Frequently Asked Questions (FAQs) | Human Resources

• ADA • Benefits • Child Labor • COBRA • FMLA • HIPAA • Hiring • Miscellaneous • Wages and Hours

What are the ADA restrictions on pre-employment medical inquiries?

Under the Americans with Disabilities Act (ADA), questionnaires, applications, medical examinations, and tests are often used by employers to determine the qualifications of the applicant. Keep in mind that, at the pre-offer stage, disability-related questions and medical examinations are prohibited.

This information is covered in J. J. Keller's Americans With Disabilities Compliance Manual.

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How can I make sure I comply with the ADA restrictions on pre-employment inquiries?

Develop a thorough job description that identifies the essential elements of the job. By relying on this description, both the interviewer and applicant are aware of the essential elements of the job. Employers should also review old application forms to ensure that medical histories are not requested, since this is no longer appropriate. Restrict pre-employment medical inquiries to post-offer. See "May I conduct an employment physical" question.

This information is covered in J. J. Keller's Americans With Disabilities Compliance Manual.

May I conduct an employment physical?

The law permits a medical examination if it is conducted after an offer of employment has been made. However, if physicals are conducted, they must be conducted for all employees in that job category and the medical information gathered must be kept separate from the personnel file. The exam must be job-related and consistent with business necessity. Drug testing is not considered a "medical examination" under the law. Therefore, pre-employment tests for illegal drug use are permitted by the ADA.

This information is covered in J. J. Keller's Americans With Disabilities Compliance Manual.

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What are reasonable accommodations?

Reasonable accommodations are adjustments or modifications which range from making the physical work environment accessible to restructuring a job, providing assistive equipment, providing certain types of personal assistants (e.g., a reader for a person who is blind, an interpreter for a person who is deaf), transferring an employee to a different job or location, or providing flexible scheduling. Reasonable accommodations are tools provided by employers to enable employees with disabilities to do their jobs, just as the employer provides the means for all employees to accomplish their jobs. For example, employees are provided with desks, chairs, phones, and computers. An employee who is blind or who has a visual impairment might need a computer which operates by voice command or has a screen that enlarges print.

This information is covered in J. J. Keller's Americans With Disabilities Compliance Manual.

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What is undue hardship?

This legal term is defined in the ADA as an action requiring significant difficulty or expense for the business/employer, considering the following factors:

• The nature and cost of the proposed accommodation,
• The overall financial resources of the business and the effect of the accommodation upon expenses and resources, and
• The impact of the accommodation upon the operation of the facility.

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When may a job accommodation be required?

A workplace accommodation may be requested by an applicant or an employee with a disability at any time. After initiating the accommodation process, the individual and the employer should discuss the request. There are several considerations when determining reasonable accommodation requests, including the demands of the job, the employee's skills and functional limitations, available technology, and cost. After both parties agree that a workplace accommodation is needed, an appropriate one must be selected.

This information is covered in J. J. Keller's Americans With Disabilities Compliance Manual.

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How many accessible parking spots do I need to have?

The number depends upon how many total parking spots you have.

This information is contained in the Americans With Disabilities Compliance Manual and Prospera.

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Do I have to keep medical information private?

Yes; the ADA requires employers to keep medical information they receive on applicants or employees confidential and in files separate from the general personnel files.

This information is contained in the Americans With Disabilities Compliance Manual and Prospera.

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May I ask applicants if they have ever had workers' compensation claims?

This will depend upon when the employer asks the questions. Employers are prohibited from asking about workers' compensation claims before making a job offer. After making a conditional job offer, such questions may be asked; however, the information may not be used to disqualify individuals because of fear or speculation that a disability may indicate future workers' compensation costs.

This information is contained in the Americans With Disabilities Compliance Manual and Prospera.

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What is ERISA?

The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire. ERISA does this by regulating employers who offer pension or welfare benefit plans for their employees.

ERISA is a federal law that sets minimum standards for pension plans in private industry. For example, if your employer maintains a pension plan, ERISA specifies when you must be allowed to become a participant, how long you have to work before you have a non-forfeitable interest in your pension, how long you can be away from your job before it might affect your benefit, and whether your spouse has a right to part of your pension in the event of your death. Most of the provisions of ERISA are effective for plan years beginning on or after January 1, 1975.

