December 21, 2014

News Roundup: DOJ transgender protections; racial tension; winter smackdown & more

DOJ extends legal protections to transgender employees
"The Department of Justice has officially expanded its legal definition of sex discrimination – prohibited by Title VII of the 1964 Civil Rights Act – to include discrimination based on gender identity, Attorney General Eric Holder announced Thursday.
The decision, circulated in a memo to all DOJ components and U.S. attorneys, marks a reversal in position, and bars the department from making arguments in court that transgender people are not covered under Title VII, the federal law that prohibits sex discrimination in employment. It also enables the DOJ’s Civil Rights Division to file Title VII claims against state and local public employers on behalf of transgender individuals."

Related: Dave Shadovitz on the DOJ’s Move to Protect Transgender Individuals

Guidance for HR when racial tension spreads from streets to workplace
Tammy Binford, HR Hero: "As anger peaks around the country, it’s likely some of the emotions displayed in protests will erupt at work. When that happens, HR has a job to do to keep potentially emotional conversations from escalating into workplace disruption and even discrimination or harassment claims. Effective antidiscrimination policies and training programs are a start."

How You Should Manage Depression in the Workplace
At Inc., Evil HR Lady Suzanne Lucas talks about holiday depression and enlists the help of Counselor, Stephanie Meldrum: "Of course, if you suspect you should act, but from a business standpoint. Meldrum emphasizes that it's critical to keep the relationship professional and business focused. "My general recommendation would probably be to have a conversation about the work performance issues only, and then ask a question like 'Are there any contributing factors that are getting in your way of making changes? Would a referral to the EAP for support be helpful?'"

11 Tricks Steve Jobs, Jeff Bezos, And Other Famous Execs Use To Run Meetings
"Americans sit through some 11 million meetings every day — with the unproductive ones costing companies $37 billion a year ... So we decided to look at how some of the most effective executives in history — from GM czar Alfred Sloan to Apple prince Steve Jobs to Facebook queen Sheryl Sandberg — run the meetings that invariably fill their calendars."

Winter Smackdown!
Sandy Smith at EHS Today: "Whether it's a polar vortex or simply a blizzard, winter weather can be tough on our bodies, our cars, our travel schedules and our psyches. Here are some tips to protect yourself and employees during the winter months."

Another Reason Mondays Are The Worst
"In 2013, Mondays were responsible for about 167,000 instances of someone getting hurt at work — more than any other day. And this is a trend that holds up pretty well: Monday has been the most injury-prone day of the week in all but two years since 2007."

Holiday focus
The 12 Days of Employment Law Christmas (2014)
Jon Hyman, Ohio Employer's Law blog has posted his annual “The 12 Days of Employment Law Christmas," amusing and informative, as he includes links to his coverage or important law related issues.

Santa Sued for Disability Discrimination Due to Reindeer Harassment
Reindeer co-workers harassed Rudolph on the basis of a perceived disability, and Santa failed to take prompt corrective action to stop the harassing behavior.

Get the Santa Tracker App

How Grinchy are employers this year?

News Briefs:


ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

December 20, 2014

The job of being Santa: pay, essential functions & more


Good news for Santa Claus - he's had a bit of a pay hike this year: "St. Nick's salary should be $139,924 in 2014 -- up more than $2,000 from last year's estimated pay of $137,795." These calculations are from's annual Santa Index, which is based on Bureau of Labor Statistics data. Santa is categorized as being "an industrial engineer managing a North Pole toy factory."

Although the duties of an industrial engineer are the largest part of Santa's job, his pay is actually comprised of the going rate for 14 additional essential functions and the number of associated hours he spends each week on those functions. Here's a sampling:

  • Professional shopper / Sales and Related Workers, All Other
  • Labor negotiator (with the elves) / Labor Relations Specialists
  • Investigator (knows if you've been good or bad) / Private Detectives and Investigators
  • Sleigh pilot / Airline Pilots, Copilots, and Flight Engineers
  • Cookie taster / Agricultural Inspectors

Of course, the $139k pay rate is for the real Santa. Some of the mall stand-ins earn considerably less:

"Mall Santas in Southern California can make between $6,000 and $8,000 during the holiday season, Erwin says. "But doing so often requires them to work hundreds of hours."
Corporate, private or municipal events pay more per hour, but the events don't last as long as work shifts at the mall. Pay depends on the client list. Erwin says he typically earns between $8,000 and $10,000 for 60 to 90 hours of performing. He also does film work, but says with the time he spends traveling to auditions and call-backs, "Most years it seems I'm spending $1 for every two or three I earn."
Most professional Santas also do many appearances for free for charities."

