Remember how complicated it was to understand your health care benefits when you got your first real job? Now imagine trying to figure it out if all the information was in another language. That is exactly what happens to millions of Spanish-speaking workers and their families in the United States, and it’s costing them — and their employers — a lot of money.
In 2013, 21 percent of U.S. households (about 62 million people) reported speaking a language other than English at home, and Spanish was by far the most common at 62 percent. That same year, there were roughly 11 million Latino immigrants working in the United States.
“As our workforce in this country becomes more diverse, it’s just good practice to think about what form information should come in for it to be most effective,” said Irfan Hasan, senior program officer of health and people with special needs at the New York Community Trust, which supports an array of nonprofits in the city. That means giving workers the information they need in a language — and platform — that is most easily accessible, he said.
While companies may factor these language barriers into things like workplace training and on-the-job coaching, it often doesn’t extend to other areas of human resources materials, which can cause employees and the business to suffer, said Robin Gelburd president of New York-based Fair Health Inc., a national nonprofit dedicated to bringing transparency to health care costs. “If employees don’t understand how to cost-effectively access care, they often choose the most timely and expensive options,” she said. She noted that 30 percent of Latinos still view the emergency room as the first point of care.
“That creates long delays that leads to missed work and lost productivity, and it’s not affordable,” she said.
To help companies better meet the health care needs of their Spanish-speaking employees, Fair Health recently launched a Spanish-language health care cost transparency mobile app, called FH CCSalud (the English language version is FH Cost Lookup), which can be downloaded free from iTunes and Google Play. The app, which the organization created with a grant from the New York Community Trust, was designed to make health care information more accessible to the Latino population. “Having good information is the first step of making sense of complex health care information,” Hasan said. “The New York Community Trust sees this app as a way to reach an underserved population with that information and education in a format they are most likely to use: mobile apps.”
Several recent surveys show that Latinos are more likely to access the Internet through their phone rather than a computer, including a 2014 Experian report that shows 45 percent of Latino smartphone owners are mobile-dominant when it comes to going online.
The free app enables insured Spanish-speaking consumers to estimate their out-of-pocket costs and insurance reimbursement for medical and dental services received in- and out-of-network; while uninsured consumers can obtain an estimate of the full cost of procedures in their geographic area. Users also have access to educational guides, glossaries and resources to help them make more informed choices when selecting plans and managing health care expenses. The cost information provided in the app is supported by Fair Health's database of more than 18 billion claims made for privately billed medical and dental procedures dating back to 2002.
“HR people need to think about how they can engage their Hispanic employees to create a new generation of engaged consumers,” Gelburd said. “If you arm your employees with the right information, they can take hold of their health care so that they can find less costly, more proactive ways to manage their health.”
Nicholas Siewertsen, who has been deaf since birth, sued the Worthington Steel Co., claiming that it discriminated against him when it banned him from performing any job requiring him to operate forklifts or cranes.
From the time of his hiring in 2001 until the ban in 2011, Siewertsen operated forklifts, overhead cranes, and other motorized equipment without incident at the Porter, Indiana-based company. He communicated with his co-workers using a variety of techniques and tools, including written messages on notepads, computer programs and text messages, hand gestures, and limited speech.
In 2011, however, the plan human resources manager learned, apparently for the first time, that the company had a corporate policy against deaf employees driving forklifts. Without considering Siewertsen’s decade of on-the-job performance, the company disqualified him from his current position and transferred him, without a demotion in pay, to one of four menial jobs in the plant that did not require the use of forklifts or cranes. Siewertsen sued, claiming that the company violated the ADA by applying the no-forklifts-for-deaf-employees policy, and transferring him to another position. (Even though the transfer did not result in a reduction in pay, Siewertsen claimed the new position lacked any opportunities for promotion or advancement within the company).
The district court denied the employer’s motion for summary judgment, concluding that a jury should decide whether Worthington Steel satisfied its obligation to engage in an “individualized inquiry” as to whether Siewertsen could perform his job despite his disability:
The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. At bottom, the individualized inquiry requires the employer to consider whether the employee, despite his disability, is capable of performing the essential functions of the job. (internal quotations and citations omitted.)
