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Recently, the U.S. Department of the Treasury, Department of Labor (DOL), and Department of Health and Human Services (HHS) (collectively the Departments) issued final regulations regarding the definition of short-term, limited-duration insurance, standards for travel insurance and supplemental health insurance coverage to be considered excepted benefits, and an amendment relating to the prohibition on lifetime and annual dollar limits.

Effective Date and Applicability Date

These final regulations are effective on December 30, 2016. These final regulations apply beginning on the first day of the first plan or policy year beginning on or after January 1, 2017.

Short-Term, Limited-Duration Insurance

Short-term, limited-duration insurance is a type of health insurance coverage designed to fill temporary gaps in coverage when an individual is transitioning from one plan or coverage to another plan or coverage. Although short-term, limited-duration insurance is not an excepted benefit, it is exempt from Public Health Service Act (PHS Act) requirements because it is not individual health insurance coverage. The PHS Act provides that the term ‘‘individual health insurance coverage’’ means health insurance coverage offered to individuals in the individual market, but does not include short-term, limited-duration insurance.

On June 10, 2016, the Departments proposed regulations to address the issue of short-term, limited-duration insurance being sold as a type of primary coverage.

The Departments have finalized the proposed regulations without change. The final regulations define short-term, limited-duration insurance so that the coverage must be less than three months in duration, including any period for which the policy may be renewed. The permitted coverage period takes into account extensions made by the policyholder ‘‘with or without the issuer’s consent.’’ A notice must be prominently displayed in the contract and in any application materials provided in connection with enrollment in such coverage with the following language:

THIS IS NOT QUALIFYING HEALTH COVERAGE (‘‘MINIMUM ESSENTIAL COVERAGE’’) THAT SATISFIES THE HEALTH COVERAGE REQUIREMENT OF THE AFFORDABLE CARE ACT. IF YOU DON’T HAVE MINIMUM ESSENTIAL COVERAGE, YOU MAY OWE AN ADDITIONAL PAYMENT WITH YOUR TAXES.

The revised definition of short-term, limited-duration insurance applies for policy years beginning on or after January 1, 2017.

Because state regulators may have approved short-term, limited-duration insurance products for sale in 2017 that met the definition in effect prior to January 1, 2017, HHS will not take enforcement action against an issuer with respect to the issuer’s sale of a short-term, limited-duration insurance product before April 1, 2017, on the ground that the coverage period is three months or more, provided that the coverage ends on or before December 31, 2017, and otherwise complies with the definition of short-term, limited-duration insurance in effect under the regulations. States may also elect not to take enforcement actions against issuers with respect to such coverage sold before April 1, 2017.

For information on final regulations regarding excepted benefits, specifically similar supplemental coverage and travel insurance—as well as information on the definition of essential health benefits for purposes of the prohibition on lifetime and annual limits, view UBA’s ACA Advisor, “Regulations Regarding Short-Term Limited-Duration Insurance, Excepted Benefits, and Lifetime/Annual Limits.”

Originally published by www.ubabenefits.com

On November 18, 2016, the IRS released Notice 2016-70 to extend the due date for employers to furnish Form 1095-C or 1095-B under the Affordable Care Act’s employer reporting requirement. Employers will have an extra 30 days to prepare and distribute the 2016 form to individuals. The due dates for filing forms with the IRS are not extended.

Background

Applicable large employers (ALEs), who generally are entities that employed 50 or more full-time and full-time-equivalent employees in 2015, are required to report information about the health coverage they offered or did not offer to certain employees in 2016. To meet this reporting requirement, the ALE will furnish Form 1095-C to the employee or former employee and file copies, along with transmittal Form 1094-C, with the IRS.

Employers, regardless of size, that sponsored a self-funded (self-insured) health plan providing minimum essential coverage in 2016 are required to report coverage information about enrollees. To meet this reporting requirement, the employer will furnish Form 1095-B to the primary enrollee and file copies, along with transmittal Form 1094-B, with the IRS. Self-funded employers who also are ALEs may use Forms 1095-C and 1094-C in lieu of Forms 1095-B and 1094-B.

