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HR Matters
2005 EEO-1 Survey Filing Deadline.
August 31, 2005
LABOR & EMPLOYMENT NEWS
2005 EEO-1 Survey Filing Deadline. Remember that the filing deadline for submitting EEO-1 surveys is Sept. 30, 2005. Private employers or enterprises with 100 or more employees (excluding primary and secondary school systems and institutions of higher education) are required to submit this survey annually. The EEOC prefers that employers use its Web-based filing system for submitting annual surveys. To file on-line, employers need an ID and password. Employers who included an e-mail address in their 2004 EEO-1 on-line filing should have received their 2005 ID during the week of July 18. All other employers should have received their 2005 ID in the mail during the first week of August. If you cannot locate your password, contact the EEO-1 Joint Reporting Committee at e1.techassistance@eeoc.gov.
Enforcement of "Return to Work" Agreement Does Not Violate ADA. After a manufacturing employee informed his human resource department that he had a substance abuse problem, the company sent him to an outpatient treatment program through the employee assistance program. The employee relapsed three weeks later and the company checked him into a treatment center and placed him on medical leave. When the employee returned to work, he had to sign a "return to work" agreement that required him to continue to seek treatment, take periodic and unannounced drug and alcohol tests, and to refrain from using drugs or alcohol. The company fired the employee after he relapsed again. The employee sued the company claiming that the return-to-work agreement violated the ADA and Ohio's civil rights law because he was seeking treatment for an addiction. The Eighth District Court of Appeals disagreed and held that while the ADA gives disability status to former illegal drug users who are undergoing, or have successfully undergone, a rehabilitation program, the ADA does not treat current illegal drug use as a disability. (Partlow v. Blue Coral-Slick 50).
Employee May Use Second Opinion to Support FMLA Leave Request. An Iowa company, Electrolux Home Products, had a general attendance policy that would add or deduct attendance points. Under this policy, an employee would face discipline if he or she reaches zero points on the scale. Any absence lasting three days is considered a possible FMLA-qualifying leave and those leaves do not result in a deduction of attendance points. An employee was first diagnosed with gastroesophageal reflux disease, but the medical provider did not certify the ailment as incapacitating or as protected by the FMLA. Although the employee asked to see her regular physician for a second opinion, the company terminated her employment because she failed to submit a leave form that included a certification that the absence was an FMLA covered illness. The employee ultimately received a completed FMLA leave form from another medical provider that recognized her illness as being covered by the FMLA. The Eighth Circuit Court of Appeals held that nothing in the FMLA limits the employee's ability to produce a medical opinion that contradicts a prior negative certification originally provided by the employee. (Electrolux Home Products v. UAW).
WORKPLACE HEALTH & SAFETY NEWS
BWC's One Claim Program May Save You Money. The One Claim Program (OCP) is designed to help private, state-fund employers who experience one uncharacteristic claim that disqualifies them from membership in a group-rating program. To eligible for the OCP, employers must be: (1) private, state-fund employers; (2) currently enrolled in a group-rating program; (3) have one significant claim entering their experience that prevents them from renewing their group-rating program; (4) not have more than three medical-only claims; and (5) be current with premium payments. Eligible employers will receive a 40-percent discount off their base rate for up to four years while the significant claim remains in their experience. Please contact us for more information on the OCP.
Claimant May Not Modify Conditions on Appeal to Court. Ward, a Kroger employee, filed a request to add the conditions of "medial meniscus tear" and "chondromalacia of the right knee" to his workers' compensation claim. The Industrial Commission denied the request so Ward filed an appeal into state court. On appeal, Ward requested the conditions at issue in the Industrial Commission, but also added the conditions of "aggravation of pre-existing degenerative joint disease" and "aggravation of pre-existing osteoarthritis." The case proceeded to jury trial. The jury found that Ward was entitled to participate in the workers' compensation fund for the conditions of "aggravation of pre-existing degenerative joint disease" and "aggravation of pre-existing osteoarthritis." Kroger appealed the jury's verdict. The Supreme Court of Ohio reversed the jury's verdict and held that the scope of the trial is limited to the conditions ruled up on by the Industrial Commission. Pursuant to statutory law, the Industrial Commission is the initial adjudicator of claims. To allow a trial court to consider conditions not at issue before the Industrial Commission usurps the Industrial Commission's authority as the initial adjudicator. (Ward v. Kroger Co.).
EMPLOYEE BENEFITS & EXECUTIVE COMPENSATION NEWS
Employer Required to Reimburse Mistaken Medicare Payments. If Medicare acted as a primary payer of an employer's insured health plan when the employer should have provided primary coverage, can the employer be required to reimburse Medicare? A recent case held the employer responsible for such a reimbursement, even though by the time Medicare made its claim against the employer it was too late under the terms of the employer's insurance contract for the employer to seek restitution from the insurer. Medicare has three years to seek reimbursement for plan expenses under the Medicare secondary payer rules. When negotiating with insurance carriers, employers should try to preserve the ability to seek restitution for reimbursements to Medicare for the same period that Medicare has to seek reimbursement from the employer. (Telecare Corp. v. Leavitt).
Foreign Adoption Expenses. Generally, certain expenses incurred in connection with adoptions qualify for a special tax credit and payment of those adoption expenses by an employer-sponsored adoption assistance program are excluded from the employee's income. However, in the case of foreign adoptions (adoption of children who are not U.S. citizens or residents), these tax benefits are deferred until the year in which the adoption becomes final. The IRS recently issued Revenue Procedure 2005-31 that provides guidance as to when foreign adoptions are final. The guidance provides that a taxpayer may treat a foreign adoption as final in either of the following years: (1) the taxable year in which the foreign court or government agency of the foreign country with the jurisdiction to act on adoptions enters a decree of adoption; or (2) the taxable year in which a home state court enters a decree of re-adoption or the home state other wise recognizes the decree of the foreign country, if that taxable year is one of the two next taxable years after the year in which the foreign decree was entered. The revenue procedure is effective for adoption expenses paid or incurred after June 15, 2005.
GH&R NEWS
HR Matters Celebrates 100 Editions! This month GH&R is proud to publish the 100th edition of HR Matters. We published the first edition of HR Matters in May 1997 to provide timely information to our clients. Topics discussed in the first edition included House and Senate bills to allow private sector employers to offer their employees compensatory time or overtime pay, guidance regarding filing claims under the Americans with Disabilities Act for workers also applying for social security or workers' compensation benefits, implementation of the Drug-Free Workplace Program, and the Small Business Job Protection Act of 1996. As you can tell, the more things change, the more they stay the same. Thank you for your help in making HR Matters a success.
HR Matters is a publication of the Graydon Head & Ritchey Human Resources Department, the Employee Benefits & Executive Compensation and Labor & Employment practice groups and their members. Click here to learn more about our team.
HR MATTERS from GH&R
Volume IX, Issue 100 - August 2005
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.