wellness – Page 6

July 25, 2019June 29, 2023

Which Mental Health Service Does the FMLA Not Cover?

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

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

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

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

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

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

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

June 22, 2019June 29, 2023

Experts Advise Revising Ailing Time-Off Policies

Presenteeism is heralded as a big problem in business as it’s something that can decrease an individual’s productivity or affect that of their co-workers as well.

Presenteeism, which is chiefly defined as employees who are not functioning at maximum capability due to illness, injury or another condition, could be helped if employees took time off when sick or vacation days to unwind. But the issue is not that simple. Reasons for presenteeism depend on many factors, whether it’s an individual’s attitude toward work, an employer’s workplace culture or the overall economic environment.

Employees taking time off bottomed out during the Great Recession. Over the past decade, the numbers haven’t recovered, said Steve Koepp, former Time Inc. editor and founder of From Day One, a Brooklyn-based conference series focused on creating a more collaborative, empathetic and productive workplace.

The United States is the only country without mandated vacation or sick leave. If the nation doesn’t set the tone that time off is important, it doesn’t trickle down to companies, Koepp said.

There are some things companies can do to address presenteeism, based on the reasons why employees are not taking time off.

Company Culture

Employees may face barriers to taking time off if the company has overt or subtle ways to vacation-shame employees, Koepp said. If a manager responds to a request for time off with a negative response like, “But this is the worst time,” that may have a “chilling effect” on future requests, he said. In unhealthy workplace environments, an employee may return from a vacation only to hear from their manager that something stressful would not have happened if the employee had been at work.

“Companies should lay out some structure, and not just about the number of weeks but about how managers should handle the request, the return and everything about it,” Koepp said.

Leadership expert and coach Jack Skeen shared other ways to address presenteeism. Managers can help create an environment where people feel comfortable taking time off, perhaps by taking time off and talking to employees about how they used it.

Skeen had further suggestions for employees anxious that their career, salary or reputation could be tarnished by using paid time off. The crux of the matter is that you can’t convince people of anything if there’s not trust in the employee-management relationship, he said. That trust is key to delivering PTO-friendly messages successfully.

Skeen suggests that employers clearly and repeatedly tell employees that PTO is encouraged, supported and respected. Employers can share stories about employees who both used PTO and were promoted.

For formal vacation and sick-day policies, Skeen said that they must be fair to everyone in the company, from the frontline workers to the executives at the top. Also, employers should make sure that the policy is clear, specific and not open to excessive interpretation.

Tom Parry, president for the Integrated Benefits Institute, a nonprofit focused on research and benchmarking the link between health and productivity, agreed that trust between the employer and employee is paramount.

“Employees have to trust their employer. If they don’t trust their employer, if they have that culture that lacks trust, then you’ve got a problem [bigger than presenteeism],” he said.

Also read: Eggnog With a Splash of Paid Time Off

Given the vast number of reasons employees don’t take time off, Parry said it’s important to survey employees anonymously to determine what’s standing in the way.

Reasons to Support Time Off

The institute seeks to quantify the impact of presenteeism, Parry said. Absenteeism is visible but presenteeism often isn’t, he stressed. While managers can clearly see if an employee is not at work and estimate some business impact, it’s harder to quantify presenteeism.

IBI has done four studies with CFOs in recent years, Parry said. Conceptually, they understand the link between presenteeism and business impact. Practically, though, they won’t take action unless there’s data.

The most important takeaway for employers is to consider the forces outside of their company, Parry said. “What happens a lot of time is we take employers out of that economic and business circumstance that they’re in,” he said.

When an employer is thinking about its individual business, long-term thinking is key alongside short-term opportunities.

“You have to be willing to bite the bullet and maybe not take advantage of every business opportunity if it’s going to have a long-term effect on your workforce,” Parry said.

June 20, 2019June 29, 2023

Workforce Names Its Class of 2019 Game Changers

A strong international contingent leads the Class of 2019 Workforce Game Changers.

This marks the ninth year of the Game Changers, an awards program designed to recognize those in workforce management under 40 years old who are pushing the field forward with innovative people-management practices.

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

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

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

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

Also read: The New Employer-Employee Social Contract

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

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

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

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

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

Keeping an Integrated Mindset

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

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

Looking at Your Entire Work Environment

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

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

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

Getting Your Leaders Engaged

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

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

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

June 19, 2019August 3, 2023

Employers, Stop Oversimplifying Your Employees’ Body Mass Index

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

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

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

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

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

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

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

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

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

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

The paper concluded:

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

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

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

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

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

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

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

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

Also read: Some Constructive Criticism on Wellness

June 4, 2019June 29, 2023

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

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

The exceptions?