Extended Due Dates

Specifically, Notice 2016-70 extends the following due dates:

  • The deadline for furnishing 2016 Form 1095-C, or Form 1095-B, if applicable, to employees and individuals is March 2, 2017 (extended from January 31, 2017).
  • The deadline for filing copies of the 2016 Forms 1095-C, along with transmittal Form 1094-C (or copies of Forms 1095-B with transmittal Form 1094-B), if applicable, with the IRS is:
    • If filing by paper, February 28, 2017.
    • If filing electronically, March 31, 2017.

Prior to the IRS announcement, a process existed for employers to file Form 8809 to request a 30-day extension of the due date to furnish forms to individuals. Notice 2016-70 explains that the new extended due date applies automatically so individual requests are not needed. Employers that had already submitted extension requests will not receive a reply.

More Information

Notice 2016-70 also provides guidance to taxpayers who do not receive a Form 1095-B or 1095-C by the time they file their 2016 individual tax return.

Lastly, the IRS encourages employers, insurers, and other reporting entities to furnish forms to individuals and file reports with the IRS as soon as they are ready.

Originally published by www.thinkhr.com

A cafeteria plan is an employer-provided written plan that offers employees the opportunity to choose between at least one permitted taxable benefit and at least one qualified employee benefit. There is no federal law that requires employers to establish cafeteria plans; however, some states require employers to have cafeteria plans for employees to pay for health insurance on a pre-tax basis.

To comply with Internal Revenue Code Section 125, a cafeteria plan must satisfy a set of structural requirements and a set of nondiscrimination rules. Violations of the structural requirements will disqualify the entire plan so that no employee obtains the favorable tax benefits under Section 125, even if the plan meets the nondiscrimination rules. Violations of the nondiscrimination rules have adverse consequences only on the group of employees in whose favor discrimination is prohibited.

A cafeteria plan must pass an eligibility test, a contributions and benefits test, and a concentration test for highly compensated individuals to receive the tax benefits of Section 125. Failure to meet these nondiscrimination requirements has no effect on non-highly compensated cafeteria plan participants.

The IRS issued proposed cafeteria plan regulations on August 6, 2007. Final regulations have not been issued. According to the proposed regulations, taxpayers may rely on the proposed regulations for guidance pending the issuance of final regulations.

The proposed cafeteria plan regulations make it clear that the plan must meet the nondiscrimination tests. Also, the plan must not discriminate in favor of highly compensated participants in its operation. For example, a plan might be considered discriminatory if adoption assistance is added to the plan when the CEO is in the process of adopting a child and adoption assistance is dropped when the adoption is final.

Be aware that Section 125 nondiscrimination rules are separate from and unrelated to Section 105(h) nondiscrimination rules. Further, Section 125 nondiscrimination rules apply to all cafeteria plans regardless of their status as fully insured, self-funded, church plan, or governmental plan.

As a practical matter, these nondiscrimination rules prohibit executive health plans offered through a cafeteria plan.

Nondiscrimination testing can help employers avoid rule violations. But there are a number of definitions of key terms used in the tests that must be understood prior to completing the tests:

Highly Compensated Individuals. Highly compensated individuals are defined as:

  • Officers
  • Five percent shareholders
  • Highly compensated employees (HCEs)
  • Spouses or dependents of any of the preceding individuals

Highly Compensated Participant. A highly compensated participant is a highly compensated individual who is eligible to participate in the cafeteria plan.

Officers. Officers include any individual who was an officer of the company for the prior plan year (or current plan year in the case of the first year of employment).

Five Percent Shareholders. Five percent shareholders include any individual who – in either the preceding plan year or current plan year – owns more than five percent of the voting power or value of all classes of stock of the employer, determined without attribution.

Highly Compensated. Highly compensated means any individual or participant who – for the prior plan year or the current plan year in the case of the first year of employment – had annual compensation from the employer in excess of the compensation amount specified in the Internal Revenue Code and, if elected by the employer, was also in the top-paid group of employees for the year. For 2016, the applicable compensation amount is $120,000.

