COBRA and the Equitable Tolling Doctrine

Posted April 28, 2017 by Megan DiMartino

Question: I just found out that a former employee near the end of his COBRA election period was in an accident and is currently incapacitated. What are my options, administratively, if the election period ends and he has not yet elected COBRA coverage?

Answer (from The Consolidated Omnibus Budget Reconciliation Act (COBRA) does not specify unexpected events, such as illness or accident, which would leave a qualified beneficiary unable to act in a timely manner. Because of this, the courts had to fill in the gaps and helped create a doctrine called “equitable tolling.” This allows COBRA timeframes to be “tolled,” or suspended, until a legal representative is appointed to act for the qualified beneficiary. Generally, the doctrine can apply to both the election and premium payment periods.

Below are case examples behind the reasoning and principles:

  1. In Branch v. G. Bernd Co., a court allowed a reasonable period for a guardian to be appointed, plus a reasonable period afterward for the guardian to exercise the COBRA rights for the incapacitated qualified beneficiary. Therefore, the court allowed the administrator of a qualified beneficiary’s estate to elect COBRA coverage even after the end of the 60-day period.
  2. The Branch rule was followed in Sirkin v. Phillips Colleges Inc., which held that if an insured misses a premium deadline under COBRA due to the insured’s incapacity to know of or meet obligations, the deadline for that premium payment is tolled for a reasonable period until the insured or their legally appointed guardian is able to cure the deficiency.
  3. In Meadows v. Cagle’s Inc., a court indicated that a proper COBRA election notice is required as a prerequisite to the beginning of a COBRA election period. The court found that for a COBRA election to be valid, it must be sent to a person who is legally capable of acting on the information and must provide enough information for that person to act intelligently.
  4. In Lincoln General Hospital v. Blue Cross/Blue Shield of Nebraska, a court held that the COBRA election and payment periods are tolled to protect incompetent qualified beneficiaries, but only until a personal guardian is appointed.
  5. In Hummer v. Sears, Roebuck & Co., a court held that even where tolling applies, it does not start a new COBRA election period. Rather, it allows a qualified beneficiary’s representative to elect COBRA coverage during a period equal to the number of days remaining in the original COBRA election period.

Employers and plan administrators should consult with their legal counsel before applying the equitable tolling doctrine to any such specific situations.

Source: HR Daily Advisor | Ask the Expert: COBRA Quandary 

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

FMLA Effects on Other Laws

Posted April 24, 2017 by Megan DiMartino

The Family and Medical Leave Act (FMLA) has many effects on laws such as the Americans with Disabilities Act (ADA), workers’ comp, and other state laws that apply specifically to medical or disability leaves. FMLA may also intersect with employer sponsored leaves and policies such as short or long term disability.

When FMLA overlaps with other laws, the employer must follow the law which entitles the employee to the greater benefit. Also, if a collective bargaining agreement (CBA) or your own policy provides a better benefit to the employee, then follow it as well.

Many states follow the federal FMLA almost to the T, but others may differ in the following ways:

  • Apply to smaller organizations;
  • Require you to allow more time off;
  • Cover different reasons for leave, such as domestic violence or school conferences;
  • Cover different people; or
  • Require paid leave.

Generally, leave laws that apply to the same situation can run concurrently, unless the other leave law says it is available after FMLA has been utilized.

Workers’ Compensation

State workers’ compensation laws come into effect if an employee suffers from a workplace illness or injury. It may be required that the leave run concurrently with FMLA. But should the employee’s workers’ compensation leave end first, you may be required to allow continued leave through FMLA if the employee suffers from a serious health condition.

In some states, even if the worker is still on workers’ compensation leave, the employer may terminate them if they have a sound policy of terminating employees who are unable to return to work after the end of FMLA.

