October 21 Issue of HR Professionals Magazine

Volume 11 : Issue 10

TM

www.HRProfessionalsMagazine.com

Can Employers Increase Health Insurance Premiums for Unvaccinated Employees?

Chambers USA Top Labor and Employment Law Attorneys

Register for Affordable Online SHRM CP | SCP Certification Class Beginning October 25!

Highlights from the SHRM 2021 Annual Conference & Expo in Las Vegas

Michael Bean, MSHRD, SHRM-SCP

Business Manager,

AL SHRM State Council

3 Ways

to Accelerate

Time to Hire

Keeping up with changing laws is a full-time job, and you’ve already got one.

EMPLOYERS AND LAWYERS, WORKING TOGETHER Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. The firm has more than 900 lawyers located in 53 offices across the United States and in Europe, Canada, and Mexico.

www.ogletree.com BIRMINGHAM OFFICE

MEMPHIS OFFICE

420 20th Street North Suite 1900 Birmingham, AL 35203 205.328.1900

International Place, Tower II 6410 Poplar Avenue Suite 300 Memphis, TN 38119 901.767.6160

2 0 21

Join our monthly webinars to earn SHRM and HRCI recertification credits.

Bringing Human Resources & Management Expertise to You

83%

of US workers suffer from work-related stress www.HRProfessionalsMagazine.com

Features 4 note from the editor

Editor Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR Publisher

The Thompson HR Firm, LLC Art Direction

Park Avenue Design Contributing Writers Murray Baskin Doug Bonderud Chris Cavaliere Tracy Duberman Brad Federman Tim Garrett Bradford T. Hammock Murray Harber Tammy Henry Nick Jackson Michael J. Lotito Katie O’Neill James A. Paretti, Jr. Alka Ramchandani-Raj Luther Wright, Jr.

Contact HR Professionals Magazine: To submit a letter to the editor, suggest an idea for an article, notify us of a special event, promotion, announcement, new product or service, or obtain information on becoming a contributor, visit our website at www.hrprofessionalsmagazine.com. We do not accept unsolicited manuscripts or articles. All manuscripts and photos must be submitted by email to Cynthia@hrprosmagazine.com. Editorial content does not necessarily reflect the opinions of the publisher, nor can the publisher be held responsible for errors.

HR Professionals Magazine is published every month, 12 times a year by the Thompson HR Firm, LLC. Reproduction of any photographs, articles, artwork or copy prepared by the magazine or the contributors is strictly prohibited without prior written permission of the Publisher.

All information is deemed to be reliable, but not guaranteed to be accurate, and subject to change without notice. HR Professionals Magazine, its contributors or advertisers within are not responsible for misinformation, misprints, omissions or typographical errors. ©2021 The Thompson HR Firm, LLC | This publication is pledged to the spirit and letter of Equal Opportunity Law. The following is general educational information only. It is not legal advice. You need to consult with legal counsel regarding all employment law matters. This information is subject to change without notice.

5 Profile: Michael Bean, Business Manager, Alabama SHRM 20 HR Outsourcing 101 28 Cybersecurity – You May Be Covered – But are Your Partners?

Talent Management and Recruiting 10 Staffing at Speed: 3 Ways to Accelerate Time to Hire 16 7 Ways HR Protects Your Organization from Disastrous Drug Use

Chambers USA Top Labor & Employment Law Attorneys 34 Ogletree Deakins 36 Bass Berry & Sims 37 Littler 39 Evans | Petree PC

Top Educational Programs for HR Professionals 8 Now More Than Ever . . .

Your Work Matters

22 Enhancing Collaboration Teams to Unlock Business

46 New People Manager Qualification – SHRM’s PMQ Training

24 Hitting the Wall: A Good Place to Hang On

48 WGU Tennessee HR Program Fully Aligned with SHRM Curriculum

41 We are Passionate About HR and Your Business Success

Employee Benefits 14 Using Benefits to Trim Work Life Tension 26 EPIC Healthy Weight Initiative

Industry News 6 Highlights from the SHRM21 Annual Conference in Las Vegas 9 2021 NCSHRM Annual Conference in Greensboro October 20-22

43 Living Your Best Life Means Having Life Insurance

30 Highlights of 2021 HR Florida Conference in Kissimmee August 29-September 1

Employment Law

40 WT SHRM Human Resources & Employment Law Conference in Jackson November 2

12 Extended Leaves Under FMLA/ADA: Lessons Learned from Recent Case Law 17 Wimberly Lawson Labor & Employment Law Update Webinar November 18

44 Highlights of 37th KYSHRM Annual Conference in Louisville August 31-September 2

18 Off Duty Social Media Conduct: When Can an Employer Lawfully Take Action?

November Issue features Employee Benefits Planning and Compliance

32 Can Employers Increase Health Insurance Premiums for Unvaccinated Employees?

Plus Updates on Employment Law And the Latest on HR Management and the Pandemic

42 President Biden’s COVID-19 Action Plan

Deadline to reserve space October 15 www.HRProfessionalsMagazine.com

3

a note from the editor

The 2021 SHRM fall conference season is in full swing!

There are lots of opportunities to earn SHRM and HRCI recertification credits! Here are some of them.

We are excited to have Michael Bean, Business Manager for Alabama SHRM, on our October cover. Read about Mike’s exciting career in HR and his volunteer service to SHRM on Page 5.

We are excited about our annual special feature

NCSHRM State Conference

on the top labor and employment law attorneys listed in Chambers USA. If your favorite attorney is

OCTOBER 20

included on this prestigious list, please remember

Earn up to 12 SHRM and HRCI recertification credits

to congratulate them and thank them for helping us

Register at NCSHRM.com

navigate through the continuing pandemic issues!

If you are not yet SHRM-certified, I invite you to register today for our next online SHRM-CP |

HR Tampa Annual Virtual Conference and Expo OCTOBER 29 Earn up to 15 SHRM and HRCI recertification credits Register at HRTampaConference.com

SHRM-SCP class beginning October 25. The class meets on Monday and Wednesday evening from 6:00 PM to 7:00 PM for 12 weeks. Visit our website, www.hrprofessionalsmagazine.com for details and registration. We are proud of our 90% pass rate!

Watch for your email for notification about our

12th Annual WT SHRM HR & Employment Law Fall Conference NOVEMBER 2 Earn 5.5 SHRM and HRCI recertification credits Union University Carl Grant Event Center, Jackson, TN Register at wtshrm.org

complimentary October webinar sponsored by Data Facts on October 28. Please mark your calendar and plan to join us from 2 PM to 3 PM CT. If you are not receiving our email notifications about our monthly webinars, please visit our website, www.hrprofessionalsmagazine.com, and subscribe to our digital issue to be added to our email distribution list.

4th Annual Supervisor and Manager Conference NOVEMBER 19 Earn 11 SHRM and HRCI recertification credits Crescent Club Memphis Register at www.hrprofessionalsmagazine.com

4

www.HRProfessionalsMagazine.com

Cynthia Y. Thompson, MBA, SHRM-SCP, SPHR cynthia@hrprosmagazine.com www.hrprofessionalsmagazine.com @cythomps

Michael on the cover

BEAN

Michael Bean, MSHRD, SHRM-SCP Business Manager, AL SHRM State Council Mike graduated from the

Mike joined SHRM the Mobile SHRM in 1994. He soon after moved to Tuscaloosa

University of Alabama

and joined The Tuscaloosa HR Professionals (THRP) and was elected to the board

at Birmingham, with a

in 2000 and served with the organization until 2005. Over the course of his 20-year

concentration in Human

volunteer career with the local boards, he has held several positions including treasurer

Resource Management

and president of the THRP (2005) and NASHRM (2013) chapters.

in 1989 and earned his

Mike has served on the ALSHRM state council since 2003 and was the state director in

master’s in Human Resource

2015 and 2016. Mike has also served as the chairman of the ALSHRM Conference &

Development and Training

Expo from 2012 - 2016.

from Amberton University in 2011. Mike obtained his Professional in Human Resources (PHR) certification in 1996 followed by his

Mike has over 25 years of hands-on experience in HR leadership at all levels within the organizations he has served. His expertise focuses on talent management, compensation, benefits, employee engagement, organization development, and strategic management.

He states, “I have always been perceived as a trusted business adviser that desires to put the ‘Human’ back into Human Resources. I am proud of my work ethic and

SHRM - Senior Certified

commitment to excellence in service, and I want my commitment to serve clients with

Professional (SHRM-SCP)

confidence and integrity to shine through.” Mike currently is President and Founder of

in 2015.

PassionHR Consulting, Inc. since April of 2016. www.passionhr.net Mike has received numerous recognitions for his service to the profession and community, such as the 2015 Birmingham Business Journal’s “Top HR Executives of The Year” award, and the 2013 UAB School of Business, Department of Management “Alumnus of the Year” award. 

www.HRProfessionalsMagazine.com

5

The SHRM Annual Conference & Expo (SHRM21) is this year’s best way to move onward and upward—together.

With a brave new world of work on the horizon, organizations will rely on your expertise and leadership to create a blueprint that works for all.

renowned speakers and1 a variety of session formats to appeal to every learning style.

4 DAYS

11 TRACKS

175+ SESSIONS

2

27.5+ PDCs

Begin planning your experience by exploring topical tracks that include compliance; diversity, equity and inclusion; culture; recruitment; and strategy. You’re sure to find the fit to strengthen your skills for today’s professional landscape.

3

4

Donʼt miss out on SHRM21.

210847

5

6

7

Learn more and register now: shrm.co/annual21HRpro 1 SHRM President and CEO Johnny C. Taylor, Jr., addressed the SHRM21 Annual Conference & Expo in Las Vegas in a keynote speech that called

on the importance of acting as one HR – no matter the discipline – from inclusion, equity and diversity to recruitment and employee relations.

2 Opening General Session 3 She-Cession: Seizing the Moment to Lead Global Change for Women in the Workplace. Speakers (L-R) Emily M. Dickens, J.D., SHRM Chief of Staff; Camille A. Olson, Attorney, Seyfarth Shaw, LLP; Sean Sullivan, SHRM CHRO; Susana Suarez Gonzalez, Ph.D., EVP, CHRO for International Flavors & Fragances 4 Alex Alonso, Ph.D, SHRM Chief Knowledge Officer discusses SHRM’s research on “The Culture Effect: Why a Positive Workplace Culture is the New Currency.” 5 Dr. Dave Ulrich moderated the General Session featuring Brian Niccol, Chairman and CEO and Marissa Andrada, Chief Diversity, Inclusion and People Officer at Chipotle Grill, on workplace culture and resiliency, talent strategies, and the crucial partnership between a CEO and HR. 6 Marissa Andrada 7 Brian Niccol 6

www.HRProfessionalsMagazine.com

8

11

8 Johnny C. Taylor, Jr., SHRM President and CEO, and Michael Phelps, Gold Medal Olympic Swimmer, discuss mental health issues. 9 The SHRM Certification Lounge - Smart Stage presentation, “Strategic vs. Tactical: Top 10 Tips for Getting Out of the Weeds and Thinking Strategically.” 10 (L-R) Mike Polis, Terri Rowe, Cynthia Thompson, Jack Eyer, and Mike Bean 11 The Las Vegas Convention Center 12 The Flamingo Habitat at the Flamingo Hotel in Las Vegas 13-16 Scenes from the SHRM21 Annual Conference & Expo Hall

9

10

12

13

14

15

16 www.HRProfessionalsMagazine.com

7

NOW MORE THAN EVER...

YO U R WO R K M AT T E R S

SHRM HELPS LEADERS TACKLE TODAY’S ISSUES In the ever-shifting HR industry, you need the right tools and resources to become an expert on the most pressing topics facing the world of work.

Turn a toxic work environment into a workplace with a thriving Culture using SHRM’s toolkits and how-to guides.

Make a commitment to Diversity, Equity & Inclusion (DE&I) with policies and research that can help you create a truly inclusive workplace.

Prioritize Mental Health at work by accessing SHRM’s expert guidance for developing better wellness programs in your workplace.

Combat the Great Resignation with the latest SHRM data on key employee benefits that will help you Attract and Retain Top Talent.

LEARN MORE.

SHRM.ORG/THRIVE

www.HRProfessionalsMagazine.com

9

Staffing at Speed: 3 WAYS TO ACCELERATE TIME TO HIRE

By DOUG BONDERUD

Staffing at speed is critical to ensuring that best-fit candidates aren't lost to competitors — but how do businesses accelerate time to hire? Here are three ways enterprises can accelerate time to hire and deliver staffing at speed.

As Entrepreneur notes, 41% of employees worldwide have recently considered calling it quits with their current employer. There are a number of reasons for this, including stress, burnout, bad managers, poor culture fit, higher employee expectations and more. The takeaway: employers need to think more proactively about how to attract and retain the best talent.

Organizations have no time to waste if they find the right candidate for the job. However,

41% of employees worldwide have recently considered calling it quits with their current employer 10

www.HRProfessionalsMagazine.com

outdated and outmoded recruitment processes can complicate and slow hiring efforts.

Thankfully, there are several ways businesses can accelerate time to hire without sacrificing quality. Here are three strategies to consider.

1. Target relevant talent markets Finding the right talent starts with targeting the right markets. "A lot of it depends on sourcing," says Melissa Hebberd, Senior Product Marketing Manager at ADP. "Are you well represented in best-fit channels and job sites where people are looking? There's a substantive difference between sites, so focus less on being visible on every site and more on being visible on the right sites to get top candidates."

To achieve the right representation, organizations need to know where candidates are searching for specific job types. Some sites are focused on building strong, expansive professional networks, while others are focused on aggregating a wide variety and volume of open positions.