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

2. An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

A recently proposed Ohio looks to significantly expand these exceptions by elevating “unvaccinated” to the equivalent of a class protected from discrimination.

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

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

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

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

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

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

May 31, 2019June 29, 2023

Some 2020 Election Views: Jan Berger on Single-Payer Health Care

Not surprisingly the future of the United States heath care system is already a huge topic of debate for next year’s presidential election.

Many of the 2020 Democratic nominees for president are supporting a single-payer or Medicare for All solution.

Since the United States has never had this type of health care, it’s helpful to sort out the myths from the facts, which is exactly what one woman did at an employer-centric health care conference recently.

Jan Berger, president and CEO of international health care consultancy Health Intelligence Partners, gave a presentation on single-payer health care at the Midwest Business Group on Health annual conference in May.

One of the first ideas Berger brought up is key. Every country in the world, including the United States, is having the same health care problems no matter what the financial model is being used, she said. These problems include rising costs and access issues. The only way the U.S. is different, she added, is that we’re the only country that has made health care “political warfare.” Also, in most other countries people don’t go bankrupt or homeless because of health care costs.

Meanwhile, Berger also debunked several myths about other countries’ single-payer systems. One key myth is that “health care is socialized medicine.” While some socialist countries do use a single-payer system, many non-Socialist countries do, too. Pulling the socialist card to dismiss the single-payer discussion is “a bullet people use to not discuss change,” Berger said.

Berger listed other misconceptions about single-payer health care:

Single-payer financial models are all the same. (None are the same.)
“Single-payer” applies to both the finance and delivery of health care. (Only four countries have fully integrated models.)
Single-payer means no cost to the consumer. (This is very rarely true. There are out-of-pocket costs in almost all countries that use single-payer.)
Single-payer means no focus on preventative care. (This is not true, Berger noted, giving the examples of Cuba, Costa Rica, Israel, Saudi Arabia and Australia.)
Single-payer dictates how doctors treat patients. (It doesn’t.)
Single-payer models destroy innovation. (Berger noted many examples of how this is not true. To name a few: The Netherlands, which has one of the most unique memory-care systems in the world; South Africa, with its automated pharmacy teller machine.)

“We don’t have to be somebody else, but we have to learn from somebody else,” Berger said.

One other idea that Berger mentioned was the need to know the definitions of key phrases if you’re going to have a conversation about the different health care proposals. For example, the difference between Medicare and the Medicare For All bills. While Medicare doesn’t cover vision or dental, the predominant Medicare for All Act in Congress covers a broader range of services, she said. While the word “Medicare” is used in this context, by definition Medicare for All does not mean the exact quality and coverage of Medicare expanded to each U.S. citizen.

It’s also necessary to understand the definition of universal health coverage, which the United States does not have even with the Affordable Care Act. The World Health Organization defines universal health coverage as “ensuring that all people have access to needed health services (including prevention, promotion, treatment, rehabilitation and palliation) of sufficient quality to be effective while also ensuring that the use of these services does not expose the user the financial hardship.” It continues, “People need to be protected from being pushed into poverty because of the cost of health care”— a milestone the U.S. has yet to reach.

None of this is to say health care should be one way over another. But if we’re debating on what health care system works best for the country, then relying on facts rather than myths for information is a good start.

It’s possible to admit that the current employer-based health care system is not doing well in certain regards. Almost 24 million Americans enrolled in employer health plans must spend a large share of their income on health care. High-deductible health plans have the power to impact low-wage workers in much more detrimental ways than they impact high-wage workers. Contributing to HSAs like some employers promote just isn’t possible for many low-income employees; in fact, Bruce Sherman, medical director at the National Alliance of Healthcare Purchaser Coalitions noted at this same MBGH conference that only 1 percent of low-income employees contribute to HSAs.

Whatever the solution is to problems within employer-sponsored plans currently are, it’s not something that has been solved yet. There are going to be plenty of suggestions from the candidates.

As the 2020 election nears, we’re likely to hear a lot of hyped and a lot of misleading “facts” about certain health system proposals, and I’d encourage you to look at the facts instead of falling too deeply into the “political warfare” of U.S. health care.

