Subject: HR Update: May 2018

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May 2018
The HR Update is back! Look for bi-monthly editions of The HR Update to be delivered directly to your inbox along with HR Flash Reports when there is news that requires immediate attention in the world of labor and employment. 
FMLA/ADA LEAVE EXTENSIONS

We get questions about employees who request extended leave after their FMLA leave expires. The question is whether extended leave is a request for reasonable accommodation under the ADA. Two different U.S. Courts of Appeals decided cases that draw a line between FMLA leave and the ADA requirement for reasonable accommodation. It appears that the ability to take post-FMLA leave under the ADA depends on whether the worker is an “otherwise qualified individual with a disability.” The courts held that employees who cannot perform the essential functions of their job at the time that leave is requested are not “qualified individuals” and not protected by the ADA. 

Of course, if your company has a policy of allowing a certain amount of unpaid leave that is longer than the 12 weeks required by the FMLA, then the employee should be allowed that leave unless there are intervening, unique circumstances and provision for such discretion in the policy.

The EEOC isn’t necessarily on board with these new court decisions. According to EEOC policy, the employer should enter the “interactive process” with the employee if there is a request for extended leave beyond the 12 weeks of FMLA leave. It appears that the EEOC considers leave of fixed, relatively short duration as a reasonable accommodation under the ADA. During the interactive process, companies should consider two factors: 1) whether the employee is otherwise qualified for the position and 2) whether allowing the additional leave is an undue hardship. These ADA analyses may protect the company from liability in the event of an EEOC investigation or other legal action. 

UNPAID INTERNSHIPS

Most companies want to hire unpaid summer interns, but in order to do that within the boundaries of the Department of Labor requirements, certain aspects of the relationship are important. The intern must be the primary beneficiary of the relationship, which can be determined with an analysis of six steps, which emphasizes a strong educational component, limited duration for the internship, no entitlement to a paid job afterwards, and the intern does not displace the work of paid employees.

Learn more about these guidelines here
 WELLNESS PROGRAMS

If your company offers a large incentive to participate in a wellness program at work, it may be violating federal law. A federal court has now vacated the EEOC rule that allowed a 30% premium increase (self-only) to be assessed against people who don’t participate in a company’s wellness program. As of January 1, 2019, the 30% rule is no longer an option, and the EEOC does not expect to issue a new rule until 2021. What does that mean for employers? Reconsider wellness programs that require medical screenings and questions about weight or medical conditions (such as diabetes or depression) that are linked to incentives such as premium discounts or rebates. Programs can offer either medical screenings OR premium incentives/penalties—they just can’t offer them together. 
TAX CUTS AND JOBS ACT

The new tax law became effective on January 1, 2018. There are some aspects of the law that may affect HR, and we will point out a few here. Employee achievement awards are now mostly taxable. For instance, cash (or equivalent), gift cards, meals, lodging, and tickets must now be included as taxable income for employees. Employer-provided moving expenses are also now included as income. Another change is that employers cannot deduct the expense of providing transportation fringe benefits for commuting. 

Visit the IRS.gov website to stay informed and be sure to work with your business and finance teams to make sure that you're navigating the new tax laws effectively for both your company and your employees.  
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