ERISA does not require any employer to establish a pension or welfare benefit plan. It only requires that those who establish plans must meet certain minimum standards. The law generally does not specify how much money a participant must be paid as a benefit.

ERISA does the following:

• Requires plans to provide participants with information about the plan including important information about plan features and funding. The plan must furnish some information regularly and automatically. Some is available free of charge, some is not.
• Sets minimum standards for participation, vesting, benefit accrual and funding. The law defines how long a person may be required to work before becoming eligible to participate in a plan, to accumulate benefits, and to have a non-forfeitable right to those benefits. The law also establishes detailed funding rules that require plan sponsors to provide adequate funding for their plans.
• Requires accountability of plan fiduciaries. ERISA generally defines a fiduciary as anyone who exercises discretionary authority or control over a plan's management or assets, including anyone who provides investment advice to the plan. Fiduciaries who do not follow the principles of conduct may be held responsible for restoring losses to the plan.
• Gives participants the right to sue for benefits and breaches of fiduciary duty.
• Guarantees payment of certain benefits if a defined plan is terminated, through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation.
• Requires employers that offer health plans to provide a summary plan description (SPD) to its plan participants.

Information about ERISA is available in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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What are 401(k) plans?

Employers may establish a defined contribution plan that is a cash or deferred arrangement, usually called a 401(k) plan. You can elect to defer receiving a portion of your salary which is instead contributed on your behalf, before taxes, to the 401(k) plan. Sometimes the employer may match your contributions.

There are special rules governing the operation of a 401(k) plan. For example, there is a dollar limit on the amount you may elect to defer each year. The amount may be adjusted annually by the Treasury Department to reflect changes in the cost of living. Other limits may apply to the amount that may be contributed on your behalf. For example, if you are highly compensated, you may be limited depending on the extent to which rank and file employees participate in the plan. Your employer must advise you of any limits that may apply to you.

Although a 401(k) plan is a retirement plan, you may be permitted access to funds in the plan before retirement. For example, if you are an active employee, your plan may allow you to borrow from the plan. Also, your plan may permit you to make a withdrawal on account of hardship, generally from the funds you contributed. The sponsor may want to encourage participation in the plan, but it cannot make your elective deferrals a condition for the receipt of other benefits, except for matching contributions.

The adoption of 401(k) plans by a state or local government or a tax-exempt organization is limited by law.

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Do we have to provide vacation?

There is no federal or state law requiring that employers provide vacation time to their employees. However, this type of benefit is commonly used to help attract, motivate, and retain employees. Many states do, however, regulate vacation policies and may require notice to employees, may restrict "use it or lose it" policies, and may even require payout of vacation time upon termination.

These topics are covered in the Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities as well as Prospera.

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What is an HSA?

A Health Savings Account (HSA) is an individual account used to save for future medical costs. Since it is an individual account, much like an IRA, it is totally portable and has no use-it-or-lose-it provisions like a 125 cafeteria plan. In order to open an HSA, the individual must be covered only by a high-deductible health plan. There are limits for contributions, but employees and employers may contribute. Distributions from the HSA must be for eligible medical costs.

These topics are covered in the Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities as well as Prospera.

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How many hours in a work week can a minor employee be required to work?

There are limits on both the number of hours and the time of day that a 14- or 15-year old can work. They may not work during school hours. They may work up to three hours on a school day, eight hours on a non-school day, and 18 hours a week during a school week. They may work no more than 40 hours in a week that school does not meet. There are also periods of time which 14- and 15-year-olds may not work. They may not work before 7:00 a.m. or after 7:00 p.m., except between June 1 and Labor Day, when the end of day standard is 9:00 p.m.

State laws often place further restrictions than the federal requirements outlined here.

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What is the youth minimum wage? Who may be paid the youth minimum wage?

As a result of the 1996 Amendments to the Fair Labor Standards Act, employers can pay a youth minimum wage of $4.25 an hour to employees under 20 years of age during the first 90 consecutive calendar days of employment. After 90 days, FLSA requires employers to pay full federal minimum wage.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements..

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Must young workers be paid the minimum wage?

