Nebraska Law to Require Employers to Provide Reasonable Accommodations to Pregnant Employees

Legislative Bill 627, enacted on April 13, 2015, modifies the employment laws of Nebraska to require employers to provide reasonable accommodation to pregnant employees and creates protections intended to prevent pregnancy related discrimination.

The new law requires specific reasonable accommodations for pregnant employees similar to those that are required for workers with disabilities.  Reasonable accommodations may including providing a stool or other seating for a pregnant employee to alleviate swelling of the legs caused by standing for long periods, modifying or changing break and work schedules, or providing a temporary transfer to less strenuous work for which the employee is qualified. The requirements only apply to the extent the employee is still able to perform the essential functions of the position with reasonable accommodation. The definition of an essential function of the position is deferential to the employer, and weight is given to the formal job requirement and description.

The scope of the law also requires reasonable accommodations for employees following childbirth and pregnancy related medical conditions.

The new law also makes it illegal to discriminate in the hiring, advancement, discharge, compensation, training, or general terms of employment of a pregnant woman.

The final version of the law as approved by the Governor may be found at the following link: http://nebraskalegislature.gov/FloorDocs/104/PDF/Slip/LB627.pdf.

© 2015 Houghton Vandenack Williams

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EEOC Proposes Rule Regarding Incentives in Employer Wellness Program

On April 20, 2015, the Equal Employment Opportunity Commission (EEOC) published a proposed rule regarding employer wellness programs. Employer wellness programs have been under scrutiny for potential violations of the Americans with Disability Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) because of questions regarding the “voluntary” nature of participation.

Previous EEOC regulations define voluntary as when “an employer neither requires participation nor penalizes employees who do not participate.” The EEOC is proposing the regulation to add clarity regarding the size of the incentive that may be offered for participation in the wellness program. The proposed rule limits the incentive to 30% of the total cost of employee-only coverage.

The proposed rule will be open to comment for 60 days from April 20. The proposed rule may be found at the following link: http://www.gpo.gov/fdsys/pkg/FR-2015-04-20/pdf/2015-08827.pdf

© 2015 Houghton Vandenack Williams

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New Required FMLA Poster

Certain employers need to immediately replace their Family and Medical Leave Act poster with a recently released revised new one.  The FMLA poster is generally required to be posted by employers with 50 or more employees and should be displayed in a conspicuous place where employees and applicants can see it. The revised poster implements changes made by recently released FMLA regulations.

The new poster may be found here: FMLA Poster

© 2013 Parsonage Vandenack Williams LLC

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Common FMLA Violations Highlighted in Recent Survey

As part of the Family and Medical Leave Act’s 20th anniversary, the U.S. Department of Labor recently released the results of a survey on its use and impact.  The results show the generally positive impact the FMLA has had on workers. The survey also highlights several aspects where the FMLA is being misapplied by employers.  Among them include:

  • No Fault Attendance Policies.  Many employers reported still using no-fault attendance policies – policies that treat all employee absences the same regardless of the reason – without providing exceptions for FMLA leave.  FMLA-related absences should be excused and may not be used against employees in performance evaluations.
  •  Asking Employees on Leave to Perform Work. The survey revealed that when an employee is on leave, the most common method for covering the work is to assign it to other employees.  However, while employees are on longer leaves, 70.5% of employees were asked to perform some work while on leave.  This practice is likely in violation of FMLA’s prohibition from interfering with employees while on leave.
  •  Pressuring Employees to Return.  Under the FMLA, employers are not allowed to pressure employees to return to work.  However, the survey shows that 12.4% of eligible employees reported such pressure as a reason why they returned.

The full report may be viewed at Family and Medical Leave in 2012.

© 2013 Parsonage Vandenack Williams LLC

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Health Care Reform to Increase Demand for Specialized Medical Staff

President Obama’s re-election all but guarantees that health care reform is here to stay. With millions of new patients gaining access to healthcare insurance, there is likely to be a significant increase in the demand for primary care.  As physicians are becoming more specialized, an alternative to meeting this demand for primary care is through nurse practitioners (NPs) and physician assistants (PAs).

Healthcare providers need to consider a number of issues prior to hiring PAs and NPs. Providers first need to anticipate the extent to which hiring a PA or NP will provide competitive advantage to market participants. Nebraska providers also need to understand where they can place PAs and NPs in the continuum of care. Recent changes in Nebraska law broaden the scope of practice for NPs giving providers more opportunities to make use of PAs and NPs. Accordingly, NPs and PAs may be valuable tools in meeting your practice needs.

