. We were short-staffed all night long, which then

caused our department to explain why nightshift checks did not get done.”

Be Specific: We have all had experiences where an employee misinterpreted something we have said because we didn’t nail down the details. Ensure that you are covering all your bases and delivering the correct message. Be sure to cover:

- What are the hygiene standards? - The colleague referenced earlier in this article wrote her policy super-specific in order to avoid cultural misinterpretations. She included statements such as: “daily bathing/showers, daily use of deodorant, and limited use of artificial colognes and perfumes.”- Explain the way in which the employee is failing to meet the standards.- Provide suggestions for how to meet the standards.- Set a timeline for meeting the standards. - e.g. immediately or by the next workday, in the case of an infrequent bather.- The consequences for failing to meet the standards.

Be Supportive: We should ask if and how we can help the employee. If the employee needs an accommodation, this gives them the perfect opportunity to request it. The manager should not broach the subject of a medical condition first. Let the employee do the talking.

In many situations, many managers find that just by asking the question about how they can help, the employee often solves the problem on their own. By having someone hear them talk through it, they are more accountable and they will take action.

June 16, 2011; Vol. 1; Issue 2 5

After all, this topic

will be at the top of the

list during the “water

cooler” chat after

the meeting called to

address it!