The post Health, Welfare, and Retirement Benefits Compliance appeared first on Mineral.

EMPLOYEE BENEFITS COMPLIANCE

Managing employee benefits compliance is easier with Mineral^®.

Ready to learn more? Let’s connect.

Providing employees with a benefits package is just the first step.

When you offer employee benefits such as medical, disability, dental, retirement, or other benefits — it means new laws and regulations now affect your business. Your employees also want to stay informed on benefits updates to make timely decisions. 

Mineral helps you stay compliant while building employee trust.

Good business practices help you create a positive work environment, and that’s especially true for anything related to employee benefits. Plus, as an employer, you know how challenging it is to stay on top of federal and state benefits laws and regulations. That’s where Mineral can help.

Mineral provides benefits compliance guidance on topics such as:

Group health plans
(medical, dental, vision)

Life, accident, and disability insurance

Wellness and lifestyle programs

Section 125 cafeteria plans

Tax favored accounts
(HRA, HSA, FSA, etc.)

Affordable Care Act
(ACA)

Benefits notice, reporting, and disclosure requirements

State benefit employment mandates
(disability, 401k, etc.)

Employee Retirement Income Security Act
(ERISA)

Consolidated Omnibus Budget Reconciliation Act
(COBRA)

You can view online resources, tools, insights, and actions at your convenience — personalized to your business profile — so you can stay on top of federal and state employee benefits compliance.

Tools and resources in the Mineral Platform^TM include:

• Live Mineral Expert advice
• Benefits Document Creator
  (Wrap, POP, SDP, HRA, ICHRA)
• Affordable Care Act calculators
• Educational videos
• Law Library
• Benefits notices for employees
• Charts, guides, and checklists

Count on Mineral Experts^TM for both HR and employee benefits compliance

When you need fast and reliable health, welfare, and retirement benefits guidance, turn to Mineral Experts^TM. Our HR and compliance team also includes experts certified in benefits compliance, who stay up to date on the latest benefits laws and regulations so you don’t have to. With an average of 18+ years of experience, Mineral Experts^TM can answer your questions or give you guidance — all using simple language you can actually understand.

Solutions that work as hard as you do.

More resources from Mineral.

Health, Welfare, and Retirement Benefits Compliance brochure

AI and HR: Where intelligence intersects.

Mineral + Mitratech: Learn more about this exciting news!

2023 State of HR: Read the Executive Summary Report

The post Employee Benefits Compliance appeared first on Mineral.

What does pregnancy discrimination look like?

Great question. Some examples include:

• Asking a job applicant if they are or intend to become pregnant, then ruling them out because they answer yes.
• Telling an employee that their upcoming pregnancy-related leave will delay a project, risking their chance at a promotion.
• Requiring an employee to take leave when other effective accommodations are available, or no accommodations are needed.
• Pressuring an employee to have or not have an abortion.
• Making jokes about pregnancy or a pregnant employee’s body (if unwanted and severe or pervasive).
• Denying an employee an opportunity or reducing their role out of concern about health risks.
• Requiring an apparently healthy pregnant employee to provide a doctor’s note to prove they can still do their job duties.
• Retaliating against an employee for a past pregnancy by terminating them while on parental leave.

Are there laws that prevent and protect against pregnancy discrimination?

Another good question, and yes. There are two federal laws that specifically protect employees from pregnancy discrimination.

The Pregnancy Discrimination Act (PDA), enacted in 1978, is an amendment to Title VII of the Civil Rights Act of 1964 and applies to private employers with 15 or more employees. It forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment.

The Pregnant Workers Fairness Act (PWFA), effective in June 2023, also applies to employers with 15 or more employees. It requires covered employers to provide reasonable accommodations to an employee’s known limitations related to pregnancy, childbirth, or related medical conditions. There is an exception if providing the accommodation would cause an undue hardship (defined as a significant difficulty or expense) on the employer. This law expands employer obligations beyond existing requirements under the Americans with Disabilities Act (ADA) because under the PWFA, being entitled to a pregnancy-related accommodation doesn’t require that the employee’s condition rise to the level of disability. Also, employees are entitled to accommodations even if they can’t perform their essential job functions on a temporary basis.