As with any job, the essential functions are only part and parcel of what's needed. The job requires a gentle and jolly disposition, a hearty belly laugh and quite a bit of patience. As one Santa puts it, "And you have to believe in your own heart because some kids will challenge you and say you aren't really Santa. You have to really believe in yourself that you are Santa."

To learn more about what it takes to have the job of Santa, we turn to Jack Broom of the Seattle Times, who offers a delightful inside look at the magic of wearing the red suit. In the article, he interviews several Santas who describe the job: "Magic, wonder and awe. Talk to those who spend parts of the holiday season in Santa garb and you’ll hear the experience described as a role, a gig, an honor, a responsibility — even a calling."

He also discusses some of the nuts and bolts of the job:

"Santas typically provide their own suits, although a store or a mall might provide a Santa suit for a consistent look. Santas pay for insurance, travel expenses and often for the treats and gifts they hand out.
Santas working in malls and stores are typically paid by the hour, often by the photographer running the Santa display, rather than by the store."

In a similar vein, Kate Hill has written Confessions of a store Santa for ABC Australia. Her story talks about some of the job hazards (think bodily fluids) and the liability issues that require a higher level of political correctness.

"Everyone must have a working with children check and kids are no longer allowed to perch on Santa's knee, but are required to sit beside him.
"The only ones I hold are babies up until about nine months," said Mr Jones.
Both his hands have to be on show while a child is with him and cuddling is still okay, but Mr Jones has to angle his body away from the children.
Mr Jones said the changes are sad but necessary, designed to protect both parties."


esi.JPG Want to ensure a winning team in your organization? In addition to help for your employees, ESI EAP offers a full suite of tools for supervisors and managers, including our ESI Management Academy. Trainings cover compliance issues, management skills and more. If you want to learn more about how ESI can provide more employee EAP benefits and more employer services, call us at 800-535-4841.

December 14, 2014

Prescription Drug Abuse: Resource Update

Patient expectations, prescriber practices and powerful new opioid drugs have all combined to create a perfect storm that is wreaking havoc throughout the nation, spawning what the CDC has labeled an abuse epidemic. Physician Kevin Pho talks about the role that pain has played in the current opioid epidemic in his highly regarded KevinMD blog. He notes that despite being a symptom and subjective in nature, pain has come to be regarded as the fifth vital sign. "This is based on the (mistaken) idea that pain medication is capable of rendering patients completely pain free. This has now become an expectation of many patients who are incredulous and disappointed when that expectation is not met."

Each day, 46 people die from an overdose of prescription painkillers in the US.

Health care providers wrote 259 million prescriptions for painkillers in 2012, enough for every American adult to have a bottle of pills.

10 of highest prescribing states for painkillers are in the South.

These stats are from the CDC's Vital Signs earlier this year, which delineates how where you live makes a difference: in 2012, health care providers in the highest-prescribing state wrote almost 3 times as many opioid painkiller prescriptions per person as those in the lowest prescribing state in the US.

While some prescription drug abuse is the result of illegal activity, all too often, people who abuse prescription drugs were prescribed the drugs legally for a medical condition. For example, prescription drugs are a very big issue in workers’ comp claims. Today, people with work injuries like sprains and strains are often being prescribed extremely potent narcotics that were intended for cancer treatment and other serious pain issues. Consequently, many recovering workers become addicted to drugs so what started out as a fairly routine sprain or strain can mushroom into full-blown addiction. It’s important to work with insurers to ensure that work comp physician networks adhere to best practices in prescribing practices; an employee’s return-to-work after recovering from an injury might be a critical time for managers to be on alert.

See: Opioid Epidemic Plagues Workers’ Comp

Where’s Your Bottle of Painkillers?, which makes the case that organizations must work harder to protect injured employees from the destruction opioids can wreak

What employers can do
The National Safety Council discusses The proactive role employers can take: OPIOIDS IN THE WORKPLACE

Drug-Free Workplace Policy Builder - Prescription and Over-the-Counter Medications
In this tool, the Department of Labor advises:

"Employers should not implement a blanket policy requiring all employees to disclose prescription drug use for legitimate medical purposes. Moreover, the Americans with Disabilities Act and the Rehabilitation Act of 1973 permit an employer to ask disability-related questions only if they are job related and consistent with business necessity. However, there are some prescribed and over-the-counter medications, such as amphetamines and benzodiazapines, that may result in a positive drug test. In this event, a Medical Review Officer (MRO) or other appropriate company personnel may inquire to determine if the employee has a legitimate medical explanation, such as a physician's prescription, for a positive drug test.

