Tag: benefits

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The Law Is a Floor, Not a Ceiling: Granting FMLA for Individualized Education Program Meetings

Jon Hyman The Practical Employer

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends — Jeff Nowak, Suzanne Lucas, and Eric Meyer — each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

According to the National Center for Educational Statistics, in 2017-18, 7 million, or 14 percent of all public-school students, received special education services under the Individuals with Disabilities Education Act. Among those students, 34 percent had specific learning disabilities. Many are on IEPs, and even more are on 504 plans.

What’s the difference? An IEP is made available through the Individuals with Disabilities Education Act, and applies to students with 13 specific disability categories, including, for example, ADHD and autism. 504 plans are more generally available under the Rehabilitation Act and apply to any student with a disability that interferes with the child’s ability to learn in a general education classroom. Both IEPs and 504 plans require a team effort to work. That team always should include the parent(s) or primary caregivers.

Managing a child with special needs is hard. Employment obstacles should not make it harder. A parent shouldn’t have to worry about whether their special needs child is receiving the educational support they need to thrive in school and whether they will have a job when they return from a school meeting.

Bravo to the DOL for applying a common sense interpretation to the FMLA to conclude that attendance at IEP meetings “care for a family member … with a serious health condition,” which is “essential to her ability to provide appropriate physical or psychological care to [her] children.” No employee should have to choose between their family and their job, and this opinion helps ensure these protections.

Yet, with or without the FMLA, all employers should be offering these small amounts of time off. The law is a floor, not a ceiling.

I can hear the protesting cries: “We can’t give every employee time off for every little thing they need. They’ll take advantage of us.”

Seriously? An employee is not taking advantage of you by taking a few hours to meet with the educational team for their special needs child. If you are that worried that an employee is taking advantage of a situation, then deal with that employee.

But don’t deny the time off to all employees just because one employee has taken (or might take) advantage of you. It’s a performance issue specific to one employee. And, if employee leave abuse is a systemic problem throughout your workforce, you should take a look at what you’re doing wrong. Maybe it’s you and not your employees.

Employers, we should be better than this. We have to be better than this. We are better than this.

Don’t do the bare minimum that the law requires. Strive to do more. Make yourself an employer of choice for your employees. You’ll attract and retain better employees who will work harder for you. Don’t just try to reach the floor, but establish your own ceiling.

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Unlimited Paid Time Off Is a Deceptive Ploy in Today’s Workplace

unlimited paid time off

Employees may be lured by the idea of unlimited paid time off but the reality is unlimited paid time off is often an egregious fabrication that employers tell their workforce.

What is usually lost in the conversation is what employees are forced to give up when their organization decides to implement an unlimited system. There are plenty of legitimate business reasons to stop offering — and stop being enamored by — the allure of the unlimited PTO promise.

“It’s great to not have to pay out [accrued vacation] when people leave,” said Maggie Grover, a partner at Wendel, Rosen, Black & Dean LLP in an interview with website HR Dive. “Because people are so connected and working even when they’re technically off, they tend to take fewer full vacation days. So even if you cap a vacation bank at 1.5 or 2 times the annual accrual amount, the payout at the end of the employment relationship can still be significant.” And just to note, not all states require employers to pay out accrued vacation.

Recognizing that this is a large financial obligation, many companies are relieving themselves from these obligations by offering unlimited policies.

Employees also can’t save or accrue “unlimited” vacation time to use next year. When it comes time to transition from the company, the employer has no obligation to pay out the extra hours of productivity that were used in lieu of taking a break.

According to outplacement firm RiseSmart, an unlimited PTO policy “significantly reduces the costs of having to pay employees for unused PTO and may be one of the most compelling factors for companies considering an unlimited PTO policy.”

Unlimited vacation is a work-around, plain and simple. By offering this perk, companies get away from tracking and accruing a liability that in some states, once accrued, is considered earned wages. And once wages are considered earned, they must be paid out at departure or termination.

 Less Time Off for Employees

Some studies show that American employees today often end up taking little or no more time off in an “unlimited” system compared to when they have a set number of days off each year.

In a study by HR platform Namely, research suggests that employees with “unlimited” vacation actually take fewer days off (13) on average than those with a limited number (15).