May 3, 2019June 29, 2023

Thanks for the Financial Advice, But …

There was a lot of upheaval on Twitter earlier this week for JPMorgan, which tweeted something many people found frustrating.

The bank has since deleted the tweet, but here’s the text that went along with it:

You: why is my balance so low
Bank account: make coffee at home
Bank account: eat food that’s already in the fridge
Bank account: you don’t need a cab, it’s only three blocks
You: I guess we’ll never know
Bank account: seriously?
#MondayMotivation

“JPMorgan’s tweet demonstrated a stunning tone-deafness about the economic realities facing ordinary Americans — including the big bank’s own minimum wage employees,” according to the LA Times. The article went on to quote a personal finance expert who says the genre of personal finance has long been discredited.

I’m reminded of an op-ed I read on Vice last year. The frustrated author wrote: “Sometime last year, I started frequently googling ‘why am I poor’ and ‘how do I stop being poor.’ Every result insisted the problem is I go out too much (I don’t go out, I’m too tired), I don’t have a savings account (I don’t have enough kick around cash to open a savings account), or I’m not planning my money right (I plan to pay my rent and then cry in a corner until my next paycheck, does that count?) … Financial advice is geared toward the financially stable who make bad financial choices, like investing in bitcoin this year or getting bangs after a breakup.”

I believe there is a lesson here for companies that already have or are considering financial wellness programs. Mostly, if you’re not paying your employees enough (like many minimum-wage employees or some entry-level employees), financial advice could come across as pretty much nonsense. See the Vice article above.

I would agree with that. I’m reminded of a great Twitter thread I saw a few weeks ago.

employer: “you’re hired, salary is $36k”

me: ”I was hoping for $50k”

“we have coffee on tap and a casual dress code”

“that’s great bu-“

“FOOSBALL TABLES AND TREADMILL DESKS”

“please calm do-“

“DOGS AT WORK, HAPPY HOURS, FREE FUCKING SNACKS, MILLENNIALS LOVE THIS SHIT”

— blake (@NYCofficeworker) February 22, 2019

Responses included, “Ah that’s great because my landlord just started accepting snacks for rent payments.” Also, “What’s amazing is employers pitch these things as benefits, and not like, I dunno, good health coverage or a retirement plan.” Also, “my starting salary at entry level was $36k… 15 YEARS AGO.”

And, my favorite:

employer: “you’re hired, salary is 36k”

me: “I was hoping for 50k”

“14 Genius Money-Saving Tips that Will Help You Afford Your Bills…maybe”

— Kipp (@Kipptacular) February 24, 2019

It’s a good reminder that things organizations call “perks” won’t appeal to people who aren’t making enough money. Trying to push “financial advice” as a perk to someone who’s living paycheck-to-paycheck or someone who’s seeing everyday expenses continuously rise while their salary stays pretty much the same, for example, will realistically solicit a much more bitter reaction than you’d hope for.

I’m not saying financial wellness programs and free financial advice have zero value, but they’re a tiny piece in the puzzle. They address a symptom (money problems), not the cause. People have bills, debt, student loans and medical bills to pay, and salaries have not been rising at the same rate as everything else. People’s money problems exist in this broader environment where everything (including education) costs more, and fair compensation is more useful for employees than free advice.

As someone relatively early in her career (who hopefully will be making much more money as I grow older), I do want to acknowledge that money advice can be helpful. My parents and other family members have given me helpful, necessary guidance over the years, and I’m very thankful for that. However, even I understand that personal spending habits are just one aspect of how you’re doing financially.

There are also these macro factors that cannot be ignored.

Also in Working Well: Expanding Employee Access to Mental Health Care

April 16, 2019June 29, 2023

ADA Does Not Require a New Supervisor as a Reasonable Accommodation

Cindy Tinsley was so stressed.

How stressed was she?

Tinsley was so stressed that even something as simple as her co-workers at Caterpillar Financial Services bouncing stress balls off the ground would trigger her post-traumatic stress disorder.

Tinsley, who worked as a business system analyst for Caterpillar Financial, believed that the stress of her job was causing her to suffer adverse health issues. She emailed her supervisor, Paul Kaikaris, asking to be removed from a particular project, claiming that her “many [work] responsibilities … [were] causing [her] to be stressed beyond what [she was] physically able to handle,” which “negatively impact[ed her] work, sleep, and overall health.”