However, employers may want to consider incorporating language regarding prescription and over-the-counter drug use by employees who perform jobs that directly affect public safety and health. Because important privacy interests and non-discrimination protections must be balanced with the need to address workplace drug use, employers are strongly encouraged to consult with an attorney specializing in employment law before deciding to cover prescription and over-the-counter drug use in their drug-free workplace policy."

Other tools and resources

Looking for the most comprehensive and effective wellness program for your employees? ESI TotalCare Wellness pairs Behavioral Health Clinicians with certified Wellness Coaches to provide employees and their families with the help, motivation, tools and support to make changes and improve their lives. Call 800-535-4841 for more information.

December 13, 2014

Inspiration of the Week: Sergeant Kevin Briggs, the bridge between suicide and life

Next time you think your job is particularly challenging, think about the job that Sergeant Kevin Briggs had. He spent a number of years patrolling the southern end of San Francisco’s Golden Gate Bridge, a popular site for suicide attempts, intervening in those attempts and saving hundreds in the process. In a sobering, deeply personal TED talk Briggs shares stories from those he’s spoken — and listened — to standing on the edge of life. He also offers powerful advice to all who might be in a position to intervene, particularly those with loved ones who might be contemplating suicide.

You can also view this video and an interactive transcript at TED.

You can also read the moving story of a reunion he had last year with a survivor who he helped a number of years ago - he talks about it in the Ted talk.

What employers can do
According to the American Association of Suicidology, nearly two-thirds of all suicides occur among the nation’s work force, Americans ages 25-65, which translates to roughly 20,000 suicides a year. The Suicide Prevention Resource Center (SPRC) suggests that employers can play an important role in helping to prevent suicide. Because people spend such a significant portion of their day at work, employers have the opportunity to observe changes in behavior, personality or mood. Training managers to be alert for and make referrals when they observe signs of depression and other early warning signs of problems may save lives. SPRC points to the following warning signs:

  • Talking about suicide or death
  • Making statements like "I wish I were dead." and "I'm going to end it all."
  • Less direct verbal cues, including "What's the point of living?" "Soon you won’t have to worry about me" and "Who cares if I'm dead, anyway?"
  • Uncharacteristically isolating themselves from others in the workplace
  • Expressing feelings that life is meaningless or hopeless
  • Giving away cherished possessions
  • A sudden and unexplained improvement in mood after being depressed or withdrawn
  • Neglect of appearance and hygiene
  • Sudden unexplained deterioration of work performance or productivity

Many suicide prevention groups suggest an easy mnemonic to remember warning signs: IS PATH WARM
Substance Abuse
Mood Changes

In the video above, Briggs says:

"What would you do if your family member, friend or loved one was suicidal? What would you say? Would you know what to say? In my experience, it's not just the talking that you do, but the listening. Listen to understand. Don't argue, blame, or tell the person you know how they feel, because you probably don't. By just being there, you may just be the turning point that they need. If you think someone is suicidal, don't be afraid to confront them and ask the question. One way of asking them the question is like this: "Others in similar circumstances have thought about ending their life; have you had these thoughts?" Confronting the person head-on may just save their life and be the turning point for them. Some other signs to look for: hopelessness, believing that things are terrible and never going to get better; helplessness, believing that there is nothing that you can do about it; recent social withdrawal; and a loss of interest in life."

