HR Elements October 2014
Ideas and Information for Human Resources Professionals

In the Spotlight Again: Workplace Violence

With three tragic incidents of workplace violence occurring during the same week in September, it's no wonder the topic is once again making national headlines.

Just ahead of these terrible events, the Occupational Safety and Health Administration (OSHA) reported citing two companies for knowingly violating their obligation to protect workers from unsafe conditions -- under the "general duty" or "broad duty" clause -- and fined them both in excess of $70,000. This clause requires employers to create workplaces that are free from recognized hazards that are likely to cause serious physical harm or death to employees.

Given these recent cases and the highly publicized spate of workplace violence, employers everywhere are pondering the question of how to prevent violent incidents from occurring to and among their workers.

An outstanding article from Human Resource Executive Online, "Fighting Workplace Violence," offers several ideas worth considering, including:

  • Creating a formal workplace violence prevention policy that is shared among all workers and contained in a company's Employee Handbook.
  • Forming workplace violence prevention committees.
  • Assessing security gaps.
  • Establishing employee hotlines.

The article goes on to quote Richard Mendelson, deputy regional administrator at OSHA in New York, who said that senior executives, in particular, need to demonstrate their commitment toward developing a safe environment by implementing administrative controls and supporting zero tolerance policies for workplace violence. Mendelson also suggested that employers require employees to work in pairs or teams in certain situations and that they train employees to recognize threatening conditions.

Although workplace violence is back in the media spotlight, it appears that workplace homicides (which represent only one category of workplace violence) have actually decreased 16% from 2012 to 2013, according to data being compiled by organizations such as OSHA, the Federal Bureau of Investigation, and the U.S. Bureau of Labor Statistics.

According to research by these organizations, 397 U.S. workplace deaths were homicides in 2013, accounting for 9% of all workplace deaths. Among the occupations in which a higher percentage of workplace deaths are due to homicide are retail sales, food preparation/serving, legal occupations, and business and financial operations.

If you'd like to learn more about how organizations can better prepare for and prevent workplace violence, the U.S. Department of Labor devotes an entire portion of its website to the topic of workplace violence.

The site addresses risk factors, prevention programs, training and enforcement and offers links to a wide variety of resources as well.


The Interesting Balance Between Man & Machine

Is technology the American worker's friend or foe?

Turns out the answer is a bit of both and is pretty much under continuous debate. Some workers largely depend on technology to do their jobs, while others find themselves being replaced by it. And the tech sector is responsible for some of the country's most robust job creation (giving birth to entirely new job categories, in fact), while it's also responsible for the demise of certain types of work.

So, which side of the debate do most Americans favor? To find out, the Pew Research Center canvassed nearly 1,900 professionals from a variety of industries between November 2013 and January 2014. Overall, these respondents were surprisingly evenly divided: 52% responded that technology will not displace more jobs than it creates by 2025, and 48% held the opposite opinion.

A 2014 CareerBuilder national poll of nearly 2,200 hiring managers and HR professionals found that 68% of companies that have replaced workers with technology also said the adoption of this technology created new positions at their firms. More than a third said that they ended up creating more jobs than the company had prior to adopting the technology. Interestingly, 35% of companies that replaced workers with technology said they hired people back because the technology didn't work out.

These professionals also identified the functional areas most likely to be affected by the adoption of technology within the coming decade. They include (in descending order):

  1. Customer Service
  2. Information Technology
  3. Accounting/Finance
  4. Assembly/Production
  5. Shipping/Distribution
  6. Sales

One of the most recent -- and most trending -- tech stories is focused on "wearables," i.e., devices, accessories, clothing and jewelry that incorporate computer and advanced electronic technologies (smart watches, Google glasses, etc.). Naturally, this new technology development holds a host of as-yet unexplored implications for employers.

However, one company recently made news by taking a firm stand regarding wearable technology. USAA (a provider of home, life, and auto insurance) has issued a wearables ban in its workplace. According to a Forbes article published in June, USAA identified several potential risks posed by wearables, including employees inadvertently recording inappropriate audio or capturing sensitive images in the workplace, as well as infringing on the privacy of other employees.

