If you are an FMLA-covered employer, you should always consider whether an employee who requires time off of work due to a work-related injury or illness is eligible for leave under the Family and Medical Leave Act (FMLA) (and/or possibly leave under a state law).

Certain workers’ compensation (WC) leaves may also be covered under the FMLA.  An employee’s FMLA leave may run concurrently with a WC absence when the injury is one that meets the criteria for a “serious health condition” under the FMLA (and the employee satisfies all other eligibility criteria).

It’s important to note that, in general, an employer is responsible for designating an employee’s leave as FMLA leave as soon as it has enough information to believe the employee’s leave is covered.

Failing to designate this leave as FMLA leave may be a violation of the FMLA, and the employee may still be entitled to FMLA leave once the WC absence has ended.

Where an employee’s WC leave is also covered by FMLA, the employer should run the FMLA leave concurrently (at the same time) with the WC absence. Doing so will help ensure the employer complies with all of its obligations. For example, when an employee’s WC leave is also covered under the FMLA, the employer must maintain group health coverage for the duration of the employee’s FMLA leave.

The employer is required to maintain the group health plan benefits on the same terms and conditions as prior to the employee going on leave.  This includes the employee continuing to pay his or her required portion of the premium.

Also, offers of light duty may be affected when an employee’s work-related injury or illness is covered by the FMLA.  An employee may decline the employer’s offer of a light-duty job, if it is not the same or is not an equivalent job to the job the employee left.  However, an employee who turns down a light-duty job may lose WC payments, but is entitled to remain on unpaid FMLA leave until the FMLA entitlement is exhausted.

If the employee accepts the light-duty position in lieu of FMLA leave, the employee retains the right to the original or to an equivalent position.

If an employee is unable to return to work or is still in a light-duty job after the FMLA leave entitlement has been exhausted, the employee no longer has the protections of the FMLA.  However, an employer must examine the workers’ compensation statute and the Americans with Disabilities Act to determine if the employee has further protections.

The news headlines are filled with stories about high profile cyber breaches.  Recent examples include Yahoo, the Democratic National Committee (DNC), and the World Anti-Doping Agency (WADA).  These high profile cases can affect very large number of customers (Yahoo) or sensitive information (DNC emails, WADA test results).   Most businesses do not have the public profile of these three victims but the threat to small and mid-sized businesses is very real.  According to Symantec, 43% of cyber attacks target small businesses.

The potential cyber exposure can take on many forms.  Hacking and stealing sensitive information is one common and well documented cause.  Other causes can include theft of a laptop or cell phone, careless disposal of paper records, and theft / vandalism by a disgruntled or former employee.  Medical records are one of the more sought after targets by cyber criminals.  Other types of Personally Identifiable Information (PII) that must be legally protected include drivers’ licenses, credit card numbers, birth dates, court records, banking records and email addresses.  Social Engineering theft where outside party tries to mimic a manager in order to obtained wired funds is another common criminal tactic.

Relying on a third party such as cloud storage firm or credit card processing service does not insulate you from cyber exposure.   Contracts with these providers will favor the bank or servicing firm.  In fact, a merchant responsible for a breach might be contractually liable for damages incurred by the bank or processor.

Limiting your exposure to a cyber breach starts with good internal controls and employee training.  Keeping your software and firewall up to date are also important risk management strategies.  According to the Ponemon Institute, the causes for breaches involve human error (23%), system glitch (27%) and malicious or criminal act (50%).

The Department of Homeland Security has made October the National Cyber Security Awareness Month.  You can find a number of articles regarding various cyber issues on their website at  https://www.dhs.gov/national-cyber-security-awareness-month.  A data breach calculator can be found at http://www.ibmcostofdatabreach.com/.

Cyber Risk insurance is now widely available and affordable.  This type of insurance can be written to defend against litigation resulting from a breach as well as providing coverages for incurred expenses such as notification of impacted individuals, credit monitoring, business interruption, theft and extortion.  Please contact us if you would like to learn more about this insurance or if you would like to obtain pricing for this coverage.

Failure to comply with the FLSA can result in lawsuits, criminal charges, fines and restrictions in commerce. The scorecard tool will help you make a general estimate of risk.

Click here to download FSLA Scorecard

We are pleased to spotlight Biscom in our summer newsletter.  Every day millions of users and thousands of enterprises rely on Biscom for secure and reliable document delivery solutions. Founded in 1986 Biscom developed the world’s first enterprise fax server. Since then, Biscom has developed additional solutions around secure file transfer, enterprise file synchronization and sharing, file translation, and secure mobile communication apps. Biscom also offers cybersecurity risk assessments and training.

They recently launched Biscom 123, a cloud based fax solution that gives small businesses and professionals the ability to send and receive faxes through email and mobile devices.

You can rely on Biscom’s Experience, Expertise, Reliability, Performance, and Support.  We wish them continued success.

Click here to learn more about them!

The Small Business Administration (SBA) Surety Bond Guarantee Program
Presented by: Michael Regan

Did you know that the SBA, the federal organization that assists small businesses, will guarantee bid, performance or payment bonds issued on behalf of a small business by a surety company?

The guarantee program was implemented in an effort to help small construction businesses grow and share in the construction dollars expended by the federal government. However, the progam is not limited to federal work. They will issue guarantees on contracts at the state, municipal and private levels too.

Surety companies are conservative by nature. They want to bond construction companies that they know will be successful. However, there are many good contractors who may have some roadblocks to getting surety bonding. It may be because they are relatively new or lacking in financial capital. In these instances the SBA, after performing their own due diligence, can agree to issue a 90% guarantee to the surety of the bonds they issue.

The SBA also offers a cost neutral effort. The “fees” charged the contractors for the guarantees cover the cost of administering the program and funding the cost of any guarantees that are paid out.

The program has been very helpful to small, inner city contractors who may have limited, if any, access to standard surety.