Kaikaris met with Tinsley and said he would see what he could do to take work off her plate. Six days later, however, Tinsey submitted a doctor’s note requesting four days off for a “confidential medical condition.” Upon her return, Kaikaris, good to his word, met with her and reassigned some of her projects.

Her job performance, however, continued to suffer. Kaikaris informed Tinsley that she was not following the prescribed methodology for completing her work, the quality of her work was subpar, and she had been leaving work early without prior approval. A poor formal mid-year review and a performance improvement plan followed.

In response, Tinsley claimed that Kaikaris rated her poorly and assigned the PIP in retaliation for her complaints that he had enabled a “hostile work environment” by permitting co-workers to bounce stress balls off the ground. Thereafter, Tinsley began submitting doctors’ notes ad seriatum requesting more time off for “mental and emotional duress brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment and a manager’s reckless indifference to [her] mental and emotional well-being.” Those notes culminated in the company granting a five-week FMLA leave of absence.

At the end of Tinsley’s FMLA leave, her doctor cleared her to return to work “at full capacity.” However, because of her “post-traumatic stress disorder,” her doctor recommended that Caterpillar Financial return her “in a different work environment and specifically under a different manager.” The company refused the transfer or managerial change, but did permit her to take an additional eight weeks of medical leave (totaling 18 for the year).

At the end of that leave, and with Tinsley still insisting on a new manager, Caterpillar Financial decided that it had enough. It told her that it could not accommodate her “confidential” medical condition and that it did not believe that her request for a transfer to a different supervisor was a reasonable accommodation.

In Tinsley v. Caterpillar Financial Services, the 6th Circuit agreed.

Tinsley has asserted that her impairment (PTSD) impacted only the major life activity of working.… Thus, we must now examine whether Tinsley’s PTSD sufficiently limited her ability to perform a class of jobs or a broad range of jobs. The evidence demonstrates that it did not.… [T]he record is replete with undisputed evidence showing that Tinsley’s issues stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad range of jobs. The clearest example of this is when Tinsley told Human Resources that she would be able to continue in the same position so long as she was under the direction of a different supervisor because her disability was triggered by “the way [Kaikaris] managed … with all the balls bouncing.” … Tinsley’s diagnosis does not limit her ability to work a broad class of jobs; rather, it relates solely to her ability to work under a specific manager. Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable accommodation of additional time off or a transfer.

The ADA covers working as a major life activity. However, for an employee to be “substantially limited” in that major life activity, it is not enough to be unable to perform the specific job. The employee must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”

This court reached the absolute correct result. It wasn’t that Tinsley couldn’t work as a business system analyst but that she just could not work under Kaikaris. Her own doctor said as much when he released her to return to work “at full capacity.”

If faced with a disabled employee claiming a substantial limitation in their ability to work, examine the request carefully. The ADA’s coverage of disabilities is broad. However, it is often difficult for an employee to establish “working” as a substantially limited major life activity. And, unless the employee cannot work in a class or broad range of jobs, the ADA does not cover them and you don’t have to offer to accommodate.

April 16, 2019June 29, 2023

How HIPAA-Compliant Are Digital Health Apps?

I recently received a pitch about how Amazon’s Alexa now has a “HIPAA-compliant upgrade” through which people can book appointments, ask health care questions and check on the status of prescription deliveries. The immediate reaction of my editor and me was, “How can this possibly be HIPAA-compliant?”

I bring this up because I’ve also recently read a Washington Post article about a pregnancy tracking app that claims to be HIPAA-compliant. And there was a lot to unpack here. From a patient advocacy perspective, a lot of scary things to unpack.

Before I get into that, a quick anecdote from my high school years. My dad gave me some job advice I’ve never forgotten. Watch out for yourself and if you want to quit, don’t feel guilty about leaving a company you don’t want to be working at anymore. If the tables were turned and the company had to sack a bunch of people, it’d feel no guilt about letting you go. It would make a non-emotional business decision. Employers mostly watch out for themselves, and employees should too. Loyalty can only go so far.

I know that many employers tout a “culture of health” nowadays and make broad claims about how much they care about the health of their employees. As a benefits and health writer, I don’t buy that. Not for nefarious reasons, but because I know that at the end of the day, it’s all about the business. That’s their No. 1 priority. Just like my career should be my No. 1 priority. To believe otherwise is naïve.

Also read: Trendy Digital Health Firms Seek Solutions to Questions It Never Thought to Ask

I’d argue that this self-interest extends to health plans. As this Washington Post article stated, “The real benefit of self-tracking is always the company. People are being asked to do this at a time when they’re incredibly vulnerable and may not have any sense where that data is being passed.”

