HR & the Law in the News
April 2016, Volume 15, Issue 4
Please enjoy this latest edition of FiveL Company's monthly e-newsletter, bringing you current news related to employment policies, practices and programs. 

The discounted, annual subscription to FiveL Company's 2016 webcast series is still available.  Subscribe for the 8 remaining webcasts and get one FREE! Pre-approved by HRCI and SHRM for 1.25 credits each! Click here for more info or to register. 

ALERT: Maryland Employers
Please be sure to scroll to the end of the article "Enough Already..." and help shape Maryland's public policy on paid (sick) leave. A legislative mandate that will impact most Maryland employers is on the move through the House and Senate this week. OR just CLICK HERE for more information. 
Ignorance is Bliss?     
Workplace Wellness Making You Sick?
french bulldog dog very sick with ice pack or bag on head eyes closed and suffering thermometer in mouth isolated on white background
April 20th will mark one year since the U.S. Equal Employment Opportunity Commission (EEOC) published its proposed rule on Workplace Wellness Programs. The purpose was to amend the Americans with Disabilities Act (ADA) to provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations.  

Six months later, on October 30, 2015 the EEOC published a related notice on workplace wellness programs as they related to compliance under the Genetic Information Non-Discrimination Act (GINA). So while we await these final rules let's take a look at some of the issues addressed by courts and administrative agencies with regard to what employers can, cannot and should do to advance workplace wellness and implement related programs.

The 5th US Circuit Court of Appeals (covering LA, TX and MS) recently considered a case in which an employee declined to participate in the employer's wellness program. The employee was then placed on an alternate assignment as a result. He filed a charge with the U.S. Equal Employment Opportunity Commission and ultimately filed a claim in court asserting that the mandatory exam, which was required as a part of the wellness program violated the Genetic Information Non-Discrimination Act (GINA).Court rules: Employer: 1 / Employee: 0

Why? The court reminded us that under GINA, while genetic information is likely medical information, not all medical information is genetic information. So when the employer required only a medical exam, there was no violation of GINA. 

In another case an employer offered a financial incentive of $600 to participate in its wellness program and conditioned eligibility to enroll in its employee health care plan upon the employee's participation in its wellness program. The EEOC sued the employer for violating the Americans with Disabilities Act (ADA). Once again, the court found in favor of the employer. This time it was a federal court in Wisconsin (cheese, glorious cheese). Why? The ADA has a safe harbor provision that permits employers to administer benefit plans that are based on "underwriting risks, classifying risks, and or administering such risks." 

Workplace wellness programs have faced other legal challenges: 
  • Under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act (ADA) employees sue where an employer fails to provide reasonable accommodation for an employee who objects to a flu or other vaccine for religious or medical reasons.
  • Under a 1st amendment lawsuit when an employee was denied unemployment insurance benefits after being fired for refusing a flu shot for secular reasons. 
  • The US Department of Labor published a Fact Sheet on workplace wellness programs and how they are impacted by the Affordable Care Act. 
But do they work?  Do wellness programs meet their intended goals and objectives? Read for yourself and draw your own conclusions.  Here is just one of myriad articles that I found compelling in giving some of the reports a critical, objective review. 


So stay tuned. In the meantime talk to your company's legal counsel to ensure your workplace wellness policies, programs and practices, current or under consideration will comply today and tomorrow as this evolution continues. 

black African American ethnicity tired and frustrated woman working as secretary in stress at work office desk with computer laptop asking for help in business frustration concept
Enough Already! (or is it?)
This month I had the opportunity to testify before two committees of the Maryland General Assembly on two employment-related bills: a paid sick leave mandate and an equal pay bill.  This was just one more opportunity to consider the voluminous mandates with which employers must already comply.  It frequently leads me to ask, "When is enough (not) enough?"  
As business owners grow their market share I find they are stunned to find all the rules and regulations under which they are covered. I find small (and large) government contractors are becoming overwhelmed with the plethora of Executive Orders issued in just the last 24 months with more pending that impose additional mandates upon them.  