Additional Requirements When Employees Take FMLA

  • Fair Labor Standards Act (FLSA) – The FLSA governs minimum wage and overtime requirements for employees. In general, employers are not allowed to reduce the pay of an exempt employee for partial-day absences. Doing so may result in the employee (and possibly others in the same job category) losing the exemption and being owed for past overtime worked.
    • One big exception is that employers are allowed to make deductions from exempt employees’ salaries for hours taken as intermittent or reduced FMLA leave within a work week, without affecting the employee’s exempt status. That is true even if the employee takes FMLA leave in partial-day increments.
  • Consolidated Omnibus Budget Reconciliation Act (COBRA) – In general, COBRA continuation coverage is triggered on the last day of an employee’s FMLA leave if the employee does not return to work. It may also be triggered if, while on leave, the employee notifies the employer that they will not return to work at the end of their leave.
  • Health Insurance Portability and Accountability Act (HIPAA) – Under HIPAA, you are required to comply with its various privacy requirements if you seek medical certification from a HIPAA-covered entity or healthcare provider.
  • Employee Retirement Income Security Act (ERISA) – ERISA prohibits employers from denying benefits to employees, which could include denying leave under your company’s leave policies to care for an elderly parent.
  • Employer’s benefits plans, CBAs – Employers are also bound by the terms of their own employee benefits plans and CBAs if they provide greater family and medical leave rights than FMLA. On the other hand, your plans, programs, and CBAs cannot diminish FMLA rights.

Source: HR Daily Advisor | Coordinating FMLA with State and Federal Laws

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Preparing Yourself for an ICE I-9 Audit

Posted April 21, 2017 by Megan DiMartino

U.S. Immigration and Customs Enforcement (ICE) may not be on your radar of things to worry about, but should a disgruntled employee get them involved then you’re in for a fun I-9 audit. So to prepare yourself for an impromptu investigation, start conducting periodic audits to make sure you’re following suit.

Follow these steps to conduct your own I-9 audit:

  1. Determine whether you have I-9 forms filled out for all current employees. Should any be missing, have the employee fill out another one and date it for the current date. Do not backdate. Simply note and initial that the old document was lost and a new one was created.
  2. Correct simple errors (i.e., missing date, transcription error) by crossing out the wrong information and filling it in with the correct information. Then initial and date the correction.
    Note: Should the employer signature be missing, make sure to view the employee’s identity and employment authorization documents as the signature is an attestation to viewing the documents and that they appear to be genuine and relate to the individual.
  3. If there is an error related to an employee’s document (i.e., missing information), you will need to have the employee bring in either a List A document or a List B and C document. It is not required that the employee bring in the same documents that they originally used, just as long as it is any document(s) from the Lists of Acceptable Documents.
  4. If you are missing I-9 forms for former employees that should still exist (i.e., it has been less than three years after the date of hire or less than one year after termination), there isn’t much you can do. If you have copies of the employee’s documents or a personnel file with their information you can fix simple transcription errors. But otherwise, former employees do not need to be contacted to correct the errors.

I-9 forms of former employees should also be destroyed periodically, so set up a system for doing so as well.

Source: Business Management Daily | Would your I-9 forms pass an ICE audit?

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Comp Time and Ban the Box Bills Making Their Way to Congress

Posted April 18, 2017 by Megan DiMartino

Comp Time
The Fair Labor Standards Act (FLSA) states that non-exempt employees that work more than 40 hours in a workweek are to be paid overtime at time-and-a-half. But also under FLSA, a private-sector employer cannot provide an employee or allow an employee to choose comp time in lieu of overtime pay.

A few years ago, House Republicans proposed and passed a bill to allow comp time in lieu of overtime pay, but unfortunately it never made it to President Obama to sign. But the bill is back and is currently pending in both the House and Senate which would allow a private-sector employee to elect either the time-and-a-half pay or the time-and-a-half comp time for each hour of overtime worked. So keep a lookout for the potential passing of the new Working Families Flexibility Act of 2017!

Ban the Box
Ban the Box makes it unlawful for employers to ask about criminal background checks during the application process for a job, and many states and cities, like Philadelphia, are adapting to the law.

The Fair Chance Act, which was introduced by a bipartisan group in Washington recently, would prohibit Federal agencies and Federal contractors from asking applicants about their criminal history before they have received a conditional offer, among other reasons.

