K B Squared
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rules and regulations?
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program.
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Sample Documents
Table of Contents
Legislative Updates
EEOC Issues New Enforcement Guidance on Pregnancy Discrimination ................... 3
DOL Proposes Rule to Expand FMLA Protections for Same-sex Spouses ................. 4
Compliance Resources
HR Q&A: FMLA Notice Requirements.............................................................................. 5
DOL Audit Guide: Employee Benefit Plans ..................................................................... 6
Genetic Nondiscrimination Rules for Employers ........................................................... 8
2014 Open Enrollment Checklist ...................................................................................... 9
NLRB Guidelines for Acceptable Social Media Policies .............................................. 10
EEOC Issues New Enforcement
Guidance on Pregnancy Discrimination
Provided by K B Squared
• The EEOC guidance is effective immediately.
• The Pregnancy Discrimination Act applies to
current and past pregnancies, and the intent
or potential to become pregnant.
The EEOC’s
guidance comes at
a time of
increasing focus
on pregnancy
discrimination.
•
On July 14, 2014, the Equal Employment
Opportunity Commission (EEOC) issued new
enforcement guidelines on the treatment of
pregnant employees under the Pregnancy
Discrimination Act (PDA) and the Americans
with Disabilities Act (ADA). The guidance is the
EEOC’s first comprehensive update on the
subject of pregnancy discrimination in over 30
years and is effective immediately.
In addition to the guidance, the EEOC released
a fact sheet for small businesses as well as a
Question and Answer document explaining the
laws and policy changes. In doing so, the EEOC
has clarified its position on a number of key
topics related to pregnancy discrimination.
Extent of PDA Coverage
The EEOC’s guidance clarifies which individuals
are covered by the PDA. According to the
EEOC, the PDA prohibits discrimination based
not only on an employee’s current pregnancy,
but also on past pregnancies and an
employee’s potential or intention to become
pregnant in the future.
Additionally, the EEOC reinforced that the PDA
covers all aspects of employment, including
firing, hiring, promotions, health benefits and
treatment, in comparison with non-pregnant
• Lactation and breastfeeding are medical
conditions under the PDA.
• Employers must provide men and women
equal parental leave.
persons in their similar ability or inability to
work.
Medical Conditions Related to Pregnancy or
Childbirth
The EEOC points out that the PDA prohibits
employers from discriminating against women
with medical conditions related to pregnancy
or childbirth, and requires employers to treat
them the same as other employees who are
similar in their ability to work but are not
affected by pregnancy, childbirth or related
medical conditions.
Significantly, the EEOC’s guidance states that
lactation and breastfeeding are pregnancyrelated medical conditions protected under the
PDA. Accordingly, employers must ensure that
employees have the same freedom to address
lactation-related needs as other employees
have to address other similarly limiting medical
conditions.
For example, if an employer allows employees
to change their schedules or use sick leave for
routine doctor appointments to address nonincapacitating medical conditions, then it must
allow female employees to change their
schedules or use sick leave for lactation-related
needs.
This is a sample document provided by K B Squared
3
DOL Proposes Rule to Expand FMLA
Protections for Same-sex Spouses
Provided by K B Squared
Under the
proposed rule,
eligible employees
in legal same-sex
marriages would
be able to take
FMLA leave to
care for their
spouse or family
member,
regardless of
where they live.
•
The DOL has issued a proposed rule that would
expand FMLA leave rights for same-sex spouses.
•
The proposed rule would move to a “place of
celebration” rule, instead of the “state of
residence” rule that currently applies.
On June 20, 2014, the Department of Labor
(DOL) issued a proposed rule that would
expand protections under the federal Family
and Medical Leave Act (FMLA) for same-sex
spouses. This proposed rule would revise the
definition of “spouse” under the FMLA to:
Adopt a “place of celebration” rule (which is
based on where the marriage was entered
into), instead of the “state of residence”
rule that currently applies; and
Expressly include same-sex marriages in
addition to common law marriages, and
encompass same-sex marriages entered
into abroad that could have been entered
into in at least one state.
Thus, under the proposed rule, eligible
employees in legal same-sex marriages would
be able to take FMLA leave to care for their
spouses or family members, regardless of
where they live.
This proposed rule updates guidance regarding
FMLA protections for same-sex spouses that
was issued following the U.S. Supreme Court’s
decision in United States v. Windsor. The
Windsor decision, issued on June 26, 2013,
invalidated Section 3 of the federal Defense of
Marriage Act (DOMA), which barred same-sex
•
The rule would also redefine “spouse” under
the FMLA to expressly reference the inclusion
of same-sex marriages in addition to common
law marriages, and include same-sex marriages
entered into abroad.
couples from being treated as married under
federal law.
Background
The FMLA entitles eligible employees of
covered employers to take unpaid, jobprotected leave for specified family and
medical reasons. The FMLA also includes
certain military family leave provisions.
Following the U.S. Supreme Court’s ruling on
DOMA, the DOL issued Fact Sheet #28F to
clarify the scope of an employer’s obligation to
make FMLA available to same-sex spouses. This
fact sheet confirmed that, under the FMLA, the
term “spouse” includes a same-sex spouse if
the marriage is recognized under the laws of
the state in which the employee resides.
As a result, employers in states that allow
same-sex marriages were required to treat
employees’ same-sex and opposite-sex
spouses equally for purposes of federal
employee benefit laws. However, these
protections applied only to same-sex
marriages that are valid under state law.
They did not apply to same-sex couples in
civil unions or domestic partnerships, or
same-sex couples living in states that do
This Compliance Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.
This is a sample document provided
by Inc.
K BAll rights
Squared
© 2014 Zywave,
reserved.
4
Courtesy of K B Squared
What notices must
employers provide
to employees
regarding the
FMLA?
Employers must provide employees with the following notices regarding the FMLA:
General Notice, Eligibility Notice, Rights and Responsibilities Notice, and a
Designation Notice. The notices are explained briefly in the following paragraphs.
General Notice
Employers covered by the FMLA must prominently post a general FMLA notice
where it can be readily seen by employees and applicants for employment. The
general notice explains an employee’s rights and responsibilities under the FMLA.
The Department of Labor (DOL) has developed a model general notice for
employers to use.
Covered employers must post this general notice even if no employees are eligible
for FMLA leave. Covered employers that have any eligible employees must provide
this notice to each employee by including it in any written guidance to employees
or distributing a copy of the general notice to each new employee upon hiring.
Eligibility Notice
When an employee requests FMLA leave, or when the employer learns that an
employee’s leave may be for an FMLA-qualifying reason, the employer must notify
the employee of his or her eligibility to take FMLA leave within five business days,
absent extenuating circumstances. The DOL has provided a sample eligibility notice
for employers to use.
Rights and Responsibilities Notice
Each time the eligibility notice is provided, employers must provide a written
notice detailing the specific expectations and obligations of the employee and
explaining any consequences of a failure to meet these obligations. The DOL has
provided a sample rights and responsibilities notice for employers to use. This
notice is often combined with the eligibility notice.
If the information provided by the rights and responsibilities notice changes, the
employer must notify the employee of the change.
This is a sample document provided by K B Squared
5
Presented by K B Squared
This is a sample document provided by K B Squared
6
PREPARING FOR (AND AVOIDING) A DOL AUDIT
Because a DOL audit can disrupt an employer’s day-to-day business operations and possibly
result in penalties (or other corrective action), it is important for employers to know how to
prepare for, and potentially avoid, a DOL audit of their health plan.
As a general rule, the best way to prepare for a DOL audit of your health plan is to confirm that
your plan complies with all applicable federal laws, such as HIPAA and the ACA. It is also
important to have documents showing your compliance and to maintain these documents so
they are easy to access in the event of a DOL audit. If an employer takes these steps before
being selected for audit, it can reduce its exposure to penalties. It can also make the audit
process more manageable and less time-consuming.
It is also important for an employer to understand why the DOL selects certain health plans for
audit and take steps to minimize that audit risk.
AUDIT TRIGGERS
A DOL audit can be triggered for a variety of reasons. In most cases, the DOL investigator will
not disclose to an employer why its health plan was selected for audit. However, there are
some common audit triggers that an employer should keep in mind.
Common triggers for a DOL audit include:

Participant complaints to the DOL about potential ERISA violations. In 2013,
according to a DOL audit summary, 775 new investigations were opened as a result
of participant complaints.

Answers on the plan’s Form 5500. For example, if a plan’s Form 5500 is incomplete,
or if inconsistent information is reported from year to year, the DOL may investigate
the issue further.

The DOL’s national enforcement priorities or projects, which target the DOL’s
resources on certain issues. For example, the DOL’s Health Benefits Security Project
focuses on making sure health plans and health insurance issuers comply with the
ACA’s mandates.
This is a sample document provided by K B Squared
7
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Genetic Nondiscrimination Rules for Employers
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and health plans from improperly
collecting, using and disclosing individuals’ genetic information.

GINA’s health plan provisions (Title I), which went into effect for plan years beginning after May 21, 2009, are
designed to protect individuals from genetic discrimination with respect to their health coverage.

The employment provisions of GINA (Title II), which became effective on Nov. 21, 2009, are designed to
protect job applicants, current and former employees, labor union members, apprentices and trainees from
genetic discrimination in employment.
The Equal Employment Opportunity Commission (EEOC) issued a final rule in November 2010 to implement GINA’s
employment provisions. The final rule became effective on Jan. 10, 2011.
This Legislative Brief provides an overview of GINA’s nondiscrimination rules for employers.
OVERVIEW
Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. In
general, GINA:
In
general,
GINA:

Prohibits the use of genetic information in making employment decisions;

Restricts employers and other entities covered by Title II (employment agencies, labor
organizations and joint labor-management training and apprenticeship programs) from
requesting, requiring or purchasing genetic information; and

