How To Get Paid Sick Leave

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1 Employee Benefits & Workers Comp News 300 Montgomery Street Suite 450 San Francisco, CA Leave Benefits December 2012/January 2013 Volume 22 Number 6 Sick Leave Benefits As the annual cold and flu season approaches, take an honest look at your organization s sick leave policies. Do they encourage employees to take needed time off when they are sick? Or do they encourage presenteeism, which experts estimate costs more than $150 billion annually in lost productivity? In January 2012, Connecticut became the first state to mandate paid time off for non-occupational illness. Connecticut s law applies to hourly wage service workers in businesses with 50 or more employees, who accrue one hour of paid sick time for every 40 hours worked, up to five days per year. In addition, some cities, including San Francisco, Seattle and Washington, D.C., also require certain employers to provide paid sick time. Currently, no federal law requires employers to provide paid sick leave, but many employers choose to do so. Among private industry workers, 52 percent at small establishments (fewer than 100 employees) and 82 percent at large establishments (500+ employees) had paid sick leave benefits, according to the March 2012 National Compensation Survey. Private employers with plans providing a fixed number This Just In Does your business qualify for the small business healthcare tax credit? Part of the Affordable Care Act, the credit applies to businesses with fewer than 25 full-time equivalent employees (FTEs) who have average wages of less than $50,000 a year. To be eligible, you must cover at least 50 percent of the cost of single (not family) health care coverage for each of your employees. For tax years 2010 through 2013, the maximum credit is 35 percent for small business employers and 25 percent for small tax-exempt employers such as charities. Beginning Jan. 1, 2014, the rate will increase to 50 percent and 35 percent, respectively. Small business employers that did not owe tax during the

2 Benefits Administration of days of sick leave offered an average of 8 paid sick days to employees after 1 year of service. Sick leave benefits provide all or part of an employee s earnings if the employee is unable to work because of a non-work-related illness or injury. Sick leave typically is provided on a per-year basis, usually expressed in days, and is never insured. In some organizations, in addition to sick leave, workers have coverage for short-term injury and illness through short-term disability plans. Also known as sickness and accident insurance, short-term disability plans often kick in after a worker has exhausted sick leave to provide full or partial pay if he or she cannot work because of a non-occupational accident or illness. Plans usually pay benefits for a fixed number of weeks, usually maxing out at six months. The benefit payment is either a percentage of an employee s earnings or a fixed dollar amount. Most plans require no employee contribution, although some employers offer short- and longterm disability insurance on a voluntary basis. Some employers self-fund short-term disability benefits, but many others buy shortterm disability insurance. California, Hawaii, New Jersey, New York and Rhode Island require employers to provide temporary disability insurance benefits to workers who are unable to work because of a non-work-related accident or illness. Why should an employer consider offering paid sick leave benefits? Sick or medically impaired employees are less productive than healthy ones. If suffering a contagious disease, they can spread it to others. An employee who is sick or in pain is also less alert, which could lead to mistakes, errors of judgments or lack of coordination that could cause an injury or other safety problem. Proponents say paid sick leave prevents presenteeism, which a Harvard Business Review study defined as the problem of workers being on the job but, because of illness or other medical conditions, not fully functioning. A study in the Journal of Occupational and Environmental Medicine estimated that employees with chronic, contagious or other illnesses who show up and perform poorly account for two-thirds of health-related productivity losses, versus one-third for sick employees who miss work. The Harvard Business Review estimated that presenteeism costs U.S. companies over 150 billion dollars a year much more than absenteeism does. Economic conditions have made the presenteeism problem worse, as employees hesitate to take time off for fear of losing their job. In fact, in a recent survey by EAP provider ComPsych Corp., 22 percent of employees see being present as their top priority at work, versus accomplishing their basic responsibilities or improving their performance. Despite employer fears to the contrary, most employees will not abuse sick leave benefits. A study by the Institute for Women s Policy Research found that the typical worker with access to sick leave benefits under San Francisco s law used only three paid sick days during the previous year, while one-quarter of employees used none. This occurred despite the fact that San Francisco s leave law provides up to either five or nine sick days per year, depending on hours worked. continued from previous page year can carry the credit back or forward to other tax years. Also, since the amount of the health insurance premium payments is more than the total credit, eligible small businesses can still claim a business expense deduction for the premiums in excess of the credit. That s both a credit and a deduction for employee premium payments. To calculate your credit for 2012, see the online calculator at the website of the National Federation of Independent Business (NFIB) at healthcare/credit-calculator. Structuring a sick leave plan can present several challenges to an employer. Y How does an employer balance the need to provide sick leave for valid reasons, while discouraging employees from using sick leave as paid vacation? Allowing employees to cash in unused sick days at the end of the year could discourage the use of sick days as extra vacation days, but it might tempt some sick employees to come to work when they should stay home. Y Should employers allow employees to carry over unused sick days to the next year, to build up a sick leave reserve for serious illness or surgery? Or would a short-term disability insurance plan better serve your needs? Y How can employers prevent employees from using sick days for other, personal purposes that could be scheduled in advance?

