HR Solutions: Disclaimers, Spousal Surcharges, Drug Testing

Disclaimers, Spousal Surcharges, Drug Testing

Q: What kinds of disclaimers do employers put on their employment applications?

A: Disclaimers on employment applications offer employer protections that range from saving time and money by hiring the right employees to avoiding employment litigation and liability.

Common disclaimers include statements that the application or other written documents do not create an employment contract. Employers also can state under what circumstances, if any, an employment contract can be made, and they can specify the job titles of those in the company who alone are authorized to make employment contracts.

A statement on employment at will, if applicable in your state, prevents applicants from concluding that the application or any statements made during the hiring process form an employment contract.

Also frequently included is a statement about background checks. Employers commonly find inaccuracies on resumes and applications, which may be caught during background investigations.

To control paper flow, state how long the application will remain in active status, and invite applicants to reapply once the time period has concluded.

Make applicants aware of, and ensure that they agree to comply with, rules they could later deem too restrictive. An employer can state that falsification of information on the application will prevent hiring and could result in termination should it be identified later. An employer should enforce this requirement in every case; failure to do so could set the employer up for complaints of discriminatory enforcement.

After-acquired evidence such as false statements discovered after discharge protect the employer if a terminated employee sues for discrimination, but they do not eliminate discrimination claims. Should the former employee win the case, as a general rule the worker can collect only back pay from the time of discharge to the point when the after-acquired evidence was discovered.

—VN

​Q: My benefits program at work now includes a spousal surcharge provision. What is a spousal surcharge?

A: ​Some group health plans have spousal surcharge provisions to try to manage the costs associated with covering employees spouses and dependents.

Under the terms of a spousal surcharge, an employee must pay an additional cost for health coverage for a working spouse who could elect health coverage through his or her employer and has declined the coverage.

The spousal surcharge creates an incentive for employees spouses to enroll in their own employers plans.

Most employers using a spousal surcharge require an employee who enrolls a spouse in the plan to pay the surcharge unless the employee can verify that the spouse is not employed or, if employed, is not eligible to enroll in his or her plan or is not allowed to participate for a particular reason.

If a spouse enrolls in both plans as a covered spouse in the plan with a surcharge and as an employee in his or her own employers plan the surcharge does not apply. Under coordination of benefits provisions, the spouses primary coverage is the plan that covers the spouse as an employee.

Employers who might have paid little or no attention to the additional costs of providing dependent health care are now taking a much closer look. Because of steep increases in health-coverage costs, they are establishing various cost-sharing arrangements whereby the employee takes on greater responsibility for health expenditures by paying higher deductibles and co- payments and by participating in other types of cost-sharing strategies.

Use of the spousal surcharge began increasing when employers noticed they were supporting health expenses for employees spouses who could get health coverage through their own employers.

As health costs continue to increase, more employers may implement this option as part of a well-coordinated effort to cost-share with their employees.

—BS

Q: We just acquired a company that operates commercial vehicles. Are we required to implement drug and alcohol tests?

A: ​Yes. The Omnibus Transportation Employee Testing Act of 1991 requires employers to set forth drug and/or alcohol testing requirements for employees who operate commercial vehicles. The intent of the act is to increase transportation safety by mandating such testing for those in safety-sensitive positions.

The Department of Transportation (DOT) publishes rules in accordance with the act for employers that must conduct the testing. Employers in the aviation, trucking, railroad, mass transit, pipeline and maritime industries must implement required testing.

The act mandates pre-employment, reasonable-suspicion, post-accident, random and follow-up/return-to-duty drug and/or alcohol testing of employees in positions requiring a commercial drivers license and defined as safety-sensitive. The law prohibits commercial motor vehicle drivers from performing safety-sensitive functions after an alcohol test result indicating a 0.02 alcohol concentration or a positive drug test result. The law also prohibits drivers from using alcohol or illegal drugs while on duty.

Employees covered by the act should be tested:

• When assigned to a position requiring a commercial drivers license.

• On a random basis.

• After an accident that resulted in the employee being issued a citation for a moving vehicle violation or resulting fatality.

• For reasonable cause based on observed behavior or appearance.

• Before being allowed to return to a covered position after having tested positive for drug or alcohol abuse.

Although DOT regulations mandate the types of testing and the procedures to adhere to following a positive test result, the regulations do not address employment decisions such as hiring, firing or leaves of absence.

Employers are required by law to provide certain records of the employees DOT drug and alcohol testing history to new employers upon receipt of a signed written release.

—​GRP

Vicki Neal, PHR, Bill Schaefer, SPHR, and Glynda R. Parker, SPHR, are information specialists in the Society for Human Resource Managements Information Center.