So, what is an employer to do when faced with an employee whose disability could prevent them from performing a job?
Do not apply a blanket exclusion policies. The ADA mandates an individualized inquiry, and one who excludes a disabled employee pursuant to such a policy has shirked this obligation under the ADA.
Inquire as to an employee’s past experiences and successes working, despite the limitations imposed by the disability.
Consider reasonable accommodations that will enable the employee to perform the essential functions of the job.
If you do nothing other than apply a blanket policy, you will have a hard time showing a court that you engaged in the required individualized assessment. The ADA is intended to be a law of inclusion that breaks down barriers that prevents disabled employees from working. The more effort you took to attempt to break down those barriers and permit an disabled employee to work (even if it ends up not working out), the better position you will be in if a disabled employee sues you.
On benefits, that is. Every fall, HR departments look forward to open enrollment season with excitement — and trepidation.
This crucial period is not just an opportunity for employees to review benefit options, but also a golden opportunity for HR to renew relationships.
Managing such a crucial initiative can be daunting, but that’s why Workforceis here to help. Beyond our ongoing magazine coverage, we’ve launched a new event that will explore the future of benefit management.
Coming to Boston on Nov. 9, Workforce Focus puts you in direct conversation with fellow HR professionals for a one-day, in-depth examination of the technology transformation reshaping how we communicate and manage employee benefits.
Responding to “Work in Progress” columnist Kris Dunn’s story in the July issue titled “Meet the Aggregator Killer,” reader Jonathan Duarte wrote:
So is your intent to send automated ‘cease and desist’ and copyright infringement emails with links to all the ‘old’ jobs? I haven’t aggregated and distributed much for job ad content in the last five years, but from what I can tell, the ‘old’ jobs probably isn’t the biggest issue. The bigger issue is probably the ‘lesser’ aggregators that mandate job seeker registration under the guise of ‘apply for this job’ and then never redirect or submit an application for the position, but instead put job seekers on automated job alerts and marketing automation email campaigns that they never opted into.
Regarding the Workforce August story “Rub Some Dirt on It: Why Workers Are Forgoing Treatments,” reader Dan983 said:
Prior to HDHPs, employer population health plan member expense distribution ratios under PPO plans indicated the sickest 5 percent of members annually spend 60 percent of plan dollars and the top 10 percent account for 70 percent. This top 10 percent are not impacted by any deductible as ACA makes plans reimburse 100 percent after members have $6,600 in out-of-pocket cost. What about the other 90 percent? The bottom 50 percent only account for 2 percent of plan expenses. High-deductible plans cause members to forgo physician visits, screenings and prescription therapy. These plans have been dishonestly sold to employer plan sponsors. Now, by plan design, members are being lured into worsening states of chronic disease. Remember, the max employers can shift is $10,000 on the HSA option. What’s the max employers are liable for to pay the impact of chronic disease? Unlimited!
Our August Dear Workforce newsletter posed the question: “How Do We Make a Supervisor Deal With a Problem Employee?” to which reader Michael Toebe responded:
The supervisor obviously dislikes conflict engagement and might be intimidated by the offending person. Yet avoidance is not an effective conflict strategy. It allows the status quo to continue to great work culture, process and legal detriment. What could prove helpful is suspending judgment and asking the supervisor what concerns they might have in investigating the emotional drivers about the employee’s unsavory behavior. Learn the “whys” behind the resistance, question the limiting beliefs, ask if they feel they need additional resources to problem-solve and express confidence in their ability and ask for a commitment to be assertive (not aggressive) in addressing a critical problem and why it is critical. Set a date to talk again later that day or the next morning to review what happened. What the supervisor might need is understanding, support and encouragement. Or they might also need skill set development in conflict strategies, as in how to talk with, not at, the employee.