3 Retirement Benefits Understanding Your Fiduciary Responsibilities Sponsoring a retirement plan brings serious fiduciary responsibilities. Plan fiduciaries can be personally liable for their actions, including having to restore any losses or lost profits to the plan. Knowing your responsibilities can help you avoid liability. ERISA, the Employee Retirement Income Security Act, sets standards of conduct for those who manage an employee benefit plan and its assets (called fiduciaries). When acting on behalf of retirement plan participants and their beneficiaries, fiduciaries have important responsibilities. These include: Y Acting solely in the interest of plan participants and their beneficiaries and with the exclusive purpose of providing benefits to them; Y Carrying out their duties prudently; Y Following the plan documents (unless inconsistent with ERISA); Y Diversifying plan investments; and Y Paying only reasonable plan expenses. The duty to act prudently requires expertise in a variety of areas, such as investments. A fiduciary lacking that expertise will want to hire a knowledgeable professional to carry out investment and other functions. To demonstrate prudence, a fiduciary should document decisions and the basis for them. For continued from previous page Would a paid leave bank that combines vacation, sick days and personal days into one package encourage better communication and help avoid unplanned absences? We can help you evaluate several alternatives, including short-term disability insurance, to help your organization create a coordinated sick leave and disability program. For more information, please contact us. instance, in hiring any service provider, a fiduciary may want to survey several potential providers to make a meaningful comparison and selection, and document the process. The plan document serves as the foundation for plan operations. Employers will want to be familiar with their plan document and periodically review it for currency. For example, if a plan official named in the document changes, the plan document must be updated to reflect that change. Diversification another key fiduciary duty helps minimize the risk of large investment losses to the plan. Fiduciaries should consider each plan investment as part of the plan s entire portfolio. Once again, fiduciaries will want to document their evaluation and investment decisions. Who Is A Fiduciary? A plan must have at least one fiduciary (a person or entity) named in the written plan, or through a process described in the plan, as having control over the plan s operation. The

4 named fiduciary can be identified by office or by name. For some plans, it may be an administrative committee or a company s board of directors. A plan s fiduciaries include anyone who exercises discretion in the administration of the plan. This ordinarily includes the trustee, investment advisers, members of a plan s administrative committee (if it has one), and those who select committee officials. Fiduciary status depends on the functions performed for the plan, not just a person s title. Attorneys, accountants and actuaries generally are not fiduciaries when acting solely in their professional capacities. Fiduciaries who do not follow the basic standards of conduct may be personally liable to restore any losses to the plan, or to restore any profits made through improper use of the plan s assets resulting from their actions. The following steps can help you minimize fiduciary liability exposures among your plan s fiduciaries: Y Document the processes used to carry out fiduciary responsibilities. Y Set up your 401(k) and profit-sharing plans to give participants control over the investments in their accounts. Labor Department regulations require plans to offer at least three different investment options so employees can diversify investments within an investment category, such as through a mutual fund, and diversify among the investment alternatives offered. Y Give plan participants enough information to make informed decisions about the options offered under the plan. Y Allow plan participants to give investment instructions at least once a quarter, and perhaps more often if the investment option is volatile. Y Monitor investment alternatives to ensure they provide comparable returns to other, similar options, and to ensure fees are reasonable. Y Smaller employers will want to consider hiring an investment manager. This will transfer responsibility of investment decisions to the manager. Still, the employer will need to monitor the manager periodically to ensure it is handling the plan s investments prudently. Y Consider buying fiduciary liability insurance, which protects fiduciaries from legal liability, including the cost of defending fiduciary liability claims. Note that fiduciary liability insurance is not the same as an ERISA bond. ERISA generally requires every fiduciary of an employee benefit plan and every person who handles funds or other property of such a plan to be bonded. The ERISA bond specifically insures a plan against losses due to fraud or dishonesty on the part of persons (including, but not limited to, plan fiduciaries) who handle plan funds or other property. Fiduciary liability insurance, on the other hand, generally insures the plan against losses caused by breaches of fiduciary responsibilities. For more information on administering a retirement plan, please contact us. Driving Safety for Workers Safety Motor vehicle accidents are consistently the leading cause of work-related fatalities in the United States. Thirty-five percent of occupational fatalities reported by the Bureau of Labor Statistics are associated with motor vehicles. A safety program can help prevent some of these accidents. Between , on average: Y 1308 workers died each year from crashes on public highways Y 316 workers died each year in crashes that occurred off the highway or on industrial premises. Y 347 pedestrian workers died each year as a result of being struck by a motor vehicle. Source: U.S. Department of Labor, Bureau of Labor Statistics Motor vehicle crashes have economic costs in addition to human costs. In a one-year period, the cost of medical care and productivity losses associated with injuries from motor vehicle crashes exceeded $99 billion. The cost of direct medical care accounted for $17 billion, according to a study by the Centers for Disease Control and Prevention (CDC). Risk of work-related motor vehicle crashes cuts across all industries and occupations. Workers who drive on the job may be profes-