If the past few years have shown us anything, it's that technology will continue radically altering our work and our workplaces. In other words, the sometimes uncomfortable but always interesting balance between man and machine goes on.


Flu Season Is Here. What Should Employers Do?

Nobody likes the flu. At best, it's a miserable experience. At worst, it can be deadly.

And the flu is expensive. According to the Centers for Disease Control and Prevention (CDC), the flu costs the United States more than $87 billion annually.

The flu is a major cost for business. A Walgreens report found that U.S. adults missed 230 million days of work due to flu-related illness during the severe 2012-13 flu season. Plus, of course, there are productivity losses from employees who still report to work but are ineffective due to being flu-ridden.

Since seasonal flu activity can begin as early as October, it's time for employers to protect themselves from the flu.

According to the CDC, the most valuable step employers can take is to maximize employee vaccination.

"Flu is unpredictable but make no mistake -- anyone can get sick from the flu, including employees who are otherwise healthy," said CDC Director Tom Frieden, M.D., M.P.H. "Influenza also negatively impacts business continuity. Businesses that want to stay productive throughout flu season should encourage and support vaccination of their employees -- vaccination is the single most effective way to protect against flu."

What are employers' options for supporting vaccination?

While in many states it is legal to require flu shots as a condition of employment, this can result in employee pushback and there are potential legal complications, so the CDC recommends the following ways to encourage the employees to get vaccinated:

  1. On-site flu clinics. Offering on-site vaccination at no or low cost to employees is an effective way to maximize participation. This is ideal for employers with on-site occupational health clinics, while those without clinics can contract with pharmacies and community vaccinators to provide vaccination services on-site.
  2. Promote vaccination. Communicate to employees why vaccination is important, and tell them where they and their families can get flu vaccines in their communities.

For helpful details and resources on these two options, see "Make it Your Business To Fight the Flu," the CDC's toolkit for businesses and employers.

Employers may also consider taking additional steps beyond supporting vaccination. Here are a few actions advocated by the Occupational Safety and Health Administration (OSHA):

  1. Encourage sick workers to stay home
  2. Promote hand hygiene and cough etiquette
  3. Keep the workplace clean
  4. Address travel concerns (e.g., reconsider business travel to areas with high illness rates)

Employers who make preventing the flu a priority will help make the flu less costly for their business. Plus, their employees will thank them for doing so.


A To-Do List for Sponsors of Self-Funded Group Health Plans

By: Jennifer S. Kupper
In-House Counsel & Compliance Officer
iaCONSULTING, a UBA Partner Firm

Below are some to-dos for sponsors of self-funded group health plans. The information is limited generally to the "what" and the "when." For a summary of the PPACA provisions that apply to group health plans and whether the provision applies to self-funded plans, request UBA's PPACA Decision Guide for Self-funded Plans.

1. HIPAA Risk Assessment and Training

A self-funded group health plan is a covered entity under the Health Insurance Portability and Accountability Act (HIPAA). The HIPAA Privacy and Security Rules provide a baseline of protections for use and disclosure of individually identifiable health information held by covered entities and their business associates. The Privacy Rule gives individuals rights regarding that information; the Security Rule specifies administrative, technical, and physical safeguards for covered entities and their business associates. Employers sponsoring self-funded group health plans should, at a minimum, conduct and document a HIPAA Risk Assessment and train employees on the procedures and protocols that the company has in place to address the findings of the HIPAA assessment.

Employers should also review their state laws. Some states have more stringent requirements. For example, Texas law requires employees of covered entities to have HIPAA training within 30 days of employment and then ongoing training every two years.

2. Update the Plan's BAAs

Plan sponsors of self-funded group health plans need to be sure their business associate agreements (BAAs) have been amended to meet the requirements of the Health Information Technology for Economic and Clinical Health (HITECH) Act by September 22, 2014. A "business associate" is a person or entity who performs functions or activities on behalf of, or provides certain services to, a covered entity that involve access by the business associate to protected health information and includes subcontractors that create, receive, maintain, or transmit protected health information on behalf of another business associate.

Sponsors should verify that a compliant BAA is in place between the plan and the plan's third party administrator (TPA), broker, and other vendors which meet the definition of business associate.