Workforce blogger James Tehrani asked: Is it OK to compliment people at work to which reader Denise Gamble replied:
I compliment people all the time. I’ve been told I have a gift for recognizing the good in others and for providing positive feedback. I am female and agree it’s considered more acceptable for women to compliment either gender in the workplace.
I’ve lost about 90 pounds this year and receive regular compliments. I’m fine with them. My appearance is so changed that often someone will blurt out, ‘Wow! You look great!’ It’s heartfelt and not creepy. Creepy is the guy that followed up with, ‘I’ll bet you look great in a swimming suit!’ (Fortunately, that wasn’t from a co-worker.)
Some thoughts based on my own experience: I believe it is OK to compliment people you work with on a regular basis if a) the compliment is authentic, brief and not related to gender, race, religion, etc. b) is not contrived or based on any underlying, self-serving motivation and c) part of your character.
We welcome your comments on these stories and others on our website. Be sure to follow us and give us a shout on Twitter at @Workforcenews, too.
Hope to hear from you!
Employees with phobias can sometimes find protection under the Americans with Disabilities Act. This is perhaps even more likely since 2008, when the Americans with Disabilities Act Amendments Act made the definition of “disability” more inclusive.
Nevertheless, whether the ADA’s protections apply and whether employers must provide particular reasonable accommodations under the law depends largely on the specifics of each situation.
For instance, it may seem logical that someone with acrophobia (a fear of heights) would struggle in a job that requires regular maintenance work on bridges. One might assume that such an employee wouldn’t be a qualified individual under the ADA, and therefore wouldn’t be entitled to a reasonable accommodation under the law. However, a 2011 case before the 7th Circuit Court of Appeals (Miller v. Illinois Department of Transportation) indicated that the answer wasn’t that simple.
The court indicated in this case that working at extreme heights might not have been an essential job function; it was involved in only about 3 percent of the employee’s duties. What’s more, the employee’s fear had been accommodated for several years, as he had not been required to do the tasks that included such work. Ultimately, the appeals court ruled that the employee may have needed to be accommodated after all, and that there was enough left in question with this case for a jury to decide.
A Teacher’s Biggest Fear
More recently, a case (Waltherr-Willard v. Mariemont City Schools) surfaced before the 6th Circuit Court of Appeals involving a teacher with pedophobia: the fear of children. Like the bridge worker, this teacher asked for an accommodation for a phobia that seemed particularly in conflict with the core responsibilities of her job.
This employee taught several high school French courses and one Spanish class, but when she was asked to move to teach elementary school, she revealed to the school that her phobia prevented her from teaching children under 12. As a result, the school allowed the teacher to continue at the high school level. Years later, however, when the school moved its French courses online, the employee was again offered a transfer, but this time to teach middle school.
According to the lawsuit, the teacher did not protest this particular transfer, though she did eventually claim that the reassignment triggered her phobia and requested to be transferred back to high school. After being told no positions were available, the employee retired and later sued under the ADA, claiming that the school district failed to accommodate her under the ADA.
The ADA requires that employers provide reasonable accommodations for employees who — with or without a reasonable accommodation — can perform the essential functions of their jobs.
However, under the ADA, employers are not required to create new positions, or displace other employees as reasonable accommodations.
The court ruled in favor of the employer, indicating that, since there were no other jobs available, the teacher’s request to transfer would have qualified as an undue hardship for the employer. As such, the employer was not required to honor the request. In this case, the court did not speak to whether, as a teacher with a phobia of children, the employee was able to perform the essential functions of her job.
In both cases, the specifics turned out to be very important, but that’s the point. Situations involving the ADA are often much more nuanced and detailed than they originally appear. It’s the job of human resources professionals to take the time to dig into a situation like one of these to make sure that an uninformed snap judgment doesn’t result in a drawn-out court battle.
The next time you catch yourself mentally labeling an accommodation request as ridiculous, take a minute to challenge your assumptions. Revisit the situation to make sure you really have all the information, and separate what you know from what you think you know. Remember that whether a particular accommodation will be needed under the ADA will depend largely on the specifics of the individual employee, his or her functional limitations, the specifics of his or her job, and the resources and circumstances of your organization.