A special minimum wage of $4.25 per hour applies to young workers under the age of 20 during their first 90 consecutive calendar days of employment with an employer. After 90 days, FLSA requires employers to pay full federal minimum wage. Other programs that allow for payment of less than the full Federal minimum wage apply to disabled workers, full-time students, and student-learners employed pursuant to sub-minimum wage certificates. These programs are not limited to the employment of young workers.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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How old must minors be to get a job?

In most cases, they must be at least 14 years old before they can work at a "real" job. Of course, if younger than 14, minors can work around their homes, baby-sit on an informal basis, and deliver newspapers. Both state and federal laws restrict the type of work that minors can perform.

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How and why did child labor laws come into being?

From the mid-1800s to the early part of this century, many young children were employed in what we now call "sweatshop conditions." These children spent many hours working hard at dangerous jobs instead of going to school and getting a good education. Many factories and other firms hired kids because they could be paid less than adults. Many children were overworked and underpaid, often working 16 hours a day, six days a week, and earning only pennies an hour. Kids often were injured or killed while working under these brutal conditions. The child labor laws came into being to stop these abuses and help young people obtain schooling.

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What types of work can an employee do if they are at least 14 years old?

They can perform most jobs in offices and some jobs in retail stores, restaurants, and fast food establishments. Office work may include cleaning the office and the use of office machines. The number of hours they may work each week is carefully limited, and they may not work during those hours their school is in session.

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What jobs are prohibited for minor employees?

Fourteen- and 15-year-olds cannot work in manufacturing, mining, construction, transportation; around machinery; or in listed unsafe jobs that are banned for all youths under age 18. They also may not be a cook or baker in restaurants, work on ladders or scaffolds, or do other dangerous work. Youth 16 and 17 years old can perform any non-hazardous work. Those 18 and older can perform any job.

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What is COBRA?

Congress passed the landmark Consolidated Omnibus Budget Reconciliation Act health benefit provisions in 1986. The law amends the Employee Retirement Income Security Act, the Internal Revenue Code, and the Public Health Service Act to provide continuation of group health coverage that otherwise might be terminated.

COBRA details are available in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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What does COBRA do?

COBRA contains provisions giving certain former employees, retirees, spouses, former spouses, and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available when coverage is lost due to certain specific events. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. It is ordinarily less expensive, though, than individual health coverage.

COBRA details are available in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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Which employers are required to offer COBRA coverage?

Employers with 20 or more employees and group health plans are usually required to offer COBRA coverage and to notify their employees of the availability of such coverage. COBRA applies to plans maintained by private-sector employers and sponsored by most state and local governments.

COBRA details are available in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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Who is entitled to benefits under COBRA?

COBRA establishes three specific criteria to qualify - plans, qualified beneficiaries, and qualifying events:

• Plan Coverage: Group health plans for employers with 20 or more employees on more than 50 percent of its typical business days in the previous calendar year are subject to COBRA. Both full- and part-time employees are counted to determine whether a plan is subject to COBRA. Each part-time employee counts as a fraction on an employee, with the fraction equal to the number of hours that the part-time employee worked divided by the hours an employee must work to be considered full-time.
• Qualified Beneficiaries: A qualified beneficiary generally is an individual covered by a group health plan on the day before a qualifying event who is either an employee, the employee's spouse, or an employee's dependent child. In certain cases, a retired employee, the retired employee's spouse, and the retired employee's dependent children may be qualified beneficiaries. In addition, any child born to or placed for adoption with a covered employee during the period of COBRA coverage is considered a qualified beneficiary. Agents, independent contractors, and directors who participate in the group health plan may also be qualified beneficiaries.
• Qualifying Events: "Qualifying events" are certain events that would cause an individual to lose health coverage. The type of qualifying event will determine who the qualified beneficiaries are and the amount of time that a plan must offer the health coverage to them under COBRA. A plan, at its discretion, may provide longer periods of continuation coverage.
  • Qualifying events for employees are as follows:
    • Voluntary or involuntary termination of employment for reasons other than "gross misconduct," and
    • Reduction in the number of hours of employment.
  • Qualifying events for spouses are as follows:
    • Voluntary or involuntary termination of the covered employee's employment for any reason other than "gross misconduct,"
    • Reduction in the hours worked by the covered employee,
    • Covered employee's becoming entitled to Medicare,
    • Divorce or legal separation of the covered employee, and
    • Death of the covered employee.
  • Qualifying events for dependent children are the same as for the spouse with one addition:
    • Loss of "dependent child" status under the plan rules.