Strictly limits the disclosure of genetic information.
COVERED ENTITIES
GINA’s employment provisions apply to “Covered Entities.” A Covered Entity is an employer, employing office,
employment agency, labor organization or joint labor-management committee.
To be covered by GINA, an employer must have 15 or more employees for each
working day in each of 20 or more calendar weeks in the current or preceding year.
Indian tribes and bona fide, tax-exempt private clubs (other than a labor
organization) are not considered employers.
The Covered Entities that are subject to Title II of GINA should not be confused with those covered by the HIPAA
Privacy and Security Rules, such as health plans and health insurance issuers. While the terminology is the same, the
definitions are different.
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2014 Open Enrollment Checklist
To prepare for open enrollment, health plan sponsors should become familiar with the legal changes affecting their
plans for the 2014 plan year. These changes are primarily due to the Affordable Care Act (ACA). Many of the ACA’s
key reforms will become effective in 2014.
Plan sponsors should review their plan documents to confirm that they include these required changes. In addition,
any changes to a health plan’s benefits for the 2014 plan year should be communicated to plan participants. Health
plan sponsors should also confirm that their open enrollment materials contain certain required participant notices,
such as the summary of benefits and coverage under the ACA.
There are also some participant notices that must be provided annually or upon initial enrollment. To minimize cost
and streamline administration, employers should consider also including these notices in their open enrollment
materials.
HEALTH PLAN CHANGES
□
Grandfathered Plan Status
A grandfathered plan is one that was in existence when health care reform was enacted on March 23, 2010. If
you make certain changes to your plan that go beyond permitted guidelines, your plan is no longer
grandfathered. Contact your K B Squared representative if you have questions about changes you have made,
or are considering making, to your plan.
□
o
If you have a grandfathered plan, determine whether it will maintain its grandfathered status for
the 2014 plan year. Grandfathered plans are exempt from some of the ACA’s requirements. A
grandfathered plan’s status will affect its compliance obligations from year-to-year.
o
If you move to a non-grandfathered plan, confirm that the plan has all of the additional patient
rights and benefits required by the ACA. This includes, for example, coverage of preventive care
without cost-sharing requirements.
Annual Limits on Essential Health Benefits
Effective for plan years beginning on or after Jan. 1, 2014, health plans are prohibited from placing annual
limits on essential health benefits.
The ACA’s prohibition on annual limits was phased in over a three-year period; restricted annual limits were
permitted for plan years beginning before Jan. 1, 2014. Some plans received annual limit waivers from HHS
during the phase-in period. These waivers all expire effective for the 2014 plan year.
□
Pre-existing Condition Exclusions
This is a sample document provided by K B Squared
9
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NLRB Guidelines for Acceptable Social Media Policies
The adoption of social media as a communication forum has greatly enabled organizations to reach end users and
establish an online presence in our communities. However, maintaining a reputable presence is not an easy task in
cyber space, especially due to employee participation in social media, which has attracted the attention of employers
and governmental organizations.
On one hand, employers are concerned about how their employees’ comments may affect their reputation and morale
at the workplace. On the other hand, governmental organizations—such as the National Labor Relations Board (NLRB)
and the Federal Communications Commission (FCC)—as well as state legislatures have been paying close attention to
identify possible violations of employee privacy and protected activity rights.
CURRENT SOCIAL MEDIA LAWS
For some time now, employers have been screening applicants’ social media involvement to assess their character
and fitness for employment. However, recent news coverage has alerted the public of employers that have gone as far
as requesting an applicant’s username and password to logon to a social media profile. This practice has been
condemned by many, and has even led companies like Facebook and Google to threaten lawsuits against those who
request username and password disclosures. State legislatures have also reacted to this phenomenon by passing and
proposing legislation to prohibit this practice.
Despite the recent attention, there are still not that many laws or court decisions that address employers’ attempts to
monitor and manage its employees’ participation in social media forums. However, the NLRB has recently published a
set of guidelines to help employers develop policies that protect employee rights under the National Labor Relations
Act (NLRA). These guidelines are the result of an analysis of specific social media employer policies reviewed by the
NLRB.
PROTECTED CONCERTED ACTIVITIES
Employee participation in social media may be protected under section seven of the NLRA, even for non-unionized
employees. Section seven of the NLRA gives employees the right to form unions and to engage in protected concerted
activities. Employees engage in protected concerted activities when they act for their mutual aid and protection
regarding their terms and conditions of employment.
The key to determine whether an employee has engaged in protected concerted activity is whether the employee was
acting for the benefit, or on behalf, of others and not solely for his or her personal interest. Employees do not need to
formally agree to act as a group or designate a representative to participate in concerted activities. Concerted
activities can include spontaneous, non-eventful actions such as a discussion of working conditions and wages or
questioning a supervisor on a company policy. In that sense, the NLRA protects any employee who:

Addresses group concerns with an employer;

Forms, joins or helps a labor organization;

Initiates, induces or prepares for group action; or

Speaks on behalf of or represents other employees.
This is a sample document provided by K B Squared
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