Further, keep in mind that whether a particular accommodation is reasonable will depend on whether granting the accommodation would impose undue hardship on the employer. Undue hardship is imposed if an accommodation comes with “significant difficulty or expense,” but this determination requires an assessment of the resources and circumstances of the employer in relationship to the cost or difficulty of providing the accommodation. Larger employers will generally be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer.
Once you’ve rejected mere assumptions and thought through the particulars of the ADA, fill in the details of each individual employee situation with research (which may include information from the employee and medical professionals, if necessary). When you really take the time to dig into a situation, you might just be surprised, for example, to find out that a bridge worker with acrophobia isn’t ridiculous at all.
Katie Loehrke is an editor with J.J. Keller & Associates, a compliance resource firm, and the editor of J.J. Keller’s Employment Law Today newsletter. To comment, email editors@workforce.com.
The U.S. Supreme Court has ruled in favor of keeping a key provision from the Affordable Care Act.
Thanks to a 6-3 decision in the King v. Burwell case, millions of Americans will retain their right to receive federal tax subsidies under the ACA.
The justices sided with the Obama administration, saying that the health care reform law allows Americans in all states — not just those in states that have established their own exchanges — to receive federal subsidies.
"Five years ago, after nearly a century of talk, decades of trying, a year of bipartisan debate, we finally declared that in America, health care is not a privilege for a few but a right for all," President Barack Obama said in a statement from the White House. "The Affordable Care Act is here to stay."
Chief Justice John Roberts wrote the court’s majority opinion.
During the March hearings on King v. Burwell, Roberts said he saw “a serious constitutional problem” in the idea that Congress would force states to set up exchanges or risk their residents losing tax credits.
Many feared that if the Supreme Court ruled against the legality of federal subsidies, millions of Americans would be left uninsured and that the U.S. health care system could effectively fall apart.
The ACA laid out a plan in which states had the ability to set up their own health insurance exchanges, but the federal government could step in and set up the exchanges for the states if they could not do it on their own. King v. Burwell questioned whether the U.S. government can subsidize insurance in the 34 states that have not yet set up their own insurance markets.
Justice Antonin Scalia wrote the dissenting opinion, saying that the decision “rewrites the law” and was “a bit of interpretive jiggery-pokery” on the part of the court.
"We should start calling this SCOTUScare," he said.
"Rather than rewriting the law under the pretense of interpreting it, the court should have left it to Congress to decide what to do about the act's limitation of tax credits to state exchanges," Scalia wrote.
Scalia’s dissent stems from the interpretation of the word “state” to also mean “federal government.”
"The Secretary of Health and Human Services is not a state," he wrote. "Words no longer have meaning if an exchange that is not established by a state is 'established by the state.”
Scalia’s dissent stems from the interpretation of the word “state” to also mean “federal government.”
"The Secretary of Health and Human Services is not a state," he wrote. "Words no longer have meaning if an exchange that is not established by a state is 'established by the state.”
Scalia’s dissent stems from the interpretation of the word “state” to also mean “federal government.”
"The secretary of Health and Human Services is not a state," he wrote. "Words no longer have meaning if an exchange that is not established by a state is established by the state.”
The ruling, the second Supreme Court case in which the justices have decided in favor of the ACA, preserves benefits for an estimated 6.4 million Americans.
In National Federation of Independent Business v. Sebelius from 2012, the justices upheld the “individual mandate," which requires Americans to purchase health insurance or pay a penalty.
While Americans can now celebrate their continued access to affordable health care, not much changes for employers, according to Gary Kushner, a Workforce columnist who is the president and CEO of Kushner & Co., a benefits consulting firm.
“Employers and individuals alike will be able to continue their planning for ACA compliance now knowing all exchanges will be treated the same,” Kushner said. “It also means that the employer responsibility provisions of the ACA will be unaffected. Any employer holding back on their planning in anticipation that the court would overturn some or all of the ACA should get started immediately.”
