Chris Lucas suffers from paruresis (aka, shy bladder syndrome). He claimed that he could not urinate in public bathrooms, and often would hold his bladder throughout his entire work day to avoid having to use the restroom at work. He also admitted, however, that if the urge become too overwhelming, his desire not to wet himself would overcome his fear of public urination.
Lucas’s employer, Gregg Appliances, maintained a drug-free workplace policy which required periodic testing of employees. Lucas’s promotion to a general manager position was contingent upon him passing just such a drug test. When Lucas (and his shy bladder) could not complete the drug test, the testing clinic reported to the employer: “PER COLLECTOR: DONOR LEFT COLLECTION SITE BEFORE COMPLETION OF DRUG TEST.” When confronted by management, Lucas never mentioned his difficulty urinating or his paruresis. Indeed, he did not even visit a physician for his condition until the day after Gregg Appliances fired him for failing to take the required drug screen.
In Lucas v. Gregg Appliances (S.D. Ohio 4/15/15), an Ohio federal court concluded that Lucas could not proceed with his ADA claim. The court dismissed Lucas’s claim for two reasons:
The employer had no knowledge of his disability. Lucas never told anyone at the employer before taking his drug test, or after he failed to complete the test. He only relayed his condition to his boss after he was fired. Just because an employer knows that an employee has a health problem (i.e., the inability to pee after drinking several glasses of water over the span of two hours) does not mean that the employer also knows that the employee suffers from an ADA-protected disability. Where the disability is not obvious, the burden is on the employee to make the employer aware.
Just as the burden is on the employee to advise of the existence of a disability, the burden also squarely rests on the employee to request a reasonable accommodation. Here, Lucas did not request any accommodation (a blood or hair test) until after his termination. If an employee fails to request a reasonable accommodation during his employment, he cannot later complain that the employer failed to provide an accommodation or otherwise participate in the interactive process.
The ADA does not require an employer to guess and play detective. Instead, it anticipates a collaborative conversation between employer and employee about disabilities and accommodations. The party that fails to take part in this conversation will usually be the one that ends up the loser in any ADA lawsuit.
Since the Affordable Care Act was passed in 2010, many employers have escalated cuts in benefits, instituted high-deductible health plans and moved employees to the private exchange to shift the rising cost of health care onto their employees.
With the PricewaterhouseCoopers Health Research Institute predicting that in 2015 the price of health care will increase 6.8 percent for employers, there are seemingly few options available to control their benefits costs.
But with dental and vision benefits, employers have the opportunity to offer some relief — as well as a bright smile, a new pair of spectacles and some hidden health benefits.
According to the Segal Group 2015 Health Plan Cost Trend Survey, trends for dental coverage costs are expected to climb steadily at 4 percent in 2015, while vision plan costs are expected to dip below 3 percent in the coming year. This dental and vision coverage is stand-alone and separate from any coverage a comprehensive health plan might provide.
Unlike the cost of medical care, which is driven up with the arrival of new treatments and ways of managing care that better align with the Affordable Care Act’s mandates, dental and vision benefits have remained somewhat insulated from such inflation, said Vinny Graziano, vice president of Segal Consulting, an independent benefits, compensation and human resources consultancy headquartered in Chicago.
“In terms of inflation, medical is still the biggest chunk of the benefits pie,” Graziano said. “When it comes to dental and vision, it’s pretty much renew it and put it in place again. There is not as much energy, thought or focus given to it because the medical side is so demanding.”
MetLife Inc.’s 12th annual U.S. Employee Benefit Trends Study released at the end of 2014 found that when employers were asked to cite issues that they find “very challenging,” understanding the effects of the Affordable Care Act ranked second, with 49 percent of employers citing it as a top concern.
The relatively low cost of dental and vision plans means that continuing to offer coverage should be a no-brainer.
The Henry J. Kaiser Foundation’s 2014 Employer Health Benefits Survey of 2,052 firms of small and large size found that 53 percent of companies offering health benefits offer or contribute to a dental insurance plan for their employees that is separate from any coverage the health plans might include. This number has held steady since 2012.