To target the right markets effectively, Hebberd notes that businesses need to know how their open requisitions are performing across different job boards. Which ads are getting clicked? How often? How many applications are being received, and from what sources? She also highlights the importance of technology solutions that connect job board metrics and talent system frameworks. "You need to make sure the information flows into your talent acquisition system," Hebberd explains. "If you have a disconnect, you're losing time and money."

to reduce lag time, or you're going to lose out to faster, more nimble competitors who are, rest assuredly, talking to those same candidates."

Do you understand their salary expectations based on what similar positions in the industry and area are paying? "Demonstrating an understanding of market and candidate expectations around pay and benefits can be critical," says Hebberd. From pay transparency when building and posting a job requisition to generating a competitive offer letter, getting these recruitment processes right is one way to show that you value the role the right person plays, and you're more interested in hiring that right person than playing games of salary brinkmanship.

Additionally, businesses must go beyond salary to address

2. Establish efficient screening processes

emerging staff priorities. As the Harvard Business Review notes, 88% of employees now want flexibility in their hours and

Having a working screening process in place is another way to accelerate time to hire. Once you've found the right market and identified a prospective candidate, how do you ensure they're funneled through the screening process properly?

location, and 86% "prefer to work for a company that prioritizes

"Once you have candidate information," Hebberd says, "how can you act on it? How can you evaluate them quickly? Do you have the ability to interview virtually, consolidate and review interview notes? You need the ability to act on candidate information.

This is where intelligence can help/come into play as well."

The challenge is ensuring that these efforts don't bog down your

This is especially critical when you're communicating with candidates. If there's substantial lag between initial interviews and subsequent contacts, great candidates may slip through your fingers. The ability to collect data, feed it into recruitment solutions/systems and then act on it — for instance, by connecting with candidates by email, text or phone to tell them how an interview went, whether you want to meet with them again, or if they got the job — is a must-have to ensure prospective staff feel valued.

and employees alike." Flexible, mobile tools for hiring and

outcomes over output." By understanding what prospective staff want, HR teams can design recruitment processes that align with candidates' preferences.

overall process. "With the right tools in place, you can automate a lot of this," Hebberd notes. "Automating these recruitment and HR processes can reduce complications and friction in a hybrid work environment — for HR administrators, managers onboarding can go a long way to make a personal connection.

Accelerating time to hire is a critical aspect of building a stronger, more resilient workforce. As Hebberd puts it: "You know that excitement you feel when you're a hiring manager and the person you interviewed is fantastic? You don't want to have to follow up with talent acquisition business partners for weeks about bringing them on. The right processes can reduce the time required to find, screen, and onboard new associates

3. Streamline key recruitment operations

and really open the door for bringing on the people you want as quickly as possible."

Once you've found your target market and reduced the lag time between screening and position short lists, you need to streamline recruitment operations. With great staff being more in demand than ever, they won't settle for recruitment processes that are cumbersome and complex.

"Candidates have a renewed confidence, and you need to stand out as an employer of choice," Hebberd notes. "You need www.HRProfessionalsMagazine.com

11

EXTENDED LEAVES UNDER FMLA/ADA:

Lessons Learned From Recent Case Law

By TIM K. GARRETT and KRISTIN TITLEY

Experienced human resources professionals know that managing leaves of absence under the Family and Medical Leave Act (FMLA) and under the Americans with Disabilities Act (ADA) continues to be a challenge.

These challenges continue in large part due to the following: 1.

The challenges inherent in the administration of the FMLA, especially as it related to intermittent leave and unforeseeable leave.

2.

The challenges from the “tension” created by the seemingly inconsistent purposes of the two laws – the FMLA, which tells employers to grant leave so that an employee can stay out of work, and the ADA, which tells employers to provide accommodations (including leave) to get an employee back to work.

3. The challenges inherent in required “case-by-case” nature of the ADA accommodation process.

This article will not attempt a full and complete resolution to all of these challenges (if it were even possible), but it will discuss some lessons to be learned from recent cases and provide some helpful tips in dealing with these challenges.

Overview of Relevant Law

In dealing with managing leaves, it is helpful to remember, from the start, the purpose behind the laws which govern. This discussion will focus in the two main federal laws – the FMLA and the ADA – but savvy HR professionals know that state laws may also apply.

It is wise to recall that the FMLA is essentially a leave statute. It entitles an eligible employee to take job-protected, unpaid leave for up to 12 weeks for various reasons, including his or her own serious health condition – the reason in play here. The ADA, on the other hand, is primarily an accommodation statute. It informs employers to engage in an interactive discussion with a qualified individual with a disability in an attempt to get the employee back to work. And, for our purposes here, among the available accommodations is a continued leave – even after the FMLA has expired.

Flawed Investigation and Employer Animus -- Gurne v. Michigan Bell Telephone Co. (2011) In this example, the employee was approved for intermittent FMLA leave based on migraines and anxiety, but was terminated for FMLA fraud. A co-worker reported seeing the employee at a birthday party during a shift for which she had called off, claiming FMLA. The employee consistently denied that she was there during her shift and explained that her condition had improved, allowing her to attend the party after the end of her shift. The co-worker continued to report otherwise. The employer conducted an investigation and later terminated the employee. The employee sued.

The employer claimed that it was entitled to dismissal of the case on summary judgment due to the “honest belief rule.” But, noted the 12

www.HRProfessionalsMagazine.com

court, an employer’s “honest belief ” must be based on a “reasonably informed and considered decision.” Here, explained the court, it was a “she said/she said” situation, but the investigation was lacking. The investigator admitted that she didn’t have the exact time the employee arrived at the party, and that she assumed the employee could have been there earlier, but could not know “for sure.” Her report had suggested another interview with the employee, which was not done.

In addition, the employee’s direct supervisor testified that he learned of the employee’s suspected FMLA fraud from the manager in a conversation during which he told the manager that he was not surprised and had long had the “impression” that the employee was not putting forth the effort to come to work when she could. He also admitted that he was part of the process that led to her termination and that he had been told to prepare her exit package long before the investigation had been completed.

Practical tip: Often, how you do what you do is as important, or more important, than what you do. Here, a cynical supervisor tainted the employment decision, had been asked to prepare termination paperwork before the investigation was completed, and the investigation failed to complete its own recommended re-interviewing of the employee on an essential fact, meaning the decision was based on an assumption.

Note, in contrast, the case of Capps v. Mondelez Global, LLC, 847 F.3d 144 (3d Cir. 2017). There, an employee who had long been receiving intermittent FMLA leave due to continued certifications every six months, was caught by an HR manager taking FMLA leave to appear for an arrest date and for court dates relating to a DUI conviction. After a thorough investigation, the employee was terminated. The employer’s summary judgment was affirmed. The court focused on the employer’s continuous recertification of the employee’s FMLA leave over many years, and the fact that none of the employee’s requests for FMLA leave was denied and there was no issue in his returning to work after his approved FMLA leave.

Is an Employee’s Right to Reinstatement After FMLA Absolute?

Savvy HR managers will know that the answer is no. As mentioned above, misconduct can be a reason that an employee is not reinstated.

But, what about a layoff? Can an employer layoff an employee who is out on FMLA leave? Yes. In Barger v. First Data Corp., 851 Fed.Appx. 278 (2021) (unpublished), the employee took continuous FMLA leave for cancer treatment.

During this leave, the employer instituted a layoff of mid-management as a cost-savings measure. On January 10, 2017, the day after the final decision had been made to eliminate several management positions, including the employee’s position in the layoff, the employee submitted a note that he would return from leave on January 17, 2017. The employee was terminated in the layoff and filed suit.

Following a jury trial, the jury found in favor of the employer, and the employee appealed. The appeals court upheld the jury verdict. The court noted that an employee on FMLA is not entitled to some “superprotected” status, but rather is entitled to the same rights, benefits, or position of employment had the employee not taken the leave. Of course, the employer bears the burden to prove that the employee would have been terminated regardless of the FMLA leave.

Practical Observation: While the evidence of the layoff seemed compelling, it is interesting to note that the case went to a jury. It is interesting that this case was not dismissed at summary judgment.

Reinstatement/Reassignment Challenges

As noted above, in dealing with managing leaves, it is helpful to remember, from the start, the purpose behind the laws which govern.

These laws appear in tension at times because one law (FMLA) says to grant an employee a leave and the other law (ADA) says to get the employee back to work.

Plus, the rules under the ADA as to what accommodations can be considered as “effective” (and allow the employer to insist the employee accept as an accommodation) will depend somewhat on whether the employee remains eligible for FMLA. So, for example, if an employee can perform an alternative job and such an alternative job is available, an employee who remains entitled to FMLA leave can choose to remain on a leave of absence rather than accept the alternative assignment.

The ADA, on the other hand, as an accommodation statute, informs employers to get the employee back to work. While one alternative effective accommodation is continued leave, another effective accommodation is the reassignment to a vacant job for which the employee is qualified.

Case law in the past appeared to hold that, if an employee could not return to his or her prior job after FMLA leave due to certain restrictions that prevented him or her from performing the essential functions of the job, then an employer could see if an alternative job was available.

If there was an available job, the employer could then insist that the employee accept that job as an accommodation (at that available job’s pay rate) or be terminated for refusing to return from leave.

But, is that still the case? Or, especially if the restrictions are temporary and not yet declared permanent, must an employer consider extended leave as the “better” alternative?

allow him to perform that function. The employee explained he could not wear a duty belt, but requested the accommodation of a shoulder holster, which he had worn since 2011. Alternatively, he proposed an exemption as a detective from the requirement to wear a standard uniform and from patrol duties. The City concluded that he could not perform the essential functions of his job as a detective and then offered him the options of either retiring early or accepting reassignment to a civilian position he did not want.

In holding in favor of the employee, the court reasoned that it is generally inappropriate for an employer to unilaterally reassign a disabled employee to a position the employee does not want when another reasonable accommodation exists that would allow the disabled employee to remain in their current, preferred position. In addition, while reassignment is an acceptable accommodation, it should be considered a “last-resort” alternative. In cases of forced reassignment, an employer should consider accommodating employees in their current position before considering reassignment.

Practical Discussion: While this case did not involve an employee returning from leave, it did involve an employee whose light-duty assignment was ending, which is analogous. So, if an employee at the conclusion of an FMLA leave cannot return to his or her regular job, must an employer consider an extended leave as a “better” accommodation than the “last-resort” alternative of reassignment?

This case would appear to say yes. But, a few other points to consider: (1) It goes without saying, but deserves repeating – at this time in the “leave-management” process, the interactive discussion is critical.

(2) If the employee accepts reassignment versus continued leave, then the reassignment works (obvious).

(3) However, if the employee wishes to stay out on leave, a few other considerations are important.

Are the condition and its restrictions temporary or permanent? If temporary, the employee may have a better argument for extended leave. If permanent, the interactive discussion should incorporate a question about why extended leave will make a difference.

Could an extended leave be justified? Perhaps. While there is no requirement under the ADA for “indefinite leave,” the employee may prefer to remain on leave hoping that another, more desirable job becomes available.

In Wirtes v. City of Newport News, 996 F.3d 234 (4th Cir. 2021), the court’s holding could be seen as favoring extended leaves, at least for a time, rather than a forced reassignment. There, the employee, a police officer with the City of Newport News’ (City) police department, developed a permanent condition that did not allow him to wear a duty belt. After a history of accommodating his limitations in other assignments, the City made changes to increase the number of officers patrolling the City, including detectives where this employee had been assigned as an accommodation, and requiring all officers to wear a duty belt. The City also changed its policy to limit light-duty assignments to no more than eight months.

What about pay? Of course, FMLA leave and extended leave can be unpaid, which will incentivize a return to work, and if the employee has qualified for short-term disability benefits or workers compensation, then his or her refusing to return to an available job.

Given that the employee could not meet the requirements of his job, even as a detective, he was placed on light-duty status. When his allotted eight months of light-duty drew to a close, the City informed the employee that wearing a duty belt was an essential job function.

The City asked him for a list of potential accommodations that would

Tim K. Garrett (tgarrett@bassberry.com) is a member at Bass, Berry & Sims PLC in Nashville. He counsels employers on issues related to all aspects of labor and employment law.

Stay tuned, as the process for managing leaves has become (perhaps) even more complicated (if that were even possible). As savvy employers know, the field of managing leaves of absence are fraught with peril (land mines, if you will), and employers should seek competent counsel in navigating through the process.

Kristin Titley, Contract attorney through a third-party agency www.HRProfessionalsMagazine.com

13

Trimming

WORK LIFE TENSION

Using Benefits

By BRAD FEDERMAN

What is a benefit? Merriam-Webster defines it as “something that produces good or helpful results or effects or that promotes well-being.” We offer benefits for the well-being of our employees. So how are we doing? How would we score on a report card? Let’s take a look…

• 83% of US workers suffer from work-related stress (Everest College) • US businesses lose up to $300 billion yearly as a result of workplace stress (AIS) • 57% of the stressed out are paralyzed by the stress (Everyday Health) • 51% of US workers are mentally “checked out” at work (Gallup) • 49% think they will need to use their retirement money prior to retirement (PWC) Clearly, if we were in school we would be failing. Leaders must take an active interest in the well-being of their people. Organizations must begin to trim work life tension and help employees be successful not only at work but within other aspects of their lives as well.

We now have five generations in the workplace.

Our benefits packages tend to be generic at best and minimally meet our people’s needs or veer in the direction of a particular population at the expense of the others. Maybe it is time we rethink benefits all together.

Benefits are entering a new era and growing in importance. They are becoming a bigger part of the picture for organizations to demon14

www.HRProfessionalsMagazine.com

strate and dedicate themselves to caring about and retaining their employees. Benefits are more effective and influential when they are personalized and not a one-size-fits-all approach. Clearly we can’t provide each employee with their own unique benefits package. Approaching benefits from that extreme perspective would prove inefficient, unrealistic, cost prohibitive and unfeasible.

However, we do have the ability to identify smaller, more personalized benefit investments that drive retention, reduce stress and help each of your employees thrive.