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What group health plans are subject to COBRA?

The law generally covers health plans maintained by private-sector employers with 20 or more employees, employee organizations, or state or local governments.

COBRA details are available in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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What process must individuals follow to elect COBRA continuation coverage?

Employers must notify plan administrators of a qualifying event within 30 days after an employee's death, termination, reduced hours of employment, or entitlement to medicare.

A qualified beneficiary must notify the plan administrator of a qualifying event within 60 days after divorce or legal separation or a child's ceasing to be covered as a dependent under plan rules.

Plan participants and beneficiaries generally must be sent an election notice not later than 14 days after the plan administrator receives notice that a qualifying event has occurred. The individual then has 60 days to decide whether to elect COBRA continuation coverage. The person has 45 days after electing coverage to pay the initial premium.

COBRA details are available in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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Under COBRA, what benefits must be covered?

Qualified beneficiaries must be offered group health coverage identical to that available to similarly situated beneficiaries who are not receiving COBRA coverage under the plan (generally, the same coverage that the qualified beneficiary had immediately before qualifying for continuation coverage). A change in the benefits under the plan for the active employees will also apply to qualified beneficiaries. Qualified beneficiaries must be allowed to make the same choices given to non-COBRA beneficiaries under the plan, such as during periods of open enrollment by the plan.

COBRA details are available in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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How much leave are employees entitled to under FMLA?

The original Family and Medical Leave Act (FMLA) of 1993 entitled eligible employees to 12 weeks of leave for certain family and medical reasons during a 12-month period. With the signing of the National Defense Authorization Act for Fiscal Year 2008, employees were provided two new reasons to make leave requests involving servicemembers. Time off to care for an injured or ill servicemember can be up to 26 weeks (or a combination of 26 weeks). Time off to deal with a qualifying exigency as a result of a servicemember being on active duty or getting called up to serve can be up to 12 weeks.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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How is the 12-month period calculated under FMLA?

Employers may select one of four options for determining the 12-month period:

• The calendar year;
• Any fixed 12-month "leave year" such as a fiscal year, a year required by state law, or a year starting on the employee's "anniversary" date;
• The 12-month period measured forward from the date any employee's first FMLA leave begins;
• A "rolling" 12-month period measured backward from the date an employee uses FMLA leave; or
• Servicemember care leave year is measured forward from the date leave begins.

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Does the law guarantee paid time off?

No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week (or 26 week servicemember care) FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Does workers' compensation leave count against an employee's FMLA leave entitlement?

It can. FMLA leave and workers' compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?

Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Can the employer count time on maternity leave or pregnancy disability as FMLA leave?

Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

In some situations, the employer can count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only if the retroactive designation results in no harm to the employee, or the employee and employer agree to retroactive designation.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Who is considered an "immediate family member" for purposes of taking FMLA leave?

An employee's spouse, children (son or daughter), and parents are immediate family members for most provisions of FMLA. However, "next of kin" (closest blood relative) is also added when it comes to caring for a servicemember. The term "parent" does not include a parent "in-law." The terms "son" or "daughter" do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?

Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Which employees are eligible to take FMLA leave?

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Do the 12 months of service with the employer have to be continuous or consecutive?

No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted. You don't need to consider employment before a break in service of seven or more years.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Do the 1,250 hours include paid leave time or other absences from work?

No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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How do I determine an employee has worked 1,250 hours in a 12-month period?

The individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met:

• 24 hours worked in each of the 52 weeks of the year; or
• Over 104 hours worked in each of the 12 months of the year;or
• 40 hours worked per week for more than 31 weeks (over seven months) of the year.

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Do employees have to give the employer medical records for leave due to a serious health condition?

No. Employees do not have to provide medical records. The employer may, however, request that, for any leave taken due to a serious health condition, employees provide a medical certification confirming that a serious health condition exists.

For more on FMLA compliance, see J. J. Keller'sFMLA Revealed: Understanding Leave Requirements manual.

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Can employers require employees to return to work before leave is exhausted?

Subject to certain limitations, employers may deny the continuation of FMLA leave due to a serious health condition if employees fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require employees to return to work early by offering them a light-duty assignment.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Are there any restrictions on how employees spend time while on leave?

Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict employee activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Can an employer make inquiries about an employee's leave during an absence?

Yes, but only to the employee. Employers may ask questions to confirm whether the leave needed or being taken qualifies for FMLA purposes and may require periodic reports on employee status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, employees may be required to obtain additional medical certification at the employer's expense, or rectification during a period of FMLA leave. The employer may have a health care provider representing the employer contact the employees' health care provider, with their permission, to clarify information in the medical certification or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding employees' health condition or that of a family member.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Can employers refuse to grant employees FMLA leave?

If employees are "eligible" and have met FMLA's notice and certification requirements (and they have not exhausted their FMLA leave entitlement for the year), they may not be denied FMLA leave as long as the reason for leave qualifies.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Do employees lose their jobs if they take FMLA leave?

Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no-fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ("key") employees.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Are there other circumstances in which employers can deny employees FMLA leave or reinstatement to their jobs?

In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave.

Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12-month period" no longer have FMLA protections of leave or job restoration.

Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.

For more on FMLA compliance, see J. J. Keller'sFMLA Revealed: Understanding Leave Requirements manual.

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Can employees be fired for complaining about a violation of FMLA?

No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement?

In all circumstances, it is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. If the employee is eligible and the reason for leave qualifies, the absence is to be designated and counted.

For more on FMLA compliance, see J. J. Keller's FMLA Revealed: Understanding Leave Requirements manual.

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What is HIPAA (portability of health coverage)?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) amended the Employee Retirement Income Security Act to provide new rights and protections for participants and beneficiaries in group health plans. HIPAA contains protections both for health coverage offered in connection with employment ("group health plans") and for individual insurance policies sold by insurance companies ("individual policies").

HIPAA includes protections for coverage under group health plans that limit exclusions for preexisting conditions, prohibit discrimination against employees and dependents based on their health status, and allow a special opportunity to enroll in a new plan to individuals in certain circumstances.

HIPAA requirements for employers include the following:

• Limit exclusions for preexisting medical conditions (known as pre-existing conditions);
• Provide credit against maximum preexisting condition exclusion periods for prior health coverage and a process for providing certificates showing periods of prior coverage to a new group health plan or health insurance issuer ; and
• Provides rights that allow individuals to enroll for health coverage when they lose other health coverage, get married or add a new dependent; and
• Prohibit discrimination in enrollment and in premiums charged to employees and their dependents based on health status-related factors.

HIPAA also guarantees availability of health insurance coverage for small employers and renewability of health insurance coverage for both small and large employers.

States have the authority to provide greater protections than those available under federal law.

This information is addressed in J. J. Keller's HIPAA Compliance Manual.

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Are drug tests that are required by the DOT covered under the HIPAA privacy rules?

Employers, in their activities as employers (as opposed to health care plan sponsors), are not considered covered entities under HIPAA's privacy rules. However, the medical providers that perform the drug tests may be covered entities. The U.S. Department of Health and Human Services indicated that employers and service agents do not need to obtain written employee authorization to disclose drug testing information. However, if the entity performing the drug test is covered by the HIPAA privacy regulations, they may stipulate that authorization is required to disclose the information.

This information is addressed in J. J. Keller's HIPAA Compliance Manual.

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Do the HIPAA privacy rules prohibit employers from receiving information involving workers' compensation?

Covered entities may disclose information as necessary to comply with laws relating to workers' compensation or other similar programs.

This information is addressed in J. J. Keller's HIPAA Compliance Manual.

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What questions should be avoided in an interview?

While there is no definitive list of questions that cannot be asked, it is best to avoid questions that suggest a company may be taking illegal factors into consideration when hiring. Unless there is a legitimate business necessity, the following questions should not be asked:

• Are you married? What is your maiden name? Do you wish to be addressed as Mrs., Ms., or Miss? However, for the purposes of reference checking, the applicant may be asked if he/she has ever worked under a different name.
• Do you have children?
• Are you pregnant?
• Are you dating anyone right now? Personal question like this may give rise to claims of invasion of privacy or sexual harassment.
• How old are you? (It's okay to ask if an applicant is age 18 or older, since some jobs can't be performed by individuals under 18.)
• What is your nationality or race?
• Are you a citizen? (Instead, you can ask if an applicant is legally authorized to work in the U.S.)
• Have your wages ever been garnished or have you ever declared bankruptcy? Credit references may be used if in compliance with the Fair Credit Reporting Act of 1970 and the Consumer Credit Reporting Reform Act of 1996.
• Do you own your own home? This could be seen as discriminatory against minorities who are less likely to own their own home. Even questions like, "How long have you lived at this address?" may be discriminatory.
• What type of discharge did you receive from the military? An applicant may be asked what type of education, training, and work experience he/she received while in the military.
• Do you have a disability? A potential employer can ask whether the applicant can perform the essential functions of the job and meet attendance requirements with or without reasonable accommodation. Do not ask if they need some form of reasonable accommodation until after hiring.
• Have you ever undergone a psychiatric evaluation?
• How often do you drink alcoholic beverages or take illegal drugs? Frequency of use might reveal alcohol or drug addictions, which are considered disabilities.
• Have you ever filed a workers' compensation claim?
• Have you every filed a lawsuit or EEOC charge against an employer?
• What is your religion?
• Have you ever been a member of a union?
• What clubs, societies, and lodges do you belong to? Ask only about organizations that may be relevant to his or her ability to perform the job (for example, professional associations).
• What are your political affiliations?
• What's your sexual orientation?

This list is not exhaustive, but any of these questions or related questions used to get at the same information may open a company up to charges of discrimination. The best way to stay out of trouble with employment questions is to make sure every inquiry is job-related. If it is not, it should not be asked.

Interviews are covered in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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Who is covered by the INA?

The Immigration and Nationality Act (INA) employment eligibility verification and related nondiscrimination provisions apply to all employers. The INA was created in 1952, bringing together many existing provisions of immigration law.

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What are the basic requirements of the INA?

Under the Immigration Reform and Control Act of 1986 (IRCA), employers may hire only persons who may legally work in the United States (U.S.): citizens and nationals of the U.S. and aliens authorized to work in the U.S. The employer must verify the identity and employment eligibility of anyone to be hired, which includes completing and retaining the Employment Eligibility Verification Form (I-9). Employers must keep I-9s on file for at least 3 years (or one year after employment ends, whichever is later).

The INA also protects U.S. citizens and aliens authorized to accept employment in the U.S. from discrimination in hiring or discharge on the basis of national origin and citizenship status.

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What is Affirmative Action?

Affirmative action is the set of positive steps that employers use to promote equal employment opportunity and to eliminate discrimination. Affirmative action does not, however, require you to establish quotas, and in fact quotas are prohibited.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses affirmative action.

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What posters are required in the workplace?

Some of the statutes and regulations enforced by agencies within the Department of Labor require that notices be posted in the workplace. Generally, workplaces should post the following applicable notices:

• Fair Labor Standards Act (FLSA) - minimum wage,
• Job Safety and Health Protection (OSHA),
• Equal Employment Opportunity (EEOC),
• Family and Medical Leave Act (FMLA),
• Employee Polygraph Protection Act (EPPA), and
• Uniformed Services Employment and Reemployment Rights Act (USERRA).

State and federal labor law poster kits are available from J. J. Keller.

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What are the federal laws prohibiting job discrimination?

• Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin.
• The Lily Ledbetter Fair Pay Act (LLFPA), which prohibits pay discrimination on the basis of any protected class.
• The Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.
• The Age Discrimination in Employment Act (ADEA), which protects individuals who are 40 years of age or older.
• Title I of the ADA, which prohibits employment discrimination against qualified individuals with disability in the private sector.
• The Civil Rights Act of 1991, which among other things, provides monetary damages in cases of intentional employment discrimination.
• The Genetic Information Nondiscrimination Act (GINA), which prohibits discrimination based on genetic information.
• The Civil Rights Act of 1866, which originally prohibited discrimination in contracts, but which has been held to also prohibit race discrimination in employment.

The EEOC enforces all these laws. In addition, state agencies may provide coverage in other protected classes such as sexual orientation. Employees receive the benefit of the most comprehensive law.

Discrimination is covered in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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Which employers are covered by discrimination laws?

Title VII, the ADA, and GINA cover all private employers that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

The ADEA covers all private employers with 20 or more employees, employment agencies, and labor organizations.