 Unlimited PTO Is No Win-Win for Today’s Talent 

Unlimited PTO sounds generous on a job description, but employees by and large end up getting paid less with no value attributed to their PTO while companies gain more of their employees’ productivity.

This latest benefits trend is harming the workforce and leading mass groups of employees to forfeit the second most important job benefit with no way to monetize or reutilize the value of their PTO.

Companies need to ask if they’re making these changes for employees or for their bottom line. If, let’s say, employees are using 100 percent of their PTO and a company wants to decrease expenses, then perhaps such a program makes sense. However, this is generally not the case today. Employees thus leave billions of dollars worth of unused PTO on the table.

Are benefits a meaningful way to attract, engage and retain employees? Absolutely.

Will unlimited PTO be a mainstay of the future of work? Absolutely not.

Instead of unlimited, employers — and talent — should be thinking in terms of flexible, diverse and portable benefits to mirror the workforce today.

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EEOC Settlement Teaches Lesson on Extended Leaves of Absence as ADA Accommodation

Jon Hyman The Practical Employer

An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery and recovery.

Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.

Do you …

(a) Fire him.

(b) Deny the request and force him to quit to have the surgery.
(c) Grant the request, but ask the employee to provide medical information supporting the disability, the need for time off, and an expected return-to-work date.

I hope you picked “c.”

An Atlanta distributor of industrial supplies chose “a,” and it cost them $75,000 to settle an EEOC lawsuit. From the EEOC’s news release:

“Medical leave is a widely recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Vallen fired him less than 24 hours before his surgery,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. …

Darrell Graham, district director of the Atlanta office, said, … “An employee should not be forced to risk termination for seeking leave to treat a medical condition, which can be a perfectly reasonable accommodation under federal law.”

Takeaways?

1. Unpaid time off can, and often does, qualify as a reasonable accommodation under the ADA, whether or not the FMLA applies. Moreover, if you fail to consider it as a reasonable accommodation, you’ve likely violated the statute.

2. Firing someone who asks for a few weeks off for cancer surgery is awful. It’s even more awful if you wait until the day before the surgery to do the firing.

3. Given the egregiousness of the violation, $75,000 seems light (although I don’t know all of the particulars of this employee’s damages).

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Pack Mentality: How Dog-Friendly Policies Might Improve Company Culture and Engagement

Imagine it’s a typical, hurried, tired Monday morning.

You rush out the door, coffee in hand, and by the grace of green traffic lights, make it to the office just in time. The ride up the elevator is a familiar feeling — to-do lists and meeting agendas already running through your mind.

Upon opening the office doors, you’re greeted by your coworkers and their smiling, tail-wagging dogs.

This is a reality in a steadily increasing amount of workplaces across the country. According to a 2019 benefits survey by Society for Human Resource Management, 11 percent of workplaces allow dogs, a 3 percent increase from 2015.

In June, Rover, an in-home dog-walking and pet care company, released a list of the 100 Best Dog-Friendly Offices in the United States, which was topped by the likes of widely known organizations such as Amazon, Airbnb and Uber. In forming the list, Rover considered dog-related benefits such as dogs being allowed in the office, pet stipends, paid time-off for pet bereavement and other pet-related amenities, such as green spaces to walk your dog and treats.

For many, the idea of having a furry friend tag along from nine to five is ideal. However, creating a space that is both dog-friendly and people-friendly takes time and thoughtful planning, said Jovana Teodorovic, head of people and culture at Rover, where people can bring their dogs to work every day.

dogs in the workplace
Jovana Teodorovic, head of people and culture at Rover, and Riley.

“That doesn’t work in every environment. It depends on what building you’re in, how dog-friendly they are and how much space you have,” she said. “We have been very proactive in how we design our spaces, and that allows a large number of dogs in the office every day.”

Teodorovic said that allowing dogs in the office has positively impacted company culture at Rover as well as the productivity and happiness of individual employees. Dogs often serve as a point of conversation and connection between employees.

“Taking a break during the day to play with your dog is a great way to feel better throughout the day and to feel more engaged with the work you’re doing,” she said.

However, introducing dogs into the office requires proactive planning and open communication between all levels of an organization’s structure.

