Buddy Phillips injured his ribs while playing with his grandchildren.
Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.
He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.
In Phillips v. United Trailers, the 7th Circuit Court of Appeals held that in this instance, the employee’s FMLA rights trumped the employer’s attendance and reporting policy.
Even if Phillips failed to comply with the FMLA by failing to report his absences, he did so after United would have violated the FMLA. Phillips stopped calling in to work at least nine business days after he first reported his rib injury to United. Under the regulations, United had five business days after receiving notice of Phillips’s rib injury to determine whether he qualified for FMLA leave.
In other words, an employer cannot rely on its attendance and reporting-off policy to terminate an AWOL employee if the employer is already on notice that an FMLA-qualifying event might be the cause of the employee’s unreported absences.
So what should an employer do in this situation, when an employee might have triggered the FMLA’s protections? The FMLA’s regulations offer some guidance.
If the need for leave is foreseeable to the employee, it’s a much easier issue. The employee must give 30 days notice, which gives the employer and the employee more than enough time to work out their leave and attendance issues.
If the need for leave is unforeseeable, however, the employee must provide notice of his intent to take leave to the employer as soon as practical under the circumstances. That notice must “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” Critically, an employee “need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed.”
The burden then shifts to the employer. The employer must decide whether to designate the request for leave as FMLA-qualifying. Its decision to designate FMLA leave “must be based only on information received from the employee.” If the employer lacks information about the reason for an employee’s request for leave, the employer should inquire further of the employee to determine whether leave is potentially FMLA-qualifying. The employer should not, however, bury its head in the sand and ignore the employee, because if the leave turns out to be FMLA-covered, the employer will have a big legal problem. Just ask United Trailers.
Importantly, the employer only has five business days to notify the employee whether leave will be designated as FMLA-qualifying, absent extenuating circumstances.
Throughout this back-and-forth time period, the employee must comply with the employer’s “usual and customary notice and procedural requirements for requesting leave.” If the employee does not comply with the employer’s usual leave-request requirements, the employer is within its rights to deny or delay the FMLA leave. If, however, the employee provides notice and complies with the employer’s attendance policy, the employer’s failure to timely determine whether the employee’s leave counts as FMLA-qualifying may constitute an interference with the employee’s FMLA rights.
These are complicated issues that often do not have cut-and-dried answers and can carry seriously expensive consequences for an employer’s missteps. If an employee presents you with an injury- or illness-related absence that may or may not qualify for FMLA protections, your first call should be to your employment lawyer to make sure that you are handling this issue correctly under the FMLA’s maze of rules and regulations.
The employer coalition Northeast Business Group on Health has released a guide for employers looking to better manage diabetes in their low-wage workers.
Low socioeconomic status doubles the risk of developing Type 2 diabetes, according to the NEBGH guide “Diabetes and Lower-Wage Workers,” released Feb. 12. Income determines what basic necessities like food, housing and education people can access, which may in turn affect people’s health. This is true for both hourly and salaried employees with low wages.
Managing Type 2 diabetes, which is typically a lifelong disease, involves a lot of coordinated care, including lifestyle changes, treatment, monitoring and periodic care.
Employees that fall into the low wage earner category are especially vulnerable to Type 2 diabetes.
“Even for those earning moderate or high incomes, diabetes can be a challenging disease,” the report stated. “[Low-wage employees] may have myriad financial and social pressures that for them take priority over the steps necessary to control their disease — increasing exercise, changing their diets and getting enough sleep.”
Social determinants of health have been getting increasingly more attention from employers, as those socioeconomic factors in a person’s life can lead to poor health and higher health care costs.
These poor chronic health outcomes don’t just include diabetes but also obesity, depression, anxiety and more, said NEBGH Chief Executive Candice Sherman. Still, diabetes was important for NEBGH to address in a guide since it often leads to other illnesses. “If [diabetes is] left unchecked, there are a huge number of serious complications that can ensue,” she said.
Type 2 diabetes doesn’t just have a negative impact on the health and well-being of employees, it’s also a concern for employers, Sherman said. Chronic health conditions like diabetes impact employee absenteeism, presenteeism and productivity.
Lower-income jobs may come without benefits like health care or paid time off — even to address medical issues — and many people must take a second job just to manage expenses, according to the report. “These circumstances leave them little time to prepare healthy meals, exercise and educate themselves about health conditions.”
The guide listed several practical action steps employers can take to address this reality, including ensuring free access to diabetes retinopathy screening; glucometer and hemoglobin A1c testing; offering resources and health education opportunities; and reviewing the affordability of health insurance premiums for employees in each wage category.
Many employers already are doing many of the suggestions in this guide, Sherman said. These more common practices include preventive screening programs, well-being programs and financial wellness programs. One area of importance for Sherman is the impact of high deductible health plans, she said.