Key Employee. A key employee is a participant who, at any time during the plan year, is one of the following:

  • An officer with annual compensation greater than an indexed amount ($170,000 for 2016)
  • A five percent owner of the employer
  • A one percent owner having compensation in excess of $150,000

For comprehensive information on the eligibility test—including the safe harbor and unsafe harbor percentages and example scenarios—as well as the contributions and benefits test, and safe harbors, request UBA’s Compliance Advisor, “Nondiscrimination Rules for Cafeteria Plans”.

Originally published by www.ubabenefits.com

Minimum essential coverage (MEC) is the type of coverage that an individual must have under the Patient Protection and Affordable Care Act (ACA). Employers that are subject to the ACA’s shared responsibility provisions (often called “play or pay”) must offer MEC coverage that is affordable and provides minimum value.

In the fall of 2015 the IRS issued Notice 2015-68 stating it was planning to propose regulations on reporting MEC that would, among other things, require health insurance issuers to report coverage in catastrophic health insurance plans, as described in section 1302(e) of the ACA, provided through an Affordable Insurance Exchange (an Exchange, also known as a Health Insurance Marketplace). The notice also covered reporting of “supplemental coverage” such as a health reimbursement arrangement (HRA) in addition to a group health plan.

Recently, the IRS released the anticipated proposed regulations, incorporating the guidance given in Notice 2015-68. These regulations are generally proposed to apply for taxable years ending after December 31, 2015, and may be relied on for calendar years ending after December 31, 2013.

The proposed regulations provide that:

  1. Reporting is required for only one MEC plan or program if an individual is covered by multiple plans or programs provided by the same provider.
  2. Reporting generally is not required for an individual’s eligible MEC only if the individual is covered by other MEC for which section 6055 reporting is required.

These rules would apply month by month and individual by individual. Once finalized, the regulations would adopt the same information provided in the final instructions for reporting under sections 6055 and 6056 of the ACA.

For examples under the first rule and more detail on the second rule, as well as how to avoid penalties, view UBA’s ACA Advisor, “Reporting Minimum Essential Coverage”.

Originally published by www.ubabenefits.com

Reports submitted to the U.S. government that include both names and Social Security numbers (SSNs), such as 1095 and W-2 forms, are filtered through U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS). In some cases, employers will receive a No-Match Letter or an Employer Correction Request from the Social Security Administration (SSA) for certain employees. ICE will send a similar letter (the Notice of Suspect Documents) after inspection of files during an I-9 audit when discrepancies are noted.

A mismatch should not be used to take adverse action against an employee, as it may violate state or federal law. It is, however, incumbent on employers who receive such notices to investigate, remediate, and communicate identified errors within established timelines. ICE’s “safe-harbor” procedures include the process employers should follow to resolve questions of worker identity and eligibility to work. These steps, if followed, can eliminate the possibility that a no-match letter can be used as part of an allegation that an employer had constructive knowledge that unauthorized workers were employed in its workforce.

An employer who knowingly ignores facts and circumstances that would lead a person, through the exercise of reasonable care, to determine worker eligibility may incur penalties of $216 to $2,156 per employee, with additional aggregate fines up to an additional 25 percent.

“Actual” knowledge means that an employer willfully employed a worker knowing that the person was ineligible to work.

“Constructive knowledge” occurs when an employer fails to attempt to resolve no-match situations through inquires, or to take appropriate action within a reasonable time. An employer may also be found liable for constructive knowledge if it ignored indicators that called employment eligibility into question.

The following actions should be taken upon receipt of a no-match letter.

Step 1: Review Records

Employers should check their records to determine if the discrepancy is a clerical error, such as typographical and transcription errors and name changes due to marriage. If this is the case, the employer should:

  • Correct its records. All changes to Section 1 of the I-9 form must be completed by the employee, by drawing a line through the incorrect information and writing in the accurate data. If the employee is no longer employed, no correction may be made. An employer can update Section 2 of the I-9. Documents used to verify eligibility to work in the U.S. and identity must meet acceptable requirements of the form in effect when the I-9 was initially completed.
  • The employer should verify that the updated information matches government records. A free verification service that confirms names and SSNs is available through the Social Security Administration’s Business Services Online.
  • Once verified, the employer should draft a memo that details the manner, date, and time of the verification and attach a signed copy to the employee’s I-9 as well as notify the respective agency of those changes.