“The first thing is to have employee buy-in regarding these policies,” Teodorovic said. “[Make] sure that the majority is comfortable with being pet-friendly and then having mechanisms in place around the folks who have allergies or have a fear of dogs.”

Rover also has thought out policies regarding all the “what ifs” that come with being a pet-friendly office, from potential altercations between dogs to the inevitable need for “doggy bags.”

“We offer free dog-walking for our employees so that the dogs are walked and quiet and satisfied,” Teodorovic said. “The dogs are in a safe space every day and we have dog gates as well.”

Creating a safe, regulated and familiar environment for dogs also helps reduce any incidents.

“Of course our employees being very dog-oriented and great dog owners and training their dogs from the beginning creates a really great workplace,” Teodorovic said. “But it’s different for any company and it really should be an evolving process.”

Ultimately, Teodorovic said, an organization may determine that dogs-in-the-office policies simply aren’t for them, whether that’s due to allergies, building policies or the wants of employees.

There are other ways for employers to be dog-friendly without actually having dogs in the office. Many of the companies on Rover’s list as well as Rover have benefits that support pet-owners. These benefits range from “pawternity” leave (an extra week of paid time off after getting a new dog), providing $500-$1,000 toward adoption fees, and free dog-sitting services.

Teodorovic said that dog-friendly policies and benefits can not only be a tool in increasing retention and recruiting, but improving employee’s everyday experience at work.

“If a company is struggling to create their culture or having a positive culture, it’s a really great way — without having a ton of policies and meetings and work — to accelerate the quality of their interactions and the quality of their company culture,” she said.

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Which Mental Health Service Does the FMLA Not Cover?

Jon Hyman The Practical Employer

Recently I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need.

Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

I won’t leave you in suspense. The answer is licensed professional counselors (unless an employer’s group health plan covers licensed professional counselors). The FMLA’s regulations specifically itemize all of the other categories of mental health professionals as “health care providers,” and specifically omits licensed professional counselors from its list. This omission is important, because an employee’s mental condition cannot qualify for FMLA leave as a “serious health condition” if, for outpatient treatment, the employee is not under “continuing treatment by a health care provider.”

As a matter of policy, however, the FMLA absolutely should cover licensed professional counselors as health care providers. According to a recent study by the National Council for Behavioral Health, the leading cause of our country’s mental health crisis is a lack of access to mental health services. We should not be erecting any barriers to mental health services, let alone one ingrained in the federal law that protects employees’ jobs when they take time off for health reasons, including their mental health. By refusing to recognize licensed professional counselors as FMLA-covered health care providers, the FMLA is deterring employees from seeking critical mental health treatment, or at least forcing them to choose between treatment and their jobs if a licensed professional counselor is the only available help. Many who can’t afford to live without their jobs will choose their paycheck over their health, exacerbating their mental health issues.

Gene Scalia has been nominated to replace Alex Acosta as Secretary of Labor. I implore him to close this dangerous loophole by amending the FMLA’s regulations to make it clear and explicit that licensed professional counselors qualify as health care providers in all cases, and not just those in which an employer has made the choice that its group health plan covers their services.

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Employee Suicide Is the Next Big Workplace Safety Crisis

Jon Hyman The Practical Employer

A recent headline at businessinsurance.com caught my eye:

Suicide seen as “next frontier” in workplace safety risks. It’s a pretty dramatic headline, but when you drill down into the statistics, it has a lot of weight.
  • Suicide is the 10th leading cause of death in the U.S.
  • Between the ages of 10 and 34, however, suicide is the second leading cause of death, and the fourth leading cause of death between the ages of 35 and 54.
  • In 2017, 47,173 Americans died from suicide (more than double the number of homicide victims), and another 1.4 million attempted suicide.
  • Between 2000 and 2016, the U.S. suicide rate among adults ages 16 to 64 rose 34 percent, from 12.9 deaths for every 100,000 people to 17.3 per 100,000.
  • In 2016, the U.S. Bureau of Labor Statistics hit a record in its 25-year tally of workplace suicides at 291, with the number gradually climbing over the prior decade.
  • The highest suicide rate among men was for workers in construction and mining jobs, with 53.2 deaths per 100,000 in 2015, up from 43.6 in 2012.
  • The highest suicide rate among women was for workers in arts, design, entertainment, sports and media, with 15.6 deaths per 100,000 in 2015, up from 11.7 in 2012.
The numbers are stark and scary and show a nation in the midst of a mental health crisis. What can employers do to recognize and mitigate this risk, and provide a safe workplace for employees in crisis?
For starters, educate yourself. There are a lot of free resources available online.

