HR Elements August 2014
Ideas and Information for Human Resources Professionals

No Rest For The Weary

Why is a muffler salesperson always tired? Because their work is exhausting! You may think that a story on sleep deprivation should be in the wellness section, but the topic really does cover employee relations. Why? An article on states that employees who are sleepy are not only less productive, but are more prone to causing accidents and increasing health care costs.

This is corroborated by a recent news story about a Chicago Transit Authority train that derailed -- allegedly due to the operator falling asleep at the controls -- and injured several people. There was also the story of a London banking intern who collapsed and died after working 72 hours straight. Even Arianna Huffington, founder of the Huffington Post, broke her cheekbone after a fall she said was caused by exhaustion. That company now has two "nap rooms" that employees can use if they need a break to help them regain focus.

According to the Centers for Disease Control (CDC), 30% of the U.S. workforce is not getting enough sleep. Furthermore, chronic diseases such as diabetes, obesity, heart disease, depression and even early death have all been linked to a lack of sleep.

Better sleep for improved performance isn't just relegated to the office. In a Huffington article, many famous athletes, including basketball player LeBron James, football player Larry Fitzgerald, Olympic sprinter Usain Bolt, golfer Michelle Wie, tennis player Rafael Nadal, Olympic swimmer Michael Phelps, NASCAR driver Kurt Busch, and Olympic skier Lindsey Vonn all require more than the recommended eight hours of sleep, with some needing up to 12 hours.

According to a Harvard University study, sleep deprivation impacts U.S. companies to the tune of $63.2 billion a year in lost productivity. Based on the 2012 Employee Benefits Survey by the Society for Human Resource Management (SHRM), there are wellness programs in nearly 90% of all U.S.-based large companies, yet few address sleep issues and nap rooms are only available in 6% of the companies of those polled.

In that same article, the author points out that sleep is not a wellness issue but a risk-management issue. Proof of this comes from Christopher Barnes, an assistant professor of management at the University of Washington in Seattle. He and a colleague found, in a 2009 study of 23 years of mining accidents, that there was a nearly 6% increase in injuries because of daylight saving time.

It's not that employers are ignoring the problem of sleep deprivation; many simply are unaware that a problem even exists. What's needed is a shift in corporate culture that recognizes the benefits of sleep and how well-rested employees can enhance the company's bottom line.


Think Twice Before Blocking Social Media At Work

Earlier this year, a nurse at New York Presbyterian hospital posted a photo on Instagram. The photo did not show any people, but captured the image of an ER trauma room after being used to treat a man hit by a subway train. The nurse, a seven-year ER veteran at the hospital, was subsequently fired. According to the nurse, she was not fired for breaching hospital policy, nor did she violate the Health Insurance Portability and Accountability Act (HIPAA); she was fired for being insensitive.

Knowing this, how should employers handle social media in the workplace? Regardless of how company executives or HR personnel feel about this topic, we all live in a world that is now practically ruled by social media. Its popularity has skyrocketed in recent years and the influence of social media is growing by leaps and bounds. In fact, almost every major company in the United States uses social media for business purposes. Recruiters are even using social media as part of their hiring process by tweeting job openings or looking for more information about candidates on LinkedIn or Facebook.

It seems, however, that while social media usage is surging among employees, access to this at work is actually decreasing by way of companies blocking access. This is not surprising given that employees can post negative comments about their employer or other coworkers. However, an article on argues that companies are fighting a losing battle. If an employee wants to access social media while at work, yet the site is blocked by the employer, all that employee needs to do is take out his or her mobile phone. Assuming that companies want to retain top talent, blocking access to social media is probably not a good idea. Most employees benefit from taking a short break, so instead of cutting out social media altogether, a company should establish clear guidelines for what is considered acceptable to post as well as how much time can be spent.

Social media guidelines should always be evolving to keep up with the latest trends and sites, but they should also be absolutely unambiguous and straightforward. An employee should know what is allowed both inside and outside the office. A great way to emphasize the boundaries is to train employees and managers about the power of social media and how best to use it so as to avoid any problems. A simple tip to remember is that anything said online can easily impact a person's career and reputation, so be professional.

Employers need to be vigilant not only of what is posted by their employees, but whether break time is being abused by employees constantly on social media sites. There is a fine line between job productivity and distraction and HR executives need to determine whether short, unscheduled breaks are okay. If employees are routinely putting in 50-plus hours at work, is it really so bad if they spend a few minutes each day on social media? It actually might do more harm to morale by instituting a draconian policy. Social media in the workplace is not about technology, but about performance and productivity. Trying to solve an issue involving an employee's lack of performance via technological solutions probably won't work. Any employee spending too much time on social media should be appropriately disciplined, counseled, or warned rather than attempting to turn it off for everyone.


Reducing Work Stress In The Summer

Ask any employee how they're doing and you're likely to hear the answer, "I'm feeling stressed today." Oh, really? EVERYONE at work is stressed at one time or another.