Lower-wage workers tend to choose HDHPs because of their lower premiums or because their employer only offers HDHPs. But these same employees are less able to finance upfront medical expenses like medications and doctors’ visits, Sherman said. Employees sometimes forgo taking their medication or resort to taking it every other day because of financial concerns or because they can’t afford medical costs after paying for essentials like food, housing and transportation.
The NEBGH guide suggests that employers should “add insulin and other glucose-lowering agents to a preventive drug list exempt from deductibles with no patient cost sharing or a low, fixed dollar co-payment.”
Employees also face transportation barriers in accessing care and making it to health care appointments, the report said.
Some forward-thinking employers are beginning to address this, Sherman said. Many large employers provide transit benefits, but other employers are looking beyond that. “Some employers are experimenting with things like discounts or vouchers for some of these transportation services for things like doctor visits or if they have a family member who has a serious illness and needs transportation,” she said.
Sherman also suggests that employers offer employees PTO during working hours. Employers that don’t offer PTO may worry about their bottom line, but Sherman said that this benefit can ultimately help employee productivity by allowing them to get the medical care they need.
“Employers always need to be thinking about the cost of certain benefits like time off and weigh the potential benefits, certainly for their employees but also for the business in terms of productivity,” she said.
Whether we are Republican, Democrat, or independent, surely we must all agree that every human life is a sacred gift from God. As we support America’s moms and dads, I was recently proud to sign the law providing new parents in the federal workforce paid family leave, serving as a model for the rest of the country.
Now I call on Congress to pass the bipartisan Advancing Support for Working Families Act, extending family leave to mothers and fathers all across our nation.
It’s a bipartisan bill that would provide new parents the ability to borrow against the future tax benefit from their $5,000 federal Child Tax Credit, in the form of a $500 allowance for 10 years.
There is little doubt that the United States needs to do something (anything) to provide new parents with some form of paid family leave. I have serious concerns, however, over a proposal that requires parents to borrow against a future tax credit to take that benefit. I have further concerns over a proposal that does not protect parents who avail themselves of that benefit from retaliation.
It’s good that we are having a national conversation about paid parental and family leave. It will be better when we start talking about proposed laws that will provide real and actual benefits and employment protections to parents.
And it will be best when Congress and the White House get off their collective asses and pass meaningful legislation.
A judge in the United Kingdom has ruled that “ethical veganism” is a protected class akin to religion and is protected from workplace discrimination. The Washington Post shares the details:
An employment tribunal made that landmark determination in a case involving a man who claimed he was fired from his job at an animal rights organization for revealing to colleagues that their pension funds were invested in companies that experiment on animals. The tribunal has yet to rule on the merits of the case, but it did on Friday take the step of deciding that the man’s ethical veganism constitutes a “philosophical and religious belief” protected by anti-discrimination law.
That’s the United Kingdom. What about the United States? Well, it depends.
There are two leading cases on this issue.
In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 2012), the federal court denied the hospital’s motion to dismiss the employee’s religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira—a customer service representative who refused a flu vaccine because it contained animal by-products—cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation. In denying the motion to dismiss, the court stated:
The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.
Contrarily, in Friedman v. Southern California Permanente Medical Group (Cal. Ct. App. 2002), the state appellate court dismissed the religious discrimination claims of a vegan IT worker who refused a mumps vaccine for similar reasons as Chenzira. He claimed the vaccine “would violate his system of beliefs and would be considered immoral by him,” which resulted in the withdrawal of his employment offer. The court concluded that veganism is not a protected religion:
We do not question plaintiff’s allegation that his beliefs are sincerely held; it is presumed as a matter of law that they are.… There is no allegation or judicially noticeable evidence plaintiffs belief system addresses fundamental or ultimate questions. There is no claim that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankind’s nature or its place in the universe; matters of human life and death; or the exercise of faith. There is no apparent spiritual or otherworldly component to plaintiffs beliefs. Rather, plaintiff alleges a moral and ethical creed limited to the single subject of highly valuing animal life and ordering one’s life based on that perspective. While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.
In other words, while his beliefs are sincerely held, they are moral beliefs, and therefore secular and not religious.
To answer my question on how U.S. courts would view this issue, it depends on the jurisdiction in which your business is located, and perhaps whether the employee’s beliefs are grounded in spiritualism or personal morals.
These cases also raise a more fundamental question — how far should businesses go to accommodate employees’ requests for special treatment. To me, sometimes, the path of least resistance makes the most sense.
For a hospital, there may not be a path of least resistance when comes to public health issues such as vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.
For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Possibly. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Likely.
In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How you incorporate those other factors into your accommodation decision-making is often more important than simply answering the underlying legal question.
I think about her session every time I read or research something about burnout — which, as most everyone on LinkedIn knows, is an increasingly common subject to come across in the news.