Next, employers need to increase awareness and reduce the stigma that surround mental health issues. Stigma and silence are the two biggest reasons why those that need help don’t receive it. What can employers do to recognize and help an at-risk employee?

1. Be aware of individual risk factors for suicide. You cannot always prevent suicide, but you can understand some of the risk factors so that can recognize when an employee might be in crisis and in need of help.

  • Mental disorders, particularly mood disorders, schizophrenia, anxiety disorders, and certain personality disorders.
  • Alcohol and other substance use disorders.
  • Hopelessness.
  • Impulsive and/or aggressive tendencies.
  • History of trauma or abuse.
  • Major physical illnesses.
  • Previous suicide attempt(s).
  • Family history of suicide.
  • Job or financial loss.
  • Loss of relationship(s).
  • Easy access to lethal means.
  • Local clusters of suicide.
  • Lack of social support and sense of isolation.
  • Being victimized by discrimination, harassment, or bullying.
  • Stigma associated with asking for help.
  • Lack of healthcare, especially mental health and substance abuse treatment.
  • Cultural and religious beliefs, such as the belief that suicide is a noble resolution of a personal dilemma.
  • Exposure to others who have died by suicide (in real life or via the media and Internet).

2. Provide mental-health awareness training to managers and supervisors. They spend the most time observing their employees, and are often in the best position to observe behavioral changes and risk factors, and hear from co-workers that someone might be in danger. Some of the warning signs for everyone to look for include:

  • Talking about wanting to die or to kill themselves.
  • Looking for a way to kill themselves, like searching online or buying a gun.
  • Talking about feeling hopeless or having no reason to live.
  • Talking about feeling trapped or in unbearable pain.
  • Talking about being a burden to others.
  • Increasing the use of alcohol or drugs.
  • Acting anxious or agitated; behaving recklessly.
  • Sleeping too little or too much.
  • Withdrawing or isolating themselves.
  • Showing rage or talking about seeking revenge.
  • Extreme mood swings.

3. Consider implementing a comprehensive psychological health and safety management program to help improve overall workplace culture and resolve issues more effectively. This program would include eliminating stigma related to mental health issues; developing an inclusive working environment for all; and ensuring that you have a confidential Employee and Family Assistance Program (EAP) that offers support and counseling services and that your employees are aware of it.

4. Educate all employees and support those are struggling. This effort includes mental-health awareness and suicide prevention education to employees; reducing stigmas relating to protected classes, mental illness, substance use disorder, and suicide; expanding awareness of mental illness and addiction; encouraging help-seeking for those at-risk; creating a caring and supporting work environment, including the promotion of listening and interpersonal skills to help all employees.

If you or someone you know is having suicidal thoughts or exhibiting suicidal behavior, help is just a phone call away via the National Suicide Prevention Hotline, 800-273-8255. One phone call can save a life.
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Why Was a Stadium Full of People in France Chanting ‘EQUAL PAY’?

Jon Hyman The Practical Employer

Indisputable fact No. 1: Women and men should earn the same pay for the same work.

Indisputable fact No. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a woman is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The Equal Pay Act has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.

Which brings us to indisputable fact No. 2, and the stadium chanting “equal pay.”

Two things of note happened in the U.S. soccer world on Sunday. The women won their fourth World Cup title, dominating the entire tournament, including the Netherlands 2-0 in the final. Meanwhile, the men lost the CONCACAF Gold Cup final 1-0 to Mexico.

The women’s team currently is engaged in a gender discrimination lawsuit against the United States Soccer Federation, claiming that the organization pays its male players way more than its female players. How much more? According to documents obtained by the Guardian, for example, each player on the U.S. women’s national team could receive more than $260,000 for winning the Women’s World Cup; each player on the men’s national team could earn more than four times that amount for winning the World Cup.