The same study found that 35 percent of surveyed firms offer or contribute to a vision benefit plan for their employees that is separate from the health care plan the company offers. This is up from the 17 percent of employers who offered vision benefits in 2012.
“An aging workforce would indicate a greater need for vision correction,” said Lukas Ruecker, president of EyeMed Vision Care. “We also know that blue light from tablets and other mobile devices can increase the risk for macular degeneration, so the need for annual vision exams and correction will continue to increase.”
“I think employers look at dental and vision benefits with a sense of relief,” Graziano added. “Dental only went up 4 percent this year. They can use the same strategy. They don’t have to cut benefits. It means they don’t have to kick employees one more time. It’s a small part of the overall picture with a big impact.”
Graziano’s characterization of dental and vision benefits at a low cost as “not a beating” is viewed as an understatement by others in the industry. The positive effect the coverage has on employees’ overall health and productivity makes it worthwhile for employers to find a way to continue to offer the benefits.
Dental (and Vision) to the Rescue
Even though offering these benefits is not a significant cost to employers, the effort is appreciated by their employees. According to the MetLife benefits trend study, vision care insurance was the most popular voluntary benefit among employees (health care coverage was not listed as a voluntary benefit in this survey), with 71 percent indicating an interest.
A 2014 Society for Human Resource Management study on vision care found that 83 percent of employees who were offered vision coverage by their employers chose to enroll in 2013 compared with 78 percent in 2012.
After medical coverage, dental benefits are the most frequently selected benefit, according to Tom Palmer, senior vice president of sales and service at United Concordia Dental Cos. The MetLife benefits trend study also found that 76 percent of employees report that they would be interested in voluntary dental insurance if their employer offered it.
High demand and enrollment rates indicate that benefits managers are providing a service that employees appreciate, which is part of the goal. But in addition to keeping employees happy, these benefits are keeping them healthy in unexpected ways.
An eye exam, for example, is the first line of defense for several chronic diseases.
“Preventive vision checkups can help discover and treat potential issues such as diabetes and hypertension earlier and at a lower cost than having the disease diagnosed by a physician on an employee’s medical insurance plan,” said Alan Hirschberg, vice president of MetLife.
Broken blood vessels in the retina are an indicator of diabetes. That kind of bleeding usually signals that a buildup of sugar in the patient’s bloodstream has begun to break down the capillaries that feed the retina. Elevated blood-sugar levels are a warning sign of diabetes.
Catching the disease at this early stage translates to dollars saved for employers. According to the Vision Council, the representative body for the manufacturers and suppliers in the optical industry, employers can gain as much as $7 for every $1 spent on vision coverage. This translates to $8 billion saved annually in lost productivity for the treatment of chronic illnesses, according to the council.
Dental coverage yields similar results. An article published in the Journal of Periodontal Research found that high glucose levels often result in a higher instance of gum disease, so catching the oral issue early on can help prevent further health complications.
“You can’t be truly healthy without good oral health,” said Dr. Bill Kohn, vice president of dental science and policy at Delta Dental. “There is more and more of a recognition that oral health is part of overall health, and that’s true no matter how the benefit is offered.”
Even though the Affordable Care Act targets the provision of medical benefits, employers must still consider the legislation when constructing their dental and vision benefits plans.
The ACA does not require employers to provide either dental or vision benefits to their employees. However, pediatric dental and vision coverage are a part of the legislation’s 10essential health benefits that must be provided by all health plans.
If an employer chooses to offer dental and vision benefits, it can be done in one of two ways, said Melissa Larkin, director of national sales support at Delta Dental. The choice employers make has a significant effect on both cost and quality of coverage.
The first option is for an employer to embed a dental or vision plan within its health insurance plan. Employees will pay a single monthly premium that includes all services, Larkin said.
While a packaging approach may seem convenient, it is not always beneficial to employees. An embedded approach requires employees to hit a large medical deductible, sometimes upward of $5,000 before any dental benefits can be received, Kohn said.