One of her most vital yet obvious points at the 2017 conference was that while the term “occupational burnout” wasn’t coined until the late 1970s, that doesn’t mean it didn’t exist before the ’70s. People just didn’t talk about it.
Not even academia took it seriously in the 1970s. Maslach first published her seminal research on burnout in a non-academic publication, resulting in a large amount of reader feedback from employees who had experienced burnout.
While the conference session focused on burnout among medical professionals, many of Maslach’s findings also apply to a group of employees that receive much less attention than salaried medical staff: hourly shift workers. Just like academia didn’t take burnout seriously decades ago, I wonder if some organizations still have the same attitude toward this hourly, generally less-educated group of employees.
“As technology and automation advance to simplify the lives of skilled laborers, the needs of low-wage hourly workers are forgotten,” wrote WorkJam CEO Steve Kramer in a recent article. He stressed a few reasons why low-wage workers might be experiencing burnout and what their needs are. He also noted that increasing productivity expectations, no predictable hours and chronic understaffing are a few of the major reasons for hourly employee burnout.
Employers are not powerless against this burnout, though, he wrote. He suggested technology as a potential solution for managing burnout.
Some digital tools, for example, allow frontline workers to give feedback and constructive criticism to managers and higher-ups. Other tools allow employees more agency in the scheduling process. Also, digital, personal training exists that can help employees learn new skills.
I would like to argue that managing burnout among hourly workers is not as simple as “run to the shiny new technology.” If a manager gets anonymous feedback that they’ve created a stressful work environment, what if they’re the type of manager that wouldn’t do anything to change?
If employees express that productivity goals are unrealistic for individual employees, what if the company sees that as employee laziness rather than a valid concern? If an employee has issues with whatever digital tool is used by their manager, will company decision makers actually think about replacing it with something less problematic?
As Vox writer Emily Guendelsberger points out in her essay, “I was a fast-food worker. Let me tell you about burnout,” enhanced technology has improved the lives of many skilled, educated workers. Meanwhile, the same advancements allow employers to track worker productivity down to the second — a reality that helps create burnout in hourly workers.
In 2019, after the newspaper she worked at closed, journalist Guendelsberger decided to work three different hourly jobs (in an Amazon warehouse, at a call center, and at a McDonald’s) to see how tech was now being used and to gauge how working in these jobs had changed over the years.
Here’s one of the changes she noticed:
“When I used to do service work, we still mostly used paper time cards; you could make your case to the manager if you were late, or maybe stay a few minutes beyond your shift to make up for it. At many modern service jobs, the digital time-clock system will automatically penalize you for clocking in a minute after the start of your shift or after a break.”
This is just one example, but it shows how the lack of humanity in digital systems could potentially punish someone for being human and making a small mistake occasionally. Could there be any way for digital tools to treat employees like people and give them some leeway? Not leeway to come in 15 minutes late every other day, but to come in five minutes late every once in a while.
While I don’t doubt that technology has the potential to help any type of employee, I’d encourage company decision makers to think critically about the impact of certain technology on low-wage employees. Rather than romanticize the potential of tech, try thinking about it rationally. Ask yourself a few questions: How are my expectations impacting employees’ stress levels? Could this burnout lead to health problems in my employees? Do I expect my hourly workers to work like humans or machines? Are the hourly wages my company offers keeping up with the rising expectations of how much these people must do on a daily basis?
The modern working class of America are fast food, retail, warehousing, delivery and call center workers, as Guendelsberger noted. “These jobs are not just a source of teenage pocket money; they’re something adults are trying to survive on,” she wrote. Burned-out fast food workers might suffer physically by accidentally burning themselves or suffer mental stress from constantly putting up with rude customers.
Just like we should care that white-collar professionals and medical professionals may make mistakes due to burnout, we should care that working class employees go through the same. Burnout isn’t just an affliction of the middle or high-class employee.
Money, power and status do not protect people against mental illness.
Executives are affected by mental illness as often and as severely as other segments of the workforce, said Dr. Samuel Ball, director of psychology and executive programs at Silver Hill Hospital. He specializes in treating executives suffering from mental illness.
Alcoholism is one of the most common afflictions, Ball said, followed by personality disorders and mood disorders such as depression and anxiety. Executives struggling with depression may have difficulties with productivity and have to force themselves to perform their job due to lower energy levels and interpersonal skills, while some people afflicted with alcoholism can drink heavily while often being functional at work.
A group of high achievers may be initially reluctant to admit the problems they’re experiencing, Ball said. They feel a “different kind of shame about the problems they’re struggling with because they’re on a pedestal. So many people rely on them, [and] so many people look up to them at work and in their family.”
They need to feel secure, he added, describing a patient who felt comfortable speaking up because the CEO gave him a clear message that they wanted him back after treatment.
Home Life Versus Work Life
An executive’s spouse and family play a critical role in convincing them to get help.