That being said, there are definitely levels of stress and some jobs are more stressful than others. According to, the ten MOST stressful jobs of 2014 are: Enlisted Military Personnel, Military General, Firefighter, Airline Pilot, Event Coordinator, Public Relations Executive, Senior Corporate Executive, Newspaper Reporter, Police Officer, and Taxi Driver. On the flipside, the LEAST stressful jobs of 2014 are: Audiologist, Hair Stylist, Jeweler, University Professor, Seamstress/Tailor, Dietician, Medical Records Technician, Librarian, Multi Media Artist, and Drill Press Operator.

Most people know someone who is over-caffeinated, always frantic, and rushing around like a chicken with its head cut off. While stress can sometimes be motivational, the key is not to accept, complain, or -- even worse -- brag about the level of workplace stress, but rather to actually do something to reduce it. While many people may think they need to totally disconnect from work, go to a gym, or take a vacation in order to reduce their stress, another excellent article on discusses the simple ways people can de-stress without significantly altering their daily routine.

The first tip is to breathe. People do this every day as part of the body's autonomic function, but a stressed employee should take a moment to deliberately change his or her breathing pattern. Sit up straight, or even stand up. Then take a deep breath, hold it for a few seconds, and exhale slowly. Repeat this a few times.

Another way to reduce stress is to go outside. Many employees get cooped up in their office or cubicle and don't have access to fresh air and natural sunlight. The cure for this is to take a quick break and head outdoors. It may not seem like a big deal, but couple this with the breathing exercise and stress will seem to melt away in the summer heat.

I mentioned earlier that a person doesn't need to go to the gym to reduce stress, but that doesn't mean exercise is off limits. On the contrary, physical activity is perfect for releasing endorphins -- the body's "feel good" neurotransmitters that naturally reduce stress. It doesn't really matter what employees do for exercise, they just need to pick something they enjoy and stick with it.

"Greening" a person's workspace is another great solution. By "greening," I'm not referring to being environmentally friendly -- though that's good, too -- I mean that plants should be added as a calming effect.

If these simple tips aren't enough, then it's time to tackle the tougher workplace stress inducers. Get the complicated or tough stuff out of the way first. Most people don't want to deal with their most difficult tasks, yet these are exactly what are causing the most amounts of stress. Get them out of the way and everything else will be a piece of cake.

As each task is completed, it's now time to unclutter that messy desk. If you work in an office, one of the key ways to relax is to create a calming environment. Besides the aforementioned "greening," a well-organized workspace, where only what's needed is kept and the rest filed or shredded, is an excellent stress-relieving regimen.

Finally, if you can, stop multi-tasking. Human beings are just not great multi-taskers and when they are pulled in many directions, the greater the stress. Consider this example: it's much less stressful to simply drive to a destination versus drive, talk/text on a mobile phone, listen to the radio, discipline kids in the vehicle, all while following a GPS.

How each employee reduces his or her stress is up to them, but it's important to know that there are many options that require little in terms of effort. It's up to the employee to figure out what methods work best.


Top 10 FMLA Employer Mistakes

Angela A. Ripper
Assistant Vice President and Senior Counsel
Unum Group, a UBA Strategic Partner

The Family and Medical Leave Act (FMLA) regulations that became effective in 2009 provide employers with mechanisms by which we can better curb FMLA abuse. However, there are also some traps employers can fall into if they do not review the regulations carefully and administer leave requests appropriately. 

The following are the top 10 mistakes employers make that allow FMLA abuse and can create liability for employers:

  1. Improperly determining eligibility: To be eligible for leave, employees must have worked for a covered employer, they must have worked 1,250 hours and 12 months, and they must have worked at a worksite where there are 50 employees in a 75-mile radius.
  2. Deeming employees FMLA eligible: An employer cannot "deem" an employee eligible for FMLA if they are not eligible. An employer cannot deem an absence to be FMLA-covered if it is not.
  3. Failure to provide required notices: Employers have to give four notices: a general notice, an eligibility notice, a rights and responsibilities notice, and a designation notice. It's important to know how and when these notices can be given.
  4. Using a calendar year 12-month period: An employer can choose the method by which the applicable 12-month period is measured (calendar, fixed year, measured forward or rolling backward) during which an employee is entitled to leave.
  5. Failure to calculate leave entitlement appropriately: There are different regulations that determine how holidays within FMLA are treated, how much leave an employee is entitled to take based on their actual workweek, what to do if an employee's schedule varies from week to week, and how to calculate FMLA time for an employee that was scheduled to work overtime but could not do so due to an FMLA qualifying event.
  6. Failure to properly designate FMLA time: Employers must designate FMLA time within five business days of determining that leave qualifies as FMLA. Employers can also track intermittent leave in the smallest increment used to track other forms of leave, provided it is not more than one hour. Special rules apply.
  7. Inappropriate use of medical certifications: An employer must provide an employee written notice that a certification is incomplete or insufficient. An employer can also contact the health care provider for clarification or authentication, but it is important to know who can make contact.
  8. Failure to request a new certification and re-determine eligibility in a new leave year: Once an employee is determined to be eligible for FMLA, he or she remains eligible for one year for that leave reason. It is important to know, however, what to do if an employee's need for leave lasts beyond a year. There are steps employers can take to protect against abuse in this area.
  9. Improper use of recertifications: Recertification cannot be requested more often than every 30 days unless certain parameters are in place. However, regardless of the minimum duration of the condition, recertification can be requested every six months.
  10. Failure to monitor intermittent leaves closely: There are many things an employer can do to watch for abuse. For example, watch for patterns of absence, request recertifications as often as possible, and require employees to attempt to schedule planned medical treatment at less disruptive times.

