benefits – Page 8

February 12, 2019June 29, 2023

A Textbook Lesson: The ADA’s Interactive Process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, “Of course.” The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA’s interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Gary Brunckhorst worked as an accountant for the city of Oak Park Heights, Minnesota, for over 15 years. In April 2014, he contracted Fournier’s gangrenous necrotizing fasciitis — a rare, life-threatening disease otherwise known as “flesh-eating” bacteria. He had three life-saving surgeries, spent five months in a hospital and nursing care facility and suffered long-term injuries.

At the outset of his hospitalization, Brunckhorst requested, and the city granted, FMLA leave. When that leave expired, the city granted an additional 60 days of unpaid medical leave and told Brunckhorst that he could qualify for an additional 30 more days thereafter. On Sept. 14, 2014, (the end of the initial 60-day unpaid leave), the city sent Brunckhorst his job description and asked him whether he could perform all of its essential functions of his position. Brunckhorst’s doctor responded that he was not able to return to work and that he needed additional unpaid leaves of absence, which was extended in serial through April 1.

In December 2014, however, the City Council had voted to eliminate Brunckhorst’s position as unnecessary. In an effort to soften the blow to Brunckhorst, is offered him the choice of a severance package or a return to work when he was able to do so in a new position, albeit with a 30 percent reduction in salary. Brunckhorst refused both, stating that he wanted to return to his original position. The city kept him on his unpaid leave in the interim, since he was not yet ready to return to work anyway.

Ultimately, the city gave Brunckhorst a hard April 1 deadline to return to work in the new position or be fired. Brunckhorst, through his attorney, refused and instead requested that the city permit him to work from home. The city refused, stating that remote work was not possible for the new position. It instead offered Brunckhorst a limited schedule as an accommodation — four hours per day four days per week in the office. When Brunckhorst declined the offer, the city terminated his employment.

The 8th Circuit Court of Appeals concluded that the city had not violated the ADA by eliminating his position, refusing to offer remote work as an accommodation, or otherwise failing to engage in the interactive process.

No reasonable juror could conclude that the City had failed to participate in the interactive process. Brunckhorst attempts to narrow the window of the interactive process to the last few days prior to his termination and claims that the City offered him only one, take-it-or-leave-it accommodation. To the contrary, the record shows that the City engaged in an interactive dialogue with Brunckhorst for months regarding his return to work. During that time, the City extended his leave multiple times, made multiple requests for information regarding what accommodations he required, and offered accommodations consistent with his doctor’s restrictions. There is no genuine issue of material fact that the City engaged in anything but a good-faith interactive dialogue.

This case provides a textbook roadmap for employers to follow when handling an employee on an extended medical leave. An employer can eliminate a position if the bona fides of its business and economic needs support that decision. It is not required to keep a position, or create a position, as a reasonable accommodation. It may have to offer an existing, vacant position, however. It also does not have to offer remote work if the essential functions of the position dictate otherwise.

If you are considering terminating an employee out on a non-FMLA unpaid medical leave, consider this question — will it appear to a reasonable jury that you tried to work with the employee to return him or her to work. If the answer is an objective “yes,” then you are likely on solid footing terminating the employee who refuses your offers to return to work (understanding that you may have to justify your actions and decisions in litigation).

February 6, 2019June 29, 2023

President Trump Calls for Federal Paid Family Leave During State of the Union

February 5 was the 26th anniversary of the Family and Medical Leave Act being signed into law.

During last night’s State of the Union Address, President Trump called for Congress to make paid family leave a federal law.

I am also proud to be the first president to include in my budget a plan for nationwide paid family leave — so that every new parent has the chance to bond with their newborn child.

The devil is very much in the details. We have zero idea what this law would look like.

Who will pay for the leave — employers, directly via payroll, or employees, indirectly via a tax the funds a government benefit pool?
How much paid leave will the law provide — 6 weeks, 12 weeks, more, less?
What family issues will be entitled to paid leave — just childbirth, the same scope as the FMLA, or will be it broaden protections to other parental issues such as school-related events?
Which employers will it cover — those with 50 more more employees, 25 or more, or even smaller?

