HR Advisor October 2009
Welcome
We hope the start of the fall season will bring you great success during the month of October. Make sure to also stay on top of your HR know-how with all the information in the HR Support Center.
HR Alerts
EEOC Clarifies Definition of Disability.
On September 17, 2009, the U.S. Equal Employment Opportunity Commission (EEOC) announced its approval of a notice of proposed rulemaking by revising ADA regulations to update the definition of a covered ADA disability.
GINA Takes Effect.
Effective November 21, 2009, the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination based on genetic information and protects confidentiality of such information.
Keeping Pace with Social Media in the Workplace
Social media’s impact on employers and employees has clearly affected the workplace. According to the 2009Deloitte LLP Ethics & Workplace Survey, ’58 percent of executives agree that reputational risk and social networking should be a boardroom issue.” No longer a question of “if” or “when,” it has been a matter of how employers can best respond to this quickly emerging and constantly changing issue that can greatly affect employee productivity and how business gets done.
As opposed to traditional and generally more costly media vehicles (i.e. TV, radio, and print), social media encompasses and leverages a wide variety of highly accessible technologies and tools (i.e. blogs, wikis, social networking sites, etc.). Companies have observed the growing usage of LinkedIn, Facebook, Twitter, and the like among their employees and even have adopted them as part of their marketing and branding efforts. In the process, however, the delineation between what is personal and what is work related has become a challenge for employers to manage.
While the issues are not necessarily new, it is a matter of how they appropriately address social media in the current work environment. Some of the issues involve
- Electronic Assets. Regarding employee us/abuse of company computer as we as phone systems, many employers have established some sort of employee monitoring.
- Personal Privacy. Depending on the extent, monitoring the employee phone calls, e-mail, or social networking sites may leave and employer vulnerable to clains of infringing on employee privacy.
- Confirm the Minimum. Company policies should be in place regarding employee accountability and responsibility of protecting privileged company client information as well as any consequences.
- Confidentiality and Proprietary Information. An applicant who provides a customized summary statement of his or her qualifications and experience helps you to quickly see if the person’s characteristics fit your expected job profile.
- Harassment, Discrimination, and Threats of Violence. Any such evidence, complaint, or violation of relevant company policies must be handled and resolved immediately by Management.
An employer can take essentially four approaches towards managing social media in the workplace:
- Completely restrict access;
- Tolerate it with no monitoring;
- Strictly limit use for only business purposes; or
- Acknowledge it with clear management expectations and company policies.
When creating a social media policy, the following are some elements that should be included:
- A definition of social media for the purpose of understanding the policy.
- An acknowledgment that employees may be using social media in the workplace.
- Explanation and scope of the employer’s right to monitor employee activities on the company’s electronic assets, during work hours, etc.
- Examples (i.e. inappropriate photographs and text) deemed as unacceptable to the employer.
- Consequences of making unprofessional or otherwise harmful publications on the Internet.
Question & Answer
Who Bears the Cost of Employee Damages?
- We have an employee who has broken several office chairs due to his weight. These chairs have become quite costly to replace. Can we terminate the employee or, at least, require the individual to reimburse us for the cost to replace the office chairs?
- The recommendation is to not charge the employee or make payroll deductions for the replacement cost of the chairs if the employee had no willful intent to cause such damages and especially if certain states laws prohibit such an action.
With respect to termination, under the federal American’s with Disabilities Act (ADA), obesity may be considered a protected disability. In turn, the ADA requires the employer to make a reasonable accommodation to the known disability of an employee if it would not impose and “undu hardship” on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense to the business when considering factors such as the company’s size, financial, resources, and the nature and structure of its operation. The company also could speak with the office chair manufacturer to see if cost-effective options to reinforce them exist.
In addition, the Equal Employment Opportunity Commission (EEOC) recommends that an employer engage in an “interactive process” with the employee to discuss the employee’s needs when determining if a workplace accommodation under the ADA would be beneficial. The interactive process is a formal way of saying that the company and the employee would talk about both the employer’s and employee’s needs and would discuss possible workplace modifications and reasonable accommodations, in this case, to best help the individual perform the essential functions of the job, without damaging company property.
The Arrival of GINA
Effective November, 21, 2009, the Genetic Information Nondiscrimination Act of 2008 (GINA) was enacted in recognition of developments in the field of genetics. Genetic tests now exist that can indicate whether individuals may be at risk for developing a specific disease or disorder. The concerns focus on whether employees may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.
To address these concerns, GINA prohibits discrimination based on genetic information and restricts acquisition and disclosure of such information. Genetic information includes information about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include information about the sex or age of an individual, the individual’s family members, information that an individual currently has a disease or disorder, and tests for alcohol or drug use.
GINA includes Title I and Title II amendments:
- Title I amends portions of the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code, and addresses the use of genetic information in health insurance.
- Title II applies to private, state, and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. Title II also prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment, prohibits covered entities from intentionally acquiring genetic information about applicants and employees, requires confidentiality with respect to genetic information (with limited exceptions), and prohibits retaliation.
“Covered entities” (subject to Title II as noted above) may not use genetic information in making employment decisions under any circumstances. The general rule states that covered entities may no request, require, or purchase genetic information with respect to an employee/applicant or family member of an employee/applicant. Covered entities in possession of genetic information about applicants or employees must treat it the same way they generally treat medical information. (Note: GINA also amends the privacy provisions of HIPAA to include genetic information in the definition of protected health information.) Covered entities also must keep the information confidential and, if the information is in writing, they must keep it apart from other personnel information in separate medical files. Employers need to exercise caution when it comes to the GINA law to avoid penalties.
Tool of the Month
Drug-Free Workplace Guide
Impaired by the use of drugs or alcohol, an employee threatens the safety and well-being of everyone in the workplace. Every employee has the accountability to work free from alcohol and drug misuse. Supervisors and managers are also crucial in their roles to prevent worker substance abuse and to take appropriate actions when and employee may be impaired.
The Drug-Free Workplace Guide helps you to:
- Understand employer roles and responsibilities,
- Recognize symptoms of alcohol or drug use, and
- Respond to suspected drug or alcohol misuse.
In the HR Support Center website under the Essentials tab section, simply search for this helpful reference document in the Guides area.
HRCast of the Month
This month’s topic: Making Hiring Decisions with Today’s Internet
Advances in online technology have reinforced how the Internet has become and increasingly necessary and unavoidable recruitment tool for small companies to leverage.
HR Tip of the Month
Avoid Mandatory Employee Vaccinations
Unless a clear business or job-related need exists, employers generally should not require employees to get immunizations due to likely problematic issues (i.e. the Americans with Disabilities Act (ADA), Wokers’ Compensation, etc.) against the employer.
Did you know?
7000
From 1997 to 2007, while most of the over 7,000 homicides in the workplace occurred during the course of a robbery, more than 1,000 were committed by co-workers, former co-workers, acquaintances, and relatives. (Source: U.S. Bureau of Labor Statistics)