Don't HR Alone #54 - Communicating Medical Conditions, I-9's and H1-B's, New Illinois Di
Communicating Medical Conditions
Question: I have an employee who recently told me she has a medical condition that is causing her to miss time from work. I don’t want the employee’s job to become jeopardized due to frequent absences, but I’m not sure how to convey her medical condition to the management team to ensure the employee doesn’t get penalized. What should I do? Answer: Your concern for your employee’s frequent absence is understandable, but her medical condition is protected health information and therefore must not be shared with management. An employee’s protected medical information may be revealed only to:
Safety and first aid workers if necessary to treat the employee.
The employee’s supervisor only if the employee’s disability requires restricted duties or a reasonable accommodation.
Government officials as required by law.
Insurance companies for the purpose of workers’ compensation claims.
The Americans with Disabilities Act (ADA) imposes strict rules for handling information obtained through medical examinations and inquiries or through the reasonable accommodation process. If reasonable accommodations are required, ensure the employee provides a medical certification in order to accommodate a leave under either Family and Medical Leave Act (FMLA) or ADA. Furthermore, there are Health Insurance Portability and Accountability Act (HIPAA) regulations that govern the disclosure of protected health information. Violating those guidelines could lead to fines and penalties for your company. In this case, the management team should only know information that is a business necessity—the fact that the employee is on leave and may miss some time from work. The sharing of more detailed medical information could lead to grounds for a potential discrimination dispute. If management persists in wanting to know more about the leave, you may disclose the employee’s leave is medical leave but that’s it. Additionally, seek guidance on HIPAA regulations and consider updating your policies to reflect guidelines around privacy in the workplace. HIPAA regulations are provided on the U.S. Department of Health & Human Services website.
I-9 Forms for H1-B Employers
Question: As an H-1B employer, how long should I store and maintain I-9 forms? What information must I make available for public access? Answer: I-9 forms and H-1B documents often create a lot of questions for employers regarding storage and public access. You’re not alone in asking this question! You must retain I-9 forms and any photocopies of presented documents for each employee hired after November 6, 1986. Store the forms and any photocopies separately from employee personnel files in a manner that allows you to easily access, sort, and present them to U.S. Immigration and Customs Enforcement (ICE) within 72 hours if requested. When employment ends for any employee, you must retain the I-9 forms and photocopies for either three years from the employee’s hire date or one year from the employee’s termination date—whichever is longer. Calculate the Form I-9 document destruction date when employees terminate employment; as a best practice, periodically review your I-9 forms and properly destroy any documents that can be eliminated. When it comes to H-1B documents, there are additional requirements because these types of documents must be made accessible should anyone from the public request access. You are not required to provide copies of documents to the public, but you must make the following materials available for public access within one working day of filing the Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E) with the Department of Labor:
Rate of pay for the H-1B worker
Description or summary of the actual wage system
Prevailing wage rate and its source
Documentation that the notice requirement was satisfied
Summary of benefits offered to U.S. workers and H-1B workers
List of entities included as a “single employer”
In the event of corporate change:
Sworn or notarized statement by successor entity accepting all liabilities of predecessors
List of H-1B workers transferred to the successor entity
Each affected LCA number and effective date
A description of the successor entity’s actual wage system
Successor entity’s employer identification number
This H-1B information does not generally include the employer’s name, and other employees do not have the right to know who is receiving sponsorship, which is why employees’ names are redacted from the documents. The Department of Labor’s H-1B fact sheet provides additional information. The complete Public Access File (PAF) regulation can be found at: https://www.law.cornell.edu/cfr/text/20/655.760.
Illinois expands workplace protection for sincerely held religious practices — STATE LAW
Governor Bruce Rauner has signed a law providing that it is a civil rights violation for an employer to impose as a condition of obtaining or retaining employment any term or condition that requires a person to violate or forgo a sincerely held practice of his or her religion. This includes the wearing of any attire, clothing, or facial hair in accordance with the requirements of a religion. Dress codes or grooming policies that include restrictions related to the maintenance of workplace safety or food sanitation are not prohibited.
The new religious discrimination provisions were enacted as an amendment to the Illinois Human Rights Act (P.A. 100 (S. 1697), L. 2017, enacted and effective August 11, 2017).