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Current as well as former employees have information that could prevent accidents and disasters and it is up to HR to gather it and help solve problems that could lead to future catastrophes.
“The sooner you can get the feedback the better, because you can solve problems before it is too late,” said Beth Carvin, the president and CEO at Nobscot Corp., an HR technology company that specializes in employee retention and development.
She feels that HR should be conducting exit interviews, especially in high risk occupations like health care, to identify any areas that may put the company, its customers, and consumers at risk.
Case in point is the fungal meningitis outbreak in late 2012 among patients who received contaminated steroid injections. The main focus of the investigation of this disaster was the New England Compounding Center (NECC), a pharmacy in Massachusetts, but ex-employees of Ameridose, a drug manufacturer that shared many of the same owners as NECC, came forward later with claims that NECC’s corporate culture encouraged shortcuts even if it compromised safety.
According to The New York Times, one ex-quality control technician at Ameridose stated that he was overruled by management when he tried to stop the production line when he spotted missing labels. An ex-pharmacist said she resigned because she was worried that unqualified people were preparing dangerous narcotics for use by hospitals. A salesman shared that he was allowed into the sterile lab to help out with packaging and labeling during rush orders, without any prior training.
Employees, as shown, had strong concerns about business practices as both the NECC and Ameridose. Carvin expressed that this case is a big reminder of how important getting this kind of feedback in an exit interview is. Collecting data like this during an exit interview may have allowed someone in HR to make changes before the fungal meningitis disaster occurred.
A Listening Culture
So how exactly can HR use employee feedback to prevent a costly tragedy?
One of the first steps is to create and maintain a work environment and company culture where open communication is encouraged.
Employees should feel comfortable to share their concerns on policies and practices, especially when they relate to safety and compliance. It is important to create a culture where you listen to your employees and they actually believe that you are listening.
Once you provide opportunities for employees to give feedback, you must then also act upon it, Carvin advised. This is the challenge that faces HR. You get busy and may not have time to deal with the feedback collected, but in order to becoming a listening culture, you should try to act on the information you receive from employees.
And it is important to communicate this to employees as well. If you implement something based on employee feedback, let them know that you are doing this as a result of employee feedback. The more you do that, the more feedback you will end up receiving.
Make The Business Case
Managers also need to be trained on the importance of balancing business needs with safety and to take frontline employee concerns seriously.
Carvin explained that this is where HR needs to be involved. “In the contaminated steroid tragedy, if HR had identified that safety was being set aside in favor of speed, they could have made a case to senior management for why this was bad not just from a consumer safety standpoint but also from a business prospective”.
Especially in high risk occupations, HR should analyze the information for trends and share important findings and recommendations with senior management. HR can then help facilitate discussions and set up task forces for the next steps.
How to Gather Employee Feedback
The key to gathering employee feedback is a systematic approach. Employee responses should be gathered in such a way that they transform from anecdotal stories (most often collected from a few disgruntled employees) into information that help shine light on specific and objective trends.
You need to be able to show your data is transforming from the anecdotal, which senior management will typically write off, to being aggregated and tracked. You will begin to notice that an issue will come up from not just one person but three or four, and then maybe seven, as your data builds up over time.
In exit interviews, you want to go beyond the “Why did you leave?” questions. You want to have employees rate the company on a number of factors like the work environment, direct supervisors and senior management, and try to get feedback on all aspects of their workplace experience. This is when you will see the issues start to come out.
HR staff should use both quantitative and qualitative ratings, noted Carvin. The quantitative points to where the issues are while the qualitative lets you understand the data better as it lets you know what the concern is.
To get the most out of an exit interview, Carvin suggests HR should break the data down into departments. Each department may have its own concerns, even among job types. You could then break the data down even further into gender and race and really pinpoint issues before they get bigger.
The Family Medical Leave Act (FMLA) allows employees to take 12 weeks of leave to care for their own or a family member’s serious health condition and up to 26 weeks for military caregiver leave. An employee can take this leave in one block, over several stretches of time or intermittently. For an employee to take intermittent leave, they need to provide a certification that there is a medical need for such leave.