If the decision had gone the other way, the employer mandates and shared responsibility payments would have been removed in states that have federal exchanges, added Rachel Cutler Shim, counsel in the Tax, Benefits & Wealth Planning Group at law firm Reed Smith.
"That would have put into question all of the reporting requirements and whether they were still required and all of the work that employers have been doing to implement look-back period and the measurement method and to track hours so that they can determine which employees are full time would have all been for naught if you weren’t operating in a state that had a state-run exchange," Shim said. "Under the current decision where they essentially said federal exchange and marketplaces can give subsidies, then the shared responsibility payment remains intact, the individual mandate remains intact, and employers can move forward and implement the requirements of the act that they have been working on."
Though their responsibilities have not changed, employers must still be content with the numerous challenges of getting in compliance with ACA mandates, a task the Society for Human Resource Management has pledged to assist: “Today the Supreme Court reaffirmed the constitutionality of a key element of the Affordable Care Act," SHRM said in a written statement. "While this provision of the statute remains intact, other challenges in the ACA remain for employers. SHRM pledges to work with policymakers to address these challenges, including the definition of a full-time employee for coverage mandate, the pending excise tax on high-value health care plans and employer flexibility in offering wellness programs.”
Jane Perkins, the legal director of the National Health Law Program, added in a written statement: "More than 8 million Americans can now breathe a sigh of relief knowing that the law — not ideology — carried the day."
Check back throughout the day with continuing coverage of the King v. Burwell ruling.
Plan sponsors who are serious about changing worker behavior toward their 401(k) plans might consider injecting a little fun into their retirement programs.
Experts agree: Concepts like gamification are overdue in the 401(k) industry. Surveys show workers are worried about their retirement, and plan sponsors know it. Only 12 percent of 457 plan sponsors said their employees know how much to save for retirement, reported consulting firm Towers Watson & Co. in a November 2014 survey. Only 20 percent said their workforce is comfortable making investment decisions.
The same survey said employers are ready to change. While only 8 percent of plan sponsors surveyed said they use gamification strategies, 78 percent said they plan to increase their use of technology to deliver information over the next several years. The idea isn’t new, but its application in the digital world is exploding with leaders like Fitbit, which uses badge rewards and online interaction with other users to get people moving and living healthier lives.
“It’s just not that interesting going to a seminar or reading a pamphlet,” said Nick Maynard, senior innovation director at nonprofit D2D Fund. “Games have a significant ability to affect participants relative to other traditional means of communications.”
Increasing the use of technology may not exactly mean hitting the play button, but it does send things in a more positive direction.
“Gamification is more in its infancy stage” in terms of 401(k) development, said Heather Tredup, an associate partner at Aon Hewitt. “The question now is: How do we take what we see working and apply it across the benefits community.”
Fidelity Investments introduced its NetBenefits mobile app last year. Similar to leaderboards on many online games, participants can compare their 401(k) account balances and contribution levels with other anonymous Fidelity participants of the same age. They can also filter data by ZIP code, state, region or national statistics, as well as see how they’re doing compared with other age groups.
It’s not a game, but NetBenefits uses gamification strategies to get users to pay attention to what they are doing — or not doing.
Fidelity reported participants checking out their peers’ contribution rates were 17 percent more likely to make a change compared with overall NetBenefits users.
“The 401(k) world has a very challenging, motivational framework, because most people don’t have an emotional attachment with helping their future self,” said Charles Berman, Fidelity’s senior vice president for digital platforms. With NetBenefits, “We’re getting them to pay more attention and to make simple, but important decisions.”
Today's benefit managers have their hands full. The Affordable Care Act legislation and its rapidly approaching deadlines and penalties have made issues such as compliance and exchanges top priority. It’s no wonder employee assistance programs seem to have gotten lost in the shuffle.
According to Chestnut Global Partners’ “Trends Report 2015,” the cumulative EAP usage rate is 5.5 percent, which suggests that both employers and employees have placed their attention elsewhere.