Before we heap too much praise on this effort, we need to know details. Still, the United States remains the only industrialized nation that does not guarantee working mothers paid time off after childbirth, and we lag behind most of the rest of world on other paid family leave.

Frankly, it’s embarrassing, and it’s high time we joined the rest of world on what appears for everyone else to be a non-controversial issue. Anything that moves this debate forward is an effort worth applauding.

February 4, 2019June 29, 2023

Workplace Wellness Dominates at Employer Forum

One perk of working in a city as big as Chicago is the conferences, big and small, that provide learning opportunities, ideas, and free coffee and bagels in the morning — especially the everything bagels.

The Midwest Business Group on Health held an employer-only forum on wellness, well-being, and engagement Jan. 23, giving me the chance to hear what employers had to say, chat with my table mates informally about workplace health, and listen to several experts speak on different health-related topics.

Many more ideas came up in the seven-hour forum, but here are the major takeaways that any employer should be aware of:

The Workplace Wellness Debate: Ryan Picarella, president of the Wellness Council of America, spoke about rethinking the approach to workplace wellness and building inspired organizations. Even though health care costs are going up and even though organizations are spending more money on health and wellness than before, population health is declining. Something needs to change in wellness strategy.

One topic he brought up was the debate over the value of workplace wellness. He thinks it’s fun to debate, and I agree! The reputation of workplace wellness goes up and down through phases, from something that’s celebrated to something that gets analyzed in “Workplace Wellness Programs are a Sham” articles. Where does the truth lie?

I happen to land on the more skeptical side of this (as I do with many topics), unlike Picarella who is more optimistic. That aside, one point he brought up is hard to argue: No matter what side of this debate you’re on, what we can agree about is that having happy, healthy employees is important, and something needs to be done to improve employee health.

He gave a lot of behavioral-science-based ideas for improving wellness programs, like by thinking about what motivates people, how environmental factors impact employees, and where employees’ sense of purpose lies. Workplace wellness programs need a foundation that addresses people’s basic needs like food and shelter. A program that addresses something like the importance of nutrition or going to the gym without acknowledging that some people won’t be able to focus on that if their priority is keeping the lights on or putting food on the table? That won’t do.

Another idea he shared is simple, but I find it to be strong. It’s one of those statements that’s obviously true, but I can see organizations and people not following it in practice in more areas of business than just wellness. More wellness activities and programs aren’t always better, he said. Rather than think about adding another thing, and another thing, and another, think strategically about the value add.

Persuasion Vs. Manipulation: Part of this event was a roundtable discussion about the role of trust in wellness. When someone communicates to you, the message may sound like persuasion or as manipulation, depending on how you feel about that person. Even a neutral message can read as manipulation if you do not trust the party providing the information.

Everyone in the room had discussions with their tables and then with the whole room about how to build trust in the workplace.

I love this discussion because there are so many deterrents to trust now, like with data privacy. Bring in wellness programs to that topic, and you get health data privacy, which is something people can be understandably sensitive about.

Without going into too much detail, the audience response here was interesting. One person spoke about employees worried about where their biometric data was going. The organization responded to this concern by making it crystal clear to employees what the company could see, what they couldn’t see, how the data was protected, and what they’d need to talk to the vendor about for answers.

Another audience gem: One person suggested including compassion in your messaging, and making sure your vendors do, too. At the organization, some employees had complaints about how rude a vendor was in answering questions and addressing concerns. The organization responded by reaching out to the vendor with this issue and suggesting that the call center employees go through compassion training.

In conclusion, be direct, transparent, and comprehensive.

Also, my initial big-picture reaction to this issue of trust: Isn’t a certain amount of skepticism healthy? Why should any employee blindly trust their employer? How much trust is realistic for employers to expect?