5 things employers can do to stay compliant with PDA and PWFA

Here are five ways employers can protect their workplace and employees from pregnancy discrimination:

1. If you’re an employer with 15 or more employees, accommodate employees’ and applicants’ known limitations related to pregnancy, childbirth, or related medical conditions. Possible accommodations might include providing more frequent or longer breaks, modifying a food or drink policy, providing seating or allowing employees to sit more frequently if their job requires standing, observing limits on lifting, and providing job restructuring, light duty, or modified work schedules.

2. Add a pregnancy accommodations policy to your handbook if you don’t already have one.
   If you’re subject to a state or local law that provides similar accommodations, make sure your policy captures the most employee-friendly aspects of all applicable laws.

3. Ensure that managers are aware of the law and types of accommodations that may be required.

4. Treat pregnant employees just as favorably as other employees.

5. Don’t take any adverse action against an employee or applicant for requesting or using an accommodation.

4 other pregnancy-related laws employers should know

Beyond PDA and PWFA, there are other federal laws that may apply to employees/applicants who are, have been, or will be pregnant:

PUMP Act

Under the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP), which amends the Fair Labor Standards Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work. This right is available for up to one year after the child’s birth. While similar to a 2010 lactation accommodation law, the PUMP Act ensures that exempt employees have lactation rights as well.

FMLA

Under the federal Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, a new parent (including a foster or adoptive parent) may be eligible for 12 weeks of leave that can be used for care of the new child. Employee eligibility requirements apply.

ADA

The Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees, prohibits employers from discriminating against qualified individuals with disabilities—including pregnancy-related disabilities—in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

More from Mineral

In 2022, the Supreme Court overturned Roe v. Wade, created uncertainty for employers seeking to ensure their benefits plans can fully meet the reproductive health needs of all employees, no matter where they live. Our webinar, Employer Healthcare Benefits in a Post-Roe v. Wade World, offers advice on how to offer healthcare benefits to support reproductive healthcare services and how to handle discussions in the workplace. It’s a powerful hour, featuring compelling and important information for businesses of all sizes.

The post Question of the Month: What Should Employers Know About Pregnancy Discrimination? appeared first on Mineral.

The Pregnant Workers Fairness Act (PWFA) is an exciting (and long overdue) change to federal employment law that seeks to improve the health and economic security of pregnant employees by making thousands of workplaces more pregnancy friendly. It does this by requiring that employers with 15 or more employees provide pregnancy-related accommodations to employees and applicants.

Depending on an employer’s size, location, and general approach to pregnancy in the workplace, this could be a big deal or business as usual. Let’s break it down.

How is PWFA different from the Americans with Disabilities Act?

Employers might be thinking, “I already provide accommodations for pregnancy disability; how is this different?” That’s a good question. PWFA expands employer obligations beyond what is already required by the Americans with Disabilities Act (ADA) in that being entitled to a pregnancy-related accommodation does not require that an employee’s condition rise to the level of a disability.

What conditions require pregnancy-related accommodations?

Under the new law, employees are entitled to accommodations for known limitations related to or affected by pregnancy, childbirth, or related medical conditions, whether mental or physical. Pregnancy-related conditions include:

• Morning sickness.
• Gestational diabetes.
• Post-partum depression.
• Lactation.

What kinds of accommodations might employers need to make to comply with PWFA?

PWFA acknowledges that pregnancy comes with an assortment of challenges—many of them not disabling, but still very real—and requires that employers make the workplace more accommodating of those challenges. For instance, employers might need to:

• Provide more frequent or longer breaks.
• Allow exceptions to a food or drink policy so an employee can eat more frequently, or at their work area.
• Provide seating or allowing an employee to sit more frequently if their job requires standing.
• Observe limits on lifting.
• Provide closer parking.
• Allow an employee to come in later when experiencing morning sickness.
• Shift an employee to light duty.

Employers should keep in mind that many states have already implemented pregnancy accommodation laws, some of which may be more generous than PWFA. Employers will need to apply the law—or the aspect of each law—that is most favorable to employees.

What is the accommodation process like?

