By Mark Soycher
CBIA HR Counsel
Q: A job applicant has experience in a manufacturing environment similar to ours but informed me in the interview that he can no longer wear the steel-toed boots we require for OSHA compliance because of a prior burn to one of his feet. Does the Americans with Disabilities Act (ADA) require an accommodation, waiving the use of steel-toed boots? What about a possible OSHA violation for failure to use necessary personal protective equipment? Could we ask him to sign an agreement stating that if he’s injured because of not wearing protective footwear, the company is not liable?
A: Where a possible disability accommodation interferes with a safety compliance standard, it is likely, but not certain, that the safety standard will take precedence. Inability to use personal protective equipment (PPE) may render the worker “unqualified” for the position and thus outside the protections of the ADA.
But before concluding that the employee is not qualified due to his inability to wear required protective footwear, consider the following: Are steel-toed shoes truly needed, or are you being overprotective in mandating them? Even if you conclude they are needed, does the need extend to all tasks, performed frequently, or is the hazard limited to certain infrequently performed tasks, in which case a qualified worker with a disability could be excused from performing those limited tasks requiring use of PPE? Assuming the use of PPE is required and the job cannot be divided to eliminate the hazard, are there alternate forms of PPE that might provide a suitable level of protection? The employee’s doctor and a safety-shoe vendor may have some suggestions.
Only after that type of analysis can you securely conclude the employee is not qualified because of his inability to wear required protective footwear. Do not ask him to sign any type of document purporting to waive company liability in the event he is injured as a result of not wearing required PPE. It would not be worth the paper it’s written on and would not insulate your company against an OSHA citation or a workers’ comp claim.
Q: We have a non-calendar year Section 125 premium-only plan that renews on July 1, 2014. An employee who declined coverage last year now is asking if he can enroll as of February 1, even though open enrollment is not until June 1, 2014. We’d like to accommodate her request, but we’re concerned that doing so would violate the Section 125 restrictions on changes outside of open enrollment and jeopardize the tax advantaged status of the plan?
A: Timing is everything, and you may be in luck. As part of the ACA rollout and startup of the public exchanges, or marketplaces, the IRS has taken steps to allow greater flexibility for individuals to make changes in salary reduction elections for medical plans provided through Section 125 plans for non-calendar plan years beginning in 2013.
To take advantage of this “transition relief,” described in IRS Notices 2013-42 and 2013-71, you will need to amend your written plan. This will allow employees to make certain changes in salary reduction elections previously prohibited, even if they do not experience any of the enumerated changes in status that trigger the right to change an election in the middle of a plan year under current IRS Section 125 regulations.
Generally, Section 125 cafeteria plan elections must be made before the start of the plan year and are irrevocable during the plan year, with limited exceptions, including certain changes in status. Under existing regulations, the availability of health plan coverage through an ACA insurance exchange beginning with calendar year 2014 does not constitute such a change in status.
Under the IRS transition relief that sidesteps this restriction and would seem to offer the desired option to your employee, an employee who failed to make a salary reduction Section 125 cafeteria plan election during the 2013 open enrollment period is allowed to make a one-time election change after the first of the year starting in 2014. This offers employees the opportunity to enroll in their employer’s non-calendar year plan outside of open enrollment in order to comply with the ACA’s calendar year individual mandate and avoid the penalty for failing to obtain coverage. This should be sufficient to accommodate your employee’s situation and request.
The second transition relief circumstance in which a previously prohibited election change is permitted occurs when an employee who elected coverage under his employer’s Section 125 cafeteria plan is allowed to prospectively revoke or change his or her election once during that plan year. This option reflects the IRS’s concern that an employee’s preferences may change due to the implementation of the ACA, and he or she may wish to explore coverage through a state exchange.
Do you have a question related to employment law, wage and hour issues, human resources, or regulatory compliance involving state agencies such as DEEP or DRS? Members can get free information from CBIA’s experts by calling the CBIA Hotline at 860.244.1900.