A piece of career advice that has stuck with me over the years is that even though loyalty and working hard are important, you need to look out for yourself. Don’t blindly believe that your employer always has your best interests in mind. If you feel guilty about quitting when you need to move on with your career, remember that at the end of the day if an employer comes across financial trouble, they may very likely lay you off. It’s just business as usual. Both sides can respect each other but acknowledge the reality that their employment contract is business, not personal.

The idea I’m trying to get across here — as somebody who sees that direct correlation between trust and loyalty — is that employers should want and expect employees to ask questions, be curious and even be skeptical when it comes to workplace matters that concern them. It gives both sides a chance to build a professional level of trust.

What do you think? What wellness-based conversations do you think more employers should be having with one another?

December 17, 2018June 29, 2023

New Trends in Health and Wellness Benefits

This past year we’ve reported on many aspects surrounding employee benefits, from the shifting retirement landscape to workplace stress and beyond. As we approach 2019, several employee-benefits experts shared with Workforce what trends they’re expecting next year.

Encouraging employees to map out their individual work-life balance strategy:

Employees should make a point to consciously create a harmonious balance between their work and non-work lives, according to Rick Hughes, head of service at the University of Aberdeen’s Counselling Service and a co-author of the book “The Wellbeing Workout,” along with Andrew Kinder and Cary L. Cooper. Their work life can have a positive influence on their non-work life and vice versa.

“For example, a walk or fresh-air break at lunchtime can boost energy and generate a feel-good factor to aid afternoon productivity,” he said. “Or managing problems before leaving work may help to prevent thinking about the issues at home. It’s about getting things into perspective.”

Becoming more holistic in your wellness approach:

One trend that is emerging now is the need to incorporate all dimensions of health into well-being programs, according to Joyce Young, managing director for the High Health Network. Research has found that to achieve the highest level of total well-being, one must focus on physical, mental and emotional wellness as well and one’s purpose in life.

In practice, this means that just focusing on an illness isn’t enough. For example, depression screening has value is some ways, but, ultimately, it’s just a disease search, Young said. It’s not a holistic approach.

“We need to provide the techniques and methods for the everyday person who’s not seeking treatment to be able to build their capacity and strength in the mental, emotional and purpose in life directions,” Young said.

Cecile Alper-Leroux, vice president of human capital management innovation at Ultimate Software, agreed that this is a major trend for HR leaders to be aware of and gave some practical suggestions on how to pursue it.

Employers should design work with overall employee well-being in mind, she said. They can also offer transformative technologies to help monitor and interact with employees to support and reinforce positive behavior.

Also read: Is Wellness Just an Employee Perk?

Creating a workplace where people feel like their total well-being is supported is no easy task, she said. But it will “increasingly set apart the workplaces where employees will want to stay and be their most productive selves, and those that will struggle to retain the best talent.”

Reconsidering your conceptual understanding of health:

According to early trends in a survey she’s involved with, Joyce Young said, 90 percent of people find that the messaging of health frames it as a problem, not a resource. That is, when people see health-related communications, most of it is about getting treatment for an existing problem rather than general self-care.

“It’s not a surprise, but if the mindset is that way, then we don’t have as much motivation to cultivate [health as a] resource because we’re thinking more, we need to get this treatment or solve this problem,” she said.

Alternatively, if people thought of health as a resource, they could benefit in several ways. One, the health care system will deliver more for them. Also, the risks of the kinds of health problems by which people are preoccupied will decrease.

“We must bring our conceptual understanding into the 21^st century,” Young said. “If we think differently, that will help us act differently as well.”

Considering onsite health care:

This year saw a few Silicon Valley powerhouses like Apple and Tesla develop their own worksite health centers, and these weren’t the only organizations bringing health care onsite, said Michael Huang, national medical director of Marathon Health. In 2018, one third of organizations with 5,000 or more employees provided a general medical clinic at or near the worksite, up from 24 percent in 2012, according to Mercer’s “2018 Worksite Medical Clinics Survey.”