PWFA doesn’t allow employers to automatically ask for a doctor’s note or other proof of the need for accommodation. Much like how an employer shouldn’t ask someone in a wheelchair to prove that they need a ramp, if a visibly pregnant employee is asking for a common-sense accommodation, an employer shouldn’t ask for documentation.

That said, PWFA allows for, and in some cases requires, use of the interactive process. This is the same interactive process employers are familiar with from the ADA, and it might include asking for input from an employee’s medical care provider to better understand their limitations and how they can be addressed in the workplace. But employers aren’t required to go three rounds with employees if they’re willing to provide the desired accommodation. Remember, the point of the law is to make work-life easier on pregnant employees, not increase the administrative burden for employers.

Does PWFA have an undue hardship exception?

Yes, similar to the ADA, there is an exception to providing an accommodation if it would cause an undue hardship on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense. This is a high standard for most employers to meet and the exception should be used sparingly, if at all.

Again, employers should be aware of any state law regarding pregnancy accommodation—some don’t allow the use of the undue hardship exception for particular requests like seating or lifting restrictions.

Okay. I’m an employer with 15 or more employees who are or may become pregnant. What should I do now?

1. First, make sure that your HR people, managers, and anyone else who might receive a request for accommodation understands PWFA and can deal with those pregnancy-accommodation requests appropriately.

2. Second, draft a policy for your new-hire packet and/or employee handbook so that employees know their rights under PWFA and the process for requesting an accommodation.

3. Finally, rejoice in this new clarity! Employers can now give pregnant employees “special treatment” without worrying that it’s discriminatory toward non-pregnant employees. On the flip side, employers who didn’t provide pregnancy benefits and accommodations previously are less likely to find themselves on the receiving end of a sex-discrimination lawsuit. While employers often bristle at new regulations, PWFA should prove to be a win-win for employers and employees alike.

The post What is the Pregnant Workers Fairness Act? Plus 6 More Legal Answers About Pregnancy in the Workplace appeared first on Mineral.

But I’m sure you already knew that.

What you may not have at the ready, though, are the answers to some of the frequently asked questions that Mineral’s HR Experts receive about Form 5500 for employer-sponsored health and welfare plans. Share them with your HR partners or clients to make this year’s filing deadline a (summer) breeze.

Don’t get burned by summer compliance deadlines: Your Form 5500 FAQ

Is Form 5500 required for our plan?

Probably. The Employee Retirement Income Security Act (ERISA) requires Form 5500 for employer-sponsored welfare plans with 100 or more participants as of the start of the plan year (generally Jan. 1). Participants count as all covered employees, retirees, and primary COBRA beneficiaries, but not dependents. Welfare plans include plans for medical, dental, vision, life, accident, and disability benefits, as well as health flexible spending accounts (FSAs) and health reimbursement arrangements (HRAs).

Information about plans that include group insurance coverage must be reported on Form 5500 Schedule A. Most welfare plans are unfunded—with benefits paid through group insurance contracts, an employer’s general assets, or a combination of both. For unfunded plans, Form 5500 filing will be the three-page Form 5500 only or Form 5500 with one or more Schedules A.

However, plans exempt from ERISA, and therefore exempt from Form 5500 filing, are those that are:

• Sponsored by governmental employers and churches.
• Employee-paid voluntary plans.
• Payroll.
• Maintained solely to comply with state workers’ compensation, unemployment, and weekly disability insurance laws.

How do I file Form 5500?

Form 5500 and any required schedules must be filed electronically using the Department of Labor (DOL) EFAST2 electronic filing system, using approved third-party vendor software or the DOL’s web-based filing system, IFILE.

Can I get a Form 5500 filing extension?

Yes. The filing deadline can be extended up to two and a half months (until Oct. 15), by applying for an extension using Form 5558, no later than the original July 31 filing deadline. In most cases, the IRS does not respond, which means the extension is automatically granted. Then, when filing Form 5500, be sure to check the appropriate box in Part I-D, to indicate that the due date was extended by filing Form 5558.

Part II of Form 5500 asks for basic plan information. Where do we find this information?

The information needed to complete Part II of Form 5500 will be found in your plan document and SPD.

Form 5500 Part III, line 8, asks for codes. What are the correct codes?