“That’s a big concern when you’re talking about embedding into a medical plan,” Kohn added. “Employees aren’t always clear on how the deductible is handled, so they end up being surprised when dental work is not covered.”
In addition, folding dental and vision into a medical plan means these plans have the potential to become subject to the excise tax, commonly referred to as the “Cadillac” tax, that will go into effect in 2018. Dental and vision add to the premium total and may end up requiring some employers to pay the 40 percent tax rate, Larkin said.
By far, the more popular option is for an employer to offer dental and vision benefits as stand-alone options that exist outside of the medical benefits package. If the stand-alone option is chosen, the ACA legislation does not apply, and dental and vision coverage does not count toward an employee’s medical deductible, Kohn said.
“There is no deductible involved, so with the first dollar the employee is getting his benefit,” Kohn said.
Employers should also know that moving their employees to high-deductible health plans or shifting them to the private exchange will not affect access to quality stand-alone dental and vision benefits.
“I haven’t seen a decrease in uptake on dental on the private exchanges,” Larkin said. “It’s kind of the opposite, actually. There isn’t an adversity to the benefit once you go out to the private exchange. It’s taken just as frequently as it is on a traditional benefit setting.”
According to Palmer, high-deductible plans and private exchanges will continue to make dental and vision a viable option to employees.
“Employees have deemed these products important,” Palmer said. “If employers give them X amount of dollars to spend on coverage, they will continue to buy into dental and vision plans.”
Defined benefit plan sponsors can bank on one thing: uncertainty. They know it can’t be eliminated, but are fighting back by taking what they owe some participants off their balance sheets and having insurance companies take care of the payments.
The strategy is called an annuity buyout, and it’s becoming a popular way to strengthen what’s left of private employers’ $3.2 trillion defined benefit system — commonly known as pension plans. In February, Kimberly Clark Corp. announced its intent to purchase pension annuity contracts to reduce what it projects to owe 21,000 retirees by about $2.5 billion. Other large employers purchasing annuity contracts in the past three years include Bristol-Myers Squibb Co., General Motors Co., Motorola Solutions Inc. and Verizon Communications.
“There’s an element of fatigue and plan sponsors have had it,” said Richard McEvoy, leader of Mercer consulting’s Dynamic De-risking Solution group. “There are a number of factors combining to increase pension obligations.”
An annuity buyout is when a pension plan shifts its obligations (or what it has promised to pay a participant) to an insurance company. The insurance company then provides annuities for the participants affected. It’s called de-risking because by pulling participants and their pension promise out of company plans, sponsors no longer bear the risk of having to fund those obligations and are able to create smaller, more manageable plans.
The five mega-deals that have been completed since 2012 have totaled $40.5 billion in obligations transferred to various insurers covering 218,000 participants. Each deal involved a portion of each company’s pension plan participants, typically those who have already retired.
Annuity buyouts are not so much about cost savings as they are about decreasing the size of the company pension plan to reduce the number of participants and assets plan sponsors have to manage, consultants say.
“Everyone is looking to reduce risk, and they’re looking at all the tools in their tool kit to do it,” said Stephen Marshall, managing director at investment consulting firm Wilshire Associates.
For years, pension plans have had a problem: what they owed participants has grown relative to the amount of money they have held. In January, pension plans were only 79.6 percent funded compared to 84.9 percent a year ago, according to consulting firm Milliman.
Funding ratios are affected by several factors including longer lifespans for U.S. workers, increased payments to the federal insurance company that backstops pension plans and swings in interest rates. It can be quite the rollercoaster ride for plan sponsors. For example, Milliman data show that 2013 was a historic year for pension funds. Robust investment performance and other positive factors produced a historic $198.3 billion improvement in funding status over the previous year.
Things were looking good at the end of 2013, but market shifts and new mortality estimates introduced in October 2014 helped drive down funded status by more than 5 percentage points. It may not seem like much, but that difference can mean millions in contributions that sponsors needed to make in order to keep plans afloat.
“Sponsors face a challenge between managing volatility through investments and/or transferring risks entirely,” McEvoy said. “If they do what they can to match assets to liabilities, they still have a big plan, and it can seriously unravel when there’s a financial crisis.”