The onsite health care model has proven results, with employers who measured their ROI last year reporting “returns of 1.5 times or higher,” Huang said. He expects momentum to continue in this area in 2019, with companies of all industries and sizes working with providers to create customized plans and programs that fit their budgets and the unique needs of their employee populations.

“By inserting the health system into the existing workplace, physicians are better able to forge lasting relationships with patients through face-to-face, personalized interactions,” he said. “This individualized care encourages regular visits to the health center, allowing employers to better track health trends, and improvement on those trends, by an employee population.”

Mental health is one area in which onsite care can be particularly beneficial, he said, as employers can utilize onsite care to give employees direct access to resources like counseling and therapy from licensed counselors, addressing barriers to mental health care like long waits for appointments and poor quality of care.

In addition to streamlining access to quality behavioral health care, “bringing these resources onsite signals that employees’ needs are understood and supported, reducing the mental health stigma in the workplace,” Huang said.

Providing cancer support services as an employee benefit:

The number of cancer patients and survivors will reach almost 18 million in the next decade, according to the CDC. And according to a recent survey that nonprofit Cancer and Careers commissioned The Harris Poll to conduct, 79 percent of the respondents said that patients/survivors that receive support from their employer are more likely to thrive in the workplace.

The poll — which surveyed 882 cancer patients/survivors who were either employed or unemployed but looking for work — also found that 53 percent of respondents feel that resources or support programs are needed to address cancer survivors’ workplace concerns, and 64 percent believe that working through their cancer treatment helped them cope.

Penn Mutual Life Insurance is one example of an organization seeking to expand its cancer care services. It began offering services this October through Cancer Guardian’s Comprehensive Cancer Support Program, which includes advanced DNA testing, dedicated cancer support specialists and digital medical records management.

Penn Mutual President and Chief Operating Officer David O’Malley said that a year before the launch of this program, the company began talks with Wamberg Genomic Advisors to learn about the changing genomics landscape and from there spent the next year deciding how to best leverage the cancer benefit.

What the company ended up deciding was offering the benefit to its 1,000-plus associates as a supplemental, employer-paid benefit, available to associates regardless of if they’re on Penn Mutual’s health plan. Also, the company does not track utilization. “Privacy is important to us,” O’Malley said, adding that the company didn’t want employees to feel as if their medical privacy was being infringed.

“We saw this as the opportunity to have a leading benefit,” he said. While benefits surveys have data on cancer insurance at organizations — the Society for Human Resource Management, for example, found that 33 percent of organizations offered cancer insurance in 2018, up from 28 percent in 2017 — the percentage of organizations offering comprehensive cancer support benefits is not as readily available.

December 12, 2018June 29, 2023

I’ll Take Leave of Absence Policies for $5.25 Million, Alex

A: An employer must have one of these to avoid running afoul of discrimination laws when an employee is out on a medical leave of absence.

Q: What is an open-ended leave of absence policy?

Two employers recently learned this lesson the hard way, care of the Equal Employment Opportunity Commission.

Family HealthCare Network will pay $1.75 million to resolve disability and pregnancy discrimination claims stemming from its use of “rigid leave policies and practices to deny reasonable accommodations to its disabled and/or pregnant employees, refusing to accommodate them with additional leave and firing them when they were unable to return to work at the end of their leave.”

The Cato Corporation will pay $3.5 million, also to resolve claims that it “denied reasonable accommodations to certain pregnant employees or those with disabilities, made certain employees take unpaid leaves of absence, and/or terminated them because of their disabilities.”

Says Melissa Barrios, director of EEOC’s Fresno, California, Local Office, “The EEOC continues to see cases in which employers have a rigid leave policy that discriminates against individuals with disabilities or pregnant employees.”

These issues very much remain on the EEOC’s radar. Unless you want to risk being on the receiving end of an expensive enforcement lawsuit, take these lessons to heart and ensure that your leave of absence policies, both in writing and in practice, permit for extended unpaid leaves as reasonable accommodations for disabled and pregnant employees.

December 10, 2018June 29, 2023

Daily Wellness and Motivation Tips

In my experience, self-improvement is a day-to-day task. It’s a culmination of hard work that over time is accomplished by small but constant steps.