So how do we exercise hyper-personalization of benefits?

Today we can design our own sneakers, glasses and so much more. There are services that send you outfits and boxes of products tailored to you. Music streaming services create playlists based on your needs. Your employees are used to the world reflecting them and benefits are no different.

Benefits that reflect the individual sends the message that each employee matters and is being heard. Here are some ways to move towards personalization: • Adapt as you go. We may have open enrollment once a year, but that does not mean healthcare plans have to be static. Employees may be unable to change until the next enrollment period or unless there is a life event, but the employer has leeway. If you listen to your employees there may be modifications you can make during the year to better meet your employee’s needs. In many cases, changes can be inexpensive and make a significant difference. More importantly, shifting policy let’s employees know you are listening.

• Follow their stress. When changing benefits is not an option, find ways to support members of your team. We have seen teams donate PTO to an individual going through challenges and more. We as colleagues and team members must be there for one another.

• Pick and Choose. Organizations can no longer serve each employee’s needs with a limited set of big benefits programs. Creating benefit plans that are personalized, allowing employees to decide what is best for them. Making it simple and good communication are key when adopting these types of solutions.

• Flexibility. Some benefits have more to do with how one works rather than additive benefits such as remote work, flexible shifts, self-service scheduling, and more.

Anything you can do to allow employees more control over managing their life productively helps.

• Wellness. Focusing on wellness, mindfulness and managing stress are proactive efforts companies can utilize to support their associates. Changing our daily habit structures can create significant benefits.

• Follow the money. Determine where the financial stressors are for your people. If you as an organization can help alleviate financial stress your employees are enduring then you can make a real difference. Companies are offering financial literacy courses and more.

An Innovative and Cost Effective Benefit Idea There are a number of innovative benefits that the corporate world is employing these days: Sabbaticals, vacation funds, in-office pets, yoga classes, gym memberships and many more. However there is often one that is overlooked. Many employees these days have children that are going to go to college. While college debt is most often associated with student loans, it is actually more often the case that their parents sacrifice more.

The college environment is a maze of complexity and costs. What constitutes a good education? How much money is reasonable? What is the best decision for a child and the family as a whole? Often parents are left struggling to answer these questions and do not realize the longer term impact of these decisions. Students are even more overwhelmed and feel pressure to go to the best school possible. Many students do not understand the costs associated with these decisions. There are over 17,000 colleges to choose from and 482 students to every one college counselor. How does this all play out for employees?

The average cost for a four year private college is $50,770 and a four year in-state public college runs approximately $22,180 according to the College Board. College costs have outpaced inflation and family income. Princeton review’s 2021 College Hopes and Worries survey says affordability and debt burden are people’s top concerns. In fact, 98% of families said that financial aid was necessary to pay for college.

Some economists have even stated that the debt burden from college is a significant weakness in our economy.

Helping your employees make sense of the college decision-making process, the financial aid process and scholarship opportunities is an extremely valuable benefit to not only the employee, but the company as well. Ironically, the cost for services like that are not that expensive.

The impact and ROI on offering those services is a huge and an innovative way to create stability, financial and otherwise, within your employee population. It also reduces stress and time-consuming work for the employee.

Parents often become the accountability partner in the college process.

In other words, they are policing their children. Most high school students are overwhelmed by the process and procrastinate. Many parents are making a choice between arguments with their child and the path of least resistance. Parents also feel pressure to provide their children with the best and do not want to let them down. An objective 3rd party that knows the system and has relationships within the system can help tremendously. Yet few companies offer this as a benefit!

If a benefit is something that produces good or helpful results or effects or that promotes well-being, then isn’t it time we move toward benefits that actually promote well-being and are personalized to meet the challenges of today’s employees? Based on the report card we reviewed above I would have to loudly and clearly say, “Now is the time!”

Brad Federman, CEO

PerformancePoint LLC bfederman@performancepointllc.com www.performancepointllc.com

www.HRProfessionalsMagazine.com

15

7 Ways HR Protects Your Your Organization from Disastrous Drug Use

By TAMMY HENRY

Stakes are high when it comes to workplace drug abuse. HR professionals are key in protecting their workplace from drugabusing job candidates and current employees. Why? Here are three reasons.

written and clear, and all hiring managers must be well-trained on the expectations.

Subject all applicants applying for the same type of position to the same pre-screening and monitoring practices.

• HR handles employee issues.

While drug use and abuse affect the workplace across all levels of positions and throughout all departments, HR is most likely who puts drug-abuse processes in place. They must prepare to deal with drug use through policymaking, integration, and follow through.

Drug screening is a valuable tool to employ to help minimize the damage drug addiction wreaks. HR professionals should outline how to use drug screening tools as part of the hiring process. Current employees should be included as well. Screen either upon reasonable suspicion, as random testing, pre-access, or after accidents. Make certain all employees, especially managers, know the proper actions to take in drug abuse scenarios.

• HR is responsible for new employee policies. Dealing with drug abuse and employees with drug problems are delicate matters. HR is the best choice for building new rules, gathering resources, and editing existing policies that protect and empower employees.

These actions help mitigate disastrous drug use in the workplace.

• HR frequently provides education and training. Changes in any employment policy need HR’s help to succeed. HR will be involved in drug policies to help every employee understand and abide by the new processes.

This includes knowing their rights and being aware of resources available to them and their co-workers.

With HR tasked as the protector of the workplace, it makes sense they will be heavily involved in the success of the company’s drug policy. After all, drug use can cause serious, and costly, situations like absenteeism, loss of productivity, medical costs, and accidents. According to the American Drug Test Center, drug abuse and addiction cost American companies $81 billion every year.

6 of the most important ways HR pros can protect their workplace are:

Review with New Hires Starting on day one, employees need to understand the company’s drug policy and their role. Those with a drug problem need to know where to turn for help. Other employees should know where to go to report drug abuse. HR must communicate that your organization takes drug use seriously.

Remind All Staff It’s not enough to talk about your company’s drug abuse policy only when a person is hired. Employees need to be reminded of the policy and how they can do their part.

The common theme HR needs to convey is that recognizing and mitigating drug abuse is every single employee’s responsibility.

Learn to Identify the Signs Certain behaviors may occur with substance abuse. Such characteristics do not always indicate a substance abuse problem, but they may warrant further investigation. Every employee needs to be aware of the signs to help stave off disastrous consequences of a drug abusing co-worker, manager, or subordinate. Some are obvious, others are subtle. It should be particularly worrisome if an employee is displaying multiple signs.

Implement A Consistent Drug Screening Process

• Absenteeism or excessive use of sick days, especially unscheduled time off.

Consistency just might be the biggest factor when it comes to litigation against your organization. If only one manager uses drug testing, or you just drug test those candidates who look shady, you open your company up to discrimination lawsuits. Your screening and monitoring policy should be

• Frequent disappearances from the worksite and flimsy excuses.

16

www.HRProfessionalsMagazine.com

• Unreliability in employees who were once dependable.

• Erratic work performance; some days up, some days down.

• Mistakes caused by lack of attention and focus.

• Difficulty concentrating or recalling details and instructions.

• Problems with interpersonal relations with co-workers.

• Progressive deterioration in personal appearance and hygiene.

• Physical signs like dilated pupils, slurred speech, or an unsteady walk.

Address Issues Immediately Lay out a clear plan of action if you suspect an employee is abusing drugs, or if a co-worker reports an employee using drugs.

Drug screening is a valuable tool, but it should be paired with open communication with HR, the employee, and their supervisor.

The conversation needs to include the employee’s options, the help the organization offers, and the detailed consequences of their actions if they continue abusing drugs, up to termination.

Create an Employee Assistance Program (EAP) Crafting a program that assists employees with drug addiction helps contain and minimize the damage to them and your workplace. Make certain everyone in the company understands there is help available for drug addiction. Visit the OSHA and the U.S. Department of Health and Human Services website for access to guidance and several free tools to help create and maintain a drug-free workplace. Add the details of this program to your Employee Handbook.

Drug abuse in the workplace is too damaging to take lightly. That’s why HR pros need to put actionable programs in place and train everyone on the proper procedures. By working together, every employee can assist HR in maintaining a drug-free workplace and avoid disasters caused by drug-abusing staff.

Tammy Henry

Vice President of Client Success Data Facts, Inc. thenry@datafacts.com www.datafacts.com

www.HRProfessionalsMagazine.com

17

Off Duty Social Media Conduct:

When Can an Employer Lawfully Take Action?

By LUTHER WRIGHT, JR.

There are more than 400 social media sites throughout the world! Current estimates are that 70% of the United States’ population has some type of social media account, with an expected rise to 94.4% of the population by 2026. By 2023, Facebook alone will have an estimated 223.2 million users in the United States. These numbers and trends should lead you to the inescapable conclusion that nearly every employee that works for your organization has a social media account. This conclusion also means that one of more or your employees has likely engaged in or will engage in social media activity that you will have to address in the workplace.

Caselaw and statutes regarding the use of social media in employment decisions are evolving While it is usually our first thought to fire an employee for what appears to be inappropriate or unacceptable conduct, there are a myriad of factors that must be considered before making this decision. Some of these considerations, such as whether a termination might raise claims of discrimination or retaliation, are obvious. Others, such as whether the social media activity is protected concerted activity and therefore permitted by the National Labor Relations Act (“NLRA”), are less well known and much less clear. All types of employers (large, small, public, private, etc.) must consider how their employees use social media — both company accounts and personal accounts — and develop policies and procedures to provide guidance to supervisors and managers on how to best handle social media related conduct, especially when the employee is off duty.

REGULATING EMPLOYEE OFF-DUTY SOCIAL MEDIAL POSTS Navigating issues surrounding employees’ social media posts can be a difficult task. Employers must consider the impact of federal, state and local discrimination laws when considering whether to and/or how to react to social media postings. This includes being mindful that sometimes statements or posts that may appear to an employer to be inappropriate, offensive, inaccurate, crass or derogatory may actually be protected under applicable federal, state or local laws that expressly allow the specific activity. Employers must also realize that social media platforms are just “other places” where employees sometimes act inappropriately. In other words, the same expectations of professionalism that apply to conduct in physical locations—breakrooms, parking lots, conferences, restaurants—also apply to conduct on social media.

Organizational “Must Haves” to Regulate Social Media Activity The first step to having a robust process for dealing with off-duty social media conduct is making sure that there are clear, widely disseminated policies and protocols in place for addressing all social media issues when they arise. The policy must first address issues related to the use of organizational devices, equipment and accounts and also discuss how off-duty social media activity will be addressed. This effort requires a thoughtful crafting and training process that should include the following: • Preparation and dissemination of a written policy that covers all of the company’s technologies (computer and data systems, e-mail, 18

www.HRProfessionalsMagazine.com

internet usage, social media account usage, company issued phones and laptops and tablets) and disciplinary consequences for misusage; • A clear declaration that the company retains ownership of all hardware and software (or software licenses) and that company equipment and accounts should not be used for personal endeavors; • A clear reservation of the right to monitor or review all electronic communications that relate to the organization, including those made privately that are brought to the attention of the organization by other employees or third parties; • A declaration that nothing in the social media policy is designed to diminish or interfere with employee rights under the NLRA or any federal, state or local laws that govern employee rights; and • Periodic training on the organization’s social media policy and practices.

A well drafted policy and training effort will make social media incidents much easier to manage. Clear guidelines will often prevent employees from engaging in behavior that will result in termination in the first instance. The guidelines also serve as protection from legal liability as it tends to deter discrimination claims A Rubric for Thinking Through Discipline for Social Media Activity Once a good policy is in place, the organization has a framework to address individual issues when they occur. The initial issue that frequently arises in these instances is whether an employee has any claim to invasion of privacy because they consider their postings “private.” Generally, an employer’s polices and conduct will control the extent to which an employees might be able to establish that they have an expectation of privacy that might, for example, prohibit a search of a work computer or prevent consideration of a post made from a private computer. Absent some effort on the part of the employer to hack into the private portion of a social media site, however, employees are not likely to prevail on a claim that they had a reasonable expectation of privacy as to anything posted for public view on a web site.

There are six critical issues to think through when considering disciplinary action for an employee’s social media activity: 1. The comment’s content Is the comment made while performing job duties and related to job duties, is it about matters of public concern, employer concerns or purely personal? While employers can regulate all of these types of speech or conduct to some extent, the thought process is different for each one, with “purely personal’ content receiving the least amount of protection. Employers must remember that criticism of the company and supervisors (or even customers), even if crass, may constitute protected activity under the NLRA and cannot be the basis of discipline. Public employers are required to provide more protection for “public concern” speech and private employers are well advised to use the same standards in this area.

2. Source(s) of information If the organization learned of the social media activity by subterfuge (i.e. fake account, hidden identity, etc.) or from unreliable sources, then the resulting disciplinary action might be compromised and lead to potential liability. An investigation that gives the employee a chance to respond to and resolve these issues is critical to having a better outcome.

3. Which policies may be implicated The social media activity should be viewed against applicable workplace policies like anti-harassment, code of conduct, anti-violence or social media use policies. It is helpful to remember that discriminatory rhetoric or expressions of violence enjoy no legal protections (as noted above) and that comments/activity may violate more than one workplace policy. Tying the social media activity to a policy violation provides an extra source of liability protection.

Legal Challenges are Coming at HR Professionals from Every Direction

4. Potential effects on employee morale If the social media activity negatively impacts employee relationships or the work environment, the impact itself may be an independent reason for discipline. Significant disharmony in the workplace or an inability to effectively perform one’s job because of social media activity are legitimate disciplinary considerations.

5. Potential public relations implications

Social media activity that spreads falsehoods, misrepresents facts about the organization or portrays the organization in a false light enjoy no legal protections and employees can be disciplined for this type of activity.