For a welfare plan, do not enter any codes on line 8a. Refer to page 20 in Instructions for 2022 Form 5500 for the index of Plan Characteristic Codes, then enter the appropriate code(s) on line 8b. Pro tip: Codes for welfare benefits, including health plans and group life and disability insurance, begin with “4.”

Part III, lines 9a and 9b, ask about funding arrangements and benefit arrangements. Help!

Breathe. We got you. On both lines, check the box for “Insurance” if the plan includes coverage provided through one or more group insurance policies (e.g., group life, medical, STD, LTD). Check the box for “General assets of the sponsor” if the plan includes any self-funded or uninsured coverages (e.g., HFSA, HRA, or other self-funded health plan). Many employers offer insured plans along with an HFSA, in which case both boxes will be checked. Do not check the boxes for 412(e)(3) contracts or trusts; these are uncommon arrangements requiring tax professionals or plan trustees to prepare the form.

First numbers, now letters! What about Form 5500 Schedule A and/or Schedule C?

Schedule A must be filed with Form 5500 if any plan coverages are provided through group insurance contracts. In that case, the insurance company will provide information about the policy, and information about any commissions or fees. Carriers are required to provide this information within 120 days after the end of the plan year. If the plan includes multiple group policies, such as separate policies for group life, PPO medical, HMO medical, dental, and vision, there will be a separate Schedule A for each one.

Schedule C is only required for large welfare plans that are funded through benefit trusts, which are uncommon. In that case, Form 5500 and all required schedules should be prepared by tax professionals or plan trustees.

See? Easy as ABC, 123. Happy filing!

The post HR Compliance Heats Up: Form 5500 Filing Due July 31 appeared first on Mineral.

When pregnant, regular work scenarios can quickly become a nightmare. A longish commute, not having fast access to a bathroom, and having long periods of time standing, can all become arduous and moments to dread for pregnant workers everywhere. But thanks to a new federal law coming through, that’s about to change, for the better.

The Pregnant Workers Fairness Act (PWFA), which goes into effect today, is a major advancement for the rights of pregnant workers, and the first breakthrough in more than four decades for both frontline and desk-based pregnant workers.

Under the new law, signed by President Biden at the end of 2022, employers with more than 15 employees will have to provide reasonable accommodations to pregnant workers, as well as those recovering from childbirth.

The law can even require companies to alter a job description if necessary. For example, a pregnant worker who is on their feet for most of the day will be given new duties that keep them seated at a desk. Other accommodations might include moving a desk closer to the bathroom if they need extra bathroom breaks. If someone travels often for work, that might be reduced or cut entirely. Or, it might mean giving that person the closest spot to the door in the parking lot. The list goes on.

Some say that it has the potential to increase women’s labor force participation in the long term, but companies need to make sure that they get it right. Kara Govro, chief HR legal expert for HR and compliance firm Mineral, who is helping clients understand the new law, believes this shouldn’t be too hard.

“The intent is to keep pregnant employees working and healthy and boost the economy by making it easier for those people to stay employed,” said Govro.

The law complements existing laws, which have offered workplace protections, like the Family and Medical Leave Act (FMLA) and the PUMP for Nursing Mothers Act. And it also serves as an extension to the Americans with Disabilities Act (ADA).

“The ADA already required that if someone had a disability related to pregnancy that you provide accommodations,” said Govro. “This sort of lowers the standards. We have to offer accommodation to a pregnant employee who has a known limitation. We all know pregnancy is hard. It’s hard on the body and psychologically. The PWFA is acknowledging that pregnancy has a lot of challenges. They don’t necessarily rise to the level of disability, but an employer should really be able to provide basic accommodations to make life better for pregnant employees. Now an employee doesn’t need to prove they are disabled. If they’re pregnant, we can go ahead and make basic assumptions about what they need and what will make life better at work,” she added.  

Under the new law, workers can also ask for time off to recover from a miscarriage, postpartum depression or other pregnancy-related issues. 

A total 2.8 million women a year are pregnant on the job — that’s 70% of all pregnant women in the U.S., per an analysis of census data from the National Partnership for Women and Families. Eight in 10 first-time pregnant women work until their final month of pregnancy, according to data from the U.S. Congress. Yet, 23% of moms have thought about leaving a job due to a lack of reasonable accommodation or fear of discrimination from an employer during pregnancy.