ICE’s safe harbor provisions allow the employer 30 days from the receipt of the letter to resolve questions.

Step 2: Require Employees Identified in No-Match Letter to Confirm Information

If the employer is not able to resolve issues identified by the respective agency, it should promptly request that the employee confirm that the employer’s records are correct. A sample employee communication is available at www.ssa.gov/employer/sampleltr.doc.

  • If the employer’s records are not correct, it should (in accordance with the agency letter’s instructions) verify the corrected records if new documents are presented, and report the changes to the agency.
  • The employer should also correct its records. An employer may use Section 3 of Form I-9, or, if Section 3 has already been used for a previous reverification or update, it may complete a new Form I-9. Minimally, page two of the original I-9 should be maintained in addition to the new I-9.
  • If the employee responds that the records are correct, the employee should be instructed to pursue the matter personally with the SSA and notify the employer of any changes.

Once again, the safe harbor provisions allow the employer 30 days from the receipt of the letter to resolve discrepancies.

A discrepancy will be considered resolved only if the employer can subsequently verify with SSA that the SSN and name match or with DHS that documents used to verify eligibility are valid.

In the event the requirements of the no-match letter are not met, download UBA’s free Compliance Advisor, “Employment Eligibility: How to Handle Questions about Worker Identity” for information on two courses of action available to employers.

Originally published by www.ubabenefits.com

The U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) began a pilot program in 2012 to assess the procedures implemented by covered entities to ensure compliance with the Health Insurance Portability and Accountability Act (HIPAA). OCR evaluated the effectiveness of the pilot program and then announced Phase 2 of the program on March 21, 2016. Phase 2 Audits focus on the policies and procedures adopted by both covered entities and business associates to ensure they meet selected standards and implementation specifications of the Privacy, Security, and Breach Notification Rules. Covered entities include health plans, health care clearinghouses, and health care providers; whereas, business associates include anyone handling health information on behalf of a covered entity.

Phase 2 Audits of business associates focus on risk analysis, risk management, and reporting of HIPAA breaches to covered entities. OCR emphasizes the importance of audits as a compliance improvement activity in order to identify best practices and proactively uncover and address risks and vulnerabilities to protect health information (PHI).

OCR chose entities to audit through random sampling of the audit pool. Communications from OCR were sent via email, so it is important to check spam filters and junk emails for communications from OSOCRAudit@hhs.gov. OCR emailed a notice to verify contact information. Once the contact information was verified, OCR emailed a pre-audit questionnaire to gather data about size, type, and operations of the entity. This data was used with other information to develop pools of potential covered entities for making audit selections.

Phase 2 Audits consist of three sets of audits. The first set of audits will be desk audits of covered entities and the second set of audits will be desk audits of business associates. These audits will examine compliance with specific requirements of the Privacy, Security, or Breach Notification Rules and covered entities will be notified of their audit in a document request letter. All desk audits in this phase will be completed by the end of December 2016. OCR will select entities and request they electronically submit documentation within 10 days. The third set of audits will be onsite and examine a broader scope of requirements from HIPAA Rules.

On July 11, 2016, 167 covered entities were notified that they were selected for a desk audit. Desk audits of business associates will begin this fall. Download the complete Compliance Advisor, “HIPPA Phase 2 Audits” for best practices for covered entities facing desk or field audits.

Originally published by www.ubabenefits.com

Since the current version of the Form I-9, Employment Eligibility Verification, expired on March 31, 2016, employers have been awaiting a new, updated form. On August 25, 2016, the federal Office of Management and Budget (OMB) approved a revised Form I-9. Consequently, the U.S. Citizenship and Immigration Services (USCIS) has 90 days to update the form and must publish a revised form by November 22, 2016. According to the OMB Notice of Action, this new Form I-9 will expire on August 31, 2019 — a three-year validation period similar to previous validation periods. In the meantime, employers may continue using the current version of Form I-9 (with a revision date of 03/08/2013 N) until January 21, 2017. After January 21, 2017, all previous versions of Form I-9 will be invalid.