With the new year comes a good number of people whose New Year’s resolution is to get healthy. Given that people spend a good amount of time at the workplace, I’ve spoken with workplace wellness experts and others about well-being tips employees should keep in mind on a day-to-day basis in 2019. Some of them have also explained the employer’s role is in accomplishing these basic tasks.

Keep track of your achievements: Sometimes we can get caught up in the fast pace at work, getting bogged down by problems and difficulties and failing to appreciate our successes along the way, said Rick Hughes, head of service at the University of Aberdeen’s Counseling Service and a co-author of the book “The Wellbeing Workout,” along with Andrew Kinder and Cary L. Cooper. This can lead to anxiety, tension and stress.

“Toward the end of each work day, list three ‘achievements’ of the day in your diary,” Hughes suggested, adding that they don’t need to be major accomplishments. They can be as simple as “I had a good meeting with my colleague” or “I got appreciation from a customer.”

“At the end of the week you’ll have 15 achievements,” he said. “Sit back, applaud yourself and look forward to building on this further the following week.”

Work on your composure: This is a way to keep your sense of well-being strong on a daily basis, said Joyce Young, managing director for the High Health Network.

“Believe it or not, being composed is a skill,” Young said. “When you’re composed you have more control, more optimism, you make better decisions, and those decisions you make, because they’re better, help you stay in balance.”

She suggested three ways in which people can hone this skill.

Connect with something personally meaningful. “If you stop every so often and say, what is meaningful to me? It resets the idea that I’m not just wandering here. There are things in my life that matter to me, and you basically are connecting with them. If we don’t connect and reflect, then these important points in our lives get away from us,” Young said. She added that if someone spends a couple minutes reflecting on what’s personally meaningful to them, the example might not be something positive. It could be something that’s causing negative thoughts or emotions. That’s still valuable, though, since it gives people a sense of centering and takes them away from the trivial things that can take up one’s day-to-day life.
Nap. Studies have shown that even a three-minute nap can be refreshing, Joyce said. Personally, she enjoys taking 20-minute naps many days. Short naps can help someone feel more refreshed and composed.
Connect with nature. This can help with something called “attention fatigue,” Joyce said. One’s sense of attention gets tired, much like a muscle, and experiencing nature can help restore that attention, for example by looking out the window at the office at the park across the street or keeping plants at the desk.

HR has a role in this, too. First, if decision makers in the HR community actually engage in the practices, they get the benefit of the practices, Young said. Also, if they engage in practices like this then it’s easier and more apparent to them what specific things they could do to help support their employees in similar endeavors.

Get fresh air: Expanding on Young’s “connect with nature” idea further, Tracy Hultgren, the creator of the blog Trail Tracing, advocates that people take a little time out of their day to get fresh air and take a walk. Hultgren spoke with Workforce earlier this year, and his ideas are worth revisiting.

For one, his notion to walk outside every day is simple and applicable to most geographies, from the middle of a city to a suburb close to local parks. Walking is a simple form of exercise that most people can do, Hultgren said. While many people have an “all-or-nothing” approach to working out — an attitude like, “If I’m not going to run a marathon, I’m not going to run at all” — allowing oneself a short, stress-free daily workout like walking lets them have a little time every day to take care of themselves in a low-key and not stressful way.

An employer’s role in this is simple. Basically, they just have to be open to allowing employees a short amount of time each day to leave their desk.

Scrap the resolutions: This one is coming from me. A while ago, a friend suggested that having a “goal” for the year was better than having the traditional resolution. So instead of telling yourself to go to yoga once a week, make a theme like “tranquility.”

It’s something more flexible, realistic and creative, because instead of doing one specific task every so often, you have a general vibe you’re striving for, and a lot of different activities fit in it. You might to yoga to calm down and feel more at peace, but you could also go on a long walk, spend a little time pampering yourself, or cook yourself a dinner that makes your apartment smell good.