While longer FMLA leaves are typically straightforward, the ability of an employee to take small increments of FMLA leave periodically can generate administrative headaches for employers and raises concerns about employee abuse of intermittent leave. The FMLA offers a number of tools (many of which are not employed) that employers can use to discourage abuse of intermittent leave. Below are eight of the best strategies for helping to get a handle on the problem.
Tip #1- Question the Original Certification
There are a number of opportunities to ensure that a certification calling for intermittent health related absences is sufficient, valid, and supports the need for intermittent leave. When an employee submits a certification for a chronic condition that will flare up and require intermittent leave (such as asthma or migraines), the HR professional reviewing the certification should consider these options:
Incomplete or insufficient certification
When a certification has missing entries or is vague, you may ask the employee the provide complete and sufficient information. The request must be made in writing and must specify the reason the certification was considered incomplete or insufficient. The employee must then provide the additional information within 7 days. If the employee fails to provide this information, leave may be delayed or denied.
Authentication and Clarification
You may contact the health care provider to ensure that they actually prepared the certification or to clarify the meaning of a response, but an HR professional, health care provider, leave administrator or management official to make the contact. The employee’s direct supervisor may not be the one who contacts the health care provider. During this process, be careful not to request more info than what is required to authenticate or clarify the form. This can be used at the recertification stage as well as the initial certification.
Tip #2- Ask for a Second Opinion
Employers who have reason to doubt the validity of an initial certification may ask for a second opinion. The physician may be one of the employer’s choosing, but it can not be one the employer uses on a regular basis. It is the employer’s responsibility to pay for the second opinion. If the first and second opinions differ, the employer may require a third health care provider certification, again at the expense of the employer. The third provider’s opinion is binding. Although there are a number of opportunities to ask for recertification of an employee’s serious health condition, you may not seek second or third opinions on recertification.
Tip #3-Ensure That All Absences Related To The Condition Are Counted
The job of managing intermittent leave is not over after an employee submits a certification that calls for sporadic health related absences. Employers must be certain that all absences related to the condition are counted against the employee’s FMLA entitlement, while at the same time ensuring that they are not counted against the employee under a no-fault attendance policy.
In larger organizations, front line supervisors must be the eyes and ears of the company and must pass along the information about FMLA covered intermittent absences to HR. This, in turn, requires employers to train supervisors to recognize absences that may be covered by FMLA.
Identifying FMLA absences may not be as simple as it may seem, in part because the US Department of Labor and the courts have held that the employee does not have to cite the FMLA in a request. If there is an existing certification, it is enough for the employee to notify the employer that they had a recurrence of the health condition covered by the certification. For first time health related absences, supervisors should be trained to notify HR any time an employee is out for more than three days with an illness, especially if an employee saw a physician during that time.
Tip #4-Require Employees To Follow Your Paid Leave Policy
Employers may require that employees use up paid leave time for their intermittent FMLA absences. In fact, all employers should include such a requirement in their FMLA policies and enforce the practice of using up paid time off during FMLA leave, in order to prevent the situation where an employee can take paid leave after their FMLA leave expires and thereby extend a leave of absence beyond the FMLA entitlement.
The 2008 FMLA regulations made it clear that employers may require employees to abide by your paid-time off policies in order to be paid for FMLA leave time.
Tip #5-Request Recertification
FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave, including intermittent leave. Unless there are changed or suspicious circumstances, these rules of thumb apply:
As with initial certifications, the employee has 15 days to provide the recertification.
Tip #6-Follow Up On Changed Or Suspicious Circumstances
You should always keep tabs on use of FMLA leave, and may want to pay special attention to patterns of intermittent leave usage. You may seek recertification more frequently than 30 days if: a) the circumstances described by the existing certification have changed, or b) the employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.
“Changed circumstances” include a different frequency or duration of absences or increased severity or complications from the illness. The regulations allow you to provide information to the health care provider about the employee’s absence pattern and ask the provider if the absences are consistent with the health condition.
“Information that casts doubt on the employee’s stated reason for the absence” may be information you receive (possibly from other employees) about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition. An example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.