The Equal Employment Opportunity Commission will start accepting complaints on day one, different from other legislation that has a grace period.

Companies are underprepared

But are companies prepared? A survey of 600 HR leaders by leave and accommodation management software company AbsenceSoft found that 72% of companies expect an increase in accommodation requests. Yet, 43% of respondents are either not at all or only somewhat familiar with the PWFA. Almost half said their HR department was either not prepared at all or just starting to prepare. 

“It’s the first law in this space that has been passed at a federal level since the ADA was amended many years ago,” said Seth Turner, AbsenceSoft’s co-founder and chief strategy officer. “It’s a way for employees and employers to have conversations about how the pregnant employee can still work if they want to.”

While there are similarities to the ADA, the ADA says at the end of the day they aren’t entitled to change the job or required to give the disabled employee a different job. But because pregnancy is temporary, things are a little different.

“The PWFA changes that and really says you do need to look at whether you can change the job so the person can do it,” said Turner. “I think that’s what’s going to cause employers the most challenge. It has some interplay with FMLA and other leave laws, but the PWFA flips things around.”

Turner says that it’s important for employers to really look at what this law means, because while it might seem simple on the surface and similar to the ADA, there is more to it. He says there are three camps of employers: the small group that is still worried about accommodation abuse, a larger group trying to understand what they can and can’t do, and then the last is people who are taking a deep dive into asking questions like how will this change our administration processes, how will we have to look at job descriptions, and so on.

“It’s taking the time to look at what we’d really like them to do, but maybe they can’t do, as we look at PWFA requests,” said Turner. “What can fall out of those essential functions if needed? People really need to take the time to look at these requirements and document them.”

Overall though, Govro argues that it shouldn’t be a big lift for employers, especially those that already have diversity, equity and inclusion-centric work cultures.

“Employees who cared about that were already offering this,” said Govro. “Employers who don’t care about it and are salty about this law aren’t going to suddenly become friendly. It won’t become a real pregnant-friendly place when your manager is mad about having to get you a chair or letting you have more breaks.”

Turner agrees: “It’s fantastic from the perspective of how to have a good relationship between employers and employees and attracting and retaining people. If you can do this right, your pregnant workers who want to continue to work while they are pregnant, and with accommodations as they come back, will be cared for. The more likely they are to return. With the labor market so tight, you want to keep the employees who are already trained and are productive. This opens the conversation.”

Govro added that it shouldn’t increase the administrative burden for employees or employers and hopes that the interactive process doesn’t require things like doctor’s notes.

“I don’t think it’ll change the feel in a lot of workplaces, but it will change the practical lived experience of pregnant employees,” said Govro. “It’s a win-win for employers and employees because there wasn’t clarity around this before.”

The post New Law Protecting Pregnant Workers Takes Effect – Why it Matters appeared first on Mineral.

New rules for US employers will make it easier for many pregnant workers to keep doing their jobs, but advocates say there’s still a long way to go to make workplaces family-friendly.

The Pregnant Workers Fairness Act, a federal law that took effect last week, now requires companies to provide accommodations like breaks or remote work for employees that are expecting. That’s on the heels of the PUMP for Nursing Mothers Act, which landed six months ago and expands protections for managing breastfeeding needs while at work.

The new laws are an important step to improving pregnant workers’ ability to remain in the workforce. But they’re only part of what’s needed for serious economic impact — there are around 23.5 million employed women with children under the age of 18, and making it easier for them to work is good for the economy. Family-friendly policies like guaranteed paid leave, subsidized child care and universal pre-kindergarten could give the US economy a $1 trillion boost over the next 10 years by increasing the female labor participation rate, according to a report last year from Moody’s Investors Service. None of these are, as yet, mandated by federal law.

Before this, companies had very little obligation to make exceptions for pregnant staffers that would enable them to keep working. The Americans with Disabilities Act mandates accommodations be made only when pregnancy conditions rise to the level of a disability. Federal law bars discrimination where a pregnant worker is refused something that others are granted, like allowing a colleague with a back injury to go on light duty, but not accommodating a pregnant worker with restrictions on how much they should lift. Expectant mothers at companies with 50 or more workers who have been there for more than a year may also be entitled to time off under the Family and Medical Leave Act, on an unpaid basis.