© 2012 Parsonage Vandenack Williams LLC

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Lincoln Nebraska Passes Discrimination Ordinance

The Lincoln, Nebraska City Council recently voted to pass an ordinance prohibiting workplace discrimination based on sexual orientation and gender identity.  The ordinance will take effect on May 29th unless opponents gather 2,500 voter signatures, which would put the ordinance to a public vote.  The ordinance might also face legal challenges.  The Nebraska Attorney General has argued that it might not be constitutional.

Assuming the ordinance does take effect, it will protect employees’ sexual orientation and gender identity (meaning their appearance and behavior as male or female) in the same way that it protects their race or religion.  The ordinance prohibits making decisions in hiring, firing, promoting, pay, privileges, or terms of employment based on sexual orientation or gender identity. However, the ordinance does not require employers to grant special treatment in hiring based on the existing makeup of their employees.  For example, employers will not be required to hire a certain number or percentage of heterosexual or homosexual employees.

The ordinance exempts religious corporations from its requirements.

Employers can take precautions to avoid violating the discrimination ordinance by evaluating their current employment practices and by updating their company’s discrimination policies.

© 2012 Parsonage Vandenack Williams LLC

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Employer Tips for Complying with GINA

Since laws prohibiting discrimination based on age, race, and gender receive most of the attention, it is easy to overlook similar laws that prevent discrimination based off genetic information.  The federal law commonly known as “GINA” and its corresponding state laws combine to prohibit employers from using genetic information to make decisions in hiring, firing, promoting, pay, privileges or terms of employment.  Genetic information includes all information relating to genetic tests of the employee and the employee’s family members, as well as information about diseases or disorders in the individual’s family medical history.  An employer can take several precautions to avoid violating these laws, including updating its company’s discrimination policies, examining employment forms for certain prohibited questions, and using cautionary language when talking to employees about their health.

For an expanded article on tips for complying with GINA, please click here.

© 2012 Parsonage Vandenack Williams LLC

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Is Your Criminal Background Check Policy Legal?

The Equal Employment Opportunity Commission (EEOC) has determined that use of arrest and conviction records to deny employment may be illegal when such records are not relevant for a particular position. Denying employment based on irrelevant arrest and conviction records may unjustly limit the employment opportunities of individuals based on their race or ethnicity.

When using criminal background checks in employment decisions, the EEOC recommends that employers take into account the “nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.”

Employers should not stop using criminal background checks as a way to weed out unqualified candidates. Instead, employers should refrain from using background checks as the sole factor in hiring decisions.  Employers should consider reviewing applicants on a case-by-case basis and take into account the relevancy of the information found to the desired position.  If questions remain, employers can provide the applicant with an opportunity explain the information discovered.

© 2012 Parsonage Vandenack Williams LLC

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Does Your Employee Handbook Need “Technical” Updates?

It is important to remember that employee handbooks should be updated as technology improves and company procedures evolve.  You should make sure that your employee handbook is updated to reflect modern technology and that it appropriately addresses employees’ use of the same. One issue is the use of cell phones. Do your policies clearly address how personal and business cell phones may be used at work? Unclear policies are resulting in employer employee litigation. You need to have a clear policy about cell phone use, including texting, at work. Your policy needs to be one that can be enforced consistently. Clarify expectations. Communicate your policy. Enforce your policy reasonably and consistently.

© 2012 Parsonage Vandenack Williams LLC

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Fraud Waste and Abuse Training Requirements Eliminated for Providers

A final rule published in the April 15, 2010 Federal Register makes clear that enrolling in Medicare is considered enough proof that providers know about fraud, waste and abuse issues, and that Medicare Advantage (“MA”) plans do not need to require additional compliance training.

In the 2007 MA regulations, CMS stated that it would hold MA plans and Part D sponsors responsible for fraud and abuse training of first-tier and downstream entities that participate in their plans. This would have included providers who contract with many health plans, which means providers would have had to establish many different training programs.

CMS appeared to back away from the requirement in a proposed regulation posted in October 2009.  This latest final rule, which takes effect June 7, 2010, puts the issue to rest.

CMS listened to providers’ complaints about the burden triggered by training requirements from different MA plans, which essentially amounted to CMS being a tad too extreme in its fraud-fighting efforts. CMS wanted to make sure that plans had good compliance programs and that their downstream contractors, such as providers, had them as well.  But pushing the responsibilities onto providers went a little too far.

To comply with all the idiosyncrasies of each plan’s compliance program would have been a logistical nightmare. Now, with the final rule, an unnecessary and basically impossible standard has been made reasonable and providers will not have to deal with the additional training requirements.

© 2010 Parsonage Vandenack Williams LLC

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