The EPA covers all employers who are covered by the FLSA - virtually all employers are subject to the provisions of this Act.

State regulations may have more restrictive coverage. For example, in some states, sexual harassment laws apply to employers with as few as one employee.

Discrimination is covered in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities.

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What is the EEOC?

The Equal Employment Opportunity Commission (EEOC) is an independent federal agency originally created by Congress in 1964 to enforce Title VII. The agency handles charges of discrimination based on age, disability, equal pay, national origin, pregnancy, race, religion, sex and genetic information, as well as sexual harassment. The EEOC maintains agreements with state civil rights agencies so that any complaint is filed with both agencies (State and EEOC).

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Can I require my employees to speak English while at work?

A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will almost never be justified by business necessity and will probably violate Title VII of the Civil Rights Act. One exception might be an unusual work environment where safety considerations are of primary concern even during employee break times. Basically, you need to show a legitimate business reason for the English-only rule. Preferences of employees or clients cannot be a factor.

This topic is discussed in J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities as well as Prospera.

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What is the Fair Labor Standards Act (FLSA)?

The Fair Labor Standards Act is the Federal law which establishes minimum wage, overtime pay, recordkeeping, and child labor standards for full-time and part-time workers in the private sector and in Federal, State, and local governments. Some states have worker protections that exceed Federal standards.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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What is the minimum wage?

The current federal minimum wage is $7.25 per hour, effective July 24, 2009. Note that many states, and even some local governments, have established their own minimum wage. Covered employees would be entitled to whichever wage is higher.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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What is the minimum wage for workers who receive tips?

An employer of a tipped employee is required to pay $2.13 an hour in direct wages if that amount plus the tips received equals at least the Federal minimum wage, the employee retains all tips and the employee customarily and regularly receives more than $30 a month in tips. If an employee's tips combined with the employer's direct wages of at least $2.13 an hour do not equal the Federal minimum hourly wage, the employer must make up the difference.

Some states have minimum wage laws specific to tipped employees. When an employee is subject to both the Federal and state wage laws, the employee is entitled to the provisions of each law which provide the greater benefits.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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What is overtime pay?

Overtime pay is premium or extra money paid to employees for all hours worked over 40 in a workweek. Overtime pay must be at least one and one-half times the regular rate of pay for all overtime hours.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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Does the minimum wage and overtime law apply to all workers?

No. Most workers in the United States are entitled to the applicable state or federal minimum wage, and overtime pay at a rate of not less than one and one-half times their regular rates of pay is required after 40 hours of work in a workweek. There are some workers who are not subject to one or both of these provisions. Typically, the employer bears the burden of proving that an exemption applies.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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When should workers be paid?

Workers are required to receive their wages on the regular payday for the time period worked. State laws generally dictate the frequency of paydays.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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Does the law require workers to be paid for such things as vacations, holidays, severance, or sick time?

No, vacations, holidays, severance, or sick time are not required. They are fringe benefits which an employer may choose to provide to employees.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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How are vacation pay, sick pay, and holiday pay computed and when are they due?

The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (Federal or otherwise). These benefits are matters of agreement between an employer and an employee (or the employee's representative). However, state laws may impose some requirements. For instance, some states consider earned vacation to be a "wage" that is owed to the employee and cannot be denied or taken away once it has been earned (i.e., it would have to be paid out to departing employees).

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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Are employers required to give workers meal, rest, or break periods, holidays off, sick pay, and health and life insurance coverage under the minimum wage law?

Under federal law, it is up to the employee and the employer to agree on any of these things which are called "fringe benefits." Sometimes they are offered to full-time workers but not to part-time workers. State laws may require meal periods or breaks, and even restrict employment on certain holidays.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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Should workers receive extra pay for working on weekends and holidays?

Federal law does not require overtime or extra pay for work on weekend days and holidays.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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When are pay raises required?

Pay raises are generally a matter of agreement between an employer and employee (or the employee's representative). Pay raises to amounts above the Federal minimum wage are not required by the FLSA.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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Are employers required to give notices or reasons for firing workers?

No. Federal law does not require notices or a reason for firing employees.

J. J. Keller's Human Resources Management Guide: An Essential Tool for Managing Day-to-Day HR Responsibilities addresses FLSA requirements.

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