“In a number of cases, the problem is not as widely known at work as it is at home. And the spouse has gotten to the end of their rope with [their] concerns,” Ball said.
At work, the executive will “put on the best face or a mask of maintaining their competency” because they’re motivated to maintain their career status. But when they get home, it’s different. Their spouse will usually be the one to convince them to get treatment.
If someone has these health issues, it can negatively impact their spouse and children, especially children in their teenage years. According to the Centers for Disease Control and Prevention, growing up in a family with mental health or substance abuse problems is considered an adverse childhood experience — a potentially traumatic event that occurs in childhood and increases people’s risk for health problems as adults.
This group of patients generally have the means to afford outpatient treatment, which is a good first step, Ball said. The patients he sees, though, are often the ones too ill for outpatient treatment. Instead of living at home and regularly seeing a psychiatrist, they need inpatient care. Ball will get a phone call from the spouse, who has done the research to find the ideal place for inpatient care — usually somewhere in a different city that’s nearby enough that family can visit.
How Peers and Employees Can Respond
When an executive’s mental health is severe, employees and peers may notice. But knowing what to do or how to express sympathy or concern is different. For those employees who report to this higher-ranking person, it can be difficult to know what to do, if anything.
An exception might be if an executive has a trusted assistant who has been with them for a long time, Ball said. This type of direct report may have some ability to do something about the situation, especially if they play a “work spouse” role in this person’s life. But a majority of direct reports are not in this situation.
Typically, these high-ranking people won’t go to HR or contact an employee assistance program, Ball said.
“These executives report to the most senior people in the organization. And when they do finally admit to having a problem, if they do admit it, it’s not clear to them where to go in the organization to get support,” he said.
Usually it’s the one or two people above them — usually the CEO or COO — telling them to go on leave to get treatment that finally makes them get help, Ball said.
“They’ll say something like, ‘You’re incredibly valuable to us and we want you back, but you’re not well enough to work now. Take a month, two months, but we want you to get into a treatment program,’” he said.
Still, HR has power here. Lower-level employees may bring their concerns to HR, and an HR representative can speak directly with the CEO or COO, who typically are not surprised by the information, Ball said. From there, the CEO or COO can lead the intervention with the sick executive, and the HR person can stay in the meeting as an observer, especially if there’s been any sort of wrongdoing or complaints about the executive’s behavior.
It’s especially helpful if their boss can show sympathy in this discussion, Ball said.
“When this has gone well, their boss is either someone who has struggled with depression or alcohol, or it’s in their family. And they’ll have that discussion with their affected employee and say something like, ‘I know what this is like, and you’ve got to take care of this,’” he said.
Fighting Stigma
A prime reason executives fear coming forward with mental health issues is the fear that their progress at the company will effectively stall and that people will wonder when their next relapse will be.
“Even if they don’t lose their job, the reputational fallout of people knowing they’ve gone off to rehab is significant,” he said.
Some workplace experts encourage leaders to be open about their mental health struggles in order to decrease stigma for employees. However, since even these leaders experience stigma, talking openly about mental health at work is a hard but courageous thing to do, according to Ball.
Still, he said that it does have a positive effect on the workplace when leaders are honest and open about their struggles. He mentioned a patient who, upon preparing to leave soon, plans to go back to work and share broadly with the workforce that he’s been on leave treating his depression. This executive said he wanted people to take better care of themselves and recognize the signs that he did not.
“I think it’s courageous when people do that,” Ball said. “It’s helpful to employees when they send that message.”
The phrase “drugs in the workplace” understandably elicits an alarmed reaction from employers. But the truth is the amount of substances that are considered drugs are many and varied, and many are commonplace for an employee’s daily routine.
Substance use abounds in the workplace — and that’s just legal substances. Employees roll into work and can’t get anything done without their daily dose of caffeine. Colleagues meet in the break room with cases of beer to partake in the regular happy hour. Someone anxious about an upcoming deadline picks up a CBD-infused coffee at breakfast or a CBD-infused burger for lunch. And don’t forget about that roll of antacids or bottle of ibuprofen in the desk drawer or an energy drink in the fridge for a mid-afternoon pick-me-up.
In short, regulating substance use among employees is not simple and straightforward. Drugs like caffeine and alcohol are legal, but employers may get into trouble if an employee’s alcohol consumption leads them to cause problems during the employee get-together.
Cannabis is still illegal federally in the United States as more states legalize it for medical and recreational purposes, causing confusion for employers who can’t keep compliance straight among the constant changes. And, a recent surge of “smart drugs” — substances taken to improve creativity, attention, executive function and working memory — poses major ethical questions about whether it’s OK to take a mental steroid to be productive at work.
PRODUCTIVITY
Much has been made about college students taking medication to stay productive and awake, but that habit doesn’t end at graduation.
