Over the past several months, there have been many releases from the Federal government regarding how to keep children, elderly adults, and those with weak immune systems healthy should there be a H1N1 or other flu pandemic outbreak. While these are all important topics to consider; there are also key items that employers must be aware of regarding the spread of the H1N1 virus in the work place. This article will focus on specific labor law issues and how to prepare your organization. For more detailed information and a FAQ section, please consult the government website: http://www.flu.gov/faq/workplace_questions

In addition to considering the government’s FAQ section, it is recommended that employers also should be guided by federal employment law, as well as their own employee handbooks, manuals, and contracts (including bargaining agreements), and any applicable state or local laws.

Seasonal Flu versus a Pandemic

The first issue to consider is if the outbreak is a seasonal flu or a pandemic. According to the Occupational Safety and Health Act (OSHA), a seasonal flu is a periodic outbreak of respiratory illness in the Fall and Winter in the United States. A pandemic refers to a worldwide outbreak of influenza spread from person to person. When there is a pandemic, the likelihood of infection increases as the virus spreads throughout the population; possibly without vaccinations.

Family Medical Leave Act

An employee who has a serious health condition or is required to provide care to a qualified family member with a serious health condition may be entitled to up to twelve weeks of continuous or intermittent leave under the FMLA. The 2009 revisions to the FMLA clarified that an employer’s normal time-off polices dictate who an employee reports their absence and whether that time off will be paid. Employers still retain the right to require a medical certification for the serious health condition of an employee or a qualified family member. Employers should review their policies now to ensure that their policies are written clearly and up-to-date before a pandemic flu outbreak.

Americans with Disability Act (ADA)

Recently, the EEOC issued guidance with respect to the ADA and the H1N1 flu. Under the ADA, an employer’s ability to inquire about an employee’s disability status is limited by when the employer makes the inquiry. It is recommended that employers review when it is permissible to make such inquiries. While employers are limited in their ability to make individual employee disability inquiries, the EEOC an employer may make broad, general inquires of its workforce. For example, an employer may ask its workforce whether certain conditions (such as school closing or reduced public transportation) will affect an employee’s ability to come to work.

The Fair Labor Standards Act

Employees who are not infected and are able to work may find that they must “fill-in” for absent, infected co-workers, In turn, they may find that their job descriptions are significantly altered. A change in a job description has implications for an employee’s exempt/non-exempt status and overtime compensation. Should there be an outbreak, employers may choose to allow certain categories of employees to telecommute. This is recommended by both OSHA and the CDC, but employers should be aware that it may impact measuring and tracking time worked for exempt employees and workplace safety/workers’ compensation issue. If a telecommuting option is to be implemented, consultation with a legal counsel is recommended to ensure compliance with FLSA/workers’ compensation.

Workers Compensation

Employees who face a greater risk for infection from a pandemic flu may be entitled to workers’ compensation for their medical expenses and lost wages if they contract the virus while on the job. While this may not impact all employers equally, those in the medical/health care field should consider the implications of increased claims.

There are a multitude of employment laws that Human Resource Professionals must consider regarding the issues posed by H1N1. A proactive approach is recommended in preparing to handle various scenarios that may result from a pandemic such as increased use (and possible abuses) of sick time, increased exposure to litigation, and new government regulations. Midwest Staffing has taken a pro-active approach and has an operational contingency plan in place should a pandemic outbreak take place. We are prepared to continue to service our clients to the best of our abilities under tough circumstances!

2009 will continue to be a busy year for benefits changes! Employers should review and amend plans for compliance with a variety of legislation that will be taking effect soon!

Special Enrollment for CHIP

Effective April 1, 2009, group health plans are to provide special enrollment for persons losing CHIP or Medicare coverage or obtaining premium assistance from a state under a CHIP or Medicare program. Notice requirements of certain rights will be required starting for most plans on January 1, 2011.