While there are a number of strategies available, about 21 percent of 183 defined benefit plan sponsors said they are considering annuity buyouts in 2015 for some of their participants, a February survey by Aon Hewitt showed.
“A growing number of plan sponsors anticipate increasing pension plan costs,” said Ari Jacobs, global retirement solutions leader for Aon Hewitt, in a written statement. “Settlement strategies may be an appropriate approach for well-funded DB plans so that pension plan sponsors are able to honor the retirement benefits promised to participants while also considering the long-term financial outlook of the plan.”
In February, personal care company Kimberly-Clark announced its plan to purchase annuity contracts from Massachusetts Mutual Life Insurance Co. and Prudential Insurance Co. for about 21,000 U.S. retirees. The deal, when complete, is expected to reduce Kimberly-Clark’s pension promises by about $2.5 billion.
In a buyout like this, participants receive annuity checks from the insurance company, and the obligation is no longer covered by the Pension Benefit Guaranty Corp. — the federal insurance agency for defined benefit plans.
It was the first mega-deal for 2015, and many observers expect more to follow. Last year, the annuity purchase market was valued at $8.7 billion compared with $4 billion in 2013, according to Towers Watson & Co. data.
While the retirement industry has seen the massive shift to 401(k) and other defined contribution plans, consultants say de-risking strategies like annuity buyouts are helping companies strengthen and sustain their defined benefit plans.
“It’s responsible risk management,” McEvoy said. “It’s a way to bring down the size of the plan and focus on employees.”
Global management consulting firm Accenture strives to provide its employees with great career opportunities. In pursuit of that goal, the company announced on March 12 that it is doubling its maternity leave benefits.
Part-time and full-time female employees will now be offered up to 16 weeks of paid leave, according to a statement released by the company. According to Accenture’s rewards and benefits page, other primary caregivers’ leave remains unchanged at up to eight weeks off.
This is a vast improvement from the leave required by the government under the Family and Medical Leave Act, which states that qualifying female employees must be offered 12 weeks of job-protected unpaid leave.
“These expanded benefits will help us attract, retain and inspire the best people,” said Steve Rohleder, group chief executive at Accenture, in a written statement.
The new policy went into effect March 1. It also offers up to eight weeks of paid parental leave after the birth or adoption of a new child for other primary caregivers and enhances the amount of paid leave for secondary caregivers.
The additional benefits build on Accenture’s current comprehensive support for parents, which includes access to 40 hours of backup child care per year and a library of community-based programs and resources, the company said.
The Affordable Care Act is helping introduce a new concept into health care: choice. Now more than ever employees have the ability to pick and choose the coverage that best suits them.
In recognition of this changing dynamic, global human resources and financial services firm Mercer announced Feb. 24 that it will expand its relationship with cloud-based benefits technology provider Benefitfocus Inc. Mercer made an initial 9.9 percent investment with the option to increase its ownership over time, according to a written statement.
Expanding its relationship with Benefitfocus will allow the company to remain competitive in the private exchange marketplace, the company said.
“This is a milestone for Benefitfocus and a testament to the power of combining our technological expertise with Mercer’s proven execution and broad client reach,”said Benefitfocus President and CEO Shawn Jenkins in a written statement.
Mercer Marketplace has become a leading private benefits exchange “for active employees,” said Julio Portalatin, Mercer’s president and CEO in a statement. “The success of Mercer Marketplace is driven by the flexibility that allows it to meet the needs of a wide range of companies and individuals. Our proprietary solution, powered by Benefitfocus technology, is critical to that flexibility as we continue to innovate and grow together.”
Given the current state of the industry, Mercer’s move is a smart one, according to R. Ray Wang, principal analyst and founder of Constellation Research Inc.
“This is a smart move by Mercer in building out its ecosystem,” Wang said. “The benefits marketplace is a very hot area, especially post-ACA. Employers are looking for one-stop shops and also to have economies of scale.”