Last I checked, $260,869 does not equal $1,114,429. That’s a pay gap. Which could be legal under the Equal Pay Act, but only if it’s based on a factor other than sex. And this is where I plead ignorance. U.S. Soccer says that any pay differences are “based on differences in aggregated revenue.” I have no idea whether that’s true or false, but if true it might qualify as a “factor other than sex.”

What I do know, however, is that U.S. Soccer cannot justify these pay differences based on merit or success. The FIFA Women’s World Cup has been held eight times — the U.S. women’s team has won four of them, and has never placed worse than third. In the same time frame, the men’s team failed to even qualify for the 2018 World Cup and has never finished better than the quarter-finals (once, in 2002). The U.S. women have also won four Olympic gold medals, nine out of 10 CONCACAF Women’s Gold Cups, and are the No. 1 ranked team in world.

And, on the same day the women’s team won the World Cup, the men’s team lost the CONCACAF Gold Cup final (no offense to North American. Caribbean, and Central American soccer, but winning the CONCACAF Gold Cup is the equivalent of a AAA baseball team winning its league — it’s nice to win, but you’re not beating the best players on the best teams in world).

Based on results, it seems to me that not only should the women’s team be paid equally with the men’s team, but that there exists a great argument for the scale to be flipped, with the women’s team earning substantially more than do their male counterparts.

So, soccer fans and legal scholars, educate me. Why are the women paid so much less than the men?

I want to understand. Help me understand.

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How Employers Can Utilize Well-Being in the New Social Contract With Employees

Few people realize that the notion of a workplace social contract came about accidentally nearly 80 years ago as the result of an executive order on wage controls issued by President Franklin D. Roosevelt.

Cutting-edge companies at the time then began offering health insurance to employees as a recruitment incentive. And, in the early 1950s, the Internal Revenue Service deemed that insurance and similar benefits wouldn’t be counted as taxable income. Viola! The workplace social contract was born.

Over the last half-century, social contracts between employers and employees have evolved to the point where modern social mores drive a very different conversation today. The old agreement that employees would work for a company in exchange for wages, health insurance and little else sufficed as an agreeable social contract for both parties for decades. Today, however, 56 million millennials and an upcoming 61 million Gen Z workers are reshaping the contract terms.

Also read: The New Employer-Employee Social Contract

And, because younger employees comprise approximately 70 percent of today’s workforce, employers who listen and respond to their demands will be in a better position to compete for and retain top talent than those who ignore their concerns.

One employee benefit that can address these concerns is the often-debated employer-sponsored well-being program.

Many C-suite executives have a hard time seeing a return on investment for their well-being efforts. After all, under terms of social contracts from days gone by, well-being programs were designed to keep employees off the health care merry-go-round, thereby containing the employer’s health care costs. Employees participated in health screenings because employers mandated it, and no one found it to be fun or engaging. What’s more, this approach hasn’t shown improvements in overall employee health.

Today, fortunately, the new social contract between employees and employers presents a tremendous opportunity to leverage well-being as a strategic business tool to not only realize cost containment but to increase productivity and enhance recruitment and retention of top talent.

With these new conditions in mind, employers can utilize well-being benefits as part of a new social contract to address employee demands by doing the following.

Keeping an Integrated Mindset

Well-being initiatives are connected to health insurance and, therefore, overseen by the benefits or human resources department. However, companies won’t get full value of a well-being program if it is viewed solely as a benefit or cost rather than an engagement, culture and productivity driver. Well-being activities should be incorporated more broadly into:

  • The entire organization by including safety, recruitment, onboarding and training departments.
  • The entire work day, rather than expecting people to engage on their own time. Incorporate huddle stretches, encourage your supervisors to set an example by walking around to check in with their direct reports, bring in healthy snacks or ditch the junk food vending machine altogether.
  • Employee-based challenges beyond physical activity. For example, try challenging employees to keep gratitude journals, track their sleep to identify potential sleep issues, even to drink more water. Most employers don’t realize that most of us are dehydrated to some extent and that lack of hydration can play a role in impaired cognitive ability.
  • A single place where employees can access and interact with all of their benefits. The mind-boggling speed of technology growth in the consumer market mandates that companies evolve just as quickly to provide employees with personalized, consumer-based experiences.