6. Potential liability • For the post itself • For the disciplinary action Employers should consider whether their policies have been consistently enforced, especially when making termination decisions.

Employers should also consider whether there is any potential liability for not taking action, such as harassment claims or claims from third parties. In this area, the most common claims filed by employees are 1) discrimination; 2) retaliation; 3) negligent hiring/negligent supervision; and 4) invasion of privacy. Termination decisions should be vetted for the potential for any of these claims before being executed.

CONCLUSION Employers are well advised to be very careful about pursuing discipline and discharges based on off duty social media activity. At the very least, employers should always remember to: • Review their policies to be sure that they provide the needed protections while not being so broad as to prohibit protected or legal activity; • Be sure that they understand how local laws might place limitations on the things for which they can discipline or discharge employee, especially if a multi-state employer; • Not obtain information through subterfuge or other improper manners; and • Not assume that things that are rude, offensive, or critical of the company, supervisors or customers provide solid grounds for termination as the NLRA protects a good deal of speech in this arena.

That’s Why Rainey Kizer Makes Your Business Our Concern As the issues facing HR executives become more frequent, challenging, and complex each year, you need a law firm that provides advice invidualized for you specific needs.

This is why you should know the employment law attorneys at Rainey, Kizer, Reviere & Bell, PLC. For over 40 years, our AV-rated firm has advised businesses, non-profit organizations and government agencies on all aspects of employment law. To learn more, please call.

Memphis

Nashville

901.333.8101

615.613.0442

Jackson

Chattanooga

731.423.2414

423.756.3333

Following the recommendations mentioned above and remembering these few simple concepts can help your organization avoid unnecessary confusion and liability in the social media arena.

Luther Wright, Jr., Of Counsel

Ogletree Deakins Nashville luther.wright@ogletree.com www.ogletreedeakins.com

Tennessee does not certify specialists in the area of employment law.

www.HRProfessionalsMagazine.com

19

Whether you have an in-house HR team that’s wrestling with an increased workload, or you own a small business that doesn’t yet have a formal HR function, outsourcing introduces a high degree of flexibility for your organization. Some of the key benefits of outsourcing include: • Improved Scalability – As your business demands evolve, you may need access to HR resources on an episodic basis.

Common scenarios include benefits administration support during open enrollment, recruiting and onboarding services during periods of high growth, periodic salary surveys to ensure you’re paying market competitive rates, and other similar scenarios. Such activities might overload your existing team or require expertise you don’t have in-house but bringing on full-time employees to meet these needs would be impractical.

Outsourcing provides the support you need “on demand.”

• Decreased costs – As with many outsourced functions, leveraging an HRO to support your personnel needs can yield significant cost savings . . . both today and tomorrow. There’s the immediate return of providing valuable services to your business without incurring the time and expense typically associated with recruiting, hiring, training, and managing a new employee.

However, there are also longer-term cost improvements that an HRO relationship will bring to the table. Avoiding fines and penalties due to non-compliance, eliminating reputational risk to your brand associated with violating policies, improved employee retention by helping workers to better understand benefits options and the total rewards they’re receiving, and dozens of other examples . . . they all represent long-term impacts of finding and retaining an HRO partner that acts as a true extension of your team.

20

www.HRProfessionalsMagazine.com

• Standardized processes – One of the most common HR challenges growing organizations face is driving “people processes” standardization across the business . . . particularly if your workforce is spread across multiple locations.

Ensuring different managers are treating employees in a consistent fashion, providing a central resource for all employees – manager and worker alike – can access content that addresses the lion’s share of operational considerations and policies, even delivering access to a standard set of forms and work flows, all help to improve the overall employee experience. Starting this from scratch is timeconsuming and typically involves some level of trial and error but working with an HRO organization can accelerate the entire process.

• Reduced risk – For most employers, compliance has become an incredibly challenging issue. This is due largely to the fact that, from an HR perspective, there are multiple layers of regulations and policies to navigate. Take employee absence and leave, for example. There are federal laws impacting all employers operating within the United States, most notably the Family and Medical Leave Act (FMLA). However, there’s also a constellation of state-specific absence and leave policies – 300+ and counting – that offer provisions not covered by FMLA or are more generous than what FMLA provides. Further, there are now some cities that are creating policies for businesses within their borders. This is just one example of the complexities that come into play. HRO organizations, however, are intimately aware of the policies and practices impacting the communities they serve and can help to ensure you’re addressing regulatory issues in a consistent, focused, and respectable fashion.

• D iversified skills – Given the turbulent nature of 2020, I think we’re all actively aware of the rapid changes that could impact our business. During the height of the pandemic, for example, HRO Partners began fielding questions about employee engagement, change management, and other similar services. When such circumstances arise, you need access to individuals who are skilled in addressing these issues, have access to additional resources, and can ultimately drive the fastest path to resolution.

About us: At HRO Partners, we’ve been serving the small – and mid-sized business community since our inception and we continue to deliver new products and services, each aimed at enhancing your value to the clients and employees they support. With more than 150 businesses, serving over 50,000 employees, and nearly $300 million in enrollment savings to-date, our experience and our track record is second to none. And now, we deliver access to an always available, constantly updated, online platform designed to provide expert advice “on demand.”

We call it “HRO Now,” but you’ll call it the best investment you’ll make in 2021.

Call us today at 866.822.0123 or visit us online at www.hro-partners.com. www.HRProfessionalsMagazine.com

21

Enhancing Collaboration in Teams to Unlock Business Potential

By TRACY DUBERMAN

Collaboration in teams is becoming the “go-to” strategy for solving some of the thorniest problems facing organizations today. While critical to success, collaboration is no easy task. The audacious challenges we face in today’s workplaces— from global pandemics to systemic inequities and managing hybrid workplaces — benefit from the input of people with different expertise, disparate views, and backgrounds. Therefore, effective collaboration in teams leverages these differences to enhance problem-solving, stimulate innovation, build engagement, support learning, and improve efficiency.

Common collaboration concerns we often hear are inefficiency (It takes too long), risk aversion (Can I trust others with my vision?), perception of low value (I have all the needed expertise to get this done myself ), and political concerns (It will take too much positioning to get through to others). Team failure is often a result of poor collaboration, as outlined below: Rob Cross’ in When Collaboration Fails and How to Fix It, Winter 2021, MIT Sloan Management Review Team failure is often the result of poor collaboration in teams due to: 1. Lack of formal and informal decisionmaking which slows progress, inhibits innovation, and overwhelms decision-makers 2. Lack of access to resources resulting in team members losing interest 3. Lack of communication with each other resulting in efforts that are not well integrated 4. Lack of protected time which can lead to dissociation and/or burnout 5. Underutilized diverse resources and expertise which can lead to innovation stalls 22

www.HRProfessionalsMagazine.com

Overcoming these traps requires leaders to create the process, structure, systems, and conditions for successful collaboration in teams. These conditions include integrating expertise through joint work and clearly articulated decision rights; creation of shared purpose, norms, and metrics; a focus on relationships to optimize team member strengths; elimination of unneeded work and interactions; and continuous refocusing on purpose and goals to name a few.

In our experience working with teams across various sectors, trust and psychological safety are the keys to successful collaboration. Here are 5 helpful tips for building successful collaboration in teams: 1. Establish a Shared Purpose When working to solve a problem, the first step is to co-create a vision of what will be accomplished once the problem is solved.

This vision helps inform who needs to be part of the collaboration and ultimately who needs to help co-create the purpose of the collaboration.

According to Amy Edmondson, PhD, an effective statement of purpose should be updatable and reflective of a continuous learning process. When leaders approach others they need to avoid overconfidence and overpromising. Too much certainty early in the effort to collaborate is likely to be perceived as disingenuous. Instead, leaders should explicitly frame the opportunity to others as a creative exercise. The problemsolving that lies ahead is a team sport, and you want to start by identifying and naming what the creative opportunity might be, inviting people in to help craft this journey together, and relying on each other to make forward progress. Collaborative teams align

around the purpose of the work and the problem to be solved, view collaboration as a continuous learning process; and evolve and change the purpose and the problem statement as the team moves forward.

To create motivation, focus, trust, and psychological safety, involve everyone in defining the purpose by asking: • Who will be affected by our solutions?

• What positive outcome would they want?

• What is the highest potential outcome for each of those parties?

• What would “good” look like?

2. Develop Clear Team Norms Establishing a process defining how team members will interact in the working relationship is best done when the relationship is new. The group should establish clear norms for working relationships that focus on the process for giving feedback, establishing and reinforcing accountability, resolving conflict, evaluating team process and results, after-action reviews, and modifying plans along the way.

To avoid unnecessary conflict when building collaboration in teams, ground rules for discussion should be established, such as: • Job titles don’t matter • Senior members speak last • Listen and don’t interrupt • Ideas can be evaluated, not individuals

3. Select and Align Effective Team Members We often assume that others operate as we do or know what we need from them. Explicitly determining and discussing individual preferred working styles and strengths can

alleviate the inevitable tensions that occur in any collaborative team effort and match capabilities to needs. Taking the time to understand each other’s strengths can help determine the division of labor and signal when you might want to consult with or defer to your colleagues.

To leverage the strengths of team members, consider the following: • Match expertise and experience to the identified purpose and the problem • Ask participants to share strengths they bring to the team • Identify and close expertise and experience gaps • Discuss preferred working styles • Discuss what you need from each other

4. Focus on Role and Process Clarity Creating a roadmap for building collaboration in teams that focuses on roles and processes can alleviate territorial disputes.

To balance workload, avoid duplication of efforts, and create the conditions for more effective meetings, focus on role and process clarity such as: • Full team, partial team, and individual responsibilities • The process to define how to collaborate off-line • Meeting agendas and expected outcomes • Key performance indicators and timelines • Shared view of deliverables

5. Empower Effective Team Process and Decision-Making Teams need to specifically articulate how ideas will be shared and integrated to produce optimal decisions. Will the leader inform the team of a decision, decide after gathering input from team members, work to reach consensus, or rely on majority rule? With more and more teams working in a remote or hybrid environment, it has become increasingly important for teams to consider how and where work will be performed and how feedback and decisionmaking can be optimized.

To optimize meetings, reduce conflict, and improve the execution of effective collaboration in teams, we recommend the following: • Send out an agenda ahead of time, with clearly defined roles and content topics • Rotate the schedule of call facilitators • Start by asking everyone to answer the same question (walk the table) • Ask every participant for their opinion at least once and acknowledge their answers • Give credit where it’s due; when an individual reiterates an idea that someone else put forward earlier, point out who shared the idea originally • Celebrate different opinions and value different perspectives • Coach team members through potential conflict • Encourage curiosity • Help people take risks and be comfortable with not being right

Final Thoughts If your team is in need of expert coaching or consulting services to boost collaboration, reach out to us. We can help build collaboration in your team to enhance your day-to-day activities and overall business success.

Tracy Duberman, PhD, President & CEO

The Leadership Development Group 973.722.4480 tduberman@tldgroupinc.com www.tldgroupinc.com

Tracy Duberman, PhD is the founder of The Leadership Development Group (TLD Group) Inc., and co-author with Bob Sachs, PhD of From Competition to Collaboration: How Leaders Cultivate Partnerships to Deliver Value and Transform Health.

Tracy has been recognized as an expert on leadership across various sectors, and speaks on ecosystem leadership, innovation in talent development, and effective succession planning.

About Us

The Leadership Development Group is a global talent development consulting firm for leaders, teams, and organizations.

Our solutions include executive, leadership assessment and coaching, organizational development consulting, and group leadership academies designed to engage and empower leaders to take on challenges and position their organizations for success. TLD Group’s worldwide faculty of over 400 organizational development practitioners, coaches, academicians, and consultants with deep expertise in leadership development offer targeted insights and deliver highly impactful results.

www.HRProfessionalsMagazine.com

23

HITTING THE WALL: a good place to hang on By KATIE O’NEILL Panic, exhaustion, grief, rage, hope, defeat, indifference—throughout the pandemic, we have experienced a collective roller coaster of emotions.

Although as humans across the planet we are facing the same viral enemy, the feeling of division and isolation feels stronger than ever. For many human resource professionals, they might be feeling the additional strain of contending with their own stress, while also being tasked with keeping morale high, helping employees cope, retention, and carrying on with daily business.

While there is no one size for all or fool-proof solution for managing mental and emotional strain for all employees, resources such as employee assistance programs (EAPs), telemental health services, and digital programs have grown in popularity and can be valuable tools. But, what are we missing that we might be able to pull from our toolbox, both for ourselves and others? Here are some suggestions to enhance your current offerings and approach.

INSTEAD OF: focusing on mental health programs TRY: including a focus on physical health programs as part of mental health The mind and body connection is strong!

It is important to consider the benefits of exercise for stress, anxiety, and depression, in addition to the physical benefits. Regular exercise can be a great complement to other initiatives to help boost endorphins, take a mental break, improve overall health, and can help improve sleep.

SUGGESTIONS • Encourage and promote existing programs for physical activity and fitness; considering adding additional.

• Start walking groups and share ways for people to stay active during the work day, such as “move at noon” and stretching breaks.

INSTEAD OF: virtual happy hours TRY: digital breaks Early in the pandemic, virtual meetings proved very helpful as a way to stay connected and provide support during uncertain times. As we have adapted to our new remote environment, between our computers and smartphones, what we might actually need is a break from screen time and to connect with our environments.

24

www.HRProfessionalsMagazine.com

SUGGESTIONS • Make sure remote employees know that they can log off for the day and not have emails after hours that could disrupt personal and family time.

• When cameras are not necessary for meetings, try to avoid them, and encourage “walking calls” when possible.

• Provide resources and information on the benefits of digital down time for the day to help reduce eye strain, decrease stress, and improve sleep.

