What To Do With the Piggy Flu

*By Pat J. Hoban

Zashin & Rich Co., L.P.A. has received an increasing number of calls from employers asking how to manage the potential for "swine flu" (also referred to as the "N1H1 virus") outbreaks in the workplace. While the effects of the virus have been limited thus far, employers should take steps to limit the effect on their employees and their businesses. This alert provides information designed to assist employers in answering employees' questions, preparing the workplace, and maintaining operations should the current outbreak become more widespread.

 

Resources:

The Occupational Safety and Health Administration ("OSHA") and the Center for Disease Control ("CDC") websites have a wealth of information concerning swine flu. This information is updated regularly and includes specific guidance for employers.

1. Employers should review regularly OSHA (http://www.osha.gov) and the CDC's (http://www.cdc.gov) websites for updates on the situation.
   
   
2. OSHA's website includes lengthy guidance on preparing your workplace for an influenza pandemic at: http://www.osha.gov/Publications/influenza_pandemic.html.
   
   
3. The CDC website links to Pandemicflu.gov which features guidance on workplace planning at:
   http://www.pandemicflu.gov/plan/workplaceplanning/index.html, which includes checklists for developing your company's health and operational response plans.
   
   
4. The CDC has also provided specific guidance for travel at: http://wwwn.cdc.gov/travel/contentSwineFluUS.aspx.

General Precautionary Steps for Employers:

The resources listed above contain a great deal of information about swine flu transmission, symptoms, and ways to reduce the chance of contracting the virus as well as steps employers should take to maintain operations in the event of a wider outbreak. The following is a summary of some of the more basic steps every employer should consider:

1. Communicate in writing with employees about the situation, notify them where they can obtain more news and information, and state that the Company is committed to keeping the workplace as healthy and safe as possible. Employers whose employees are represented by a union should contact the union representatives (e.g., directly or through a labor management or plant safety committees) to discuss the Company's plans to address the situation.
2. Request that employees report immediately to their supervisors if they experience any flu symptoms and require that supervisors notify Human Resources immediately upon any report of flu symptoms.
3. Review the company's Family and Medical Leave Act and other leave policies and encourage employees to stay at home if they experience any flu symptoms.
4. Remind employees of the need to maintain a sanitary workplace, to practice good hygiene and to wash hands frequently.
5. Require employees who believe that they contracted swine flu at work or because of work to complete a First Report of Accident form for workers' compensation purposes.
6. Ensure that any Company representative does not disclose confidential medical information about any employee.
7. Consider wage and hour issues if an exempt employee cannot come to work for any portion of a workweek due to swine flu.
8. Document any actions taken to respond to any actual report of swine flu.
9. Document any request for any workplace adjustment as a result of an employee who suffers from the swine flu.
10. Communicate with any cleaning services about additional steps to sanitize the workplace.
11. Discontinue nonessential travel to locations the CDC identifies as having high illness transmission rates (e.g., Mexico). http://wwwn.cdc.gov/travel/contentSwineFluMexico.aspx
12. Encourage employees to contact the company's Employee Assistance Program, if any, to deal with any stress that might result from the swine flu.

Information, communication and planning are the best ways for employers to best prepare their employees and their businesses for an expanded swine flu outbreak. If you have any specific questions regarding swine flu information and workplace preparedness, please contact Pat Hoban at 216.696.4441 (pjh@zrlaw.com).

IRS Issues New Guidance on COBRA

By Rick A. Hanrahan

The IRS recently issued further guidance on the enhanced COBRA benefits contained in the American Recovery and Reinvestment Act of 2009. IRS Notice 2009-27 provides a summary of the enhanced COBRA benefits and detailed Questions and Answers addressing a variety of issues, including the definition of involuntary termination, calculation of the premium subsidy, eligibility, duration of premium subsidy, and the election period.

This information can be found at: http://www.irs.gov/pub/irs-drop/n-09-27.pdf

U.S. Supreme Court Upholds Labor Contract Binding Arbitration of Statutory Employment Discrimination Claims

*By Patrick J. Hoban

On April 1, 2009, a 5-4 majority of the U.S. Supreme Court held in 14 Penn Plaza LLC v. Pyett, No. 07-581, 2009 U.S. LEXIS 2497, that a collective bargaining agreement (“CBA”) that “clearly and unmistakably” requires union members to arbitrate statutory age discrimination claims is enforceable as a matter of federal law.

The 14 Penn Plaza was a member of a multi-employer bargaining association that had an industry-wide CBA with the union. It operated an office building where a contractor employed several union members as night lobby watchmen. 14 Penn Plaza engaged another unionized contractor to provide licensed security guards for the building and, with the approval of the union, reassigned the former watchmen to other positions in the building. The employees alleged that the reassignment violated several provisions of the CBA including the “No-Discrimination” clause which provided, in relevant part, as follows:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures [of the CBA] as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination. (emphasis added).