Employers need to know the laws so they can adopt leave policies that prevent abuse while maintaining compliance.

PowerPoint presentation slides on this topic were created by Unum Group.

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 In This Edition


Employer Webinar Series

Fiduciary Responsibilities under ERISA

Tuesday, September 16, 2014
2:00 p.m. ET / 11:00 a.m. PT

The Employee Retirement Income Security Act (ERISA) lays out the definition and responsibilities of fiduciaries. Individuals who oversee employee benefit plans need to understand these requirements. In this 75-minute intermediate level webinar we will cover:

  • How a person becomes a fiduciary
  • The duties of a fiduciary (selecting and monitoring service providers, making sure contributions are made on time, providing required disclosures to plan participants, etc.)
  • The importance of creating and following procedures
  • The critical need to read and follow the plan
  • Potential consequences of mismanaging fiduciary responsibilities
  • Ways to manage fiduciary duties and risks
  • Recent developments with fiduciary obligations

The webinar will focus on group health plan issues, but will also touch upon some of the additional issues that fiduciaries of retirement plans need to consider. As Department of Labor audits of benefit plans become more commonplace, this is a must-see webinar for anyone tasked with overseeing employee benefits.

About The Presenter:
Randall M. Limbeck is a Shareholder in the Omaha office of Jackson Lewis P.C. He specializes in representation of clients in the areas of ERISA, employee benefits, and executive compensation. Mr. Limbeck has represented clients in a broad range of industries and size with respect to design, document drafting, employee communications, litigation and assistance in dealings with the IRS and Department of Labor.

Register here for the webinar. The presentation slides will be posted on the UBA website the day before the webinar.


Frequently Asked Questions About Grandfathered Health Plans

As employers determine their plan designs for the coming year, those that have plans with grandfathered status need to decide if maintaining grandfathered status is their best option. Following are some frequently asked questions, and answers, about grandfathering a group health plan.

Q1: May plans maintain grandfathered status after 2014?
A1:  Yes, they may. There is no specific end date for grandfathered status.

Q2:  What are the advantages of grandfathered status?
A2:  Grandfathered plans are not required to meet these PPACA requirements:

  • Coverage of preventive care without employee cost-sharing, including contraception for women
  • Limitations on out-of-pocket maximums
  • Essential health benefits and metal levels (these only apply to insured small group plans)
  • Modified community rating (this only applies to insured small group plans)
  • Guaranteed issue and renewal (this only applies to insured plans)
  • Nondiscrimination rules for fully insured plans (this requirement has been delayed indefinitely)
  • Expanded claims and appeal requirements
  • Additional patient protections (right to choose a primary care provider designation, OB/GYN access without a referral, and coverage for out-of-network emergency department services)
  • Coverage of routine costs associated with clinical trials
  • Reporting to HHS on quality of care (requirement has been delayed indefinitely)

Q3:  What PPACA requirements apply to grandfathered plans?
A3:  Most PPACA requirements apply to grandfathered plans. This includes:

  • Limits on eligibility waiting periods
  • PCORI Fee
  • Transitional Reinsurance Fee
  • Summary of Benefits and Coverage
  • Notice regarding the exchanges
  • No rescissions of coverage except for fraud, misrepresentation, or non-payment
  • Lifetime dollar limit prohibitions on essential health benefits
  • Phase-out of annual dollar limits on essential health benefits, with all limits removed by the 2014 plan year
  • Dependent child coverage to age 26
  • Elimination of pre-existing condition limitations
  • W-2 reporting of health care coverage costs (this only applies if the employer provided more than 250 W-2s for the prior calendar year)
  • Wellness program rules
  • Minimum medical loss ratios (this only applies to fully insured plans)
  • Employer shared responsibility ("play or pay") requirements
  • Employer reporting to IRS on coverage (starting in January 2016, based on the 2015 calendar year)
  • Excise ("Cadillac") tax on high cost plans (starting in 2018)
  • Automatic enrollment (this only will apply to employers with more than 200 full-time employees; this requirement has been delayed indefinitely)

For more FAQs on Grandfathered Health Plans, download a complimentary guide in UBA's PPACA Resource Center.

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