Changes to the Form

Many of the Form I-9 changes were designed to help with completing the form and assist in reducing technical errors. For instance, new smart error-checking features have been added when the form is completed using an Adobe PDF viewer or application. Some other new features include:

  • Addition of a supplement where more than one preparer or translator is used to complete Section 1 (translator certification where an employee must check that he or she did or did not use a preparer or translator in completing the form).
  • Controls within the form for users to electronically access the instructions, print the form, and clear the form.
  • Drop-down calendars and lists.
  • Embedded instructions for completing each field.
  • Provision of additional spaces to enter multiple preparers and translators.
  • Quick-response matrix barcode (QR code) that generates once the form is printed and may be used to streamline audit processes.
  • Rather than all other names used, only requiring employees to provide other last names used in Section 1.
  • Removing the requirement that aliens authorized to work provide both foreign passport information and Form I-94 in Section 1 after attestation of such status.
  • Separating instructions from the form.
  • Specific area to enter additional information that employers are currently required to notate in the form’s margins.
  • Validations on certain fields to ensure information is entered correctly.

The new Form I-9 instructions also provide revised abbreviations for use on the form. Employers should use these abbreviations although longer, commonly used abbreviations may still be acceptable. For example, “Permanent Resident Card” is now “Perm. Resident Card (Form I-551).”

Related Rulemaking

Also important, the federal Office of Special Counsel (OSC) has proposed to revise regulations implementing a section of the Immigration and Nationality Act concerning unfair immigration-related employment practices. In these revised regulations, the OSC proposes a new definition of discrimination along with a revision to the language related to unfair documentary practices. The proposed definition clarifies that discrimination is the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility, to include the process related to completing the Form I-9.

There is also a proposed unfair documentary practices portion to prohibit unfair immigration-related employment practices. It would replace the current document abuse provision, which prohibits requiring more or different documents than presented if the employee presented documents from the list of acceptable documents. This also goes to an employer’s rejection of employee-completed Section 1 — which may be considered a discriminatory employment practice.

Currently, the USCIS provides this guidance in the prevention of discrimination in the Form I-9 process.

What to Do

As a response to the many pending changes to the Form I-9 and related laws, the next step for employers is to review current policies and procedures. For instance, employers will still be permitted to print and complete the new Form I-9 by hand, but that may not be a permanent option. In fact, employers and employees may elect to fill out any or all sections of the form by computer, by hand (printed), or a combination of both.

ThinkHR will keep you informed as more information is released. The USCIS suggests that employers visit I-9 Central and subscribe to GovDelivery to ensure receipt of the latest news on the revised Form I-9.

Originally published by www.thinkhr.com

Most employers should be reviewing payroll budgets and job descriptions to ensure that changes to salaries and job classifications are all in order by the December 1 deadline based on the new overtime exempt salary threshold and other final rule changes to the Fair Labor Standards Act (FLSA). Another area that will be impacted by these changes and needs review now is employee benefits.

Review Now

This is the best opportunity to review your company’s eligibility requirements for certain benefits and benefit levels. Some benefit plans may include eligibility requirements based on exempt versus nonexempt status or salary versus hourly status. With the FLSA changes soon approaching, and many companies preparing for their annual open enrollment periods, you may want to use these next few months to review your eligibility requirements and make any necessary changes. These classification changes may unintentionally cause a reduction or loss of certain benefits for some of your employees. Retirement Plans

Retirement Plans

Often, company contributions to retirement savings plans are based on an employee’s salary level. These contributions will increase as you raise salaries or incur additional overtime costs. The costs of short-term disability, long-term disability, and group life insurance plans are frequently based on an employee’s annual earnings; therefore, there may be an increase in these benefits costs as well. Review the eligibility requirements for health and welfare benefits and other fringe benefits offered by your company. Determine if any employees may be impacted and consider whether you will make any changes to those benefit plans.

Affordable Care Act

With regard to the Affordable Care Act (ACA), higher pay may increase the employee threshold for affordability if your company is using the rate of pay or W-2 safe harbor methods to determine health care affordability. Additionally, higher pay may reduce any government-provided health care subsidies that employees may currently be able to receive.