People use cognitive enhancing drugs — also referred to as “smart drugs” — to improve their creativity, attention, executive function and memory. Much like athletes may use performance-enhancing drugs to improve speed and endurance, employees may use smart drugs to be productive at work.
“Some people start using them in college and then they’re carrying that habit with them into the workforce. And things don’t get easier when you go from college to the workforce,” said Nick Heudecker, vice president of research-data & analytics at Gartner.
The use of smart drugs isn’t limited to an industry or economic status, Heudecker said. Even though Silicon Valley workers taking microdoses of lysergic acid diethylamide — more commonly known as the hallucinogenic LSD — to stay focused has received media attention, knowledge workers aren’t the only ones taking part. “Every workforce population is engaging in cognitive enhancement in some way,” Heudecker said.
ADHD drug Adderall is by far the most common smart drug, he said, followed by Ritalin, or methylphenidate. Modafinil, a narcolepsy drug, is another common cognitive enhancer. Energy drinks and caffeine — common parts of many people’s daily routines — are also considered smart drugs, according to Heudecker. And the over-the-counter dietary supplements called nootropics claim to improve people’s cognitive abilities, as well. Nootropics alone, according to Grand View Research, Inc., is a $2.17 billion market as of 2018 and expected to be a $4.94 billion market by 2025. Meanwhile, microdosing LSD means that the user takes about 1/10th of a dose as a way to “break down cognitive barriers and help them be more creative,” Heudecker said, adding there is no research on how microdosing LSD impacts users’ health.
The nickname “smart drug” is a misnomer. “These drugs don’t make you smarter. They allow you to better use the facilities you already have,” Heudecker said. They do so by helping people stay more focused or awake. Users may have that “feeling of being in the zone” for longer.
The use of these substances “is becoming more prevalent, not less,” he said, adding that too few employers are thinking practically about how they will address smart drug use in their workforce.
Why People Take Them: In 2018, The European Agency for Safety and Health at Work, or EU-OSHA, released the report “Managing Performance Enhancing Drugs in the Workplace: An Occupational Safety and Health Perspective” to explore the trend of smart drug use among workers.
Employees take them for “increased monitoring of employee health, stress levels, alertness and fitness,” especially when these measures are used to judge an employees’ ability to do their jobs. “It is possible to anticipate that employees under this level of scrutiny may turn to various pharmacological means to allow some control over biometric readings,” the report noted.
Workers in low-paid jobs that are not protected under standard labor laws may feel increased pressure to hit certain productivity levels, especially since they are increasingly being monitored by their employers. Not wanting to lose a job they rely on, they may turn to smart drugs. “Electronic means of monitoring employees are likely to be accompanied by an increase in the stresses on workers,” the article noted.
Employers in general don’t seem aware that this trend is happening, Heudecker said. “It’s not like someone goes out for lunch, has a few martinis, and their speech is slurred. It looks like, ‘I’ve got a really productive worker.’ You’re not going to ask questions because it’s a positive outcome,” he said.
While employers may appreciate that their employees are being more productive, if employees must turn to drugs to reach those performance goals, then the employer should consider how the company culture or policy drove them there, Heudecker said.
“There’s a lot of demand to always be on, so you need to give your employees permission to be off,” he said. His 2017 Gartner report “Cognitive Enhancement Drugs Are Changing Your Business” also explored the main reasons that push employees to take these substances. Basically, employees either view smart drugs as an opportunity to push the boundaries of what they can accomplish in the workplace or feel coerced into taking them to maintain performance and keep up with their workload.
If employees feel forced, that has the potential to get employers in trouble. “This may expose organizations to legal risk if CED users obtain drugs illegally because they felt forced by colleagues or management,” the report noted.
Employer Response: Brian McPherson, labor and employment attorney at Florida-based law firm Gunster, has never had an employer raise the issue of smart drugs.
Medical cannabis is legal in Florida and that’s received all the attention, he said. “[Employers don’t have] the time or capacity to focus on the other issue that is brewing somewhat underneath.”
Studies support the increased use of Adderall, Ritalin and other drugs for performance, he said. Still, most employers try to stay away from getting involved in the prescription drugs employees are taking, and they assume they are complying with their physicians’ directions.
“We know it’s happening on a grand scale, at least more than it has in the past, but employers aren’t really talking about or dealing with it,” McPherson said.
Heudecker suggested policies companies can adopt to directly address smart drugs. A chief human resources officer can work with other leaders to draft a policy around cognitive enhancer use in the workforce. They also can support “non-pharmaceutical cognitive enhancement” — practices that naturally help people be more productive by “improving work-life balance, adjusting work schedules, promoting physical activity and educating employees on healthy nutrition and sleep practices,” Heudecker said.
An employer’s response also has to respect the fact that many smart drugs are prescription drugs that people need. “You don’t want to alienate people who need something for their ADHD,” Heudecker said.