This isn’t cause for concern among employers though. Low usage rates are par for the course in EAPs. The National Behavioral Consortium, a nonprofit trade association composed of regional Managed Behavioral Healthcare Organizations — groups that follow evidence-based practices for providing high-quality care, access and consumer protection — and EAP member organizations, conducted a benchmark survey in 2013 to gauge program use and effectiveness among EAP vendors.
Employers are increasingly using employee assistance programs to help employees receive assistance for personal problems that might affect overall job performance. Oftentimes, stress, physical and emotional health, alcoholism, substance abuse and family issues can lead to an employee’s decreased productivity in the workplace.
The purpose of a successful EAP is to provide voluntary services consisting of short-term counseling and referrals for employees facing these difficult issues.
EAPs are almost always free for employees, and they are mostly voluntary. The goal is not to punish an employee but rather to encourage that worker to receive services needed to help deal with personal issues. EAPs should always be confidential. It is only when confidentiality is maintained that employees will fully use the program.
Confidentiality Key to a Successful EAP
Here are five tips to implementing a successful EAP.
1. Know your company goals. Employers exploring whether to offer an EAP should analyze company needs and workforce trends. Is there high company turnover that needs to be addressed? Have there been prevalent examples of employee dissatisfaction and work-relationship issues? Is absenteeism or tardiness a recurring problem? Employers should create a working group of qualified human resources practitioners, among others, to discuss whether an EAP would be a worthwhile benefit to employees.
2. Hire a qualified third-party EAP service provider. To save costs, some employers provide EAP services internally through employee counselors, which can have negative consequences. Confidentiality is key to maintaining a successful EAP. Workers may perceive an internally handled EAP as not confidential in nature. Internal EAP departments also may find themselves in the conflicted position of seeking to help an employee while also cooperating with an employer’s inquiries as to particular employees. Using a third-party EAP provider avoids these problems. Third parties usually have a wide range of experience regarding EAP services. Employers, however, should thoroughly screen any EAP third parties as to qualifications. And, both the employer and the third-party EAP service provider should clearly define their roles regarding each other so as not to create any conflicts or diminished service.
3. Make sure employees know you have an EAP. This may sound obvious, but one of the main reasons why EAPs are underutilized is that employees oftentimes do not even know they exist. Once an employer has implemented an EAP, it should inform all employees of three things: the EAP’s existence and purpose, the process for employees to use the services, and that it is a strictly confidential process.
Process and confidentiality are very important. Employees should be able to contact an EAP counselor without any need to first involve a superior. And, EAP counseling should ideally be conducted in a place that is either off-site, or, if on-site, very private. EAP services also should be sensitive to an employee’s time constraints and preferences. Finally, employees should be made aware that EAP counselors are able to provide not only short-term counseling but also referrals, follow-up services and educational programs.
4. Understand supervisor roles regarding EAPs. EAPs are usually a voluntary process and most effective when employees, themselves, seek services. But supervisors still have a role in this process. Supervisors should be trained to identify workforce issues, and, in appropriate circumstances, discreetly suggest to an employee that EAP services are available. This is especially appropriate where the employee admits to the supervisor difficult personal issues, such as alcoholism, substance abuse or severe depression.
5. Evaluate the EAP’s success. Finally, employers should track the EAP’s progress and achievement of company goals. A third-party EAP service provider may, as part of its services, assist in this analysis. Both employees and EAP counselors should be allowed to anonymously provide feedback as to the EAP process.
A successful EAP program should result in increased attendance and morale, decreased turnover and labor disputes, and a work force that feels valued. All of these benefits in turn lead to increased productivity.
Daniel R. Saeedi is an attorney at Taft, Stettinius & Hollister in Chicago. To comment, email editors@workforce.com.
The survey found the average EAP counseling usage rate among the 82 companies surveyed was just 4.5 percent of the 146 million lives they collectively cover.
