By WENDY SELLERS

Orlando Medical News is proud to bring you the first of many Q&As with human resources expert Wendy Sellers of BlackRain Partners.

Question:

Does my small business qualify for FMLA leave? I have a key person going on medical leave and I fear my business will suffer.

Answer:

It depends! Your small business may qualify depending on what you define as "a small business." The Family and Medical Leave Act applies to private employers with more than 50 employees in a 75 miles radius. If yours does not qualify, you do not have to follow the requirements, however you can create a similar leave policy if you wanted to. There are pros and cons of having a voluntary non-FMLA benefit ranging from improved recruiting and retention to increased liability and cost.

Per the Department of Labor, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. For businesses that do qualify under the FMLA, there are "key employee" provisions that may exempt certain employees from qualifying for this protected leave. Find our more from the DOL at https://www.dol.gov/whd/fmla/

Question:

My practice manager wants to hire her husband to do our building maintenance. Is this a conflict of interest?

Answer:

Again, it depends! When you state "hire," do you mean as a W2 employee, a 1099 contractor or a business vendor?

• W2: If you hired him as an employee, which I do not suggest, there would be many concerns such as who can supervise him without a conflict of interest, do you have the more expensive workers compensation insurance required for his risky work and how are you going to hold him accountable if this is not your expertise?
• Business Vendor: If he has his own registered business (such as an LLC or Corporation) with liability insurance, this should not be an issue. However, I would definitely suggest a formal agreement or contract that spells out the services he will be preforming, your expectations, the length of service (ongoing or project based), the rate of pay for the services and when payment is due.
• 1099: The same information above applies if he is a 1099 contractor in addition to ensuring that you do not "control" his work or affect his "independence." Ensuring he has insurance to cover damage and/or injuries is also important.
• Regardless of how you pay him, a background check is suggested for the safety of your employees and your assets. Click https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee to find out how the IRS defines 1099 vs W2.

Question:

Am I required to provide sexual harassment training to my employees and/or managers?

Answer:

As a Florida employer, you are not required to provide harassment training of any type. It is highly suggested that you have a solid anti-harassment and discrimination policy that all employees read, understand and have signed. It is also suggested you consider conducting training for employees and managers to understand what harassing behavior is and is not, how it affects workplace culture, productivity and ultimately revenue. The chances of your business ending up in as a statistic is higher in Florida than anywhere else. Our state is number two (behind Texas and ahead of California) in Equal Employment Opportunity Commission claims filed by employees.

Small businesses requirements for federal anti-discrimination laws can be found at: https://www.eeoc.gov/employers/smallbusiness/requirements.cfm

Question:

I only employ 4 employees. Do I have to do annual performance reviews?

Answer:

The technical answer is NO. There is no legal requirement or law to conduct performance reviews of any type. The realistic answer is yes. You absolutely should provide feedback to employees, managers, colleagues, contractors and even vendors about their workplace performance and behavior. Does it need to be a ten-page, four-hour review? Heck no! It can be a weekly 10-minute conversation or quarterly 45-minute chat about their Strengths, Weakness, Opportunities and Threats (an individual SWOT). If you set clear expectations up front (at time of hire for example) but never hold anyone accountable to meeting those expectations, why would they change their actions? Being in the medical field, you know that osmosis does not work with human beings!

Of course, HR and lawyers always like things in writing, just in case employment goes sideways and a tough termination decision needs to be made. Documentation of good or poor performance helps you avoid EEOC claims and discrimination lawsuits. The great news about this is if you are having performance and behavior conversations regularly, the termination decision won't be so tough and the employee will not be surprised when it is made.

Question:

Many of my patients are veterans. Do I qualify as federal a contractor? Do I have to create an Affirmative Action Program?

Answer:

Receiving monies from the Veterans Administration (VA) for patient care payments does indeed qualify you as federal contractor and therefore your business may need to create an Affirmative Action Program (AAP) and follow the rules including yearly submissions that go with it.

Generally, if your business has a federal contract or subcontract with the Veterans Administration of $50,000 or more (this can be cumulative), and has 50 or more employees, then you would be responsible for developing and maintaining a written AAP under Executive Order 11246 and Section 503 of the Rehabilitation Act. If the contract has a value of $100,000 or more and 50 or more employees, then you would also be responsible for developing and maintaining a written AAP under the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA).

If you need more information about Office of Federal Contract Compliance Programs (OFCCP) or any other issue related to federal contractors on discrimination and affirmative action obligations, you can visit the OFCCP's website at http://www.dol.gov/ofccp/

Wendy Sellers, MHR, MHA, SHRM-SCP, SPHR, "The HR Lady" is COO of BlackRain Partners, a business consulting company. She holds a Master of Health Care Administration, a Master of Human Resources, SHRM-SCP and SPHR certifications and is also a licensed Florida 2-15 life and health agent which she uses solely to advise and educate BlackRain's clients. Visit www.blackrainpartners.com