The beginning of the New Year (and a new plan year for many public agencies) is a good time to review key provisions of the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”), including what notice requirements COBRA imposes on public agencies.

This year, make a resolution to ensure that your public agency fully complies with COBRA by following the guidance in this post. Educate your Human Resources staff about the law to equip them with the knowledge to respond quickly, confidently and accurately to questions that your public agency employees may have about their obligations and rights under COBRA.

What is COBRA and Who is Eligible?

COBRA is a federal law that provides for the continuation of group health plan benefits to “covered employees” (i.e., employees who elect group health plan coverage) and “qualified beneficiaries” (i.e., the spouses and dependents of covered employees) under certain circumstances when the health coverage would otherwise be lost. Generally, COBRA permits continued coverage under the group health plan for eighteen (18) months, but under certain circumstances, the coverage period may be extended.

General Notice Requirements for Agencies that Serve as Plan Administrators

Many public agencies also serve as administrators for their group health care plans. In such circumstances, COBRA requires that the public agency provide a written general notice of COBRA rights to each covered employee and spouse within ninety (90) days of the commencement of their coverage. These public agencies must also send this notice to any new dependents who join the plan after the covered employee’s enrollment in COBRA.

The general notice must include the following information: (1) a summary plan description; (2) a list of individuals who can become qualified beneficiaries under the plan; and (3) an explanation of the qualified beneficiaries’ obligations when a qualifying event under COBRA occurs. The Department of Labor has a COBRA Model General Notice that public agencies may use to meet this general notice obligation.

These public agencies may provide a single general notice to a covered employee and his or her spouse if they reside at the same address. However, agencies should note that delivery of the notice to an employee at work does not constitute delivery to the spouse, so they will need to provide a separate notice to the spouse.

Procedure for Employees to Notify the Plan Administrator of a “Qualifying Event”

In addition to general notice requirements, a public agency that serves as a plan administrator must also establish in the summary plan description a procedure by which covered employees and qualified beneficiaries can provide notice to the plan administrator in the event they experience a “qualifying event.” These public agencies may require employees and beneficiaries to use a standard form. However, the form must be readily available and provided without cost.

What are “Qualifying Events”?

“Qualifying events” are events that would otherwise cause a covered employee or qualified beneficiaries to lose health coverage. The following events constitute “qualifying events” for covered employees if they would cause the employee to lose coverage under the group health plan:

  • Termination for any reason other than gross misconduct; and
  • Reduction in hours worked.

In addition to those events described above, which also constitute “qualifying events” for qualified beneficiaries, the following events constitute “qualifying events” for the qualified beneficiaries separate from the covered employee:

  • Covered employee becomes entitled to Medicare;
  • Divorce or legal separation of the spouse from the covered employee; and
  • Death of the covered employee.

The occurrence of one of these “qualifying events” triggers an obligation for the covered employee or qualified beneficiary to notify the public agency.

Unless the group health plan provides a more liberal policy, covered employees and qualified beneficiaries must provide notice to the public agency of the occurrence of a “qualifying event” within sixty (60) days.

Election Notice after a “Qualifying Event”?

If the agency does not serve as the plan administrator, the agency must notify the plan administrator of the occurrence of a “qualifying event” within thirty (30) days after it receives notice. The plan administrator will then notify the beneficiaries of their respective rights under the Act to elect to continue coverage under the group health plan.

For a public agency that also serves as a plan administrator, COBRA requires that the public agency notify beneficiaries of their election rights. Such an agency must provide election notice to the covered employee and/or qualified beneficiary within fourteen (14) days of receiving notice that a “qualifying event” has occurred.

For each of the common “qualifying events”, identified above, we now indicate the proper recipients of election notices:

  • Termination for any reason other than gross misconduct requires notice to the former employee and qualified beneficiaries;
  • Reduction in hours worked requires notice to the employee and qualified beneficiaries;
  • Covered employee becomes entitled to Medicare requires notice to the employee and qualified beneficiaries;
  • Divorce or legal separation of the spouse from the covered employee requires notice to the employee’s former spouse and qualified beneficiaries; and
  • Death of the covered employee requires notice to the deceased employee’s spouse and surviving and qualified beneficiaries.

The provision of election notice to a covered employee and/or qualified beneficiary discharges the agency’s COBRA notice requirements. Thereafter, the agency and its staff may continue to work with the employee, his/her spouse and dependents to decide whether to continue to receive coverage under the group health plan under COBRA.