THE LEGAL LANDSCAPE
The substance that employers mostly ask about is cannabis, said McPherson. Since medical cannabis is legal in the Florida, McPherson has fielded many questions about its use.
All indications point to cannabis laws continuing to progress in more states, he said. Once states approve it for medicinal purposes, the “floodgate starts to open” and there is a “general march toward recreational use.” Currently, 33 states, the District of Columbia and Puerto Rico have passed laws broadly legalizing marijuana in some form. As of Jan. 1, 2020, 11 states — Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington — and the District of Columbia have adopted laws legalizing marijuana for recreational use.
“As long as marijuana remains illegal under federal law, employers are getting a comfort level that they can still enforce the drug-free workplace tests for marijuana,” he said. “If it ever becomes legal under federal law, that will really change the landscape, and it will become a much more complex situation.”
Drug use among many U.S. sectors is growing, according to the Quest Diagnostics 2019 “Drug Testing Index.” The data involved in this analysis come from pre-employment testing for safety-sensitive positions or drug-free workplaces, said Barry Sample, senior director of science and technology at Quest Diagnostics, which has been annually analyzing workplace drug testing data since 1988.
Cannabis is the most commonly detected drug in the workplace, according to the “Drug Testing Index.” Positive tests have increased in most sectors. Meanwhile, positive test rates have declined for cocaine, heroin and opiates.
Interestingly, the inclusion of cannabis in testing panels may vary by state, the index showed. In almost all states, 95 percent of organizations still test for it when they have the option. Colorado and Washington, the states where recreational use has been legal for the longest time, saw a 4 percent decrease in organizations testing for cannabis between 2015 and 2018.
There may be differences by industry, Sample added. “Where there are generally less skilled workers, employers are having difficulties finding employees that will pass all the background screening, including drug testing,” he said. “They may be making a risk-based judgment on their part that ‘We’re going to take the chance and ignore the use of marijuana, because we really need people on board.’ ”
Meanwhile, two organizations have announced more nuanced drug tests for cannabis that may hit the market in 2020, according to Business Insurance. A research team at the Swanson School of Engineering at the University of Pittsburgh has developed a breathalyzer prototype, and Oakland, California-based Hounds Labs Inc. plans on bringing a breathalyzer to market in 2020.
Such tools could help detect marijuana use, which can stay in a person’s system up to 30 days after consumption, McPherson said. “The employers I’ve talked to about these tests are excited and hopeful about them,” he said.
Dan Harrah, senior associate at Mercer and a consultant specializing in behavioral health and health care operations, is skeptical about these tests. “The science of impairment is not settled yet. There’s a lot of subjectivity,” he said.
There will need to be a way to review these tests and see how effective they actually are, he added.
Psychedelic Legislation: While laws regarding cannabis use is moving rapidly, legislation on psychedelics is slower, said McPherson. Two cities — Oakland and Denver — have decriminalized psychedelics such as magic mushrooms, and the Chicago City Council in October 2019 approved a resolution that experts say could pave the way to decriminalizing them. The resolution uses the term “entheogenic substances,” defined as any range of natural plants or fungi “that can inspire personal and spiritual well-being,” as well as other psychological and physical benefits.
“The most alert employers are watching what’s going on with the psychedelics and they are concerned,” McPherson said.
Regardless of the substance, he advises employers to stay informed.
ADDICTION
A person with an addiction is hyper-focused on obtaining their drug of choice and getting that high, which can affect their hygiene, sleep, basic social behaviors and work performance, said Andrea Elkon, clinical psychologist and director of behavioral health for Alliance Spine and Pain Centers. This hyper-focus applies to substances such as nicotine, alcohol or opioids as well as behaviors like gambling or shopping.
An employee struggling with a serious substance addiction is fairly obvious to spot, Elkon said. They may consistently come in late, leave early or not show up to work at all, take extended lunch breaks or exhibit erratic behavior such as falling asleep at their desk or acting more emotional than usual.
In such cases, managers need to be assertive, Elkon said. It may be an uncomfortable subject, but not enough people know how to handle it, she said. Managers should learn how to take action — sooner rather than later — while still showing concern toward the addicted employee.
When an employee does not yet have a serious addiction but is on the path toward one, managers can still notice behavior patterns like absenteeism that may point to a substance problem. “That is a way to address the early signs, to focus specifically on the behaviors that are disruptive to the workplace,” Elkon said.
Employer Communication: Many employers have benefits programs in place to address addiction but not an environment that allows for open conversations about substance use, Harrah said.
“When it comes to behavioral health, everybody is able to talk about [how they] didn’t sleep well last night, and there’s no stigma around that. But nobody says, ‘I’m really thinking about cutting down on my drinking.’ There’s more stigma around that statement.” he said.