When screening new employees, make sure to:

CA Blog – Update: House of Representatives Allows for Comp Time in Lieu of Overtime Pay

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

HRCI & SHRM Pre-approved Crawford Advisors Webinar | Violence in the Workplace in 2017 – Are You Protected?

Posted April 14, 2017 by Megan DiMartino

Join Crawford Advisors’ Director of Crawford HR Services, Cindy Wagner, for this HRCI* and SHRM** pre-approved, complimentary, one-hour webinar as she discusses the current state of workplace violence.

Violence in our society does not only occur outside the workplace, as each year many employees are victims and perpetrators of violent acts. Homicides have become the third leading cause of fatal occupational injuries in the United States. Employers must endeavor to prevent the serious problem of workplace violence in an effort to protect employees and avoid potential employer liability.

Program content will address:

  • What is Workplace Violence
  • Techniques to Identify Potentially Violent Employees
  • Methods to Help Defuse Violent Situations
  • Workplace Security Policy
    • Provisions & Goals
  • Risk Reduction Measures

Webinar Details:

  • Thursday, April 27, 2017
  • 1:00 – 2:00pm EDT
  • No Cost to Attend
  • This webinar is open to all HR and Finance Professionals – but not to brokers, agents, TPAs and PEOs.

*The use of this seal confirms that this activity has met HR Certification Institute’s (HRCI) criteria for recertification credit pre-approval. This activity has been approved for 1 HR (General) recertification credit hours toward aPHR, PHR, PHRca, SPHR, GPHR, PHRi, and SPHRi recertification through HRCI.

**Crawford Advisors is recognized by SHRM to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP. This program is valid for 1 PDC for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

FMLA in Conjunction with USERRA

Posted April 12, 2017 by Megan DiMartino

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) grants leave to employees who are in the armed forces much like the Family and Medical Leave Act (FMLA) grants leave to employees with members in the armed forces. They resemble each other in the following ways:

As both laws require employees to receive a certain amount of unpaid leave, USERRA requires employers to grant up to 5 years of unpaid leave to employees on active duty while FMLA requires employers to grant up to 12 weeks of leave for employees (up to 26 weeks of military caregiver leave).

  • Similar to the FMLA, employees who return from military duty are entitled – at a minimum – to be reinstated to their old job or an equivalent one.
  • The FMLA has similar benefits protections for employees who take FMLA leave as USERRA has for employees who take military leave.
  • Similar to USERRA’s discrimination provisions, the FMLA prohibits employers from discharging or otherwise discriminating against “any individual” – not just employees – for opposing a violation of the FMLA.

Other than the obvious amount of leave differences, there are a couple other distinctions:

  • All employers are required to comply with USERRA regardless of how many (or how few) employees they have.
  • There is no eligibility requirement under USERRA. Employees are generally eligible for military leave and job reinstatement regardless of how long or how many hours they have worked for the employer.

When an employee returns to work after military leave that is protected under USERRA, you have to determine if they are eligible for FMLA leave as if they were never gone. They should receive credit for the time spent on military leave for both the 12-month and the 1,250 hour requirements for FMLA eligibility.

Source: HR Daily Advisor | Coordinating FMLA with USERRA

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Maryland Fair Employment Practices Act and Reasonable Accommodation

Posted April 6, 2017 by Megan DiMartino

Recently, a Maryland Federal Court allowed a trial to proceed on a case where the plaintiff is accusing their employer of not fairly accommodating her needs under Maryland’s Fair Employment Practices Act (MFEPA) in which the employer failed to perform an individualized assessment to determine whether the employee – a qualified individual with a disability – was able to perform the duties of any available position, not just her own.

In the case, Townes v. Md. Dep’t of Juvenile Svcs., Townes is diagnosed with bipolar disorder and her psychiatrist recommended she move to another position that required less travel. It was pointed out that the company did have open positions available which required less travel and, per her psychiatrist, were suitable positions which Townes was qualified to perform. One was even available in Baltimore, MD where Townes lives. So the object was if the case presented was enough that a jury could conclude that the employer performed the individualized assessment required under MFEPA of Townes’s ability to perform the duties required of “a” job and not necessarily “the” job she occupied.