Think about all the current legislative trends we see across the country at the federal, state and local levels.  
  • Extending employment protections, including the right to sue an employer to non-employees such as unpaid interns; 
  • paid and unpaid leave mandates, 
  • equal pay and pay transparency laws that expand the existing protections under federal law; 
  • increased fines and penalties for worker misclassification; 
  • fair scheduling requirements; 
  • mandatory rest breaks; 
  • employer liability for workplace bullying;
  • restricting, limiting or barring non-compete agreements; 
  • shielding criminal convictions; 
  • expanded fair employment (non-discrimination) protections; and
  • that enough? Because we can list more.   
So what's my point in this article?  Be proactive. Help shape public policy.  I have had the honor of testifying before federal and state legislative committees and agencies since 1994.  Nearly every time I have found that more often than not the intent behind the legislation is sound. But it is the path by which we get from here to where we want to be that needs to be understood. Nearly every employer I know supports flexible scheduling, equal pay for equal work, and maintaining workplaces that are equitable and free from harassment, discrimination and bullying.  But mandates that regulate when, where, how and for whom employers with just a few employees to large employers must administer their respective policies, programs and procedures often have unintended consequences.  So join in the dialogue. Partner with your state or local chambers of commerce. Work with your professional or trade associations. Stay informed. Advocate: Be one and do it. 

Alert! Maryland employers. Here's an opportunity. As you read this votes are being cast on a paid sick leave mandate bill. The bill as currently amended will require Maryland employers to provide at least one hour of paid sick leave for every 30 hours that an employee works.  This includes part-time employees working at least eight (8) per week.  The bill also mandates when that leave has to begin to accrue, when the employee must be able to use it, how much must roll over from year to year and reinstatement of unused leave if an employee is rehired within 12 months, and more! The MD SHRM State Council, Inc. (MD SHRM) for which I serve as the Gov't Affairs Director has found that more than 83% of our members surveyed opposed this bill as drafted.  CLICK HERE to take action TODAY!  If you are not a SHRM member you may edit the letter to represent your company or organization's views. 
10th Annual Public Seminar: 
Employment Law, Legislative & Regulatory Update
FiveL Company is pleased to again offer this annual, full-day seminar (formerly known as HR and the Law). More than 50% of the seats are already sold so don't delay; register today!  The event will be held in Columbia, MD from 8:00 a.m. - 4:00 p.m. on Friday, April 29th.  The program is pre-approved by HRCI and SHRM for 6.5 credit hours. Click here for more information or to register.
Next Webcast and Upcoming Events!

Next Webcast: Workplace Flexibility: When Enough is (Not) Enough. Wednesday, April 27th 10:00 - 11:15 a.m. Pre-approved by HRCI & SHRM for 1.25 credits. Click here for more information or to register. 

April 18th - "Contractors, Interns, and More (Oh My!): Managing a Non-Traditional Workforce" presented during SHRM's Talent Management Conference, Orlando FL. 

April 20th - "The State of HR: A Look at Today's Workplace Trends" presented for the members and guests of the Bux-Mont HR Association, Telford, PA. 

April 29th - FiveL Company's 10th Annual Public Seminar, "Employment Law, Legislative & Regulatory Update" Columbia, MD.  8:00 a.m. - 4:00 p.m.

For a full list of upcoming events click here
It's Just Fine - 
Keep Using "Old" Form I-9 (for now)...
In case did not notice, the current Form I-9 expired March 31st. This is the Form by which an employer must verify an employee's identity and eligibility to work in the U.S.  Where's the new Form? Well, this is not the first time that the new Form has not been available by the time the current form has expired.  So what is an employer to do?  Like the title reads, it's fine to continue to use the current Form until the new Form is published.  For more information click here.  
Here it is...the infamous and oh-so-important disclaimer...This publication does not constitute the rendering of legal advice.  You should consult your company's employment or legal counsel for guidance on any particular issue.