The union moved the grievance to arbitration, but, after the first day of hearing, withdrew the age discrimination claims on grounds that because it had approved the reassignment, it could not grieve it. The affected employees then filed charges with the EEOC alleging that 14 Penn Plaza’s actions violated the Age Discrimination in Employment Act (“ADEA”). The EEOC dismissed the charges and issued right-to-sue letters; and the employees filed suit alleging age discrimination in the U.S. District Court for the Southern District of New York. The District Court denied 14 Penn Plaza’s motion to compel arbitration pursuant to the terms of the CBA on grounds that the terms of a CBA cannot waive an individual’s right to litigate certain statutory claims in court. The U.S. Second Circuit Court of Appeals affirmed.

The U.S. Supreme Court reversed and noted that, under the National Labor Relations Act, unions have broad authority to negotiate a CBA pursuant to its duty to represent its members fairly. The Supreme Court held that the CBA’s requirement that employees arbitrate employment discrimination claims was a “condition of employment” and no different than making any other dispute subject to the grievance process. The Supreme Court explained that because the ADEA did not preclude the arbitration of claims brought under the statute, it had no legal ground to nullify the CBA arbitration provisions which were “freely negotiated” by the parties.

Distinguishing its prior decisions, the Supreme Court noted that where a CBA’s arbitration provision did not clearly and unmistakably require the arbitration of statutory discrimination claims, the arbitration of contractual discrimination claims did not preclude subsequent lawsuits. The Supreme Court further noted that because a CBA’s requirement that employees arbitrate statutory discrimination claims, it was not a waiver of future claims, but a waiver of the right to seek relief from a court in the first instance. Thus, it did not run afoul of the prohibition on waiving future statutory claims. The Court finally noted that employees were protected against union abuses of the CBA’s arbitration procedures to the detriment of their statutory rights through the unions’ statutorily enforceable duty of fair representation obligations and anti-discrimination statutes themselves.

This decision supports the inclusion of statutory claims within the scope of CBA arbitration provisions so that they can be defended in the less time consuming and expensive arbitral forum.

*Patrick Hoban has extensive experience in all aspects of labor and employment law, including collective bargaining agreements. If you have any questions about the impact of this decision or any other labor issue, please contact Patrick (pjh@zrlaw.com) at 216.696.4441.

New I-9 Form and Procedures Take Effect April 3, 2009

*By Jason Rossiter

On April 3, 2009, a new version of Form I-9, Employment Eligibility Verification, takes effect, replacing the previous version of the form which is no longer valid. Employment eligibility verification procedures have also been amended. Employers must immediately begin utilizing the new form I-9 when verifying employees’ identities and work eligibility.

The new and effective Form I-9 is identified with the notation “(Rev. 02/02/09) N.” in the bottom, right corner of the Form. The previous edition of Form I-9, which is no longer valid, contained the notation “(Rev. 06/05/07) N” in the bottom, right corner. Employers can view and download the new Form I-9 on the United States Citizenship and Immigration Services’ (“USCIS”) website at www.uscis.gov.

While the content of the revised Form I-9 is largely the same as the previous version, USCIS has made important changes to the List of Acceptable Documents, contained on the last page of the Form. Some of these changes include:

• All documents presented as verification of identity and employment authorization must be currently valid (i.e., unexpired);
• A document with no expiration date (e.g., social security account number card) will be deemed unexpired.
  
  
• The new Form I-9 contains several changes to “List A,” which describes documents that may be used to establish both an employee’s identity and employment eligibility.
  
  
• 3 documents have been removed from List A, including:
• Form I-688 (Temporary Resident Card)
• Form I-688A (Employment Authorization Card)
• Form I-688B (Employment Authorization Card)
  
  
• List A now includes machine-readable immigrant visas that contain a pre-printed temporary I-551 notation.

*Jason Rossiter has extensive experience in all aspects of workplace law, including employee intake and application procedures. For more information about application procedures or any other employment issue, please contact Zashin & Rich at 216.696.4441.

Significant and Costly Changes to BWC’s Group Rating Program

*By Steve P. Dlott

Under the guise of “rate reform,” the Bureau of Workers’ Compensation (“BWC”) has implemented significant changes to the group-rating program. According to the BWC these “adjustments” are necessary to achieve greater “premium equity” between the group and non-group employers. Highlights of the changes include:

• A reduction of the maximum group-rating discount from 85% to 77%.
• A proposed assessment of 31% on all group-rated employers. This assessment is essentially a tax on all group-rated employers. The net effect of this assessment, if enacted, would eliminate the group discount for any employer in a 35% percent group or below discount tier.
• Group-rated employers would no longer be entitled to Drug Free Workplace Program discounts. In addition, the BWC also has discussed eliminating Safety Council discounts for group-rated employers. However, to date, this policy has not been implemented.
• A 100% cap in premiums for non-group rated employers. This cap is in response to the sky-rocketing premium increases-over 1000% in some cases-for employers disqualified from the group rating program.

As apparent, these changes are a mixed bag for Ohio employers. Group rating discounts will still be available but only for those employers with a sterling claims history. Even then, these employers will see their maximum discount reduced from 85% to 54% and possibly less than that for these same employers also participating in the Drug Free Workplace Program. At the same time, these adjustments will offer a significant break to non-group rated employers, who may have seen double, triple, or even quadruple digit premium increases after losing their group discount.

Employers are strongly encouraged to immediately contact their third party administrators to discuss these changes. At the same time, aggressive claims management is the best defense against costly premium increases.