In the case Peninsula Reg’l Med. Ctr. v. Adkins, the court rejected the notion that “the job in question” means the job which the employee held at the time of the request for reasonable accommodation. So with that and one of the Maryland laws (COMAR, which includes reassignment to a vacant position as an example of a reasonable accommodation, it helped to reinforce the court’s conclusion that the employer was required to evaluate other open positions which the employee was qualified to fill.

The Townes and Adkins cases demonstrate how Maryland courts will interpret the MFEPA’s requirements like those found in Title I of the American’s with Disabilities Act and the Rehabilitation Act. Maryland employers should obviously learn from this and have good-faith conversations (individualized assessments) with their employees in determining how they can accommodate their needs in either their current position or through a qualified transfer.

Source: Mintz Levin Employment Matters Blog | Federal Court: Maryland Fair Employment Practices Act Requires Employer to Consider Jobs Other than Employee’s Current Job When Assessing Possibility of Reasonable Accommodation 

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Are Your Interview Questions Getting a Little Outdated?

Posted March 29, 2017 by Megan DiMartino

There are an endless amount of questions that an interviewer can ask a job applicant. But let’s ask you a couple questions first – Are these questions you’re asking pertinent to the open position at hand? Are they beneficial in collecting true information regarding your potential employee? If you’re asking the following questions, then the answer is most likely no:

  1. What’s your greatest weakness? – Everyone has weaknesses. A weakness is something you could be better at doing than you currently are and of course we can all strive to be better! This question can be intrusive and personal and doesn’t provide an answer that helps with the hiring decision.
  2. Where do you see yourself in five years? – This question can sometimes be a trap as interviewers want to determine if you’re a responsible adult with firm plans rather than a “child” who doesn’t have their mind made up yet. Life isn’t set in stone, so the next five years shouldn’t have to be either.
  3. What’s your greatest failure so far? – Goes right along with “your greatest weakness.”
  4. With all the talented candidates, why should we hire you? – As the interviewer, you’re the one that knows the ins and outs of the position so you’re the one who should know what to look for in a candidate. Practical questions should be asked about the work that is performed in the role in order to assess the candidate’s suitability for the job.
  5. What would your last boss say about you? – The integrity of their last boss isn’t at stake here, it’s about the applicant. Not all bosses are created equal and not every employee goes to work to please their boss, but to do their job and do it well.

These five questions have been a part of many interviews and also, whether you mean to or not, emphasize the unhealthy viewpoint that employers are mighty and job applicants are trivial.

So get rid of these out-of-date questions and replace them with these smart, thought provoking and realistic questions to use in your next interview:

  1. What can I tell you about this job or the company? – The candidate’s responses/questions will tell you a lot about their attitude level, their understanding of the role and business world in general, their priorities and their preparedness for the interview.
  2. How does this role fit into your career plans? – This will help determine if the candidate is just simply looking for a job (which may fit some roles) or if they’re serious about the position and their future with the company.
  3. As you think about yourself performing this job, what do you imagine will be the biggest challenges as you get started? – This question will make it clear if the applicant thought through the job requirements and their abilities and experiences to fill the role adequately.
  4. From what you understand about the job, which of your experiences at work or somewhere else do you feel will help you in this job? – This is a great way to obtain some evidence that the applicant can handle the position.
  5. If you take this position, how do you expect to tackle the new job and the projects we’re discussing? In a general way, what will be your plan of attack? – By asking this question you’ll get some insight as to how the candidate’s mind works and processes their potential new role.

Source: Forbes | Five Interview Questions To Stop Asking – And Five to Ask Instead

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

New Bill May Allow Parents to Use FMLA for Loss of a Child

Posted March 27, 2017 by Megan DiMartino

A new bill was recently introduced to the U.S. House of Representatives that would amend the Family and Medical Leave Act (FMLA) to permit parents the use of leave to mourn the death of a child.