INSTEAD OF: focusing on just talk therapy programs TRY: include encouraging “flow states” While talk therapy programs are valuable, they are not the only solution for managing emotions. Have ever experienced being “in the zone” or what is also known as a “flow state”? This is the feeling you get when you are completely immersed in something that is enjoyable, but it is challenging enough to keep your brain engaged. When you are in this flow state, hours can go by where you are avoiding any intrusive thoughts or anxieties, and you often walk away feeling uplifted and less stressed. There are many different avenues to finding your flow state— hiking, playing music, crafts and artwork, dancing, walking, reading—anything that keeps your brain busy and feels rewarding.

SUGGESTIONS • Evaluate employee work/life balance to make sure employees have enough time for creative and active pursuits.

• Encourage employees to work on their hobbies and provide suggestions for at-home creative and healthy activities, such as online yoga classes, crafting kits, and reading.

• Ask employees to volunteer what they love about some of their favorite hobbies and include it in internal newsletters, which may inspire others and build more connection and common ground. Stick to hobbies that won’t invoke any controversy and offer general appeal.

• Include artistic, active, and creative gift cards and giveaways with contest giveaways and company events, such as painting classes and museum passes.

of mind, or to avoid an avalanche when you return to the office, the underlying feeling that things need to be managed constantly prevents disconnecting from work, which can contribute to burn out. Even by answering emails on PTO, we are possibly signaling to other employees that we expect them to do the same.

Burn out is more likely to happen under on-going stress, and can come on insidiously. Your top performers might be even more vulnerable to hitting the mental and emotional wall. Although it can be tough to spot the signs, they include feeling completely mentally and emotionally depleted, irritable, disconnected, and experiencing a lack of enjoyment in life in general.

In the workplace, it can show up as negative impacts on productivity and performance, along with feelings of lacking purpose, a decreased sense of accomplishment, and feeling disconnected to the value of work.

SUGGESTIONS • Try to ensure there is adequate coverage and planning in place so that employees do not have a fear of taking time off.

• Lead by example—try to avoid answering emails while away, and encourage employees to do the same when on vacation.

• Be sure to recognize and highlight employee accomplishments to help them see the value of their contributions and stay motivated in difficult times.

While these are just a few suggestions on ways to adapt to the changing mental and workplace demands of the on-going situation, it is important to also apply these ideas to yourself. Staying motivated, optimistic, and productive under long periods of stress is difficult for everyone, and being responsible for encouraging that in others can sometimes feel like pulling from an empty well. Be sure to extend the same compassion and understanding to yourself as you would with others, that there will be both good days and bad, and know that sometimes hitting the wall is a good place to stop and take a rest.

INSTEAD OF: normalizing working during PTO TRY: encouraging complete unplug time We are all guilty of sneaking a peek at our email or working on projects while we are technically on PTO. Whether it is for peace

Katie O’Neill, DC, BS

Clinical Wellness Practice Leader McGriff www.mcgriff.com

Most brokers say they have all the answers.

We start with a lot of questions.

Every organization has unique needs. We want to know yours before we talk about solutions.

McGriff specializes in delivering innovative employee benefit strategies to help manage costs, increase employee engagement and allow HR more time for strategic initiatives. Let us design a benefits program tailored to your organization.

To learn more, visit McGriff.com.

© 2021, McGriff Insurance Services, Inc. All rights reserved. McGriff Insurance Services, Inc. is a subsidiary of Truist Insurance Holdings, Inc.

EPIC Healthy Weight Initiative

By MURRAY LYNN HARBER

We have explored the many reasons why employers need to ensure to offer a comprehensive model for the prevention of obesity and other metabolic health conditions involving weight management considerations. The current pandemic has heightened the awareness of weight management with these multiple chronic conditions and their effect on COVID-19 patients which can lead to medical complications, ventilation, and end of life care. Offering resources and programs for everyone along the continuum of weight, from underweight to obese, is critically important to ensure access and care for everyone. As you go into your health benefits discussions for 2022 and beyond, use the EPIC Obesity Checklist to see if your plan is inclusive and diverse in its offerings as to meet plan members where they are in their weight journey. Make the necessary additions for the upcoming year. If you missed the Obesity Series earlier this year, visit the HR Professional’s website and search for “Obesity” and you will find the articles and info pages which could be helpful.

Currently, employers report offering more benefits and total compensation to attract and retain employees and have a need for expanded benefits and services for behavioral health issues such as anxiety, depression, and substance abuse. They are reporting that staffing and return to work issues are still the primary focus of leadership and management attention and focus. Employers are continuing to see a sustained level of engagement with virtual care sessions in health care, workers compensation, and mental health support. Human Resource Professionals should be leveraging all your community partnerships, all your health benefits vendors, and all internal resources including data sharing, communication planning, and warm referrals.

EPIC’s HEALTHY WEIGHT INITIATIVE On the EPIC website, www.epicouncil.org, (look under initiatives and Obesity), you will find information and education on the benefits of working toward a healthy weight for the employer, the healthcare provider, and the employee/plan member. Information is presented along the prevention continuum moving from primary to secondary and to tertiary. Primary prevention strategies include general lifestyle, health, and wellbeing promotion and programs. Secondary prevention includes target behavioral approaches and medical weight management programs which could include supplementation and/or medications (Anti-Obesity Medicines-AOMs). Tertiary prevention includes resources for outpatient and in-patient services and/or care including Bariatric Surgery or Extreme Medical Weight Management.

EPIC is providing a virtual series of employer centric, Industry-specific roundtables on “The Weight of Obesity on Your Organization” where information will be shared on benefits trends, medical perspectives, and key program implementation considerations for comprehensive Obesity (weight management) programs that will include an interactive discussion of the panelists by the moderator. The lessons learned will be added to the EPICouncil.org website following the completion of the scheduled 2021 sessions.

EPIC is a trusted resource for employers and providers when looking at collaborating to improve health, patient care, and value of dollars invested into employer-based health care benefits and programs. We aim to “Make Change Happen” in the marketplace toward more valuebased care decision-making arrangements to include optimizing weight management into effective comprehensive solutions. Other initiatives being developed are Cancer, Digital Therapeutics, and Women’s Health.

Are you interested in adding your input? Please reach out and let us know what you are interested in or would like to share questions and success stories.

Murray L. Harber

EPIC OBESITY CHECKLIST

26

www.HRProfessionalsMagazine.com

Co-Chair, WellSpent Southeast Founding Board Member, Employer-Provider Interface Council (EPIC) murraylynnharber@gmail.com

What is the weight of obesity on your organization?

The goal of obesity prevention and awareness extends further than effects on physical appearance.

Maintaining a healthy weight can help prevent cardiovascular disease, aid in diabetic management and promote better overall function.

Learn more about EPIC’s Healthy Weight Initiative at epicouncil.org to learn more.

CYBERSECURITY – You May Be Covered, But Are Your Partners?

By NICK JACKSON

Data breaches, virtual attacks, and digital crime have unfortunately made many headlines in recent months.

In early September, researchers at Citizen Lab found that NSO Group, an Israeli spyware company, had left an estimated 1.65 billion Apple products vulnerable to cyber attacks for nearly six months, causing Apple to implement new software updates for all its users.

This is just one example of the lengths digital criminals are willing to go to in order to obtain valuable user information.

While many individuals understand the value of protecting their online information, businesses are taking action to protect their information – and that of their employees – online as well.

One area that companies may be overlooking, however, is how their vendors and partners handle cybersecurity. My colleague, Jim Trujillo, recently wrote about the importance of business partnerships. He laid out three essential elements to any successful business relationship: (1) reliability, (2) creativity, and (3) passion. I’d like to add one more to this list: cybersecurity, especially for companies with retirement plans.

From the perspective of a cybercriminal, company-sponsored retirement plans can be a goldmine. Often, these plans hold millions in assets, and contain confidential, personal data of plan participants. This means there is a heightened threat and responsibility for a plan to ensure protection for the company and its participants.

This spring, the DOL provided its first-ever formal cybersecurity guidance. Plan fiduciaries now have a stated reference point on how to be proactive regarding the protection of their plan and the plan’s participants. But how does this connect to plan service providers?

28

www.HRProfessionalsMagazine.com

Under ERISA, fiduciaries are responsible for prudently selecting and monitoring all service providers to ensure they keep participant data confidential and plan accounts secure.

There are a variety of processes and procedures a business can take in doing so, but below are some best practices to enhance cybersecurity and reduce the risk of cyberattacks committed via your plan’s vendors or providers.

Request The Service Provider’s Security Standards, Practices, Policies, And Audit Results Your service provider should be able to supply a welldocumented process that ensures the protection of data, information, and systems against corrupt online acts. These security standards should address all aspects of cybersecurity protection, including how the service provider: • Identifies cybersecurity threats; • Protects against cybersecurity threats; • Responds to cybersecurity threats; and • Recovers from cybersecurity threats

Request To Review The Service Provider’s Insurance Policy

Conduct Annual Cybersecurity Risk Assessments By A Third Party

It may be common knowledge that insurance protects us from loss. Cyber liability insurance, however, has a specific purpose and can be beneficial to all parties of the plan, including the plan provider, its vendors, and its participants. Coverage for cyber liability can include protection of the retirement plan sponsor’s assets, the participants’ assets, and losses from identity theft breaches caused by internal or external threats.

According to the DOL, a third-party audit can provide insight into potential cybersecurity weaknesses. Both plan sponsors and their vendors can gain valuable knowledge from the audits such as gaps in technology, data protection regulation, and needed program updates to cover those gaps. The DOL advises employers to document these audits, their findings, and remedial actions taken in response to those findings.

Establish Clear Understanding On The Use And Sharing Of Confidential Information

The DOL guidance is a beneficial tool for helping plan fiduciaries boost their cybersecurity protocols, as well as help ensure their service providers are protected against data breaches and cyberattacks.

When hiring any service provider, plan fiduciaries should set distinct standards for the provider to maintain confidential information. According to the DOL, this should include: • Protecting private or confidential information against unauthorized access, loss, disclosure, modification, or misuse; and • Preventing the disclosure of confidential information without prior written permission.

Nick Jackson, J.D., CFP®, AIF®, QPFC ARGI nickjackson@argi.net www.argi.net

www.HRProfessionalsMagazine.com

29

2021

HR FLORIDA

CONFERENCE & EXPO August 29 - September 1

Gaylord Palms Resort & Convention Center | Kissimmee, FL

130+

Keyno es

Concurrent Sessions

Dr. Drew Pinsky

3

New York Times Best 18 Selling Author 2

Amazing Keynotes 1

3

Jade Simmons

14+

Classical Music's "No. 1 Maverick"

Recertification Credits

Joe Deloss

Founder, Hot Chicken Takeover

5 Save $75 off full 1 Jon Petz, keynote speaker, author, and performer was Emcee of the 2021 HR Florida Conference & Expo. 2 Mike Aitken, SVP of Membership for SHRM, presented an update from SHRM. 3 Chad registration with Sorenson, President of the HR Florida State Council, welcomed attendees on day one. 4 HR Executive Committee (L-R) Heather Deyrieux, MSM, SHRM-SCP, SPHR, Immediate Past code HRPM.Florida President; Chad Sorenson, President of HR Florida; Dr. Drew Pinsky, opening keynote speaker; 4

Martha Bryson, SHRM-SCP, SPHR, President Elect; Dana Mullins, SHRM-CP, PHR, Vice President; John Kinloch, SHRM-CP, PHR, Treasurer; Ana Swiger, MBA, SHRM-SCP, SPHR, Secretary; and Troy Clements, SHRM-CP, PHR, State Conference Director. 5 HR Florida presented Special Olympics Florida a check for $25,030. Each year HR Florida partners with a charity to give back to the community and to bring awareness to organizations across the state. HR Florida has also raised more money over the past 5 years for the SHRM Foundation than any other state council in the U.S.! 6 Colleen Brown, Marketing Specialist at FUEL it, Dr. Dennis Koerner, CEO of ITN Analytics, and Cindy Ogden, President of Fuel it. They presented “The Implicit Bias Audit” on Tuesday and “The Turnover Solution: How to Stop the Churn,” on Wednesday.

Follow Us @HRFlorida

www.hrflorida.org 6 30

www.HRProfessionalsMagazine.com

#HRFL21

7

8

11

9

10

12

13

14

15

7 Dee Anna Hays, Attorney with Ogletree Deakins’ Tampa office, discussed “Is Your Employee Handbook Ready for the Biden Administration?” 8 Natalie Storch and Nicole Dunlap with Littler presented “Conducting Remote Investigations in the COVID-19 Era.” 9 Jaime Figueroa-Romero, cDBA, Senior Strategic Partnerships Manager for the Western Governors University in the Southeast Region. 10 Jade Simmons, a Rockstar concert pianist, activational speaker, and CEO of Jade Media Global, was the Tuesday keynote speaker. Her topic was “Dynamic Disruptive Diversity: A Bold Approach to Harnessing the Power of Differences.” 11 Jehane Myers (L) received the HR Professional of the Year Award. It was presented by LaKisha Kinsey-Sallis with Fisher Phillips. 12 Chapter Ambassador Recognitions (L-R) (3rd) Pat Holtman, Greater Pensacola SHRM; (1st) Denise Goerke, Sarasota Manatee HRA; (2nd) Spring Watson, Treasure Coast HRA 13 Kathy Fyock, the Business Book Strategist, spoke on “Writing as a Thought Leadership Strategy.” She also hosted a book signing follow her presentation. 14-15 (2021 HR Florida State Council Champagne Luncheon) 16 Joe DeLoss was the closing keynote speaker. His topic was “Disrupting HR for Good.”