It’s hard to understand why an employer would continue to pay for a program that is so poorly received by employees until you look at the cost. As part of its 2015 trends report on the state of the EAP industry, Chestnut, a Bloomington, Illinois-based EAP provider, reported that the typical employer allots just 1 percent of its benefits budget for EAP programs.
“Because it is such a small percentage, I think [employers] are only looking for the best price and may not fully comprehend that there are different levels of services and different levels of quality,” said Todd Donalson, director of training and consultation at Chestnut. “There are different levels of service based on what your organizational goal is. You have to dig deeper into what the product actually delivers.”
EAPs were originally developed to provide assessment and services for addressing a range of personal problems and concerns that interfere with employees’ well-being and work performance. Interventions for issues ranging from depression to substance abuse were delivered in person, by telephone or over the Internet.
To their credit, over the past five years EAPs have been striving to deliver a wider array of useful services to employees. ComPsych Corp., the world’s largest provider of EAP services, has seen the industry expand dramatically from its roots in mental health services over the past few years. The Chicago-based company specifically focuses on integrating EAP services into other corporate wellness initiatives to boost participation and bottom-line results for employers.
“Today, it’s not only mental wellness,” said ComPsych CEO Richard Chaifetz. “It’s absence management. It’s health navigation. It’s a variety of different services to give people the requisite tools and guidance to help them solve their personal problems.”
The integration of EAPs into wellness and health management programs could not have come at a better time. Given the pressure the Affordable Care Act has placed on employers to provide access to quality health care for employees, low-cost programs that keep employees well and cut down on insuranceclaims have made EAPs more popular. According to the Chestnutsurvey, EAP usage in North America increased by 7 percent across all businesses in 2014.
Employee Assistance Program Providers
Source: Companies
“If the issue is of a personal nature, people are intimidated by having to go through an employer plan or out onto an exchange, and it becomes a block to care,” said Matt Mollenhauer, managing director at Chestnut. “Given the ACA legislation, the EAP’s value is derived from the fact that it provides an easy and safe place to go and get support.”
Furthermore, a September 2014 ruling by the Labor, Treasury and Health & Human Services departments found that EAPs are an excepted benefit and as such do not need to comply with certain requirements under the ACA. As a result, EAPs don’t need to be in compliance with out-of-pocket limitations; they are not subject to lifetime dollar limits on essential health benefits and they are not subject to pre-existing condition exclusions.
In order for EAPs to live up to their potential, employers must put in the effort to choose the right EAP for them.
Free and Easy
Employers have two options when it comes to choosing an EAP for their company: free and fee-based.
Free, or embedded EAPs as they are formally known, are offered as part of a larger insurance product by insurance giants such as Aetna Inc., Humana Inc. and Optum Inc. Employees don’t need to sign up for it. It comes as part of a suite of services for essentially no additional cost.
According to Winning Workplaces, a nonprofit dedicated to creating better work environments, employers adopted embedded EAPs as a means of offering accessible care to all employees.
Employees must elect fee-based EAPs, but their active choice to participate in the program gives the service more leverage to make an impact. At ComPsych, fee-based EAPs are integrated into wellness programs, Chaifetz said. For example, if an employee calls in saying that they are experiencing stress and depression and it is determined that they are overweight and possibly suffering from diabetes, the employee would not only be referred to a counselor for the depressive symptomology, but also they would be engaged in wellness coaching to deal with the weight problem and manage their diabetes situation.
“Fee-based EAPs allow us to focus on the entire individual, not just some symptoms they might be presenting,” Chaifetz said.
In this vein of treating the underlying cause of a problem instead of the presenting ailment, many fee-based EAPs are moving into the area of fatigue management.
“In the last five to 10 years, we’ve had researchers come out with studies that link inefficient sleep not only to workplace safety initiatives but also more into public health issues,” Donalson said. “Now it’s linked to more health problems like diabetes, depression and heart disease.”
Fee-based EAPs are now being designed to screen for possible sleep disorders and intervene with techniques to improve employee sleep quality, according to Chestnut. Integrating with largerwellness programs then allows employers to develop technology policies that help employees get better quality sleep.