The new bill, known as the Sarah Grace-Farley-Kluger Act, would add “because of the death of a son or daughter” to the list of FMLA entitlements and would allow parents to take up to 12 weeks of leave.

The bill has garnered bipartisan support. Republican Congressman Paul Gosar (AZ) is one of the bill’s co-sponsors and described the legislation as “commonsense” as a way to allow parents to cope with such a devastating loss and still remain productive at work.

“As a father of three amazing children myself, I know I can speak for everyone here today that our goal is to protect the rights of grieving parents who face the unthinkable pain of losing a child,” said Gosar. “Expanding the FMLA to cover parents coping with the devastation of losing a child is beyond reasonable and should have been included when the legislation was originally passed.”

“This commonsense, bipartisan bill is about what we are supposed to be doing in Congress – identifying problems and solving them together in a way that makes sense to help the people that we represent,” said Congresswoman Martha McSally (AZ). “Giving grieving parents the option for time off from work equal to that for parents who have given birth and adopted, simply makes sense to all of us who are in support of this bill.”

It is said that this legislation is less expensive and less controversial than requiring employers to provide paid family medical leave. President Trump is in support of some kind of paid family leave, but as of now this new bill could help move along the pending request for paid leave.

Should the Sarah Grace-Farley-Kluger Act not pass, it may be in the best interest of employers to consider adding such a policy to help create a more compassionate workplace.

Sources: The Employer Handbook by Eric B. Meyer | The FMLA may be amended to include leave for a parent to grieve the loss of a child

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Wellness Programs May Not Always Be Healthy for the Employer

Posted March 24, 2017 by Megan DiMartino

Fitness bands have become more and more popular over the years and you can bet that most of your employees are wearing some kind of device to track their biometrics. These devices can do everything from counting steps, to administering medical tests, to analyzing one’s quality of sleep. So this means employers could have firsthand access to employees’ personal information, but also to a legal trap.

One use for this biometric data, and probably the most prevalent, is to offer employees insurance premium discounts, bonuses, or other incentives to raise health consciousness or to get employees to reach a certain activity level. Offering such programs gives employers such information as activity levels, nutritional habits, and certain physical characteristics, which if not handled properly by the employer could lead to disability or discrimination claims.

As of right now, Illinois and Texas are the only two states to have enacted statutes that define specifically what constitutes biometric data; and only a few more states – Alaska, California, New York and Washington – have proposed legislation on the issue.

As an employer, what do you do?
Based off of the key provisions of the Illinois and Texas state laws, here are some guidelines for employers that are in possession of its employees’ biometric data:

  1. Always provide employees with written notice of biometric data collection and storage, and explain the reason for the collection and the length of time the data will be stored;
  2. Require employees to give written consent to the data collection;
  3. Protect the collected biometric information from disclosure unless the employee gives prior written consent to disclosure or the disclosure is required or permitted under state or federal statute, or in response to a warrant from law enforcement or a valid subpoena, or to complete a financial transaction requested by the employee;
  4. Protect stored biometric data in a manner that is at least as protective as the means used to protect other confidential information;
  5. As with health information in general, separate biometric data from other employee records, and ensure that company access to such data is limited to those with a legitimate need-to-know;
  6. Never sell, lease, trade, or otherwise profit from the collected data;
  7. Maintain and make publically available a written retention policy that requires permanent destruction of the data by the earlier of the date when “the initial purpose for collecting or obtaining” the data has been “satisfied” or three years after the employee’s last contact with the organization; and
  8. Keep abreast of cases that address the appropriate use of biometric data and its collection and handling. For example, this relatively recent case addressed whether requiring biometric screenings as part of a wellness plan violated the Americans with Disabilities Act.

Sources: Labor & Employment Law Perspectives | Could Wellness Programs Be Making Your Company “Sick?” The Potential Perils of Collecting Biometric Data About Employees

For more information contact The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.

Subscribe to Our Blog