More employers have been taking on behavioral stigma, but there’s still work to be done. And the lack of communication around substance use benefits can lead employees down the wrong road, Harrah said. For example, if someone with an addiction realizes they need help, oftentimes the first thing they do is Google treatments. While the employer plan may include in-network carriers with good programs for addiction, a simple internet search can lead to low quality, out-of-network care, he said.
“One of the things that I caution my clients on is you can have these supportive conversations, but you better understand what programs are in place. Because once you start having those conversations, your employees start to come to you, whether for themselves or a family member,” Harrah said.
Substance abuse and mental health benefits also belong in open enrollment conversations, said Morgan Young, vice president of client services, employee benefits at insurance brokerage Holmes Murphy. Young didn’t mention mental health and substance abuse benefits in a recent open enrollment meeting, and an employee later asked if the company covered mental health benefits. Young was reminded of how important it is to share that message to employees.
Substance abuse benefits should go beyond the employee assistance program, she added. Employers consistently see low utilization of EAPs and try to convince employees to use them more, but they’re not going to be the only solution, she said.
“We need to understand that while an EAP may be a good tool for some, it’s not going to dissolve all the needs we have. We need to come up with different tools, resources and policies and make them available to employees,” she said.
Elkon suggested resources that could help employees or dependents with addictions. One of the first steps is sending them for a substance abuse risk evaluation, she said. These evaluations can tell employers about the employee’s risk of substance abuse problems and treatment options.
If an employee does have a problem, employers can respond by showing concern and having treatment resources available, Elkon said. The employee could use a leave of absence to get the necessary treatment, with the assurance that they won’t lose their job while they’re getting treatment.
“If someone is showing any signs of addiction, it’s important to show concern but be firm with that person sooner rather than later because it could spiral and affect other co-workers.” she said.
Public health experts have been studying for decades the role that poverty, race, environment and other external factors play in citizens’ overall health, but an increasing number of employers are seeing how social ills impact their workforce.
The concept of social determinants of health, which the World Health Organization defines as “the conditions in which people are born, grow, live, work and age,” is gaining momentum in the employer world.
In 2019, UnitedHealthcare and the American Medical Association teamed up to create medical insurance codes so that doctors can identify social factors that lead to poor health. If accepted by the Centers for Medicare and Medicaid Services, the new codes would become effective Oct. 1, 2020.
Also in 2019, bipartisan legislation called the Social Determinants Accelerator Act was introduced to provide grants and technical assistance to underserved communities. It’s considered to be the first federal proposal on social determinants.
“It seems to have entered employer conversations in the past two to three years,” said Karen Moseley, president of the Health Enhancement Research Organization, a nonprofit think tank focused on workplace health. “Public health has been talking about this issue for years and years and now employers are adopting the same language. It started out as employee and employer collaboration to improve public health and has evolved into companies and communities working together.”
In a recent report on the relevance of social issues to employers, HERO outlines steps that companies can take to address community problems that affect their employees and highlight employers with innovative programs. For example, Cisco, LinkedIn and Pure Storage help fund a nonprofit in Silicon Valley that supports affordable housing initiatives, and Tom’s of Maine pays its lowest-paid workers more than 25 percent above a living wage.
The report recommends that employers create a corporate philosophy that values the needs of its employees and adopt policies and practices that support that.
“It often starts with one issue that is the greatest need in the community,” Moseley said. “Employers need to shift their focus from shareholder value to employee value. I really love this metaphor I heard at a conference about a fish tank. If we feed the fish but ignore cleaning the tank, ultimately the fish are going to die.”
Employers have found ways to manage health care costs, but need to step up their efforts to tackle a more vexing problem — eliminating wasteful medical care spending.
A recent Journal of the American Medical Association study found that 20 to 25 percent of medical spending is unnecessary.
“As long as we are in a fee-for-service world we will get services whether we need them or not,” said Mike Thompson, president and CEO of the National Alliance of Healthcare Purchaser Coalitions. “We need to shift from paying for volume to paying for value, and employers need to put pressure on providers to get this right. They should be asking for spending reports from vendors, like Blue Cross Blue Shield, and they should be analyzing claims and identifying waste. The problem is not new and neither is value-based medicine, but there are new efforts to address wasteful spending.”
The estimated waste hovers between $760 billion and $935 billion, with administrative costs such as claims processing, billing and transferring medical records making up the largest share at $266 billion annually, according to the JAMA study.
Yet, more than half of employers aren’t actively doing anything about it, according to a 2018 report by the NAHPC. While the first step for employers should be identifying the problem, nearly two-thirds of businesses surveyed don’t collect or analyze data to track waste.
“Employers should be asking for reports from the vendors and analyzing claims data to identify waste,” he said. “Part of the reason why vendors don’t offer this information is because they’re responsible of getting rid of it.”