Looking at Your Entire Work Environment

Your employees today expect that every touchpoint of their experience at work be influenced by terms of the new social contract. Are the restrooms well maintained? Do you provide sedentary employees with sit/stand desks and stationary bikes for lunch-hour workouts? Does the cafeteria offer healthy food options?

If you aren’t attending to basics such as these, you’ll send mixed messages around how you’re prioritizing your employees’ health and well-being, which can create confusion and cause employees to question the authenticity of your commitment.

A growing component of the new social contract comes from workers who want to work on their own terms — remotely, from home or while traveling. In fact, a 2019 survey of 1,000 hiring managers revealed that up to 73 percent of all departments expect to have remote workers within the next decade. Smart managers will remember to include these workers in well-being efforts to ensure they’re also happy and productive, even though they might not experience the physical work environment on a regular basis.

Getting Your Leaders Engaged

Employees in the 21st century expect their bosses to walk their talk. If your company’s executives verbally extol the virtues of the corporate well-being program, then they also need to actively participate if they’re to meet terms under the new social contract. Do they run in the company 5K? Do they avoid eating lunch at their desks, opting instead for the cafeteria or break room? Do they participate in annual biometric screenings? Are they transparent about their own challenges and efforts?

When your C-suite executives and department heads participate, they organically connect with employees on a human level and will contribute immensely to the success of your initiatives.

Contracts, by their very nature, are designed to protect the best interests of both parties. Today’s new social contract between employees and employers is forcing companies to expand their definition of employee benefits, stretch old-school operating procedures to manage talent and look beyond traditional HR channels to deliver a more fulfilling employee experience. Employers who are up to the challenge can expect that their employees will take more responsibility on their side of the contract to participate in activities that lead to long-term well-being habits, resulting in a rested, alert and productive workforce.

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Employers, Stop Oversimplifying Your Employees’ Body Mass Index

Andie Burjek, Working Well blog

Conference season is exciting when you hear a solid debate, learn more about a topic you care about or discover a speaker who is a promising resource.

But it also means coming across speakers who sling dangerous or overly simplistic ideas to their audience, in this case employers. I want to take this opportunity to gripe about my biggest pet peeve(s) in the employer health and benefits space. These are ideas I’ve heard at several conferences over several years and/or have read in a good number of articles about.

Here’s the biggie: Workplace weight loss or nutrition programs that hinge on body mass index on an individual level, especially outcomes-based programs whose “rewards” rely on reaching a certain BMI or losing a designated amount of weight.

“BMI is useful when studying populations and trends,” according to Medical News Today. But it can only give a rough idea of an individual’s health and weight status. There are flaws in the formula.

This is important to point out because if employers want to continue to micromanage employees’ health, they should know the nuance behind certain health measures instead of blindly trusting wellness companies.

To be clear, I understand that obesity is a considerable public health issue in America. I understand that there can be health risks.

But it’s also an issue I feel employees should feel safe dealing with in the privacy of their doctor’s office rather than having to share private medical information with their employer. Also, I’m aware of the fact that people and organizations have misconceptions about BMI and weight that are important acknowledge. Here are some important facts to know:

  1. There’s a misconception that thinner people are healthier. This is not always the case, as weight is only one of many measures for health. (Northwestern Medicine)
  2. Using BMI gives us a false idea about who has weight issues and who doesn’t. (Northwestern Medicine)
  3. “It’s important to recognize that BMI itself is not measuring “health” or a physiological state (such as resting blood pressure) that indicates the presence (or absence) of disease.” (Harvard Health Blog)
  4. Plenty of people have a high or low BMI and are healthy and, conversely, plenty of folks with a normal BMI are unhealthy (Harvard Health Blog). [This fact might not be considered in certain settings. For example, the New York Times recently reported about how, even though women can still be healthy with a high BMI, fertility clinics often refuse to treat them.]

I don’t know if employers in general understand the limitations of BMI.

The American Journal of Managed Care published an interesting research paper in November 2015 called “U.S. Employee Wellness Programs and Access to Obesity Treatment in Employer-Sponsored Health Insurance.” Its primary results were that 16 percent of employers required wellness program participation in order to receive full health benefits (how employers do not realize that this is coercion and does NOT make the program voluntary is beyond me!). Further, while most wellness programs set targets for weight and for other health indicators, most organizations health plans did not provide coverage for evidence-based obesity treatments.