How can employers benefit from self-tracking? Through digital health apps that employees sign up for, employers could access aggregate data of employee health; the data is “de-identified,” which means it’s stripped of information like name, social security number and email addresses that could be used to identify the patient. Employers who don’t pry into these anonymous identities can still use this data to understand the overall health of its organization and identify issues that afflict many employees, which could help inform and shape its health strategy.

As for sneakier employers, the article notes that it’s “relatively easy” for companies to identify patients (in this case, women using the pregnancy app) “based on information relayed in confidence, particularly in workplaces where few women are pregnant at a time.” Someone could, for example, cross-reference the app’s data with other data. This potentially could impact people’s health care costs or coverage.

An excerpt:

The apps, [health and privacy experts] say, are designed largely not to benefit the women but their employers and insurers, who gain a sweeping new benchmark on which to assess their workers as they consider the next steps for their family and careers. … Experts worry that companies could use the data to bump up the cost or scale back the coverage of health care benefits, or that women’s intimate information could be exposed in data breaches or security risks.

This is why I’m skeptical about digital health apps. I’ve heard arguments on both sides, but if it’s possible for someone’s private medical information to be used against them, how is that OK? Why aren’t there more protections for patients? And how could current patient protection rules be up to date with the digital age?

To quote an informative article from The Verge: “In 1996, the year Congress passed its landmark health privacy law [HIPAA], there was no Apple Watch, no Fitbit, no Facebook support groups or patients tweeting about their medical care. … [It] is still a key piece of legislation protecting our medical privacy, despite being woefully inadequate for dealing with the heath-related data we constantly generate outside the health care system.”

The Post article brought up something else noteworthy: the app’s 6,000 word “terms of use” agreement that women must consent to. A lot of us in the health space have probably heard the statistic of how few people know how to define basic health care terms like “deductible” and “premium,” suggesting low health literacy rates among people. So how is a person supposed to understand the legal and health care jargon in a 6,000-word “terms of use” agreement? Is that realistic? Do people really know what could happen with that data?

Further, according to the article, while a spokeswoman said the company doesn’t sell aggregate data for advertising purposes, the “terms of agreement” tell a different story. The company has a “royalty-free, perpetual, and irrevocable license, throughout the universe” to “utilize and exploit” de-identified personal information for scientific research and “external and internal marketing purposes.”

Digital health companies are a relatively new thing. And in any communications they make — whether it’s a press release, an executive’s quote in the media or the employee they pick to make a statement to the press — they’re marketing themselves. Of course the focus will be on the positive.

That’s why it’s healthy to be critical of these new institutions that have the potential to greatly impact people’s lives, health and security. If nobody pushes forward to seek change that could protect people’s health privacy, then the future health care environment is not going to be a safe place for patients. Patient advocacy groups should have a greater say in how these digital health companies operate. Insurance companies and employers can easily benefit from the wide array of data in these apps, but what about patients?

One final thought comes from an interview I had about six months ago with Candice Sherman, the CEO of the Northeast Business Group on Health. The NEBGH released a fascinating guide about genomic medicine and employers that came from a roundtable including many key stakeholders, including employers, clinical experts, benefits consultants and genomic vendors. The missing stakeholder was a patient.

Also read: New Wellness Bill HR 1313 Gets Flak for Genetic Privacy Concerns

I asked Sherman about that, and she explained how health privacy concerns would stop patients from participating in a discussion like this. I do understand this, logically — and I am by no means trying to criticize Sherman or the NEBGH roundtable, since I love that they met up to have a discussion on a health-related topic that’s only going to become more prominent.

That said, I think it would be valuable for businesses or business groups to find a way to include the patient stakeholder in conversations like this. Maybe through an advocacy group or an expert who can make sure to represent the patients’ interests without experiencing the same privacy concerns. There are options.

This is a lot of information, but this topic is important now and it’s not going anywhere anytime soon. In summation, de-identified, aggregate data doesn’t always stay anonymous; just because a digital solution is HIPAA-compliant doesn’t mean it’s necessarily harmless to a patient; and patients deserve to have their voice represented in health care conversations.

I understand the power of data for organizations to understand big picture trends, but if this data could easily be used against an employee, it’s not worth it.

Health data privacy is important. I’m curious what discussions we all must have and how laws should be rethought to represent patients — your employees.