The holiday season can be a particularly difficult and stressful time for many. If you observe warning signs or changes in behavior or personality, don't try to diagnose the problem or find the reason for the behavior changes, simply help the employee to find professional assistance through your EAP or an occupational health specialist. Work performance can be a great leverage for getting people who might otherwise be reluctant to seek help for a problem. For an additional resource, the World Health Organization has a 32-page booklet on Preventing Suicide - A Resource at Work. Also see the SPRC's employer guide: The Role of Managers in Preventing Suicide in the Workplace

ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

December 6, 2014

2014 Holiday Survival Kit for Employees & Families

We've updated our annual holiday survival guide to offer resources for you and your employees in dealing with seasonal stressors and special situations over the holidays. If you'd like to share these resources with your employees, copy this link:

At the Workplace
Tools & Tips to Help Your Organization Create a Happy, Ethical & Compliant Holiday Season

Seven Dos and Don’ts for the Holiday Season - from employment attorney Jonathan Segal

Top 10 Holiday Aggravations at Work - what not to do

Tis the Season - to be extra careful about holiday legal issues

14 Ways to Stay Focused at Work Through the Holidays

Avoiding stress & problems

Holiday Stress? Try These 5 Tips for a Heart-Healthy Holiday Season

16 Ways To Beat Holiday Stress

Coping with SAD, or Seasonal Affective Disorder

Ease Holiday Stress, boost work life balance

Holiday Health & Safety Tips - Centers for Disease Control

Stress, depression and the holidays: Tips for coping - from the Mayo Clinic

Holiday Stress Calls for an Attitude Adjustment

Eating & Drinking in the Holidays
8 Tips for Healthy Holiday Eating (Infographic)

Healthy Eating and Holiday Meal Planning from the American Diabetes Association

Healthy Eating Tips and Light Party Recipes for the Holidays

Top 10 Holiday Diet Tips - WebMD

The Holidays: Challenges and Survival Guide for Sober Alcoholics

Al-Anon helping families through alcoholism during holidays

4 Health Excuses To Stay Sober At Your Holiday Party

How to Cope with Family Holiday Events... Without Alcohol!

Family Matters
Stress & Parenting During the Holidays

7 Holiday Stress Busters for Kids

10 Tips to Help Seniors Enjoy the Holidays

Multicultural Familia - Holidays

Holiday Tips for Blended Families

Children of Divorce List Holiday Dos and Don'ts

Special situations

Mental Illness: Coping with the Holidays (PDF)

Military Holiday Center , including 5 Tips Managing Deployment Stress During the Holidays

Dealing with grief or loss over the holidays

Helping with Holiday grief: "do" and "don't" lists

Tips for Reducing Holiday Stress for Families of Children with Autism (PDF)

Holidays and Alzheimer's: Tips to enjoy the season

Helping Children Cope with Holidays After a Disaster (PDF)

Top Ten Ways to Survive the Holidays During and After Divorce

Handling Holidays After Divorce

Coping With Loneliness During the Holidays

How to Cope with Spending the Holidays Away From Home

Keeping Safe
Holiday Decorating Safety Tips (PDF)

Put a Freeze on Winter Fires

Food Safety

2014 Dangerous Toys report

Hosting a Holiday Party? You Might Want to Brush Up On Social Host Liability

Pet Holiday Safety Tips

Money and finance
Manage Your Holiday Spending (PDF) - tips from The American Financial Services Association Education Foundation (AFSAEF)

Eight hidden holiday costs and how to avoid them

8 Smart Ways to Save When Buying Holiday Gifts for a Big Family

Avoiding competitive shopping for fun & profit - minimizing financial stress

Mastering Your Holiday Season Budget

Making the holidays less materialistic for your kids - from KidsHealth

Financial stress is a big issue at this time of year. The following resources are not specific to the holidays, but helpful in addressing the financial stress that can accompany the holidays.

Coping in Hard Times: Fact Sheet for Parents (PDF)

Dollars and sense: Talking to your children about the economy

Security & Crime Prevention
12 Scams of the Holidays

Pass It On - FTC Info for consumers on common scams and fraud

Simple ideas to prevent identity theft during the holidays

Don't Lose Money on PrePaid Debit Cards

Top Tips for Safe Online Holiday Shopping

Do not let thieves steal your holiday spirit

Crime Prevention Tips for the Holiday

Guide to Meaningful & Charitable Gift-Giving
American Red Cross - 2014 Holiday Gift Giving Catalog


Better Business Bureau's Wise Giving Alliance

Charity Navigator Holiday Giving Guide

Avoid Charity Fraud


esi.JPGWhen Holiday stress gets to be too much, an EAP can be a lifesaver. Learn how ESI Employee Assistance Program can help address your employees' wellbeing issues - from a wellness benefits and help for everyday work-life matters to comprehensive assistance for a wide array of potentially disruptive issues and problems. To learn more about how ESI EAP can help, give us a call: 800-535-4841.

