MARCH ROUNDTABLE DISCUSSION

PAST ROUNDTABLE DISCUSSIONS

FMLA
RELIGION IN THE WORKPLACE
HIPAA

FEBRUARY 2005: FMLA

A number of agencies met for the FMLA roundtable. Below is a summary of the highlighted topics:

When to designate FMLA - most agencies are waiting at least a payroll period (2 weeks) before sending notice.
Medical Certificates - while requiring documentation, no one seems to be disciplining when employees do not return an application but stay out.
Intermittent FMLA - continues to defy tracking and management abilities.

MARCH 2003: RELIGION ROUNDTABLE DISCUSSION

TOPIC OF THE MONTH: Religion in the Workplace and the pending Senate Bill Workplace Religious Freedom Act

Religious-based discrimination is prohibited by Title VII of the Civil Rights Act of 1964. Specifically, Title VII prohibits businesses from discriminating against employees on the basis of religion, race, sex or national origin. Additionally, Title VII requires employees to “reasonably accommodate” employee’s religious beliefs and practices in the workplace unless the accommodation would create an “undue hardship” for the business.

To date, Supreme Court decisions have defined reasonable accommodations. The interpretation has generally supported businesses: however, religious groups argue that the court’s interpretation is much too narrow. The debate continues among business groups, religious advocates, and the courts.

TIMELINE:

1964—Civil Rights Act (includes language to prohibit employment discrimination based on religion)
1972—Amendment to Title VII to include reasonable accommodation for religious expression
1977—Supreme Court ruling sets the “di minimus” standard for employers regarding religious accommodation
1986—Supreme Court ruling that employers are under no obligation to accept employee’s suggestions for accommodation request
1986—Supreme Court ruling that proselytizing legally protected speech unless it is “severe and pervasive enough to create a hostile working environment”
1997—President Clinton issues “guidelines” permitting religious expression “to the greatest extent possible”
1999 to 2002—Lawmakers introduce Workplace Religious Freedom Act

WORPLACE RELIGIOUS FREEDOM ACT (WRFA):

A Bill pending in Congress that would further amend Title VII
Will broaden employer’s obligation to accommodate religious expression in the workplace.
Forces employers to demonstrate a” significantly difficult or expensive” hardship to avoid accommodating.
Is backed by a broad coalition of religious groups as well as bi-partisan supporters

QUESTIONS AND ANSWERS:

Q. Why is WRFA necessary?

A. While both State and Federal law permit no discrimination on the basis of religion and reasonable accommodations for religious expresion, several Supreme Court rulings over the years have weakened the employer’s obligations. This bill will enhance two areas of the already existing laws: 1) undue hardship will be strengthen by forcing employers to prove the hardship is “significantly difficult or expensive”; and 2) reasonable accommodation will brought up to the level of what other laws like Americans with Disabilities Act where all possible accommodations must be made.

Q. What types of religious expression must be accommodated?

A. Under the new bill, accommodations around the following would be considered reasonable: observance of religious holidays, religious dress or grooming, religious displays, and gatherings. The law still states that some of these accommodations need not be made if they conflict with the safety and health of the work environment and its employees and the person’s ability to perform all of his/her essential job functions.

Q. What is the current status of the bill?

A. Like several other bills in Congress, the WRFA did was not voted on and instead was referred to committee in the 107^th Congress. Since then, other national issues like Iraq have taken over the congressional agenda. However, there seems to be strong support for this bill from members of both parties and the bill will most likely be reintroduced sometime during the current 108^th Congress, although it has not yet occurred.

HOT HIPAA INFORMATION

NCCIPMA-HR has sponsored a HIPAA conference and a roundtable for municipal employers in conjunction with ABD Insurance Services. The following information is presented with an encouragement to check other sites and become informed about HIPAA.
May 14^th 2003 came and went. How do YOU do in terms of the HIPAA requirements? Do you have a Self Fund Funded Account (SFA)? Think you got it all covered? Did employees raise odd questions? Where do we go from here?

HIPAA Roundtable Discussion Notes

Most agencies needed to comply with HIPAA Privacy rules by April 14, 2003. If the agency is considered a small group health plan then the deadline will be April 14, 2004.
HIPAA Privacy rules do not apply to employer and employment records like FMLA, leaves, etc. Worker’s Compensation information, ADA and disability plans (short, long) are also not covered under HIPAA. Finally, life insurance plans, with some restrictions are also not covered.
HIPAA Privacy rules apply to any and all health related plans including but not limited to: medical plans, dental, vision, mental health, long term care, EAP, health care spending accounts. HIPAA covers active employees, retirees, even those on COBRA.
Most agencies will need to send out notices to their employees by 4-14-03 if they are a large plan or 4-14-04 if they are considered a small health plan.

A Privacy Officer and Committee must be identified if your agency has self-funded plans, fully-insured plans, or offer health care spending accounts. The Privacy Officer must be someone with authority to make policy decisions and impose disciplinary actions.

HIPAA INFORMATION AND LINKS

THE LINK FOR DIRECT INFORMATION REGARDING HIPAA IS: http://www.hhs.gov/ocr/hipaa.

ARE YOU A COVERED ENTITY? http://www.cms.gov/hipaa/hipaa2/support/tools/decisionsupport/default.asp .

IS A PRIVATE BENEFIT PLAN A HEALTH PLAN? http://www.cms.gov/hipaa/hipaa2/support/tools/decisionsupport/xmldecision.asp?decision=D3 .

IS A GOVERNMENT FUNDED PROGRAM A HEALTH PLAN? http://www.cms.gov/hipaa/hipaa2/support/tools/decisionsupport/xmldecision.asp?decision=D4 .

IS A BUSINESS A HEALTH CLEARINGHOUSE? http://www.cms.gov/hipaa/hipaa2/support/tools/decisionsupport/xmldecision.asp?decision=D2 .