The paper concluded:

For people seriously affected by obesity, the coverage gap described here is problematic because substantial improvement in their condition is unlikely without evidence-based treatment. This is true because obesity and its complications are typically chronic and progressive. Wellness programs may have little impact on costs driven by severe obesity in the absence of access to effective treatment for this chronic disease.

This is one of my major issues with wellness programs: They should be treated as secondary to real, HIPAA-protected medical benefits. Adequate health care is important. A wellness program should not be a replacement for certain coverage areas in a health plan. Also, if an employee would rather deal with health issues (any health issue, not just weight) through their doctor rather than a wellness program, they should not have to lose the opportunity to get hundreds of dollars in “rewards” like wellness program participants do.

I enjoyed this Consumer Reports story about privacy issues on wellness program. Its basic argument is that wellness programs often pose major privacy problems and that people should have a choice on whether they want to participate. Financial incentives or insurance discounts muddy the waters and may coerce people into sharing medical information.

Why is the free choice to participate necessary? The goals and recommendations of a wellness program may not align with your personal health care decisions, the article noted.

“If something you’re being asked to achieve in your workplace wellness program is unhealthy in your doctor’s opinion, you shouldn’t be required to do it,” said one source, Dr. Anna Kirkland, professor of women’s studies at the University of Michigan. “Wellness programs should never replace or supersede your doctor’s advice.”

The final point I want to make is that bias against people who are seen as overweight or unhealthy does exist. This is more so for women than for men, unsurprisingly; women tend to experience higher levels of weight stigmatization than men, “even at lower levels of excess weight.” Some negative stereotypes against seemingly overweight people include that they are “weak-willed, lazy, unintelligent and gluttonous.”

Further, a research report about this, “The Impact of Workplace Health Promotion Programs Emphasizing Individual Responsibility on Weight Stigma and Discrimination,” was released in November 2018. The research identified workplace health promotion programs as “potent catalysts of weight stigma and weight-based discrimination, especially when they emphasize individual responsibility for health outcomes.”

This is a lot of information, but my main argument here is that employers shouldn’t look at employee weight and BMI in such a black-and-white capacity. Also, I want to stress the point that health plans (covered under HIPAA, unlike wellness programs) should cover evidence-based obesity treatments. Finally, as employers focus more and more on employee health, be aware that weight discrimination is serious and should never be tolerated.

Also read: Some Constructive Criticism on Wellness

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Proposed Law Wants to Convert ‘Anti-Vaxer’ Into a Protected Class

Jon Hyman The Practical Employer

With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

1. An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

     2. An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.
A recently proposed Ohio looks to significantly expand these exceptions by elevating “unvaccinated” to the equivalent of a class protected from discrimination.

The misleadingly named Medical Consumer Protection Act would prohibit an Ohio employer from discharging without just cause, refusing to hire, or otherwise discriminating against any person on the basis that the person has not been or will not be vaccinated because of a medical contraindication or for reasons of conscience, including religious beliefs. It would also create a private cause of action allowing an employee to file suit over violations and seek compensatory and punitive damages.

I had a roommate in college who was fond of telling me that my opinion was wrong. I would tell him, “My opinion is my opinion. It might be misinformed. You might disagree with it. But it can’t be wrong.” It’s Hyman’s Law of Opinions. Today, I decree the following amendment to Hyman’s Law:

* … except in the case of vaccinations. If you oppose vaccinating yourself or your children, your opinion is wrong, period (unless you have a bona fide medical condition or religious belief that prevents you from receiving said vaccinations). Otherwise there’s no reason not to vaccinate. If you don’t care about your own health, care about the health of all of those around you, and the public health risks and costs you are helping create.

And if you happen to be an anti-vaxer and take issue with Hyman’s First Law of Opinions (as amended), you’ve brought the measles back from extinction. Case closed.

So I give a big thumbs down to the Medical Consumer Protection Act. It’s both unnecessary (by protecting from employment discrimination those whom the law already protects) and wildly over broad (by also protecting those who are unvaccinated “for reasons of conscience”).

Thankfully, this poorly conceived piece of legislative policy will never become an actual law.