November 30, 2014

December wellness themes & resources

Between Christmas, Hanukkah and Kwanza, holidays dominate the month of December. Although there are few "official" health observances and events, there's no shortage of potential themes for your wellness communications.


Safe Toy and Gift Month - According to the U.S. Consumer Product Safety Commission, hospital emergency rooms treated an estimated 251,700 toy-related injuries in 2010 throughout the United States. 72% were to people less than 15 years of age. Additionally, in 2007 alone, toymakers recalled over 19 million toys worldwide because of safety concerns such as lead paint and small magnets.

National Handwashing Awareness Month - The CDC offers printable fact sheets on handwashing-related topics, audio podcasts about handwashing and disease prevention, printable posters, social media messages, videos for adults and kids, and web features. See also: Henry the Hand.

World AIDS Day - Around the world, about 34 million people are living with HIV. In the United States, about 50,000 people get infected with HIV every year. It’s important that everyone ages 15 to 65 gets tested for HIV at least once. Some people may need to get tested more often.

1-5 - Older Driver Safety Awareness Week

3 – International Day of People with Disability

7 - 13 National Influenza Vaccination Week

Healthy Holiday Eating & Drinking

Holiday Health Eating Guide - American Heart Association

Healthy Eating for the Holidays - UCLA

Healthy Eating Tips and Light Party Recipes for the Holidays - Epicurious

Managing Your Diabetes During the Holidays

Holiday Meal Planning - American Diabetes Association

Handling the holidays when recovering from alcohol addiction

Don't Drink? How to Get Through the Holidays Sober

It’s the Holidays – Are your Boundaries with the Alcoholic/Addict Wrapped up Tight?

Looking for the most comprehensive and effective wellness program for your employees? ESI TotalCare Wellness pairs Behavioral Health Clinicians with certified Wellness Coaches to provide employees and their families with the help, motivation, tools and support to make changes and improve their lives. Call 800-535-4841 for more information.

November 29, 2014

News Roundup: E-mail policies; High performers; Maternity & paternity leave & other notable news

Top 5 awesome corporate email policies
At The Chief Happiness Officer Blog, Alexander Kjerulf points to a University of California study on stress and its relation to e-mail. He says, "Don’t get me wrong – I’m not against email. It’s an awesome communication tool, but in many workplaces it is used poorly, and mostly the burden has been put on employees to figure out strategies for dealing with the resulting email onslaught.
I think it’s time for workplaces to take responsibility for this issue at a corporate level and fortunately, some workplaces have done just that and are trying new and better email policies."
He offers five of the best policies that he's found.

What High Performers Want at Work
Karie Willyerd, Harvard Business Review:
"A high performer can deliver 400% more productivity than the average performer.

Despite this, when most managers look at workforce statistics, all employees tend to be lumped together into a category so broadly defined that it becomes difficult to take meaningful decisions. If your average employee tenure is six years, is that good or bad? You could benchmark the Fortune 500 and find that indeed you would look pretty good, tied at 40th place. But if the people you are keeping are the low performers and your high performers are leaving, would that be really so great?"

The Whole World Is Fat! And That Ends Up Costing $2 Trillion A Year
Jason Beaubien of NPR Health :
"The McKinsey report estimates the economic impact of obesity around the world at $2 trillion a year. Part of that figure is the cost of caring for diseases that are linked to obesity, like Type 2 diabetes. But there's an even bigger cost in "the loss of productivity," Dobbs says. "People suffering from obesity often work less. They have to take more time off sick. They retire early or even die early."

The United States has the highest obesity rate in the world: 34.9 percent. And while Americans are known for enjoying fast food and being "big," the other countries in the top five fattest nations might surprise you: Saudi Arabia, the United Arab Emirates, Mexico and South Africa."

Maternity and Paternity Leave in the United States
The U.S. lags behind most other nations in terms of how much guaranteed maternity and paternity leave is provided to employees. Bridget Miller of HR Daily Advisor notes that, "Similar to the fact that vacation time is not a benefit mandated by federal law, maternity and paternity leave is often left up to the will of the employer. Some employers do provide such leave, and some even provide it with pay. Others have no provision at all and instead require employees to either use personal and/or vacation days or rely on the provisions allotted by the Family and Medical Leave Act (FMLA)." She offers and overview of some U.S. laws that cover the gaps.