A note of caution- Employers who receive information from coworkers about an employee’s actions while on leave must be certain the information they receive is credible and that the coworker has no hidden motive against the person on leave. Always attempt to independently verify information received from coworkers before taking action or requesting recertification for suspicious circumstances.
Tip #7-Control The Way That Employees Schedule Planned Treatment
Employees may take intermittent leave for treatment, therapy, and doctor visits for serious health conditions. FMLA regulations specifically require that employees schedule those absences for planned medical treatment in a way that least disrupts the company operations. When you receive a request for this type of intermittent leave, communicate with the employee about the frequency of the treatment, the office hours of the health care provider and way that the employee may be able to alter their schedule to cut down on disruptions.
Tip #8-Consider Temporary Transfers
If the need for intermittent leave is foreseeable, you may transfer the employee during the period of the intermittent leave to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave. The alternate position must have equivalent pay and benefits, but does not have to provide equivalent duties. If the employee asks to use leave in order to work a reduced work schedule, you may also transfer the employee to a part time role at the same hourly rate as the employee’s original position, as long as the benefits remain the same.
You may also allow the employee to work in the employee’s original position, but on a part time basis. You may not eliminate benefits that would otherwise not be provided to part time employees, but may proportionately reduce benefits such as vacation leave if it is the employer’s normal practice to base the benefits on the number of hours worked.
These tips will not entirely eliminate the problem of employees trying to take advantage of the intermittent leave regulations, but they will help.
The Patient Protection and Affordable Care Act (the “ACA”) adds a new Section 4980H to the Internal Revenue Code of 1986 which requires employers to offer health coverage to their employees (aka the “Employer Mandate”). The following Q&As are designed to deal with commonly asked questions. These Q&As are based on proposed regulations and final regulations, when issued, may change the requirements.
Question 3: When Is the Employer Mandate Effective and What Transition Rules Apply?
Large employers are subject to the Employer Mandate beginning on January 1, 2014. However, the effective date for employers that have fiscal year health plans is deferred if certain requirements are met. There are also special transition rules for offering coverage to dependents, offering coverage through multi-employer plans, change in status events under cafeteria plans, determining large employer status, and determining who is a full-time employee.
Fiscal Year Health Plans
An employer with a health plan on a fiscal year faces unique challenges concerning the Employer Mandate. Because terms and conditions of coverage may be difficult to change mid-year, a January 1, 2014 effective date would force fiscal year plans to be compliant for the entire fiscal 2013 plan year. Recognizing the potential burdens, the IRS has granted special transition relief for employers that maintained fiscal year health plans as of December 27, 2012. Both transition relief rules apply separately to each employer in a group of related employers under common control.
Coverage of Dependents
Large employers must offer coverage not just to their full-time employees but also to their dependents to avoid the Employer Mandate penalty. A “dependent” for this purpose is defined as a full-time employee’s child who is under age 26. Because this requirement may result in substantial changes to eligibility for some employer-sponsored plans, the IRS is providing transition relief for 2014. As long as employers “take steps” during the 2014 plan year to comply and offer coverage that meets this requirement no later than the beginning of the 2015 plan year, no penalty will be imposed during the 2014 plan year solely due to the failure of the employer to offer coverage to dependents.
Multiemployer Plans
Multiemployer plans represent another special circumstance because their unique structure complicates application of the Employer Mandate rules. These plans generally are operated under collective bargaining agreements and include multiple participating employers. Typically, an employee’s is determined by considering the employee’s hours of service for all participating employers, even though those employers generally are unrelated. Furthermore, contributions may be made on a basis other than hours worked, such as days worked, projects completed, or a percentage of earnings. Thus, it may be difficult to determine how many hours a particular employee has worked over any given period of time.
To ease the administrative burden faced by employers participating in multiemployer plans, a special transition rule applies through 2014. Under this transition rule, an employer whose full-time employees participate in a multiemployer plan will not be subject to any Employer Mandate penalties with respect to such full-time employees, provided that:
(i) the employer contributes to a multiemployer plan for those employees under a collective bargaining agreement or participation agreement
(ii) full-time employees and their dependents are offered coverage under the multiemployer plan, and
(iii) such coverage is affordable and provides minimum value.