There are “so many more fights to come: we have paid family and medical leave to win, we have wages to raise, we have child care to provide,” Vicki Shabo, a senior fellow at think tank New America, said at a recent webinar celebrating the passage of the PWFA. “We have common ground to find on all of these things.”

What workplace accommodations are pregnant employees entitled to?

Under the PWFA, employers must provide “reasonable accommodations” for worker needs stemming from pregnancy, childbirth or a related medical condition. This can include providing a chair at an employee’s workstation, increasing water or bathroom breaks or ensuring uniforms or work gear are properly sized, according to the American Civil Liberties Union and the Center for WorkLife Law. Workers may need schedule changes to attend medical appointments or to have their job temporarily changed so they can avoid chemicals dangerous in pregnancy.

Who is protected?

Companies with 15 or more employees as well as state and local governments are covered by the PWFA. Some states already have laws in place that protect workers at smaller organizations: California, for example, requires accommodations for companies with 5 or more employees. Compliance is mandatory unless it would create an “undue hardship.” That’s a “fairly high standard,” according to Kara Govro, principal legal analyst at Mineral, a human resource and compliance company. “Employers shouldn’t get hung up on saying it’s an undue hardship—that’s a good way to end up in court, to say that letting someone sit for a few hours of their shift is an undue hardship,” she said. “We always tell employers don’t go there unless you really, really have to.”

How about pumping?

In December the Providing Urgent Maternal Protections for Nursing Mothers Act went into effect, closing some loopholes in 2010 legislation that required employers to provide workers with time to pump milk in non-bathroom spaces during the workday. Previously, only workers that received overtime pay were covered. Now, an estimated additional 9 million workers will be entitled to reasonable breaks. Nearly all workers — regardless of the size of the employer — are covered by the federal requirements, except for airline flight crew members, according to the US Breastfeeding Committee, a non-profit that advocates for breastfeeding support.

What about abortions, pregnancy loss or infertility?

The PWFA also covers accommodations for abortion appointments or pregnancy loss recovery, according to the ACLU/WLL. Fertility treatments count as a “related medical condition.”

Will the new laws give workers paid family leave?

No. The US is only one of only seven countries globally that doesn’t guarantee it for workers — the FMLA allows some Americans to take up to 12 weeks off, with no guarantee of pay, if they have a baby, get sick or need to care for an ill relative. About 44% of US employees—including those who work part time or have been in their role less than a year—are ineligible.

About a quarter of civilian workers have access to paid family leave, according to the US Bureau of Labor Statistics, but the amount varies. At the average Russell 1000 company, primary caregivers typically get 10.5 weeks of paid leave, while secondary caregivers get 7.6 weeks, according to JUST Capital, which tracks corporate equity.

However, sixteen states and Washington DC have passed paid family leave laws at the local level. New programs in Colorado, Delaware, Maryland, Minnesota, and Oregon will go into effect in the next three years, according to the Bipartisan Policy Center think tank.

This article was authored by Kelsey Butler, and was originally published by Bloomberg.

The post New US Pregnancy Laws Aren’t Enough for a Family-Friendly Workplace appeared first on Mineral.

Question: An employee came to us with a harassment complaint but said they didn’t want us to do anything about it. Do we have to do an investigation?

Yes, you should still investigate the complaint. Not investigating could expose you to legal risk if more employees come forward with complaints, if the employee later decides to take their complaint to a state or federal agency, or if the harasser continues to harass. Aside from liability, creating a culture that feels safe and inclusive, and discourages harassment, requires acting when these issues arise.

Let the employee who made the complaint know that you, as the employer, need to ensure a safe work environment for all employees that is free from harassment and that you must investigate situations that are brought to your attention. You can assure the employee that you will keep their name out of the investigation as much as possible and that any retaliation for bringing the situation to light won’t be tolerated. If you think your employees will be deterred from submitting valid complaints due to potential repercussions, you might want to consider providing a way for them to report issues anonymously.

Question: A candidate told us they have a disability. What do we need to do?