This is also something realistic to fit in your everyday life, I believe.

Any other wellness tips you find valuable in your workplace? Comment below or reach out to me on Twitter @Andie_Burjek. I’ll add them to this list post-publication.

December 3, 2018June 29, 2023

What Can the Holiday Movie ‘Elf’ Teach Us About the ADA?

The Hyman clan carried out our annual holiday tradition of watching “Elf.”

Since much of the story took place in and around various workplaces, this year I decided to watch with an eye toward shareable employment law lessons.

Early in the story, Buddy learns the harsh reality that he is not actually an elf but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations and being transferred to Jack-in-the-Box testing (the job reserved for “special” elves).

Assuming that Buddy’s height is a disability in the North Pole (and if the ADA protects dwarfs down south, it’s safe to assume the North Pole’s disability discrimination laws would similarly protect Buddy’s heightened height up north), what ADA lessons does this parable teach us?

1. Reasonable production standards.

The ADA does not require an employer to lower production standards — whether qualitative or quantitative — that it applies uniformly to employees with and without disabilities. An employer may, however, have to provide reasonable accommodation to enable an employee with a disability to meet the production standard.

Thus, if Santa requires 1,000 Etch A Sketches per day, then Buddy is required to make 1,000 Etch A Sketches per day, disability or no disability. Santa may, however, have to offer Buddy a reasonable accommodation (if available) to meet that quota. Santa may also choose to lower or waive the production standard, but he is not required to do so. Keep in mind, however, that if one waives or lowers the requirement for one employee, it makes it difficult to argue for future employees that the production requirement is truly essential, or that altering it is not a reasonable accommodation.

2. Transfer as reasonable accommodation.

The ADA specifically lists “reassignment to a vacant position” as a form of reasonable accommodation. An employer must consider this type of reasonable accommodation for an employee who, because of a disability, can no longer perform the essential functions of their current position, with or without reasonable accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship.

There are, however, several caveats.

The employee must be “qualified” for the new position, both by satisfying the requisite skill, experience, education, and other job-related requirements of the position, and by being able to perform the essential functions of the new position, with or without reasonable accommodation. An employer is under no obligation to assist the employee is becoming qualified, such as by providing training to enable the employee to obtain necessary skills for the job.

“Vacant” means that the position is available when the employee asks for reasonable accommodation, or that the employer knows that it will become available within a reasonable amount of time.

The reassignment must be to a position equal in pay, status, or other relevant factors (such as benefits or geographical location). If there is no vacant equivalent position, the employer should reassign to a vacant lower level position for which the individual is qualified and which is closest to the employee’s current position in terms of pay, status, etc.

For Buddy, that position was Jack-in-the-Box tester, an open position for which he was qualified.

There you have it. ADA lessons from “Elf.” Happy holidays.

November 27, 2018June 29, 2023

Tuition Reimbursement Appears to Be Paying Off

Health care giant Abbott Laboratories launched its Freedom 2 Save program in June, which helps employees save for retirement while paying off student loans. Employees contribute 2 percent of their pay toward their student loan debt, and Abbott contributes 5 percent of their pay into the employee’s 401(k) plan.

This benefit, along with Abbott’s long-running tuition assistance benefit, contributes to the Chicago-area company’s mission of taking care of its workers.

With Abbott’s tuition assistance benefit, employees — including new hires with at least one year of full-time business experience — get reimbursed for business-related classes they take in college. Abbott supplies reimbursements as high as $7,000 per year for undergraduate classes and $10,000 per year for graduate classes.

Abbott Divisional Vice President Mary Moreland said her company’s role is to understand what their employees need, as well as coming up with innovative ways to address them. Moreland addressed both programs and how they factor into getting the job done.

Also read: Sample Tuition Reimbursement Policy

“Our tuition reimbursement program supports our goal of allowing employees to continue to grow and develop while they’re working here,” Moreland said. “With our student loan program, we discovered that the people we hired straight out of college were struggling with the amount of debt they were bringing into the workplace, which is on average about $40,000 for the typical graduate.”