Employers need to take a more proactive role in tackling wasteful spending, according to Daniel Wolfson, executive vice president and chief operating officer for the American Board of Internal Medicine. He urges them to speak not only to health plans but also to health care providers about what they are doing to minimize the problem. Wolfson leads Choosing Wisely, an ABIM initiative designed to encourage patient-doctor dialogue around the overuse and misuse of medical services. The program, which was launched in 2012, publishes a list of more than 400 recommendations on treatments that patients and physicians should question.
The Washington Health Alliance looked at 48 common medical treatments, tests and procedures and found that an estimated $341 million was spent on unnecessary health care in the course of a year.
“I think employers are absent from the conversation,” he said. “They have not used their leverage to impact this problem. Employers have had a tremendous influence on quality issues but they are not using their leverage, their power, their influence and their thinking when it comes to wasteful health care spending. They should be saying ‘If we’re going to be purchasing health care services from you we want to hold you accountable.’”
Some employers are using the Choosing Wisely recommendations, which were created by 17 national medical specialty societies. Each list offers information on when tests and procedures, such as imaging for lower back pain or breast cancer treatments, are appropriate.
In Washington state, the Washington Health Alliance looked at 48 common medical treatments, tests and procedures and found that an estimated $341 million was spent on unnecessary health care in the course of a year. Of the 2.9 million services examined, nearly half were found to be unnecessary.
The prescription of opioids for lower back pain was the most wasteful treatment, followed by the use of antibiotics for upper respiratory and ear infections, annual EKGs for low-risk patients and imaging tests for eye disease.
In Missouri, the St. Louis Business Health Coalition partnered with the Midwest Health Initiative in 2016 to identify unnecessary care. It found $303 million in wasteful spending to vision screenings, imaging tests, EKG services and pre-op lab studies in 2016.
In 2017, the coalition examined emergency room use for upper respiratory infections and found that $2 million a year could be saved if patients went to an urgent care clinic instead of a hospital emergency department.
Louise Probst, executive director of the employer coalition, said that benefit plan design can help through increased copays for ED visits.
“We all have a problem with low-value care,” she said. “It’s important to ask employees to think about that as an individual and then as a company. Look at incentives in your plan design, look at contracts, look for partners. Get the best data that you can and keep track of it. Employers, hospitals, physician organizations, labor unions, and other community partners need to come to together with a single focus of improving value in health care.”
Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center.
In 2012, she injured her back outside of work and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.
Over the next three-plus years, Morrissey worked more than 12 hours eight different times, but it does not appear she was mandated to do so. Indeed, on each occasion, she worked no more than 15 extra minutes.
Morrissey’s situation escalated in January 2016, when Coldwater mandated her to work a 13.5-hour shift. Morrissey testified that she reminded her manager about her 12-hour work restriction, but the manager responded that she had “no control” over the situation. Five days later, Coldwater management again told Morrissey she had to work more than 12 hours, this time a 16-hour shift to cover for another nurse who had called off from work. Morrissey walked off the job and never returned.
In Morrissey v. Laurel Health Care Co. (6th Cir. 12/3/19) [pdf], the 6th Circuit concluded that Morrissey had presented more than sufficient evidence to overcome her ex-employer’s motion for summary judgment on her failure to accommodate claim.
Viewing the evidence in the light most favorable to Morrissey, it shows that: (1) Coldwater had a blanket policy of denying accommodations for all non-work related disabilities, (2) Coldwater knew that Morrissey was under a twelve-hour work restriction, (3) Morrissey requested an accommodation, (4) Coldwater forced her to work beyond that restriction on January 31, 2016, and (5) Coldwater attempted to do so again five days later. On these facts, Morrissey’s overages from 2012-2015 are inconsequential. But, Coldwater’s argument improperly ignores the fact that it forced Morrissey, a disabled employee, to stay and work in excess of her physician instituted medical restriction—and attempted to do so again five days later. The record shows that Morrissey asked Coldwater for an accommodation due to her disability, and Coldwater did not accommodate her. She was not required to establish anything more for her claim to ripen.
What can we learn from this decision?
An employer’s obligation to provide reasonable accommodation under the ADA is not limited to work-related injuries. The ADA’s definition of disability extends to work and non-work injuries and illnesses. An employer who refuses to accommodate an employee’s non-work injury because it’s not work-related is asking for a lawsuit.
Blanket policies are risky under the ADA. The ADA calls for flexibility and reasonableness. Applying a blanket, across-the-board policy does not per se violate the ADA, but it should be done with caution and counsel.
An employer violates the ADA when it requires a disabled employee to work outside the bounds of their work restrictions.
Workers in low-paid jobs that are not protected under standard labor laws may feel increased pressure to hit certain productivity levels, especially since they are increasingly being monitored by their employers. Not wanting to lose a job they rely on, they may turn to smart drugs. “Electronic means of monitoring employees are likely to be accompanied by an increase in the stresses on workers,” the article noted.