We recommend asking if they need an accommodation during the application process, but above all, ensure that having this information doesn’t influence your hiring decision. The Americans with Disabilities Act (ADA) requires employers to provide accommodations to applicants with disabilities if needed to be considered for a job unless the accommodation causes an undue hardship. If the applicant doesn’t need an accommodation, simply continue to focus on the candidate’s skills and abilities relative to the position you’re hiring for.

As you’re likely aware, employers are prohibited from asking about disabilities before offering an applicant the job. As a best practice, you should be asking all candidates—not just those who disclose a disability or appear to have a disability—whether they can perform the essential functions of the job with or without a reasonable accommodation. This can be as simple as adding a question to your job application.

It’s important to not make assumptions about a candidate’s ability to perform their job based on their disability. If a candidate during the post-offer stage requests an accommodation to perform the essential functions of their job, then you would engage in the interactive process with them to determine what accommodations may be effective.

Question: We have a repeat applicant whom we offered a job to in the past. This candidate failed a drug screen back then, so we rescinded the offer. Can we reject them now based on their past drug screen result?

No, chances are that rejecting an applicant based on a previous drug screen will violate the Americans with Disabilities Act (ADA). The ADA prohibits employment discrimination on the basis of a disability, which includes being in recovery from substance use disorders. The ADA applies to employers with 15 or more employees, although state laws also prohibit disability discrimination in employment, and many of those laws apply at a lower employee count.

Even if you aren’t subject to the ADA or a state disability discrimination law, we don’t recommend excluding someone from your selection process based on their past failure of a drug screen or other pre-employment screening. Many things could have changed since the last time this candidate was in your selection process, including your own drug screening process, the candidate’s personal habits, or even which drugs are legal under the law in your state. By excluding them from consideration, you could be missing out on a great candidate.

Question: We recently had an open position that two employees were interested in. We’ve made our selection and our chosen employee accepted the role. How do we tell the other employee they were not selected?

We recommend having a face-to-face conversation with the employee who wasn’t selected to let them know that someone else was selected for the role. If you elaborate on your decision not to select this employee for the position, keep the feedback honest and factual. For example, you could let them know that you went with the candidate whose skills more closely match what you were looking for, specifying what those skills are so that the candidate knows what to work on in the future. Factual, job-related feedback like this helps set up the candidate for future success and encourages them to accept, rather than dispute, the decision. Overall, it creates a better experience for everyone.

Assuming you want to keep this employee, you may want to prepare to have a short conversation about their career trajectory, what they could apply for in the future, or how they can grow their skills. They will be understandably frustrated. The feedback will help to foster a more positive and productive conversation about their next career step with the organization.

The post Q&A: Harassment Complaints and More appeared first on Mineral.

Last January, a spike in job ads with the requirement “candidate must be fully vaccinated” now serves as a sharp reminder of what was top of mind for workplaces, and indeed society, at that time. The plethora of job ads which now have “remote-only,” “hybrid working model, and “work from anywhere” policies are another way to see how the tide has turned. Today, job seekers may notice yet another addition: a section labeled “physical demands” for corporate job posts.

On Amtrak’s recently posted job listing for a corporate social media manager, it included a breakdown of the work environment, including both physical and mental demands. For physical demands, it listed: “Frequently sits, stands, or walks; may lift, carry, push, or pull objects of various weights; may reach, kneel, crouch, bend, or twist in order to in order to perform administrative tasks (e.g., filing, retrieving materials from desks and bookcases, moving in an office setting).” For mental demands, it listed: “Frequently resolves problems with conflicting priorities in cognitively demanding situations” and “Frequently acquires new knowledge, skills, and tasks, both complex and simple, in order to maintain effectiveness in position.”

Amtrak is not alone in adding this to a job description. Tourist company Visit Seattle’s listing for a senior operations coordinator describes the physical demands as staying in a stationary position for prolonged periods, vision including far, color, peripheral view, depth perception and focus adjustment, picking up and moving 50 pounds and staying stationary at a desk for up to eight hours per day. The Hill posted a job for director of state and local affairs and described its physical demands as being “regularly required to sit and use motor skills.”