Rariety Monford, 27, utilizes the tuition reimbursement program at Abbott Labs.

Rariety Monford, a 27-year-old engineer at Abbott, takes advantage of both programs.

Since Monford has in-state tuition in the state of Texas, her master’s degree from the University of Houston-Clear Lake will be fully covered by Abbott’s tuition assistance program. Monford has roughly $60,000 in student loans. With Abbott’s Freedom 2 Save program, she can put her earnings, that she normally would use for her 401(k), into her student loans. Monford appreciates having both programs in her back pocket while she takes classes online.

“It really means a lot to me,” Monford said. “It shows me that Abbott cares about me as a person and as an employee. It definitely factors into me building a long-term career here.”

Tuition.io works with companies including Hewlett-Packard and Staples and public entities such as the city of Memphis to offer student loan repayment assistance and financial wellness tools as an employee benefit.

The company has saved employees with these benefits approximately 30,000 years of student loan payments and helped employees save $42 million, according to CEO Scott Thompson, including the amount of loans principal paid down by their employer and the interest they save over time by having the loan paid down faster. The average turnover is 40 percent lower for workers who receive the debt assistance compared to those who don’t, Thompson added.

Thompson also said he has received positive feedback from people he’s unfamiliar with.

“I once got an email from a single mother who has two children and has been struggling for years with student loan debt,” Thompson said. “She said that now that her company has a benefit, she can see the light at the end of the tunnel. She thanked me for helping her and convincing her employer to do this.”

Also read: Verizon Wireless Gets a Strong Signal on Tuition Reimbursement

According to the International Foundation of Employee Benefit Plans, 3.8 percent of corporations offer tuition reimbursement, marking a 1.1 percent increase from 2016. Even though there has been a 1.4 percent decrease in public employers offering student loan repayments, there has been a 0.9 percent increase in overall offered student loan repayments, according to the foundation’s research.

While the number of companies participating in student financial aid is low, certified employee benefit specialist Julie Stich believes the number will increase in the coming years. Stich cited employees paying student loan debt being called a common financial challenge by 43 percent of employers in the International Foundation’s “Financial Education for Today’s Workforce” survey report. In 2016, it was 21 percent.

“As long as [student debt] financial challenges exist for employees and continues to impact employer hiring and retention, I think we’ll continue to see an increase in employers offering student loan repayment benefits,” Stich said. “It will be interesting to see how companies may get creative in designing their plans.”

November 26, 2018June 29, 2023

Avoiding Pregnancy Discrimination in the Workplace

News broke in early 2018 that Walmart was facing a potential class-action lawsuit in New York for allegations of pregnancy discrimination.

This lawsuit is one of several nationwide that claim that some of the nation’s largest businesses are systematically punishing pregnant employees with discriminatory policies.

Employers are facing increased exposure and liability for pregnancy discrimination in the workplace claims. The number of pregnancy discrimination claims filed annually with the Equal Employment Opportunity Commission has been steadily rising for two decades and is hovering near an all-time high. In 2017, more than 3,174 cases of pregnancy discrimination were filed with the EEOC.

The federal Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964, and it makes discrimination based on pregnancy, childbirth or related medical conditions unlawful. The act covers employers with 15 or more employees, including state and local governments. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. The law’s protections include:

Hiring and working conditions: An employer cannot refuse to hire a woman because of pregnancy, pregnancy-related conditions, or based on the prejudices of co-workers or customers. The act prohibits discrimination when it comes to working conditions, including pay, job assignments, promotions, layoffs, training, firing and any other condition of employment.

Pregnancy and maternity leave: An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. For example, if an employer does not require its employees to submit a doctor’s statement concerning their inability to work before granting leave or paying sick benefits, the employer may not require employees affected by pregnancy to provide this documentation.

Pregnancy and temporary disability: An employee that is temporarily unable to perform her job due to pregnancy must be treated the same as any other temporarily disabled employee.

Health insurance: Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions.