16

Save the Date for 2022 HR Florida Conference & Expo

Reimagining What’s Possible August 28-31, 2022 Rosen Shingle Creek | 9939 Universal Boulevard | Orlando

www.HRProfessionalsMagazine.com

31

NOT SO

FAST:

Thinking Twice Before Imposing Health Insurance Surcharges on Unvaccinated Employees

By C HRIS CAVALIERE and HALEY KOLE

Is

your company considering imposing higher health insurance premiums on employees who have not received the COVID-19 vaccine? If so, be careful! Although some employers have been imposing health plan surcharges on smokers for years, it is not safe to assume that the same rules apply to surcharges placed on unvaccinated employees. Before imposing a health plan surcharge on your unvaccinated employees, there are a multitude of legal requirements to consider. To make matters worse, these requirements are not very clear, and there is currently very little governmental guidance to assist you. So, with that being said, what are some of the major things you should consider before imposing a health plan surcharge on your unvaccinated employees?

The “HIPAA” potamus in the Room: Complying with Wellness Program Requirements Imposing a health insurance surcharge on unvaccinated employees likely creates a group health plan wellness program that must comply with a multitude of requirements. Under HIPAA’s rules, these requirements depend on whether the program is a “participatory program” or a “health-contingent program.”

Participatory programs are those that do not require any conditions for receiving an award (other than participation). Participatory programs have very few requirements associated with them, except that they must be available to all similarly situated individuals. Healthcontingent programs, on the other hand, are those that base rewards on completing an activity related to a health factor. If things were not complicated enough, healthcontingent programs are further subdivided into (i) activity-only programs, and (ii) outcome-based programs.

At present, there is no clear guidance on whether a surcharge on unvaccinated employees is considered a participatory wellness program or a health-contingent wellness program.

However, many experts agree that it might be safer to classify such a surcharge as a health-contingent “activity-only” wellness program and to comply with the requirements associated with health-contingent “activity-only” programs. If an employer’s vaccine-related surcharge is determined to be a health-contingent wellness program and it does not meet the applicable requirements, the employer can be fined up to $100 per day per participant.

In general, health-contingent “activity-only” wellness programs must comply with the following requirements: 32

www.HRProfessionalsMagazine.com

• Participants must be able to qualify for the award at least once per year.

• Employers must provide employees with notice describing the program.

• If an employee is unable to receive the vaccine due to medical constraints, a reasonable accommodation must be provided.

• The wellness program must be uniformly available to all similarly situated employees.

• The wellness program must be reasonably designed to promote health or prevent disease and cannot be a subterfuge for discrimination.

• The amount of the incentive cannot exceed 30% of the total cost of coverage under the plan (this limit is increased to 50% if the wellness program includes a tobacco cessation component). This incentive would need to be combined with any other “health-contingent” wellness program offered under the plan when determining whether the award exceeds the limit.

Family Matters: Being Careful about Family Members In general, the Genetic Information Non-Discrimination Act (“GINA”) does not prevent employers from incentivizing employees to get vaccinated. This is because the employer is only requesting proof of vaccination and not requesting prohibited genetic information. However, things get more complicated when the vaccine is administered directly by the employer or by the employer’s agent (as opposed to

by an independent third party). Specifically, under GINA, when the vaccine is administered by the employer or the employer’s agent, the employer may not offer any incentives to an employee in exchange for a family member receiving the vaccine. The reasoning here is because when the employer or the employer’s contractor administers the vaccine, the pre-vaccination medical screening questions would require the employer (or the employer’s agent) to obtain prohibited genetic information in the form of family medical history of the employee. For these reasons, employers planning to impose a vaccinerelated surcharge would be wise to ensure that the vaccine is administered off-site by an independent third party, with the employer simply requesting proof of vaccination and avoiding asking “why” a family member plan dependent did not get vaccinated.

To Ask or Not to Ask: What is the Question?

The Americans with Disabilities Act (“ADA”) applies to medical examinations and disability-related inquiries made by employers. According to the EEOC, simply asking for proof of vaccination is not a medical exam or a disability-related inquiry. For this reason, under the ADA, employers may offer an incentive (which includes both rewards and penalties) to employees based on vaccination status. However, if the employer asks certain other questions, such as “why” an employee is not getting vaccinated, such questions may be considered a disability-related inquiry subject to the ADA. Although the ADA’s wellness program rules are currently in flux, the EEOC appears to have taken the position that, in general, a wellness program that complies with the HIPAA rules will likely also comply with the ADA. With that being said, like the GINA rules discussed above, things get more complicated under the ADA when the vaccine is administered by the employer or by the employer’s agent. Specifically, according to the EEOC, if the vaccine is administered by the employer or the employer’s agent, the incentive (which includes both rewards and penalties) cannot be so substantial as to be coercive. The reasoning is that because vaccinations require employees to complete pre-vaccination disability-related screening questions, a very large incentive (or penalty) could make employees feel pressured to disclose protected medical information.

In light of the above, employers planning to impose vaccine-related surcharges would be wise to simply request proof of vaccination status, avoid asking other vaccine-related questions where possible, avoid requiring employees to get vaccinated directly from the employer or the employer’s agent, and (to be safe) keeping the amount of the surcharge as low as possible.

Keeping it Locked Down: Protecting Employee Medical Information The ADA requires that employers maintain the confidentiality of their employee’s medical information, which includes documentation or other confirmation of the COVID-19 vaccination. This requirement of confidentiality under the ADA applies regardless of whether the employee receives the vaccine from an independent third party or from the employer or its agent. As discussed above, the ADA does not prevent employers from asking for or requiring employees to provide proof of vaccination. However, such information (like all medical information) must be kept confidential by the employer and cannot be stored in an employee’s personnel file. The same rule applies to documentation relating to an employee’s request for reasonable accommodations.

Let’s Be Civil: Handling Requests for Religious Accommodations Title VII of the Civil Rights Act of 1964 (“Title VII”) requires that employer-sponsored benefits not discriminate against employees with sincerely held religious beliefs. Consequently, employees who cannot get vaccinated due to sincerely held religious beliefs may have a claim that a vaccine-related health insurance surcharge violates Title VII. For this reason, employers should be prepared to properly handle, document, and provide reasonable accommodations to employees who do not get vaccinated due to sincerely held religious beliefs (as well as to employees with medical conditions preventing them from getting vaccinated).

The Kitchen Sink: Other Potential Legal Issues Imposing a vaccine-related surcharge could potentially implicate several other legal issues outside the scope of this article. Some of these issues include: state law requirements, the affordability requirements of the Affordable Care Act, Section 125 requirements for mid-year implementations, and navigating collective bargaining obligations. Simply put: imposing a vaccine-related surcharge is no simple task and can potentially implicate the proverbial “kitchen sink” of legal issues.

Let’s Get Real: Practical Implications In addition to considering the many complicated legal issues involved, employers should also consider the practical impacts of instituting a vaccine-related surcharge on their employees. Every workplace has its own unique culture, and each employer should consider their own cultural dynamics before imposing any such program. Some practical questions employers may consider are: will imposing a vaccine-related surcharge actually result in more employees getting vaccinated? Will imposing such a surcharge have the effect of damaging employee morale and alienating unvaccinated workers? Will the program divide employees and create cultural problems that outlast the pandemic? Is the employer prepared to properly handle and document a possible increase in employee requests for medical and religious accommodations?

Would it be easier to simply mandate the vaccine (subject to medical and religious accommodations)?

Parting Thoughts The legal requirements surrounding imposing a health insurance surcharge on unvaccinated employees are complicated and not entirely clear. To make matters worse, there is very little guidance from the government to assist employers in this area. For this reason, employers should proceed with caution before implementing any such program. In addition to considering the several issues discussed in this article, employers should discuss the specifics of their plan with counsel to ensure their program complies with all applicable laws and regulations.

Chris Cavaliere, Partner Shumaker – Tampa, FL ccavaliere@shumaker.com www.shumaker.com

Haley Kole, Associate Shumaker – Tampa, FL hkole@shumaker.com www.shumaker.com

www.HRProfessionalsMagazine.com

33

Top Labor and Employment Law Attorneys LISTED IN CHAMBERS USA

HR Professionals Magazine congratulates our top labor and employment law attorneys from Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, and Tennessee listed in the 2021 Chambers and Partners Guide. For details about Chambers and Partners research, please visit their website, www.chambersandpartners.com. This list is not exclusive and represents the firms who responded to our inquiry.

Ogletree Deakins

Ogletree Deakins is one of the largest labor and employment law firms representing management in all types of employment-related legal matters. Premier client service, as outlined in the firm’s Client Pledge, is one of the firm’s top priorities and a cornerstone of its core values. U.S. News – Best Lawyers® “Best Law Firms” has named Ogletree Deakins a “Law Firm of the Year” for 10 consecutive years.

In 2021, the publication named Ogletree Deakins its “Law Firm of the Year” in the Litigation – Labor & Employment category. Ogletree Deakins has more than 900 attorneys located in 53 offices across the United States and in Europe, Canada, and Mexico. The firm represents a diverse range of clients, including many of the Fortune 50 companies in the U.S. www.ogletree.com

BIRMINGHAM, ALABAMA

James C. Pennington is the Managing Shareholder and a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute avoidance and resolution policies, and drug and alcohol testing policies and procedures. He is known for helping employers navigate through the intersections of disabilities and leave laws.

Craig Cleland defends employers in litigation— including class and collective actions—and counsels them in risk management and compliance. He is the former Chair and Co-Chair of the Firm’s Class Action Practice Group. He is also an Adjunct Professor of Law at Georgia State University College of Law, where he teaches Complex Litigation. He has been recognized as a BTI Client Service All-Star twice—one of a small number of employment lawyers in the U.S. who “combine exceptional legal expertise with practical advice, business savvy and creative, effective solutions.”

ATLANTA, GEORGIA

NASHVILLE, TENNESSEE

Margaret H. Campbell is a shareholder in the Atlanta office and has practiced employment, litigation, and labor law at Ogletree since 1981.

An all-around labor and employment lawyer, Meg is particularly recognized for her experience in complex class and collective action litigation, whistleblower investigations and litigation including Sarbanes-Oxley and Dodd-Frank cases, appellate practice, and restrictive covenant law. She has litigated single plaintiff, multi-plaintiff, and class and collective action jury and non-jury cases in federal and state courts around the country.

Keith Frazier represents management in the area of labor and employment law, with an emphasis on employment litigation, including collective actions under the FLSA and the ADEA. Frazier has been counsel in over 20 jury trials, and he has experience trying collective actions in federal court before a jury and in an arbitration setting. He has also handled over 40 arbitrations arising under collective bargaining agreements. In 2005, Keith was elected to the Firm’s Board of Directors and served until 2011. He also served a three year term on the Firm’s Board from 2014 until 2017.

34

www.HRProfessionalsMagazine.com

NEW ORLEANS, LOUISIANA

TAMPA, FLORIDA

Monique Gougisha Doucette joined Ogletree Deakins in 2009 and is a shareholder. She practices primarily in the area of employment litigation and represents management in claims arising under various federal and state employment laws. Monique has significant experience litigating employment matters in a variety of business sectors such as construction, energy, banking and hospitality. She also has expertise in workplace misconduct and sexual harassment issues.

Monique regularly conducts customized workplace respect and anti-harassment training for employers.

Peter W. Zinober is shareholder and labor & employment lawyer concentrating his practice on the defense of employment discrimination cases in state and federal court, both jury and non-jury, as well as wage and hour, disability discrimination, Sarbanes-Oxley, Dodd-Frank, and other whistleblower defense, age and all other types of employment litigation. Pete also focuses on “traditional” labor management relations law, including the representation of employers in connection with unfair labor practice and representation case proceedings before the National Labor Relations Board, labor and non-union arbitrations, collective bargaining and counseling.

Mark Mallery is the Founding Shareholder of the firm’s office in New Orleans, where he has practiced labor and employment law for over thirty years. Mark has acted as lead counsel on complex disputes, including Sarbanes-Oxley whistleblower claims; pattern and practice and class based claims; collective actions under the FLSA; and class-based discrimination claims. Mark has also litigated a variety of “intellectual property” issues. On the traditional labor side, Mark has represented management in union organizing campaigns, collective bargaining, work stoppages and unfair labor practice charges.

Chris Moore is the Office Managing Shareholder of the firm’s New Orleans office and is an advocate for employers. He has successfully defended federal and state law claims of race, sex, religious, age and disability discrimination; breach of contract, wrongful termination, retaliation, defamation, harassment, infliction of emotional distress, misrepresentation, interference with contract, whistleblower, employee benefits and abuse of right claims; state and federal wage claims; family and medical leave claims; unfair labor practices; and labor arbitrations.

Chris has also represented management in union organizing campaigns, labor disputes and the defense of unfair labor practice charges.

RALEIGH, NORTH CAROLINA

C. Matthew Keen is Managing Shareholder of Ogletree Deakins and has practiced labor and employment law in the Raleigh office of Ogletree Deakins since 1987. His practice has included employment litigation in state and federal courts, representing clients before the National Labor Relations Board and advising clients on equal employment opportunity and wage and hour issues. He has successfully litigated cases to defense verdicts in employment discrimination cases. He has also litigated matters involving ERISA, non-competition and trade secrets, workplace injuries and other contract and tort claims. He has successfully represented clients in dozens of labor and employment arbitrations.

Robert A. Sar is Office Managing Shareholder of the firm’s Raleigh office. Bob assists employers in all areas of labor and employment law, including discrimination, harassment, retaliation, whistleblowers, wage and hour, class and collective actions, non-competition and non-disclosure covenants, leaves of absence, employment agreements and policies, union labor matters, and workplace safety. He represents diverse industries including higher education, retail, financial, healthcare, pharmaceutical, professional services, hospitality, manufacturing, sales, software and technology.

Bob has extensive experience litigating employment matters in state and federal courts.

www.HRProfessionalsMagazine.com

35

Bass, Berry & Sims

At Bass, Berry & Sims, positive human relationships and interactions drive business success. Our Labor and Employment team works with public and private companies across a variety of industries, ranging from Fortune 500 companies to small locally owned businesses.