It’s a trend that is picking up: job postings that list physical demands rose 31% between January 2020 and January 2023, according to jobs site Indeed.

Listing the physical demands for more physical jobs, for instance, truck driving or factory work, has been a given for years. But listing them for desk-based jobs is more unusual, and signals some important mindset changes when it comes to how employers and employees now view working conditions.

During the throes of the coronavirus pandemic when all employees globally were forced to work from home, the toll that took on physical (as well as mental) health became starker. Not only that but with so many people now starting new jobs without having physically experienced an office, listing more about the physical demands and working environment is more important than it was when all desk-based jobs were in the office.

“I’m not surprised [physical demands are being added to corporate job ads] given how the role of the workplace has changed,” said Vicki Salemi, career expert at job search and resource company Monster. “These job listings are getting more specific, and it’s a good thing because job seekers can know what it exactly entails.”

When interviews happened in the office, the potential job candidate would be able to feel out the work environment then and see what kind of physical demands it might entail, whether it is a loud, noisy open environment floor plan or bright lights. It was something that could help them make a decision on if the job was for them or not. If a job is hybrid but the interview process is done fully remotely, listing the work environment and physical demands is important.

“The more information and the more transparent an employer can be, the better it is for everyone involved to save time and energy,” said Salemi. “The job seeker might want something quiet with enclosed environments. With virtual interview, there are less visual cues the job seeker has to go by.”

The importance of inclusivity and accessibility on job listings

Getting the balance right between making a corporate job ad transparent enough on the physical expectations, and inadvertently making it appear “ableist” is trickier, according to HR execs.

The Americans with Disabilities Act (ADA), a civil rights law that prohibits discrimination based on disability in the U.S., has existed since 1990. But the knock-on effects to the workplace caused by the coronavirus pandemic, brought it much more front and center for employers.

“I think with Covid, there is more awareness of the ADA and more attention to it,” said John Dooney, Society for Human Resource Management knowledge advisor. “We have seen some organizations make those adjustments to include physical demands with things that seem to be more specific. It depends on what the employer feels is significant to put in there.”

While the accommodations can be met under the ADA, it might discourage some folks from applying.

Kara Govro, chief HR legal expert at HR company Mineral, says that job descriptions have needed work for years, which involves adding more inclusive language. Govro argues that some physical demands listed can be ableist in nature. Do you need to sit at your desk all day, or can you stand? In most instances, that is usually fine.

However, then other questions pop up like will an employer need to provide a standing desk for anyone who asks for one?

“We are seeing more standing desks in the workplace, but if one person has one, others might want one too,” said Dooney. “What an employer might do is to have a process that requires special accommodations for those with medical certifications.”

Either way, stating that someone has to sit all day is something that probably doesn’t need to be listed in the job description.

“We don’t want to exclude people with physical requirements that aren’t really necessary,” said Govro. “Saying that they will have to lift 30 pounds is not really needed in the office. Maybe once a week someone needs to turn over the water cooler, but that’s it.”

Even including needing the use of typing, Govro says can be ableist because of technology like dictation and screen readers. There are key language changes that can be made in job listings that do decide to include physical job requirements that ensure ADA compliance. That includes making the change from sitting or standing to “remain stationary.” Instead of saying walk, it should be swapped for move or traverse. Talk can be swapped with communicate. See can be swapped with detect. The list goes on.

Describing your work environment can also be beneficial to help set expectations. “If that’s your concern as an employer and you don’t want people thinking it’s Google with a playroom and ping pong tables, then they might be more interested in including details of the work environment,” said Govro.

It is also beneficial to include details like whether or not the office has bright lights; if you need to go outside in cold conditions; the noise level and other things like that, added Govro.

For instance, Visit Seattle’s latest job ad for senior operations coordinator, reads: “You could face weather conditions performing the duties of this job. The noise level in the work environment is usually moderate. The office space is a shared, open environment.”

When it comes to listing physical demands, these examples are especially helpful because it’s not using language that might be ableist, but instead helps describe the environment to see whether or not the candidate would be comfortable working there.

“That might sound unappealing to someone and neither party would want to waste time interviewing,” said Govro.

This article was authored by Cloey Callahan, and published on February 8, 2023 via Worklife.

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