If you have not updated your handbook this year you are way behind

Michael Haberman, Omega HR Solutions:
"There are a number of new issues that employers need to pay attention to now and some that are coming in the near future. According to a report written by XpertHR some of the trends that need some attention include: “LGBT protection, medical marijuana and no-fault attendance policies are just a few of the trends that employers need to consider when developing or updating their employee handbooks”.

Probably one of the more important policies that need to be addressed is BYOD (bring your own device). As companies either allow or require employees to bring their own mobile devices to work in order to do work, policies need to be put in place and communicated. BYOD is not just a matter of security, though that is a huge issue, it also includes some wage and hour issues. And what about social media use?"

Secrets of the most productive people
Fast Company interviews a senator, a chef, 4 CEOs and a DJ superstar to learn about how they get the most out of their days

News Briefs

ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.

November 23, 2014

Depression is hitting your bottom line

  • Nearly a quarter (23 percent) of U.S. respondents indicated they have been diagnosed with depression in their lifetime
  • Two in five (nearly 40 percent) of those patients reported taking time off of work – an average of 10 days a year – as a result of their diagnosis.
  • Mental illness short-term disability claims are growing by 10 percent annually.
  • 64 percent of survey participants reported cognitive-related challenges, as defined by difficulty concentrating, indecisiveness and/or forgetfulness, have the most impact on their ability to perform tasks at work as normal.
  • 58 percent of employees surveyed who have been diagnosed with depression indicate they had not told their employer of their disease.
  • 49 percent felt telling their employer would put their job a risk
  • 24 percent felt it was too risky to share their diagnosis with their employer.

These findings are among the key outcomes of The Impact of Depression at Work Audit (IDeA), a survey which assessed the economic burden of depression in the workplace. Employers Health, an Ohio-based employer coalition, announced results for the U.S. survey at the recent National Business Coalition on Health annual meeting.

The Group noted that:

"Yet, research shows that supporting the needs of those living with depression makes a difference. In fact, a cost-benefit modeling study by Lo Sasso et al. suggests every one dollar invested by employers in enhanced depression care yields approximately three dollars for the company in the form of productivity gains by employees."

Employers that offer an EAP have access to a powerful tool for their employees that makes counseling affordable and accessible. The key is in publicizing information about depression, as well as disseminating frequent information about the availability of help through the EAP. It's important to educate your managers and supervisors to watch for changes in work performance that may indicate depression and to know how to make referrals to the EAP.

Here are some resources to help you deal with depression in your workplace:

What employers can do to address health & productivity issues related to depression in the workplace

Andrew Solomon: Depression, the secret we share

Robin Williams' death puts a spotlight on depression

Depression Field Guide for Employers
(a toolkit)

Partnership for Workplace Mental Health


ESI-Logo.jpg ESI EAP offers depression and mental health counseling 24/7/365. Employee Members and their families have access to Masters and PhD level counselors. If your organization needs an Employee Assistance Program give us a call: 800-535-4841.

Snow policies: Are yours in place?

Employers in Buffalo are grappling with how to deal pay policies related to the recent weather-imposed closures and driving bans. Even companies with strict disciplinary measures related to unplanned absences were forced to relax policies.

Does your organization have a policy about snow and other weather-related work disruptions? Do your employees understand where your organization stands on the issue of pay should they be unable to make it into work or if your organization shuts down due to weather? It's best to clarify in advance to avoid any misunderstandings. If you haven't already, the week after Thanksgiving week might be a good time to issue a reminder about your policy.

HR Specialist offers some guidance on pay for snow-day absences based on Department of Labor guidance on the matter, noting that while the DOL letters on the topic don't have the weight of law, courts are deferential to them. And BLR has a great flow-chart on FLSA/FMLA payments in weather-related events (see below).

If you don't have a policy, here are some samples to get you started.

Winter Weather and the Workplace: FLSA, FMLA and When to Pay Infographic

Winter Weather and the Workplace: FLSA, FMLA and When to Pay: By


esi.JPG Want to ensure a winning team in your organization? In addition to help for your employees, ESI EAP offers a full suite of tools for supervisors and managers, including our ESI Management Academy. Trainings cover compliance issues, management skills and more. If you want to learn more about how ESI can provide more employee EAP benefits and more employer services, call us at 800-535-4841.

November 16, 2014

FMLA Update - Recent issues & case law

We last checked in on FMLA in July - here's a roundup of experts in employment law weighing in on key FMLA issues and case law, mostly from the second half of the year.