5 Health Benefits sional drivers whose primary job is to transport freight or passengers. Many other workers spend a substantial part of the work day driving a vehicle owned or leased by their employer, or a personal vehicle. In the United States, companies and drivers that operate large trucks and buses are covered by comprehensive safety regulations. In contrast, there are no federal occupational safety regulations that cover the workers who use smaller employer-provided vehicles or personal vehicles. For all workers who drive on the job, employer safety policies are a critical element in reducing crash risks. Employer policies may be limited to supporting and reinforcing state traffic laws. However, many employers choose to manage road risk more proactively through programs and policies to promote safe driving behaviors, ensure that work-related driving takes place under the safest possible conditions, and ensure that worker vehicles are safe and properly maintained. If your organization does not have a driving safety program, consider the following initiatives: 1 Require any worker who will drive on the job to have a valid license, appropriate for the type of vehicle to be driven. 2 Weed out job applicants with unsafe driving records. When hiring for a job that involves driving, obtain a copy of the applicant s motor vehicle records (MVRs) from the state department of motor vehicles before making a job offer. (Be sure to obtain their permission in writing to avoid violating privacy.) The Insurance Institute for Highway Safety reports that, in a study of California drivers, those with two or more convictions for moving violations were far more likely to be involved in another crash within the next three years. 3 Review MVRs on a regular basis at least once a year for all employees whose jobs involve driving or who are given company cars. 4 Ensure that workers receive the training necessary to operate specialized motor vehicles. 5 Incorporate training on fatigue management and the dangers of distracted driving into safety programs. 6 Set and enforce a mandatory seatbelt use policy for drivers and all occupants. 7 Ensure your policies on using cell phones and mobile devices follow state law, at a minimum. Many states now prohibit the use of cell phones while driving; some merely require drivers to use hands-free devices. Texting while driving takes the driver s eyes off the road and creates a dangerous distraction; many studies indicate that simply the act of talking on a phone even a handsfree device is also dangerously distracting. Consider prohibiting any use of a mobile device, including programming a GPS, while the vehicle is moving. 8 It may sound obvious, but prohibit driving while intoxicated or impaired. Note that some legally prescribed drugs can impair reflexes, judgment or vision. 9 Maintain complete and accurate records of workers driving performance. 10 Put your policies in writing and ask employees to sign a document acknowledging their receipt. Make failure to adhere to company safety policies subject to discipline. For more information on preventing workrelated vehicle accidents, please contact us.

6 2013 Plan Changes Here are some important updates for your benefit plans. Flexible Spending Accounts (FSAs): 1 The new $2,500 limit on FSA contributions goes into effect on January 1, If your plan goes into effect after January 1, limits must be pro-rated. Update your plan documents and communications accordingly. 2 Remind employees that they will forfeit balances unused by year end. Plans may allow participants another 2 ½ months to use their funds (March 15 for calendar-year plans), if they have been amended to do so. 3 Enrollment does NOT carry forward year to year, so remind participants to re-enroll for (k)s: 1 For 2013, deferral contribution limits increase to $17,500 for traditional and safe harbor 401(k)s, and to $12,000 for SIMPLE 401(k)s. The limit on catch-up contributions for employees age 50+ remains $5, Update plan documents and procedures to reflect the up- dated annual addition limit for 2013.The $56,500 limit includes elective deferrals, catch-up contributions, employer matches, employer nonelective contributions and allocations of forfeitures. Total contributions cannot exceed the employee s compensation. High-Deductible Health Plans: In 2013, minimum deductibles for health savings account (HSA)-eligible plans increase to $1,250 for individual coverage or $2,500 for family coverage. Annual out-of-pocket expenses (deductibles, copayments, and other amounts, but not premiums) cannot exceed $6,250 (individual) or $12,500 (family). Payroll: All employers that filed 250 or more W-2 forms for 2011 must report the costs of employer-sponsored group health coverage on employees W-2 forms for This includes portions paid by both the employer and the employee, except for health FSAs, where the amount reported should not include the employee s salary reduction contributions. We can help you ensure your benefit programs comply with existing rules and limits. For more information, please contact us. Employee Benefits & Workers Comp News Previous Volume SmartsPro MARKETING The information presented and conclusions within are based upon our best judgment and analysis. It is not guaranteed information and does not necessarily reflect all available data. Web addresses are current at time of publication but subject to change. SmartPro Marketing does not engage in the solicitation, sale or management of securities or investments, nor does it make any recommendations on securities or investments. This material may not be quoted or reproduced in any form without publisher s permission. All rights reserved SmartsPro Marketing. Tel

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