For more information, see the guidance for BAAs from the U.S. Department of Health and Human Services (HHS).

3. Apply for the Plan's HPID

The Patient Protection and Affordable Care Act (PPACA) and HIPAA require that self-funded health plans obtain and use a 10-digit health plan identifier (HPID) in certain transactions. The purposes of requiring HPIDs include:

  • Reducing administrative costs by adopting a uniform set of operating rules for each covered transaction;
  • Simplifying routing, reviewing, and paying electronic transactions; and
  • Reducing manual errors and manual intervention.

The HPID must be used by health plans, or their business associates, when conducting electronic "standard transactions" beginning November 7, 2016. Large health plans (those with more than $5 million in claims paid for the prior plan year) must obtain an HPID by November 5, 2014. Small health plans (those with less than $5 million in claims paid for the prior plan year) have until November 5, 2015, to obtain an HPID.

Please note: The plan's TPA may not obtain the HPID for the plan.

4. Filing and Payment of Transitional Reinsurance Fee

PPACA established the transitional reinsurance fee (TRF). The funds generated by the TRF will help stabilize premiums in the individual insurance market. The TRF applies to self-funded major medical plans for 2014, 2015, and 2016. (Insurers pay the fee on fully insured medical plans.)

Plan sponsors of self-funded plans must report the number of covered lives and pay the fee to the federal government at The filing of the number of covered lives is due by November 15, 2014. While the form is not yet available, sponsors should decide which is the most beneficial method for determining the number of covered lives. The plan's TPA may assist with the calculation and pay the applicable fee on behalf of the plan sponsor.

Plan sponsors may pay the fee in one installment, by January 15, 2015, January 15, 2016, and January 15, 2017, or in two installments each year. If paid in installments, the larger installment will be due January 15 and the smaller installment will be due November 15. For example, if the 2014 fee is paid in installments, $52.50 per person will be due January 15, 2015, and $10.50 per person will be due November 15, 2015.

5. Section 6055 and Section 6056 Reporting

Beginning in 2016, carriers, self-funded employers, applicable large employers (ALEs), and individuals will be responsible for reporting coverage information based on the 2015 plan year. In order for the IRS to verify that individuals and employers are meeting their shared responsibility obligations, and that individuals who request premium tax credits are entitled to them, employers and insurers will be required to provide reporting on the health coverage they offer.

All ALEs will complete Part I and Part II of IRS Form 1095-C for each employee, regardless of whether the employee was eligible for coverage during the reported year. Self-funded ALEs will complete Part III - covered individuals. Part III requires the employer to report for each covered individual the covered individual's name, Social Security number (SSN), and date of birth if the SSN is unavailable.

The reporting will occur with the same timing and process as W-2 and W-3 reporting. Even though these forms are not final, employers may want to study them as they begin to determine whether they are currently collecting, and will be able to retrieve, the information needed to complete the forms.

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 In This Edition


WisdomWorkplace Webinar Series

The FMLA Freight Train: How To Stay Ahead of It

Monday, October 27, 2014
11:00 a.m. ET / 8:00 a.m. PT

Managing various types of employee leaves can create a large administrative burden, and can disrupt your business. Employers are increasingly faced with leave laws which are growing more complex, and where mistakes can be costly. Join our webinar to learn about best practices for FMLA compliance.

The webinar will focus on the following:

  • Why FMLA is the next "freight train" in the benefits world
  • Managing leave and duration in conjunction with the law
  • Return-to-work within FMLA
  • Best practices for design and implementation of FMLA procedures

Webinar Presenters:
Melissa Harrison Hiatt is Senior Director of Absence Management for Standard Insurance Company.

Michael Klachefsky is Absence Management Practice Consultant for Standard Insurance Company.

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

Employer Webinar Series

Employee Leaves under the FMLA, ADA, and Other Laws

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

Managing leaves of absence is an ongoing issue for many employers. Several laws potentially apply to leaves -- the Family and Medical Leave Act, the Americans with Disabilities Act, and workers' compensation apply most often. Recent guidance under the Pregnancy Discrimination Act has added protections for pregnant employees. Employees who serve in the reserves or as active duty military have rights under the Uniformed Services Employment and Reemployment Rights Act. The Genetic Information Nondiscrimination Act limits an employer's access to medical information. Health care reform has added rules for handling time out on a leave when determining if the person should be considered a full-time employee. And a growing number of cities and states are requiring employers to provide paid sick leave.