Workplace Prof Blog brings us the results of a recent study on employer compliance with the Family and Medical Leave Act (FMLA): "Using partial identification methods, we estimate that FMLA compliance among firms with 50 or more employees in the private sector is at least 54.3% and at most 76.8%. We also look at organizational characteristics that predict compliance, noncompliance, and nonresponse."

FMLA Insights: Court Determines that Employer's FMLA Notice Sent by Email is Not Reliable (Sending Employer World into Tizzy)
Earlier in the year, a court found that an FMLA notice sent to an employee by U.S. mail cannot be trusted because the employer cannot confirm whether the employee actually received it. More recently, a different federal court has determined that notice sent by email is not reliable either - Jeff Nowak discusses what employers should do now.

FMLA Insights: Are You a Co-Employer? FMLA Joint Employer Liability Can Be Deadly
"To be covered by the FMLA, a private employer must employ at least 50 employees within a 75-mile area. If the employer doesn’t meet this threshold, it is not obligated to provide FMLA leave to its employees. However, an employee can enjoy the protections of the FMLA if he is jointly employed by multiple companies that together have 50 or more employees."

The Emplawyerologist: FMLA Lessons From Wal-Mart: Just What the Doctor (and Court) Ordered

DOL: Notice of Proposed Rulemaking to Revise the Definition of “Spouse” Under the FMLA
"The Department of Labor has published a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the FMLA in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional."

FMLA Insights: Don't Be Tripped Up by Light Duty Obligations under the FMLA and ADA: A Discussion of Employer Best Practices

The Employer Handbook: Here's why you provide a list of essential job functions when approving FMLA
"Although, an employee may not be required to take more FMLA leave than necessary, when the employer informs the employee that she is eligible to take leave, the employer can insist that the employee certify, as a condition of returning to work, that the employee can perform all essential job functions. The way this is done is by providing the employee with a list of essential job functions."

HR Daily Advisor: Can You Get Sued Over Improper Leave Administration?

Ohio Employer Law Blog: “Honest belief” isn’t a defense to an FMLA claim, says federal court
"The honest-belief rule is one of most effective shields available to employers in discrimination case ... What happens in an FMLA claim, however? Can an employer use the honest-belief rule to fend off an employee’s claim that an employer interfered with FMLA rights? Yontz v. Dole Fresh Vegetables (S.D. Ohio 10/10/14) says “no.”

Ohio Employer Law Blog: Do not force employees to work during FMLA leave
"With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v Books-a-Million (11th Cir. 8/8/14) [pdf], the answer is no."

FMLA Insights: FMLA FAQ: Can We Terminate an Employee for Working a Second Job While on FMLA Leave?

Seyfarth Shaw LLP: Employer Beware: The FMLA Can Reach Further Than You May Think
"We all know that the FMLA’s protections kick in once an employee has been employed for 12 months. But can those protections be triggered even before a full year’s employment? One federal district court recently held that they can be. Here’s why employers should take note."

SHRM: FMLA Continues to Challenge Employers

Seyfarth Shaw LLP: EEOC Says Reasonable Accommodation Required for All Pregnant Workers

Risk & Insurance: In Search of New Absence Management Strategies

Human Resource Executive: Fighting FMLA Abuse
"Family and Medical Leave Act abuse comes in many forms. The solution to curbing it, however, will require HR leaders to rethink their current approach and suspend their trust in some employees."

Reviewing FMLA Nuts & Bolts

The AR Group: Understanding the Basics of the Family Leave Medical Act

HR Daily Advisor: Understanding FMLA Basics

HR Daily Advisor: Calculating Intermittent FMLA Time
"Managing leave in accordance with the Family and Medical Leave Act (FMLA) can be burdensome. Intermittent FMLA leave in particular gets a bad rap because of the hassle of recordkeeping. Employers must be sure to accurately account for the time taken off from work, and they also must calculate the allowed time correctly—keeping in mind that the allowed number of hours won’t be the same for every employee."

HR Daily Advisor: Designation of FMLA–First Place Employers Fail?
"The list of employers’ FMLA obligations is long and the pitfalls are many. One of the earliest places to make a mistake is in the supposedly simple act of designating the leave as FMLA-qualifying."

The Employer Handbook: The importance of communication during FMLA leave

The AR Group: Are you prepared for a FMLA Audit?

The AR Group: Liability Lurking — The Interplay of FMLA and ADA

Labor Law: Military leave and FMLA

ESI-Logo.jpg When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.
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