What to do? Determine whether your employees have been notified of this expanded right. This is usually done through a summary of material modification (SMM) to your group health plan. These new special enrollment rights may require changes to your plan documents and summary plan descriptions.

HIPAA Privacy & Security

Effective August, 2009 plan sponsors should be aware of any breach of unsecured protected health information (PHI). If a breach is discovered, an employer sponsored health plan must notify the individual within 60 days. If a breach involves more than 500 people media must be notified. Effective February 17, 2010, businesses are responsible for compliance with HIPAA’s rules and regulations.

What to do? Review documents to ensure your vendors are responsible for providing any notices needed in the event of a breach of unsecured PHI.

Mental Health Benefits

Under the Mental Health Parity and Addiction Equity Act, which takes effect Jan. 1, 2010 (for calendar year plans) there will be two changes regarding financial and treatment requirements. Group Health Plans must provide mental health and/or substance use disorder benefits on an equivalent basis to medical/surgical benefits (or eliminate these benefits).

What to do? Review your current group health plan mental health and substance abuse benefit coverage. If changes need to be made, plan for potential cost increases for the 2010 plan year.

Genetic Information

Group Health plans may not impose a pre-existing condition limitation based on genetic information. Plans may not use genetic information to discriminate regarding eligibility, premiums or coverage nor may they require genetic testing. Genetic information is considered private health information (phi).

What to do? Audit the collection or use of family medical histories or other genetic information in your wellness and health promotion programs. Know whether any information is collected for underwriting purposes or prior to enrollment. If information is used in a discriminatory manner, action will be required.

Cafeteria Plan

Currently scheduled to take effect Jan. 1, 2010, for calendar year plans, benefit options may have to be expanded and/or clarified. Plan documents may also require more detailed written plan documents.

What to do? Evaluate your current cafeteria plan documents and SPDs. Note possible changes needed when these rules become final.

Michelle’s Law

“Michelle’s Law” will prohibit an employer-sponsored health plan from cutting off benefits if a college student who is covered under a parent’s health plan due to his or her full-time student status loses that status due to a medical leave of absence.

What to do? Review current SPDs and plan documents to see what changes may be needed. Ensure continued coverage with HMO’s and Cobra administrator’s.

Temporary work or temporary employment has often been referred to as contractual, freelance, seasonal or simply as “temp” work. A common misconception can be that Temporary agencies offer positions, which are only temporary but in actuality also offer positions, which could lead to permanent placement. Temporary agencies work individually with companies and potential employees to find the most compatible pairing.

Benefits for companies working with Temp Agencies:

1. Confidence and Quality - All employees’ (temps) adhere to a thorough background check including an investigation into their criminal record. A “Temp” agency also examines the requirements and desires of a company to meet their expectations by providing a competent employee.
2. Economical - Companies, which need temporary employment to perhaps help complete a large project, or substitute for a permanent employee on a leave or vacation, do not need to pay all the benefits of a full time employee. In most cases, temporary employees receive an hourly wage and receive no insurance benefits; this of course is dependent on the longevity of the position and individual company policies. Once the job has been, fulfilled companies release the “temp” without the added expense of paying unemployment fees, which would be required by “laying off” a permanent employee.
3. Flexibility - Hiring a ‘Temp’ is an excellent way to find the right employee for an available position. If you are unhappy with the performance of a ‘Temp’ finding a replacement is a simple transition. Temporary agencies deal with the hiring, the placement and the paperwork.

Benefits for employees working with Temp Agencies:

1. Flexible Hours - Employees have the flexibility to choose when and where they work. Temporary agencies work with the potential employee to find a position that best fits their schedule. Full time or part time jobs are available in the daytime, evening, or even weekends and in some cases special holiday positions are available.
2. Pay Rate - The pay can be beneficial to temps because when employers are looking to fill positions quickly they are willing to pay the extra price. Health benefits may be available depending of the longevity of the position and contingent to company policies