This rule applies only to employees who are eligible for coverage under the multiemployer plan. Employers must still comply with the Employer Mandate under the normal rules with respect to its other full-time employees.
Change in Status Events under Fiscal Year Cafeteria Plans
The IRS has also issued transition rules that apply specifically to fiscal year cafeteria plans. Under tax rules applicable to cafeteria plans, an employee’s elections must be made prior to the beginning of the plan year and may not be changed during the plan year, unless the employee experiences a “qualifying event”. An employee’s mid-year enrollment in health coverage through an Exchange or in an employer’s health plan to meet the obligation under the ACA’s individual mandate to obtain health coverage is not a “qualifying event” under the current cafeteria plan rules.
The IRS addresses this by providing that a large employer that operates a fiscal year cafeteria plan may amend the plan to allow for mid-year changes to employee elections for the 2013 fiscal plan year if they are consistent with an employee’s election of health coverage under the employer’s plan or through an Exchange. Specifically, the plan may provide that an employee who did not make a Sec. 125 election to purchase health coverage before the deadline for the 2013 fiscal plan year is permitted to make such an election during the 2013 fiscal plan year, and/or that an employee who made a Section 125 election to purchase health coverage is permitted to revoke/change such election once during the 2013 fiscal plan year, regardless of whether a qualifying event occurs with respect to the employee.
This transition rule applies only to elections related to health coverage and not to any other benefits offered under a cafeteria plan. Any amendment to implement this transition rule must be adopted no later than December 31, 2014 and can be retroactively effective if adopted by such date.
Determining Large Employer Status and Who is a Full-Time Employee
The IRS has also issued transition rules for determining large employer status and determining who is a full-time employee. In general, large employer status is based on the number of employees employed during the immediately preceding year. In order to allow employers to have sufficient time to prepare for the Employer Mandate before the beginning of 2014, for purposes of determining large employer status for 2014 only, employers may use a period of no less than 6 calendar months in 2013 to determine their status for 2014 (rather than using the entire 2013 calendar year).
The official revised Employment Eligibility Verification Form I-9 was released March 8, 2013 by the U.S. Citizenship and Immigration Services (USCIS).
Employers should begin using this new form immediately. The new Form I-9 will contain a revision date of 03/08/13 that is located on the bottom left-hand corner of the form.
Final Changes to the Form I-9
The revised Form I-9 makes several improvements designed to minimize completion errors. The key revisions to Form I-9 include:
60-Day Grace Period
Prior versions of the I-9 will no longer be accepted and should not be used after May 7, 2013. The agency is providing employers 60 days to make the necessary internal changes in their business processes to implement the new form.
The new I-9 form can be downloaded here.
A Spanish-language version of the new Form I-9 is available, however may only be filled out by employers and employees in Puerto Rico only.
Handbook for Employer
The M-274 Handbook for Employers is in the process of being updated as well. Employers are advised by USCIS to follow instructions on the new Form I-9 until the revised handbook has been updated.
Employers are required to maintain an I-9 for as long as an individual is employed and for the required retention period following their employment termination, which is the later of three years after the date of hire or one year after the date employment ended.
Failure of an employer to ensure proper I-9 completion and retention may subject the employer to civil monetary penalties, and possibly even criminal penalties.
USCIS noted that employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file, unless reverification applies.
Imagine you are the Hiring Manager for a distribution warehouse and you are interviewing applicants for a materials handler position. The first candidate enters the room, standing at a height of 5’4”, weighing more than 500 pounds. You continue the interview and learn that he has high qualifications, but you can’t help considering how his weight may affect his work performance.
You anticipate that his obesity might put him at a greater risk of developing serious illnesses that may lead to absenteeism. You also consider that accommodations may be required for him to use the fork lift and other machinery, and you worry he may pose a safety threat if he were unable to move quickly enough to evacuate in the event of an emergency.
Based on these considerations, you decide not to hire this candidate. Was this proper or did you put too much emphasis on his obesity and risk liability? This is the question many business employers have had to face in light of the Americans with Disabilities Act (ADA). Recent cases brought by the EEOC may shed light on whether severe obesity is a protectable disability, but the question still remains: when is obesity “severe” enough to constitute an ADA-protected disability?