As experienced litigators, the team defends employment cases and works with employers to avoid litigation on the frontend through day-to-day counseling and HR training. Our attorneys are regularly involved in matters involving discrimination, retaliation, wrongful discharge, non-competes, FMLA, wage and hour, defamation, employee misclassification and a myriad of other traditional labor issues.

For more information, visit bassberry.com.

Tim Garrett of Bass, Berry & Sims helps employers solve complex issues related to all aspects of labor and employment law, providing in depth counseling and developing creative solutions to underlying business issues. He is an experienced trial lawyer, defending employers of all sizes in employment litigation claims across the country. His work has ranged from defending a major university during a significant wage and hour collective action involving thousands of employees to the successful defense of a major healthcare provider in a gender discrimination/retaliation case. In addition, Tim has served as nationwide labor and employment counsel for the largest nonprofit dialysis company in the U.S. Tim has been recognized by Mid-South Super Lawyers for the past ten years, along with Best Lawyers in America® and Chambers USA for many consecutive years.

This recognition paired with his experience has earned him a national reputation for counseling employers through the maze of complex employee issues.

Bob Horton, Chair of Bass, Berry & Sims’ Labor & Employment Practice Group, represents management in all areas of labor and employment law. Bob's practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S. Bob has substantial jury trial experience and has obtained defense verdicts in discrimination and retaliation lawsuits across the country.

With a robust non-compete practice, Bob has assisted employers in drafting non-compete agreements on a state by state basis, enforcing non-compete agreements by way of obtaining injunctive relief, and defending the company and new employees against claims of breach of non-compete agreements with prior employers. Bob assists numerous public companies and executives in the negotiation of employment agreements, as well as executive departures and subsequent issues that arise from equity grants in various forms.

GO CONFIDENTLY. Bass, Berry & Sims listens and responds with creative yet practical counsel. We stay on pace with the complex and rapidly evolving employment landscape, connecting your dynamic human resources needs to proactive strategies.

Relationships, reliability, and respect – at the center of our Labor & Employment and Employee Benefits practices.

Stay up-to-date on the latest in HR Law. Visit our blog at bassberryhrlawtalk.com.

Centered to deliver. bassberry.com

36

www.HRProfessionalsMagazine.com

Littler Mendelson, P.C.

With more than 1,600 labor and employment attorneys around the world, Littler provides workplace solutions that are local, everywhere.

Our diverse team and proprietary technology foster a culture that celebrates original thinking, delivering groundbreaking innovation that prepares employers for what’s happening today, and what’s likely to happen tomorrow. Because at Littler, we’re fueled by ingenuity and inspired by you.

TENNESSEE

FLORIDA

Paul E. Prather is a shareholder in Littler’s Memphis office. He represents management exclusively in all areas of employment and labor relations, including state and federal employment litigation and in administrative proceedings before the National Labor Relations Board, the Equal Employment Opportunity Commission and the United States Department of Labor. With more than 30 years of success in defense litigation, including jury trials, he is a frequent lecturer and author for management and legal groups on labor and employment law issues.

Patrick DeBlasio is a shareholder in the Miami office. He represents employers in all aspects of employment litigation, including claims arising under Title VII; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and other employment laws. He also has significant experience defending employers in single plaintiff and collective actions under the Fair Labor Standards Act; conducting wage and hour audits; handling restrictive covenants; and repre-senting employers in proceedings before the Department of Labor and similar agencies, in state and federal court, and in arbitration. Additionally, Patrick provides general advice and counseling on employment matters and regularly speaks before industry groups and associations on employment-related topics.

Tanja L. Thompson is office managing shareholder in Littler’s Memphis office, co-chair of the firm’s Traditional Labor Practice Group and a member of the firm's Board of Directors. She dedicates her practice to representing companies in the area of traditional labor law. National Fortune 500 companies as well as local employers across various industries, such as manufacturing, healthcare, and services, seek her expertise in remaining union-free and in managing their unionrepresented workplaces. Her union-free efforts include campaigns, comprehensive union vulnerability assessments, human relations audits, communication strategies, and union avoidance and positive employee relations training.

Jennifer B. Robinson is office managing shareholder in Littler’s Nashville office. She has been the lead defense attorney in nearly 40 wage and hour class and/or collective actions involving claims of misclassification, overtime and minimum wage violations, and missed meal and rest breaks. She also counsels, trains and conducts audits for clients to ensure compliance with federal and state wage and hour laws. In addition to her wage and hour practice, Jennifer defends employers in single and multi-plaintiff lawsuits involving claims of discrimination, harassment, failure to accommodate and breach of contract.

C. Eric Stevens is a shareholder in Littler’s Nashville office. He has over 30 years of experience representing clients - focusing on healthcare and financial institutions - in labor relations and employment litigation. He represents both union and non-union employers, providing counseling to avoid litigation as well as defending clients in both court and administrative proceedings. Eric regularly speaks to industry groups and business roundtables on new developments in the law and issues that can directly affect their operations. He provides training on discrimination, harassment, wage and hour and related topics for private employers, public employers and governmental entities.

Finn Pressly is a shareholder in the Miami office.

Finn’s practice focuses on employee benefits and executive compensation. He has extensive experience counseling clients on all aspects of health and welfare benefit plans, including issues related to plan design, summary plan descriptions, all aspects of health care reform, HIPAA privacy and security compliance, subrogation and claims reimbursement issues, wellness programs and consumer driven health care initiatives (including health savings accounts) as well as health care continuation coverage (COBRA).

KENTUCKY

LaToi Mayo is a shareholder in the Lexington office.

She has advised, counseled and defended employers in regard to labor and employment matters for the past 20 years. She has successfully litigated single plaintiff discrimination and wage and hour claims as well as class and collective actions in both state and federal court. LaToi has also successfully handled investigations and charges on employer’s behalf before administrative agencies like the Department of Labor, EEOC, and NLRB and similar state agencies. LaToi works most frequently with manufacturers, health care facilities, and local city governments.

LaToi has notable experience in enforcing and/or advising clients on arbitration agreements, restrictive covenants and wage and hour compliance issues. LaToi routinely presents at seminars, focusing on labor and employment topics for a variety of professional organizations in Kentucky. She also provides training for managers, supervisors and general workforce and provides compliance counseling.

www.HRProfessionalsMagazine.com

37

Littler Mendelson, P.C. (continued) GEORGIA

ALABAMA

Leslie A. Dent is a shareholder in Littler’s Atlanta office. She is an experienced trial lawyer who has successfully tried cases ranging from individual discrimination matters to complex wage and hour class actions. She represents employers in class and collective actions involving off-the-clock claims, challenges to exempt status and other wage-related claims, as well as Rule 23 class actions alleging discrimination claims. Leslie counsels and represents employers on a broad range of employment law issues, including discrimination, harassment, retaliation, and leave laws. She has extensive experience conducting and supervising internal investigations and defending whistleblower and retaliation claims, including Dodd Frank and False Claims Act claims.

L. Traywick Duffie is a special counsel in Littler’s Atlanta office. He represents corporate clients in a broad range of employment and labor law, including employment litigation, union organizing, wage and hour and Employee Retirement Income Security Act matters. He has successfully defended numerous class and collective matters and countered union organizing campaigns in more than 40 states. He has successfully defended single plaintiff, multiple plaintiff and class action litigation involving, race, age, sex, pregnancy, disability, retaliation, ERISA, whistleblowing, covenants not to compete and state law contract claims.

Lisa "Lee" A. Schreter is a shareholder in Littler’s Atlanta office. She is co-chair of the Wage and Hour Practice Group and former chairperson of Littler's Board of Directors. She focuses on representing employers in complex class and collective actions involving overtime and other wage-related claims and specializes in helping employers to develop forward-thinking compliance measures that reduce wage and hour disputes and other employment-related issues. She also represents and counsels management clients in connection with all other types of labor and employment matters arising under federal and state laws such as the Fair Labor Standards Act, the Equal Pay Act, the Service Contract Act and state law wage and hour requirements.

Daniel Turner is a shareholder in Littler’s Atlanta office. He counsels and represents employers in all aspects of litigation in employment law issues, including discrimination, harassment, retaliation, wage and hour, and leaves of absence. Serving as lead counsel in more than 50 class and collective actions throughout the country, he has litigated cases under the Title VII and Section 1981 of the Civil Rights Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act and various wage and hour laws. Dan's extensive litigation practice also includes state law tort, contract, restrictive covenant claims, and various types of civil rights litigation.

38

www.HRProfessionalsMagazine.com

Office Managing Shareholder Jay D. St. Clair has represented clients in employment and labor law matters for more than 30 years, including discrimination, harassment and retaliation claims; labor management relations; wage and hour regulations; and occupational safety and health.

Charles A. Powell has represented employers throughout the Southeast against employment discrimination and harassment, non-competition and wage and hour litigation lawsuits for more than 23 years. He has a strong record of successfully defending employers against various employment and labor law claims.

Jennifer Fox Swain has represented management in employment matters for more than 25 years. Her practice includes litigation in state and federal courts, as well as before arbitrators, the Department of Labor, the Equal Employment Opportunity Commission (EEOC) and other state and federal agencies. Jennifer also has experience handling class and systemic cases brought by the EEOC. Additionally, Jennifer regularly advises employers on issues relating to compliance with various employment discrimination statutes, rules and regulations and counsels employers on day-to-day personnel issues. She also assists employers with the development, drafting, implementation and enforcement of workplace policies and procedures.

Janell Ahnert's practice encompasses all facets of employment law, specifically in representation of management in both employment counseling and employment litigation. Janell handles a variety of employment law matters in state and federal courts and has broad experience defending employers accused of harassment and discrimination in federal court. She has litigation and counseling experience in numerous areas of employment law, including issues involving wage and hour claims, harassment, discrimination, and whistleblowing.

ARKANSAS

Eva C. Madison is a shareholder in Littler’s Fayetteville office. She represents and advises employers of all sizes in all aspects of employment law, primarily focusing on employment litigation, ranging from single-plaintiff cases to multiple-plaintiff, class, and collective action cases. Practicing in state and federal courts and before the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, and the Arkansas Department of Labor, she has handled matters involving race, gender, national origin, religion, disability, and age discrimination and harassment under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Arkansas Civil Rights Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the Arkansas Minimum Wage Act.

EVP-MBJ-QtrPg-Mech-v2.pdf

1

11/2/16

2:44 PM

Evans Petree PC

The attorneys in the labor and employment group have extensive experience in representing clients in all types of employmentrelated disputes. We advise both organizations and individuals in understanding their rights under evolving federal, state, and local employment laws. Evans Petree PC was founded over 100 years ago and is a full-service law firm composed of 42 attorneys. The firm represents a diverse local, national and international clientele. We offer counsel in a wide variety of practice areas including corporate, private equity/transactional, real estate, banking, construction, litigation, employment law, private client, tax planning, wills and estates, health care, family law and employee benefits.

Michael R. Marshall is the co-leader of the Labor and Employment Law Practice Group and uses his experience in other arenas to reach solutions and resolutions to his clients’ disputes. When no resolution is possible, Mike is a zealous advocate in the courtroom. He has extensive experience in litigating and resolving employment matters and other business-related disputes. He has received an AV rating from Martindale-Hubbell, was recently selected by his peers for inclusion in The Best Lawyers in America 2022 in the fields of Litigation-Labor and Employment and Employment Law-Management for the fifth year, and been selected to the Mid-South Super Lawyers list every year since 2015.

More than experience.

More than advocacy.

MORE THAN L AW.

W. Kerby Bowling serves as co-leader of the Labor and Employment Law Practice Group. He worked at Kellogg as a unionized laborer before campaigning against organized labor. He assists clients in remaining non-union and avoiding employment litigation. Mr. Bowling is AV rated by MartindaleHubbell and has been selected for inclusion in The Best Lawyers in America 2022 for Administrative/ Regulatory Law and Labor Law-Management for the tenth year and as a Power Player in Employment Law from Inside Memphis Business for the seventh year. He is also on the Board of the National Foundation for Transplants.

Charles W. ‘Chip’ Cavagnaro, Jr. represents management in state and federal courts in all aspects of labor and employment law, as well as before numerous government agencies.

His clientele ranges from small companies to multinational corporations. By using his experience in the courtroom and before administrative agencies, he has been able to formulate policies and practices that address the challenges faced by employers through claims of discrimination or unfair treatment. He can effectively advise the firm’s clientele on reducing the risk of employment litigation. He was recently selected by his peers for inclusion in The Best Lawyers in America 2022 in the area of Labor and Employment Litigation for the seventh year.

L. Clayton Culpepper III serves as counsel for a number of businesses and aggressively advocates for his clients. He has litigated cases from Tennessee to California, in federal and state courts, in front of both juries and judges. Clay represents and counsels clients in both business/commercial litigation as well as significant personal injury. He has been selected to the Mid-South Super Lawyers list since 2013 and has been selected by his peers for inclusion in The Best Lawyers in America since 2016. He is also a member of the 2012 Memphis Business Journal’s Top 40 Under 40 Class.

E VA N S P E T R E E . C O M

www.HRProfessionalsMagazine.com

39

12th Annual

Presented by: THE WEST TENNESSEE SOCIETY FOR HUMAN RESOURCE MANAGEMENT In coordination with: THE LAW FIRM OF RAINEY, KIZER, REVIERE & BELL, P.L.C.

Join us for an informative day where we will explore timely and important HR topics, including:

November 2, 2021 Tuesday 8:00 a.m. to 4:00 p.m. at

Union University Carl Grant Event Center 1050 Union University Dr. Jackson, TN 38305

Lunch is provided.