Intuitive Value
One of the biggest hurdles EAPs face is the lack of hard data to support their value to a company. In a workplace environment where return on investment is everything, the inability to provide hard numbers linking EAP intervention to measurable increases in employee health leaves employers unconvinced that EAPs are something they should invest time and effort in developing.
“We know intuitively that people who are healthier perform better,” Chaifetz said. “If you have a grossly obese person who is smoking, they are going to miss more work, be more lethargic and not be as good of a performer. There is just an inherent return on that.”
Source: Chestnut Global Partners 2015 Trends Report
Mines & Associates, a Denver-based EAP provider, found that employers can expect anywhere from a $2 to $7 return on their investment in EAP programs.
Right now, one of the greatest perceived values of EAPs is employee engagement. As a result, many EAPs are looking to expand their technology presence so that their services are easier for employees to interact with.
“The EAP industry has been relatively slow to adopt technology into their delivery services,” Chestnut’s Donalson said. “It’s about the ability to connect in a meaningful way. In the next year or two, you’re going to see upwards of 50 to 60 percent of EAPs use technology to collect data to prove to customers that they are actually making an impact on work.”
Under the ADA, an employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”
The plaintiff in Wolffram was a diabetic, and, as a result, needed extra time for bathroom breaks during the work day. Those bathroom breaks caused Wolffram’s performance to suffer on Sysco’s electronic performance monitoring system. Because Wolffram consistently fell below the minimum performance requirements, Sysco ultimately terminated him. Nevertheless, he defeated Sysco’s summary judgment motion on his disability discrimination claim. How? Because he claimed that other non-disabled employees were given more slack on the performance standards, that other employees “cheated” the system but were not disciplined or terminated.
Employers, it’s OK to have performance standards. It’s even OK to require that each of your employees, disabled and non-disabled, meet those standards. When you start letting those standards slip, however, you become exposed to claims from disabled employees who cannot otherwise meet the requirements because of their disability. Yet another example of how the EEO laws require uniformity of application in your workplace.
I’m timely to a fault. I hate being late, and go to great lengths to ensure that I am never tardy for anything. I think it’s annoying to those around me, or least those I live with. Just ask my kids.
Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.
Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.
Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.
In Clayton v. Cleveland Clinic Foundation, an Ohio appellate court was faced with the issue of whether Ohio’s disability discrimination statute protects asymptomatic HIV as a “disability.” The court relied on the following exchange from the plaintiff’s deposition to conclude, wrongly, that the employee was not suffering from a protected disability.
Q. How does your HIV status impair you?
A. It doesn’t.
Q. All right. So you would say that it doesn’t substantially limit any of your activities of daily life?
A. No. Thank God. Praise him.
Q. When you were at the Cleveland Clinic Foundation, would you agree with me that you could perform all of your essential functions of being a housekeeper without any accommodations?
A. I was able to perform any duty without any accommodations.
Let’s start with the basics. Even before Congress amended the ADA in 2009 to liberalize the statute’s definition of “disability,” the law recognized and protected asymptomatic HIV as a disability. The U.S. Supreme Court said as much as far back as 1998, in Bragdon v. Abbott:
In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.
The Clayton court was not only wrong about whether HIV qualifies as a disability, but also on the interplay between a disability and a reasonable accommodation. One has a “disability” if one has a a physical or mental impairment that substantially limits a major life activity, period. For the ADA to further protect that individual on the basis of that disability, the employee must be able to perform the essential functions of the job with or without reasonable accommodation. The determinations, however, are separate and distinct from each other. The essential function analysis has zero impact on whether one suffers from a protected disability as a threshold issue.
By conflating these two tests, this court set a dangerous precedent. Make no mistake, asymptomatic HIV is a disability. If an employee presents with HIV (or some other systemic illness), assume that the ADA covers the employee, and shift the analysis: 1) to ensure that the employee receives a reasonable accommodation if necessary to perform the essential function(s) of the job; and 2) to ensure that no one treats the employee differently because of the disability or some (mis)perception about the disability.