In the corporate world, the practice of giving annual performance reviews to employees has come under attack in recent years.  Leading business magazines and newspapers have printed articles advocating for the elimination of performance evaluations.  There are even books in the marketplace that teach companies how to get rid of performance reviews.  Among the reasons for eliminating annual evaluations is that the process is a waste of time, bad for morale, and unnecessarily creates conflicts between employees and supervisors.  So, if private employers are moving towards eliminating annual evaluations, should public employers also do away with them?

The short answer is “no.”  The primary reason for this is the difference between private and public employment.  Generally, private sector employees are “at-will” meaning they can be terminated at any time without notice and for any non-discriminatory reason or no reason at all.  By contrast, public employees usually have a vested right to continued employment and this property right cannot be taken away without first being afforded certain procedural safeguards pre- and post-discipline.  These due process protections place the burden on public employers to show there are factual grounds for the discipline and that the level of discipline is appropriate.  One way public employers can satisfy this burden is by using performance evaluations.  Therefore, it is critical that public employers continue the practice of giving annual performance reviews.

Now, in fairness to proponents of getting rid of annual evaluations, those proponents do not support giving no feedback at all on employee performance.  They also recognize the employer’s need to motivate, direct and improve employee performance.  Rather, they are encouraging employers to replace the annual review with “check-in” meetings that occur throughout the year where supervisors can regularly discuss the employees’ performance and what is needed from them.  We agree with this approach and train employers that regular “check-ins” should be part of an on-going process of assessing employee performance throughout the entire year that culminates in the employee’s annual performance evaluation.  In other words, the annual evaluation is the final chapter in a year-long review process.

Another fair criticism of annual evaluations from critics is that they are ineffective because they are usually poorly written.  Some supervisors view annual performance evaluations with dread because they are time consuming or because the supervisors are uncomfortable with having to honestly assess employees.  Consequently, it is no surprise that written evaluations can fall short.  The following are a few tips for giving effective annual evaluations:

Observe Employees’ Performance During the Entire Evaluation Period

The evaluation should reflect performance over the entire evaluation period, not just the few weeks or months before the evaluation is given to the employee.  This makes it important for supervisors to observe and assess the employee’s performance throughout the year and keep a record of it.  As these observations are being made, supervisors should also make it a point to address performance issues with the employee as they arise.  Not only is it important to raise performance deficiencies with the employee as they come up, but supervisors should also make a point of praising employees when they do a good job.

Use S-P-I-R-I-T When Writing the Evaluation

The comments in the evaluation should be written with S-P-I-R-I-T.  This means that the comments should be Specific, have Purpose, and identify specific performance Incidents that the employee did well and where improvement is needed.  Where misconduct has occurred, the comments should also reflect workplace Rules that were violated and the Impact the performance problems have caused to the employer, other employees and/or members of the public.  Finally, the Timelines for giving evaluations in your agency’s rules should be followed.

Make Time to Meet with the Employee to Go Over the Evaluation

After the evaluation is written, supervisors should meet with each employee to discuss the evaluation.  Too often, employees complain that their supervisors just give them their evaluations to review on their own.  This is a poor practice.  Successful personnel management requires effective communication.  Therefore, supervisors should make time to meet with employees, provide honest and constructive feedback, recognize accomplishments, and develop a plan for improvement, if necessary.

For more tips on writing performance evaluations see our workbook on Evaluation and Discipline.

Happy-Holidays-messageReady or not, the holidays are here.  Not only are the holidays a time to reflect on the passing year, but also a time full of fun, festive celebrations.  As you get ready for this season’s festivities at work, make sure to keep in mind following tips that can help your agency stay in the festive mood without the post-holiday hangover of a lawsuit.

Religious Holiday Accommodations

For many, the holidays are a time for religious observance.  For example, a Christian employee working the night shift may ask for the evening off to attend Christmas Eve mass or a Jewish employee may request time off to observe Hanukah.  Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices, and observances.  Thus, employers who are confronted with requests for time off should try to accommodate them unless doing so would impose an undue hardship.  Accommodating an employee may mean changing the employee’s schedule or allowing the employee to switch shifts with a co-worker.

Workplace and Workspace Decorations

Before decking the halls, employers should consider the location of holiday decorations.  Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another.  For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive.  Therefore, employers who wish to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, candy canes, holly and gingerbread houses.

Since non-religious decorations are permissible, there is always debate over whether a Christmas tree is a religious symbol.  While  a decorated tree  may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is a secular nonreligious symbol.  This view was also adopted by the EEOC.  Thus, employers may include Christmas trees among their decorations even if an employee objects.  However, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace.  Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.

Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question.  Prohibiting employees from displaying religious holiday themed decorations in their own workspaces may give rise to claim of violation of free speech and religious expression.  Because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations.

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

Holiday Gift Exchanges

The traditional holiday gift exchange where one “Secret Santa” employee gives a gift to a randomly assigned employee has largely been replaced by the “white elephant” gift exchange.  Employees favor this type of gift exchange because it is fun and the gifts up for grabs are often humorous.  However, this game can easily turn into blood sport as employees become competitive and even downright vicious towards each other in their quest for the best gift.

In order to ensure fun for all employees, the announcement of a gift exchange should include language reminding employees to select gifts appropriate for the workplace.  For example, employees should be discouraged from buying items that contain profane, graphic or sexual content.  In addition, employees should be reminded that the gift exchange is a festive occasion where everyone should be treated respectfully.  A very modest limit on the cost of such gifts should be established, such as $10 or $15.

Holiday Parties

The two biggest concerns for employers about holiday parties are potential legal liability from sexual harassment and drinking and driving.  Because employees typically “let their hair down” during these events, they may not conduct themselves the same way they do at work.  Also, alcohol clouds judgment. A luncheon rather than an evening event is more prudent for all these reasons. If a festive evening is the preferred celebration, employers may want to consider taking the following preventative steps to reduce liability.

Employees should be reminded of the employer’s discrimination, harassment and alcohol and drug policies.  In addition, employers should designate a supervisor or manager to provide discrete oversight over employees during the party.  For example, if an employee appears to have had too much to drink, a supervisor or manager can intervene and make arrangements for the employee to get home safely.  If alcohol is served, employers should limit the amount consumed by either issuing drink tickets to employees or stopping the service of alcohol well before guests start leaving the party.  Finally, if a harassment complaint is made after the party, employers should make sure they promptly investigate it.

Wheelchair 2The Reasonable Accommodation Process continues to be an important issue for public sector employers. Under the ADA and FEHA, the employer has the duty to identify and implement a reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Over the past several years, we have seen numerous public agencies have challenges with determining appropriate accommodations. As a result, we would like to re-emphasize some of the common pitfalls in this process:

1.     Over-reliance on the written job description

Job descriptions are critical in the disability interactive process for identifying the essential functions of the job.  This is one reason why we repeatedly urge employers to update job descriptions.  However, the employer should refrain from over-relying on the written job description for identifying the essential functions without considering what is actually occurring in the workplace.  For instance, a written job description for a parks maintenance worker may list removal of trees as an essential job function and state that this function requires the worker to use a heavy piece of equipment such as a wood chipper.  However, in practice, the maintenance workers may have only removed one tree in the last several years.   So this essential function may not be essential after all.  This is a fact-specific determination that should be made on a case-by-case basis. The important thing for the employer to do when determining the essential functions is to make the relevant inquiries of incumbents and supervisors for the job position and consider how the job is currently being performed.

2.     Failure to consider all vacant positions for reassignment

Reassignment to a vacant position should be considered in these circumstances: (1) accommodation within the individual’s current position would pose an undue hardship; (2) the employee can no longer perform the essential functions of the current position even with accommodation;  (3) if both the employer and employee agree that reassignment is preferable; or (4) if the employee so requests.

The employee with a disability is entitled to preferential consideration for assignment to a vacant position over other applicants and incumbent in-house candidates unless doing so would violate a bona fide seniority system.

The employer is not required to create a position.  Again, however, it is important for the employer to be aware of what is actually occurring in the workplace.  For example, the employer should inquire and consider whether there is a position that will be vacant within a reasonable period of time.

3.     Failure to analyze the undue hardship defense thoroughly

Undue hardship is an ADA and FEHA defense to the employer’s obligation to provide reasonable accommodation to a disabled employee.  The employer must affirmatively show that a requested accommodation creates an undue hardship.   Employers will sometimes cursorily conclude that the requested accommodation is too expensive and would cause financial difficulty and therefore is an undue hardship.  However, financial difficulty is not enough.  There are numerous factors, including cost, that must be considered when evaluating an undue hardship defense.  Employers should review all the ADA and FEHA factors and carefully analyze whether a requested accommodation would cause undue hardship.   Keep in mind that hardship is not enough to justify denying accommodations.  The hardship must be “undue.”  The hardship must create a significant difficulty or expense to the employer.  In enacting the ADA and FEHA requirements, Congress and the California legislature intended that some hardships must be shouldered by employers in order to accommodate disabled employees and applicants.