 One of the Crew: Employee Rights in the Workplace – Examine strategies for managing employee rights including free speech, recording conversations, photos, HIPAA, religious rights, political apparel/objects, and much more.  Rough Seas Ahead! Workplace Bullying, Harassment, and Hostile Work Environment – A review of behavior that contributes to a difficult unhealthy and potentially unlawful workplace  Avoiding the Gangplank: Preventing Retaliation – A review of best practices for addressing instances of retaliation at work.  Learning the Ropes: Case Studies – An interactive discussion of recent employment law cases and the application of relevant concepts and HR strategies.  Crow’s Nest View: Employment Law Game –- Hone your HR skills as you explore various employment laws at the federal and state level. Will include an interactive game to test your understanding.

Explore our showcase of HR-related exhibitors.

Great door prizes.

Registration Fee:

$100 for WTSHRM Members $125 for non-WTSHRM Members Join WTSHRM for only $25 at: wtshrm.org/join

REGISTER NOW!

WTSHRM.ORG

The registration deadline is Wednesday, October 27, 2021. Register early as seating is limited.

You may pay by check or credit card.

This program has been approved for 5.5 recertification credit hours through HRCI and SHRM.

40

www.HRProfessionalsMagazine.com

MEET THE PASSIONHR TEAM

WE ARE PASSIONATE ABOUT HR & YOUR BUSINESS SUCCESS!

The Human Resources Consulting Group pf Choice!

P a ssio n HR is a f u ll se rvice Hu m a n Re so u rce s Co n su lt in g f irm sp e cia lizin g in va lu e a d d e d se rvice s f o r t h e HR f u n ct io n wit h in yo u r o rga n iza t io n . W e h a ve t h e ca p a b ilit ie s, re so u rce s, so lu t io n s, a n d e xp e rt ise t o m e e t yo u r HR a n d t a le n t m a n a ge m e n t n e e d s. W h et h e r we t a ke o n co m p le x p ro je ct s t o a llo w yo u r HR t e a m t o co n t in u e t h e ir im p o rt a n t " d a y jo b " f u n ct io n s o r we wo rk wit h yo u r le a d e rs o n o rga n iza t io n a l d e ve lo p m e n t t h a t t ra n sf o rm s t h e e n t ire d e p a rt m e n t , we wo rk d ilige n t ly t o e n su re th e re su lts a re a lign e d with th e co m p a n y's m issio n , visio n , va lu e s a n d go a ls.

SOME SERVICES INCLUDE:

OUR CLIENTS' SATISFACTION IS PARAMOUNT, AND YOU CAN REST ASSURED OUR SERVICES ARE PROVIDED WITH A HIGH LEVEL OF QUALITY AND INTEGRITY.

• • • • • • • • • •

HR Audits HR Policy Design & Handbooks Talent & Performance Management Affordable Recruiting/Hiring Strategic HR Management / Planning Compensation Analysis Team Member Benefits Training & Development Interim HR Leadership Coverage Compliance & Risk Management

PASSIONHR CONSULTING. INC. I WWW PASSIONHR NET I (256) 665-5966 www.HRProfessionalsMagazine.com

41

4. There already was a healthcare COVID-19 regulation published in June.

Can OSHA issue a new ETS now at this late juncture?

President Biden’s COVID-19 Action Plan –

On

What Employers Want to Know

September 9, 2021, President Biden released his COVID-19 Action Plan, Path Out of the Pandemic (the “Plan”). The Plan mandates vaccination against COVID-19 for employees working for employers that have 100 or more employees, as well as employees that work for the federal government or healthcare entities, and/or are federal contractors. The following Q&As address some of the common employer concerns regarding Biden’s Plan and the upcoming OSHA Emergency Temporary Standard (ETS).

1. Will the White House issue an executive order regarding the ETS? No, we do not anticipate that the White House will release an official executive order regarding the ETS. While an executive order was published on the federal contractor vaccination requirement, President Biden has the authority to direct OSHA to develop an ETS without issuing an executive order.

2. If there is no executive order to be challenged, will we have an opportunity to provide comment on the ETS before it takes effect?

No, there will likely be no opportunity for comment before the ETS takes effect immediately upon publication in the Federal Register. The president has asked OSHA to issue the ETS as soon as possible. OSHA will ask stakeholders to provide comment afterwards, when the agency considers approving a permanent standard.

3. What can we do to voice our concerns about the ETS before publication?

Write a letter or join a coalition to write a letter on your behalf addressing your concerns. Littler Workplace Policy Institute (WPI) is joining forces with the business community to assist employers with their concerns. Data that describes infeasibility of implementation, issues with compliance and enforcement, or extensive cost measures will likely be helpful information to OSHA’s formulation of certain provisions in the ETS. If most employers cannot comply with the standard as drafted, OSHA’s efforts will be futile and will likely render the regulation ineffective and could lead to extensive litigation.

42

www.HRProfessionalsMagazine.com

Yes, they can, although it is quite rare.

OSHA published its last ETS in 1986. Under certain limited conditions, OSHA may set emergency temporary standards that take effect immediately until superseded by a permanent standard. OSHA must be able to demonstrate a “grave danger” due to exposure of a “new” hazard such that an emergency standard is needed to protect workers. Once the standard is published in the Federal Register, it becomes effective. The standard will be considered the proposed permanent standard until stakeholders provide comment through the permanent rulemaking process. The validity of an emergency standard may be challenged in an appropriate U.S. court of appeals.

5. When will the ETS be issued?

OSHA’s track record during the pandemic tells us it may take some time for OSHA to develop a draft. OSHA stated it plans to issue the ETS within 2-8 weeks.

6. When will the ETS be effective?

The ETS will be effective once the standard is published in the Federal Register.

7. What will the duration of the ETS be?

The ETS will be effective until a permanent rule is issued. The ETS will be considered the proposed permanent rule until stakeholders provide comment and it goes through a permanent rulemaking process. It is possible, if the ETS gets challenged and/ or stayed during the pendency of litigation, that the duration may be shorter.

8. Will the ETS have any requirements for customers or third parties (vendors)?

The ETS will likely include requirements for customers and third parties. OSHA’s multiple employer COVID compliance directives have indicated that employers are required to take measures to protect all workers in their worksites, even those who are not their employees. Employers are also required to protect their own employees from hazards created by customers and other third parties. Because COVID is a highly infectious disease, OSHA will likely include requirements on how employers must limit customer and thirdparty interactions with employees, as well as take care to ensure that other workers in their worksites are not similarly exposed to COVID. In several states we have seen customer and third-party requirements on occupancy, physical distancing, or masking requirements.

9. What else will likely be included in the ETS? The ETS might include requirements for a written plan, vaccinations, testing, masking, physical distancing in the workplace, compliance with CDC guidance, engineering controls such as filtration or ventilation processes, paid time off for vaccinations or testing, paid time off for ill employees, incentive plans for vaccinations, policies for communicating information to employees, cleaning procedures, recordkeeping procedures, and more.

10. How will the ETS calculate 100 employees? Per worksite, per organization or per enterprise?

In some of its debriefings regarding the regulation, OSHA has indicated that the ETS will likely calculate the 100-employee requirement to mean 100 employees in an enterprise, not 100 employees per worksite.

OSHA should address this question in a further FAQ before issuing the ETS. 11. How will this affect state plans already in place?

Generally, federal OSHA does not have jurisdiction where there are state plans, but state standards must be at least as stringent as federal standards. If the federal standard requires vaccine mandates for enterprises, many states may have to revise their plans or adopt the federal ETS. 12. Does the ETS apply to remote employees or just office workers?

It depends. OSHA generally only has jurisdiction over worksites where an employer can expose, control, correct or create a hazard. This means that the ETS will likely apply when workers visit any assigned work location, regardless of whether the employer actually controls the location. In that instance, the employer may be considered the exposing employer and will likely have to adopt protocols under the ETS to protect its employees. The ETS will not apply to employees who telecommute, i.e., work remotely from home.

13. What will employers use to verify vaccine status?

OSHA has not answered this question yet. The ETS will likely provide specific guidance on vaccine verification. Note that there may be a potential conflict between the ETS’s vaccine mandate and certain state laws, such as in Montana, where employers are prohibited from taking any adverse action based on an employee’s vaccination status. Employers should start considering feasible processes to determine vaccination status in a manner that also complies with state law.

14. Will the vaccination mandate be satisfied after one vaccination dose?

OSHA will likely require the employee to be fully vaccinated because data shows that partially vaccinated individuals are not sufficiently protected from the Delta variant. Fully vaccinated means 14 days after completing two doses of the Pfizer or Moderna vaccine, or one dose from the Johnson & Johnson/ Janssen vaccine.

15. How will things change in the ETS if the FDA approves a booster shot for the vaccinations?

Eventually, we may see a change in definition of “fully vaccinated” to mean three shots of Pfizer. Once Moderna and Johnson & Johnson obtain FDA approval and there is sufficient quantity of the shots available, we could see that fully vaccinated means at least three shots of Moderna and possibly two shots of Johnson & Johnson/Janssen.

16. Under the Plan, is it likely that employers can require vaccinations instead of allowing for testing?

LCYFFL0118

Yes, but not for all workers. Some workers may require an accommodation for medical or religious reasons. One manner to accommodate these types of requests would be to grant an exemption from the vaccine

requirement and instead require frequent testing. Employers can also allow certain employees to work remotely.

17. Under the Plan, do employers need to pay for time spent testing?

While the Plan includes efforts aimed at reducing the costs of home rapid tests, it is not yet clear whether the ETS will include directives about whether employers or employees will bear the burden of the cost of testing, or whether time spent testing should be considered compensable time.

Without any directive in the ETS on these questions, existing federal and state wage/hour law will apply to an employer’s program under the ETS. Biden’s plan states that top retailers will sell at-home rapid tests at cost for the next three months.

The Plan also expands free testing by increasing the number of retail pharmacy sites around the country where anyone can get free testing. Even if an employer intends to use free testing, the employer will likely have to pay employees for the time they take to administer the test.

Employers will also have to train employees if they are providing a home rapid test to ensure employees are properly administering the test in order to return accurate results.

Alka Ramchandani-Raj

Shareholder Walnut Creek, CA

Michael J. Lotito Shareholder San Francisco, CA Washington, DC

Bradford T. Hammock

Shareholder Tysons Corner, VA

Maury Baskin Shareholder Washington, DC

James A. Paretti, Jr.

Shareholder Washington, DC

SFBLI.COM www.HRProfessionalsMagazine.com

43

register now August 31 – September 2, 2021 Galt House Hotel | Louisville, Ky.

1

2

Keynote: Inclusion and Diversity 3

4 5 1:30 PM | August 31, 2021

6

1 Patrick Smith, SHRM-CP, PHR, KYSHRM Chair addresses HR professionals in attendance for the opening day keynote

2 KYSHRM

JOHNNY C. TAYLOR, JR., SHRM-SCP State Council members with keynote speaker Johnny C. Taylor, Jr., SHRM-SCP, President and Chief Executive Officer, Society for Human

President and CEO, Society for Human Resource Management 3 Day one keynote speaker Johnny C. Taylor, Resource Management (SHRM) Jr., SHRM-SCP, President and Chief Executive Officer of SHRM, the Society for Human Resource Management 4 Day two keynote speaker Krissi Barr, CEO, Barr Corporate Success

5 Day three

luncheon keynote speaker Donna Hartley, Harley International 6 Brad Federman, CEO of PerformancePoint, spoke on “Team Founda-

kyshrmconference.com tions: The Keys to Creating Agile Collaboration” 7 (L-R):Shelly Trent,

7

44

www.HRProfessionalsMagazine.com

SHRM-SCP, SPHR, HR & Training Manager, KYSHRM and Katie Raney, newly-hired KYSHRM Director

register now August 31 – September 2, 2021

37thKYSHRM-2021-HRProMag-Ad-fullpage-WithBleed-4_Layout 1 6/10/2021 10:10 AM Page 1

Galt House Hotel | Louisville, Ky.

register now 8

9

8 (L_R) Lyle Hanna, President & CEO, Hanna Resource Group; Tiffany Cardwell, HR Advisory Principal, MCM HR Solutions Group; 2021 Lyle Hanna Spirit award recipient, Patricia Williams, CSP, SHRM-CP, MSM, President & CEO, Wesley House Community Services, Inc.; and Amanda Huddleston, SHRM-CP, KYSHRM Chair-Elect 9 (L-R)Patrick Smith, SHRM-CP, PHR, KYSHRM Chair; conference $2,500 grand prize winner Austyn Miller, HR Generalist, S&S Tire; and Jon Hall, HR Consultant, Human Resources Consulting

August 31 – September 2, 2021 Galt House Hotel | Louisville, Ky.

Keynote: Inclusion and Diversity 1:30 PM | August 31, 2021

JOHNNY C. TAYLOR, JR., SHRM-SCP President and CEO, Society for Human Resource Management (SHRM)

kyshrmconference.com Keynote: Inclusion and Diversity www.HRProfessionalsMagazine.com

45

Were you promised a prince?

Is your current background screening provider not living up to expectations? Are they making you deal with endless hold times? Do they have slow turnaround times or inaccurate background reports? Experience a relationship built on trust, transparency and consistency while delivering the fastest turnround times in the industry. If you were promised the royal treatment but have ended up with a frog as your background screening provider, it’s time to find your happily ever after with Data Facts.

www.datafacts.com Credit Reports • Criminal Records Search • Driver Monitoring • Drug Screening • Healthcare Monitoring • I-9 & E-Verify • Verifications

You’re ready to reach your potential.

We’re ready to help you.

WGU offers over 60 respected bachelor’s and master’s degree programs online, each designed for motivated, driven people like you.

• ACBSP-accredited degree programs.

• HR program fully aligned with SHRM curriculum.

• Flat-rate tuition between $6,800 and $7,950 per year.

Online. Nonprofit.

Surprisingly affordable.®

Kikuyu C. MBA Management & Strategy

Learn More tennessee.wgu.edu