Fringe benefits: Benefits must be the same for pregnancy as other medical conditions. If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions, including accrual and crediting of seniority, vacation calculation, pay increases and temporary disability benefits.

Further, it is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under Title VII.

Although pregnancy itself is not considered a disability, some pregnant workers may be eligible for additional protection under the amended Americans with Disabilities Act Amendments Act due to conditions related to pregnancy. The ADAAA applies to employers with 15 or more workers.

Affordable Care Act

Under the Affordable Care Act, employers must provide two things to employees for one year after a child’s birth: (1) a reasonable amount of time to express milk each time that she needs to express milk; and (2) a location to express breast milk (not a bathroom) that is shielded from view and free from intrusion from co-workers and the public.

Employers are not required to compensate nursing mothers during breaks to express milk, but if an employee has compensated breaks and she uses them to express milk, then she must be compensated in a similar way.

The ACA provides an “undue hardship” exemption for certain employers that employ fewer than 50 employees. An undue hardship will be found if the requirement imposes on the small employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Importantly, the ACA provides a “floor” not a “ceiling” for regulation in this area. States remain free to adopt laws that provide additional protections beyond those provided in the ACA.

Best Practices

In some instances, employers may claim that excluding pregnant or fertile women from certain jobs is lawful due to a bona fide occupational qualification defense, or BFOQ. This defense, however, is extremely narrow and the employer must show that pregnancy actually interferes with an employee’s ability to perform the job based on objective, verifiable skills required by the job.

Employers have rarely been able to establish a pregnancy-based BFOQ. Liability under the federal and state laws can be avoided with the following best practices:

• Effectively train managers on applicable laws, workplace policies, and how to respond to requests for assistance and accommodation.

• When complaints occur, respond promptly.

• Implement strong policies against pregnancy discrimination and harassment.

• Evaluate leave policies to ensure restrictive provisions or practices do not discriminate on the basis of pregnancy or related medical conditions.

• Evaluate any workplace accommodation policies and ensure they are available to workers with pregnancy-related impairments.

• Never require — explicitly or constructively — a pregnant employee to take leave, light duty or other work accommodations that she does not want or did not request.

• Make sure policies and facilities comply with breastfeeding requirements under the ACA.

• Check state and local laws for additional requirements.

Jay Starkman is the CEO of Engage PEO, a professional employer organization providing HR outsourcing to small and mid-sized businesses across the United States. Camille Cooper is the assistant general counsel and HR consultant for Engage PEO.

November 15, 2018June 29, 2023

Do You Know? Pre-employment Medical Exams

A mayor in Ohio has gotten himself in some hot water for his selective use of pre-employment medical examinations for hirees.

How selective? According to WKYC, one woman claims that the mayor required her and other women, but not men, to be examined by his personal doctor. For his part, the mayor denies the allegations as an act of a “fertile imagination” and claims that he sends all city workers, male and female, to the same doctor for pre-employment exams.

Why would her allegations rise to the level of unlawful activity?

Aside from the obvious sex discrimination (an employer cannot apply one set of policies to male employees a different set to female employees), it also violates the ADA’s requirements for pre-employment medical examinations.

The ADA applies a traffic-light approach to employer-mandated medical exams.

- Red light (prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that are job related.
- Yellow light (after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
- Green Light (after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

Because these exams fall in the “Green Light” category, the city is in the clear, right? Wrong. Pre-employment medical exams are permitted as long as the employer does so for all entering employees in the same job category. This employee alleges the females were singled out. Thus, unless she worked with all women in her job category (another legal red flag), the city violated the ADA by sending some, but not all, employees for pre-employment medical exams.

Also, pay attention to state laws when conducting medical exams. For example, Ohio prohibits an employer from shifting the cost of any pre-employment medical exam to an employee: “No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.”

As for this mayor, these allegations are just the tip of his legal iceberg. It’s also alleged that he uses the n-word to refer to African American residents, and sexually harasses female employees by talking about his private parts and how pistachios contribute to his sexual prowess. Sounds like a great place to work.