Tracking

Your company’s tracking method for recording hours of service when reviewing your employees’ measurement and stability periods should also be reviewed. Some employers may use different methods for different classes of employees. A change in class for certain employees may impact their measurement and stability period for health care benefit eligibility.

Time Off

Paid time off accruals, paid sick leave accruals, and workplace flexibility will all need to be addressed as you work through these changes. It is extremely important for you to be able to explain the changes to your employees and reinforce the fact that the new overtime law does not negate their importance to the company.

Communicating Changes

Managers should already be talking to employees about these changes and allowing employees to ask questions. Companies need to think about new ways of maintaining the same level of flexibility and autonomy that many of their exempt employees have enjoyed in the past. This may mean thinking of new and different ways of getting the work done that will provide a sense of empowerment and autonomy to the employees. Cross training, work sharing, and fine-tuning processes will allow better efficiencies enabling employees to accomplish more without the need for excessive work hours.

Employee engagement and morale issues are critical concerns as many currently exempt employees, particularly managers, will feel that they have lost their status and prestige. HR professionals and other senior leaders in the organization should be available to have open discussions with these employees to explain the new law and reinforce that this has nothing to do with their overall job performance or level of responsibility. For most, this does not mean a change in job duties; it merely means a change in the recording of hours and method of payment. When managed correctly, employees should not see a reduction in their wages. They should earn approximately the same as or more than their current salary, based on a wage increase, overtime earnings, or adjustment to a comparable hourly wage.

There is no argument that these changes will be significant for many employees. The continued FLSA minimum salary adjustments scheduled to occur every three years will create a new paradigm shift in how exempt and nonexempt employees are viewed. No longer can it be said that all managers are exempt employees, as many will continue to manage employees and also be eligible for overtime. Remember that you can pay your nonexempt employees a salary, but you also must have a method to record their hours worked and you must compensate them for overtime.

These changes are estimated to impact 4.2 million employees across the United States. How you communicate these changes to your employees will help tremendously in preserving a positive morale in your workplace.

Originally published by www.thinkhr.com

On June 8, 2016, Ohio Governor John Kasich signed legislation (H.B. 523) making Ohio the 25th state to adopt a workable medical marijuana law. The legislation will allow seriously ill patients to use and purchase medical cannabis that will be cultivated and processed in-state.

With regards to employment, the bill does not:

  • Require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana.
  • Prohibit an employer from taking any adverse employment action an employer may take under current law because of a person’s use, possession, or distribution of medical marijuana.
  • Permit a person to sue an employer for taking an adverse employment action related to medical marijuana.
  • Prohibit an employer from establishing and enforcing a drug-testing policy, drug-free workplace policy, or zero-tolerance drug policy or interfere with federal restrictions on employment, including U.S. Department of Transportation regulations.

In addition, a person who is discharged from employment because of the person’s medical marijuana use will be found to have been discharged for just cause under the Unemployment Compensation Law if the use violated an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating medical marijuana use and will be thus ineligible for unemployment benefits.

The bill also maintains the rebuttable presumption that an employee is ineligible for workers’ compensation if the employee was under the influence of marijuana and being under the influence of marijuana was the proximate cause of the injury, regardless of whether the marijuana use is recommended by a physician.

The law goes into effect September 8, 2016.

Originally published by www.thinkhr.com

0809Your new position just got approved and, finally, that mission-critical headcount addition is green-lighted. Celebration ensues until the actual work of finding the ideal candidate begins. The first step is to get a job description. In some cases, a perfectly vetted position analysis and description may exist, one that captures the particulars and purpose of the job. For those not fortunate enough to have a compensation professional providing such information, the search to find the right words to describe the work begins. So launches the journey of a thousand words cut-and-pasted from Indeed.com.

The recent changes to the Department of Labor (DOL) overtime rules, which will impact an estimated 4.2 million workers, put the spotlight back on job descriptions, or more specifically, the content of those documents as businesses are forced to assess whether their employees meet the duties test for exemption. This was not the first time in recent years that the DOL has focused on essential job functions. The 25th anniversary of the Americans with Disabilities Act (ADA) brought additional entitlements to individuals, including extending accommodation to pregnant workers and tagging onto Family and Medical Leave Act (FMLA) time off with allowances for extended ADA leaves. All of these changes rely on documentation of essential job functions and the conditions under which they are performed.