During this 90-minute intermediate level webinar we will provide an overview of each law's basic requirements and help you to understand how the laws interact, overlap, and occasionally contradict each other. We also will provide tips on how to handle some tricky situations, such as requests for light duty or to work from home, mandatory overtime, and extended absences.

Webinar Presenters:
Thomas M. Lucas is a Shareholder and Litigation Manager in the Norfolk, Virginia, office of Jackson Lewis P.C.

Kristina H. Vaquera is a Shareholder in the Norfolk, Virginia, office of Jackson Lewis P.C.

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


New Change of Status Events

The Internal Revenue Service issued Notice 2014-55 which allows employers to amend their Section 125 plans to recognize several new change in status events.

Effective immediately, an employer may treat both open enrollment and special enrollment for Marketplace coverage as a change in status events, and allow an employee and other covered dependents to drop group medical coverage mid-year to enroll in a Marketplace plan. In both cases, Marketplace coverage must begin on the day after coverage under the employer's plan ends.

The other new permitted change in status event is designed to address issues that may arise if the employer chooses to measure hours using the lookback (measurement and stability periods) method of determining hours for purposes of meeting the employer-shared responsibility requirements. In this situation, to avoid employer-shared responsibility penalties, the employer must offer the employee coverage throughout the following stability period if the employee averaged 30 or more hours per week during the measurement period, even if the employee's hours are reduced below 30 hours per week. Maintaining the same coverage despite lower income may cause a financial hardship to the employee. Under the new change in status event, if the employee remains eligible for group medical coverage, even though he or she is now working fewer than 30 hours per week, the employee may revoke the group medical coverage election mid-year to enroll himself or herself (and any covered dependents) in either Marketplace or other employer-provided coverage.

Data Breach Takeaways

Data breaches -- such as those recently at Target, Home Depot, and Jimmy John's -- can result in identity and other theft, but Brian Hall, partner at the law firm Porter Wright, says there are key takeaways from employers.

The takeaways he details in his Employee Benefit News article are:

  1. A company's workers can be the strongest or weakest link in its data security program, and they can be the key to avoid related lawsuits.
  2. HR departments are at greater risk than ever of being targets of data breaches, especially as employers begin to embrace big data for employee selection and placement.
  3. Data breaches extend beyond computer hacking. Sloppy policies or poor enforcement of policies relating to laptops, mobile devices and portable media also contribute to breaches.

Survey Says ... HR Tech Spending on Rise

Sierra-Cedar Vice President of Research and Analytics Stacey Harris says more than 50% of survey respondents reported that they will increase spending next year.

The Sierra-Cedar HR Systems Survey points to a stronger economy, including increased spending and cloud and mobile adoption continuing. A total of 1,063 organizations participated in the survey.

The survey also indicated continued increase in cloud core human resource management system deployments and plans for such deployments to overtake licensed, on-premise or hosted deployments by 2015.

Painkiller Problems

According to two studies by the Workers Compensation Research Institute (WCRI), the vast majority of injured workers with long-term opioid use (opioids, such as morphine, oxycodone and hydrocodone, are effective pain relievers but can be highly addictive) did not receive standard treatments for chronic opioid-use management, such as drug screening, psychological evaluations and physical therapy.

WCRI economist Dongchun Wang said successful treatment of chronic opioid usage, which is highest in Louisiana and New York, is important because excessive use of the painkillers leads to an increase in work-related accidents and injuries.

Preventing Ebola in the Workplace

With Ebola being declared an international health emergency, and the first U.S. cases of the disease having been confirmed, some employers are asking what preparations and actions they should be taking.

U.S. workplaces fall into two categories of concern in regard to Ebola -- health care workplaces and all other workplaces. Health care workers should be briefed on the nature of Ebola and how it is transmitted, and strictly follow infection control precautions. For all other workplaces, returning travelers are the primary concern. Business travelers who visit affected areas should be notified of Ebola symptoms and be asked to be alert to their surfacing within 21 days after return.

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