Since the enactment of the ADA, most employers have been incorporating physical requirements into position descriptions. If, however, the level of detail is lacking, the accommodation process can be derailed. Consider:

  • the frequency of physical requirements, not just the weight lifted, and
  • the percentage of time spent standing, sitting, bending, or moving and the level of repetition in the performance of duties.

Exempt (white collar) jobs require unique differentiators, including stamina requirements such as:

  • Longer hours and extended work weeks
  • Percentage of time spent travelling
  • Specific credentials (i.e. CPAs)

Additionally, if there are environmental or psychological requirements applicants must meet, these should be included in the job description.

The ADA views essential job duties through the lens of the ability to perform with or without accommodation, thus taking a broad view of the scope of work. Hence, it may be incumbent on an employer to reassign duties, restrict tasks or change responsibilities in order to accommodate an individual. This can create difficulties when trying to comply with the Fair Labor Standards Act (FLSA).

For example, to be considered exempt under the executive duties test within the FLSA, the employee must:

  • regularly supervise two or more other employees, and
  • have management as the primary duty of the position, and
  • have some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

The regulations call out specific management duties including training, appraising productivity, monitoring work, and, in general, being “in charge.” In the event that such a manager required accommodation under the ADA, it is possible that in order to comply with the letter of the law, the removal of responsibilities might result in a situation where the individual is no longer meeting the duties requirement to be considered exempt. In this scenario, it might be advisable, for example, to include language in the job description that establishes presence at work as an essential function of management.

This is not a call to front load the descriptions with an overflow of detail. It is, however, important to ensure that the job description reflects the actual functions and outcomes needed and the conditions that impact those processes. It requires careful consideration and a comprehensive needs analysis.

Free resources for detailed information about jobs include the Bureau of Labor Statistics Occupational Outlook Handbook (www.bls.gov) and O*Net OnLine (www.onetonline.org). Both sites are maintained by the U.S. Department of Labor and have substantial databases of job information that represents thousands of employers nationally, providing evidentiary support for the inclusion of essential job functions in a position description.

The following is a reference chart illustrating the importance of job descriptions under each employment law.

Employment
Law
Impact of the Job Description
Fair Labor Standards
Act (FLSA)
The FLSA looks to the content of a job to as a source of information to complete a duties test to ascertain the exempt or non-exempt status of positions.

A job description is not a stand-alone validation of status, but an accurate list of essential functions can go a long way in confirming an employee’s exempt status.

Americans with Disabilities
Act and Pregnancy
Discrimination Act
Detailed job descriptions outline the requirements for a candidate to be considered “qualified.” An employer is not obligated to accommodate an applicant who cannot meet the legitimate skills, experience, education, or other requirements of a position. Pregnancy is treated the same as any other disability.

Undertaking an interactive dialog with a qualified individual depends on well-defined documentation that articulates the tasks, outcomes and the conditions under which the work is performed.

Employers may need to offer employees alternative positions as an accommodation. As new or existing jobs open, they should be reviewed to ensure the credentials needed are current and viable.

Family and Medical
Leave Act (FMLA)
In lieu of a job description, medical providers rely on employees’ characterization of their work. This can be misleading and cause the provider to miss critical information.

Employees who request intermittent leave for a serious health condition could potentially be given temporary job modifications if medical restrictions were more clearly aligned with essential job functions.

Return to work clearances may be compromised if medical providers are not given detailed information about job requirements.

Occupational Health Act Employers lower their experience rating when they are able to implement a robust light duty return to work program. This requires explicit environmental, physical and emotional details in job descriptions.

Accurate credentialing and experience requirements outlined in job descriptions can alleviate accidents and injuries from unqualified workers.

Title VII, including Age
Discrimination in
Employment
Title VII requires that consideration for hiring and compensation, be based on bona fide job requirements. Accurate, impartial recaps of work requirements can serve as a defense against allegations of bias.

Employee performance, which impacts discipline, promotion and opportunities for advancement should be measured against the road map of a comprehensive job description that is measurable and defendable.

Originally published by United Benefit Advisors – Read More