Mercer Marketplace said it grew the number of participating employers, eligible employees and eligible lives by five times in 2014. The expansion combined with Mercer’s flexible offerings has allowed employers to save up to 15 percent on medical plan costs and up to 10 percent on nonmedical benefits such as voluntary life and disability, according to a statement.
I’m a lifelong political junkie, be it by nature or nurture. A native daughter of the nation’s capital, I grew up going on field trips to the Capitol, White House and Supreme Court. You could argue that a love of politics was predestined.
So, I’ll always remember that on March 21, 2010, I felt like a kid on Christmas Eve waiting for Santa Claus — glued to C-SPAN waiting to see if the House would pass the Senate version of the health care reform bill. I was the editor in chief of Employee Benefit News; technically, watching the night’s events was part of my job. Truth be told, I would’ve watched to the end regardless.
When the bill passed that night by seven votes, my husband glanced at the TV over my shoulder and said, “You have to go to work now, don’t you?” I nodded, and went to grab my laptop.
We covered the bill’s passage for EBN the next day — coverage that coincidentally included comments from my current employer, Benz Communications. When President Barack Obama signed the Affordable Care Act into law two days later, I remember thinking, “This changes everything.”
Now, there’s an understatement if there ever was one, right?
It’s hard to believe that five years have since passed, with the ACA surviving charges of death panels, chair-tossing town-hall sessions, more than 40 repeal votes and a major Supreme Court challenge.
It was electric, albeit exhausting, to be in D.C. during those months and years. I recall one of my reporters getting elbowed out of her sight line at the Supreme Court by an ABC cameraman. She’d arrived! I remember editing video interviews from outside the chamber and compiling photo galleries of the various protests around the city. Most clearly, I remember the hot day in June 2012 when the Supreme Court ruling was announced, and getting an email from a staffer that read, “This is the most exciting thing I’ve ever done. Thank you for letting me be part of it.”
What has the benefit of hindsight given me since then? Not much in the way of clarity, perhaps too much in complexity. I know you can more than relate to the complexities that the ACA has brought, as you’ve spent the past five years working to comply with the law and communicate it to your workforce.
In general, though, how I view the ACA now mostly is unchanged from how I viewed it then, which, in excerpt, is this:
“I think ACA is largely a bad law. Certainly, ACA contains some provisions that I like a lot. I’m quite pleased that I’ll no longer be charged higher health care premiums simply for being born a girl … that friends with chronically ill children won’t have to worry about benefit caps … that a friend recently treated for cancer won’t have to worry about being denied coverage down the road due to a pre-existing condition.
“Still, my biggest reservations about the legislation were that it did very little (if anything) to address our nation’s ridiculously high health care costs and even less to improve efficiency and quality.
“We still pay more in health care than any industrialized nation and get less for our money’s worth. Our health care system is overburdened with too much paper, too much testing, and too much obesity. Those things are just as true today as they were before ACA was upheld, before March 2010 when ACA was signed, and they’ll be just as true in 2014, when much of ACA goes into full effect.”
Not to toot my own horn and change my name to Kreskin, but just weeks ago, Steven Brill, author of Time magazine’s famous “America’s Bitter Pill” cover story and a new book also on the topic of health care costs, told talk show host Jon Stewart: “Nothing in the 965 pages of the Affordable Care Act does anything about the exorbitant cost of care. The problem with health care in this country is very simple: The cost is too damn high.”
So, the past five years have been for nothing? No, I don’t think so. In approving and upholding the ACA, we now have our first-ever national health care policy. It’s not a great one, but at least it’s a starting point; somewhere, I think there’s good policy. We just have to do the work to find it.
Kelley M. Butler is the editorial director at Benz Communications, an HR/benefits communication strategy firm. Before joining Benz, Butler spent 11 years at Employee Benefit News, including seven as editor in chief. To comment, emaileditors@workforce.com.
There exists an inherent tension between open-door and other self-reporting policies and the Equal Employment Opportunity laws.
Consider, for example, a recent more than $100,000 jury verdict against a trucking company for disability discrimination. The company maintained a written “Open Door” policy, and an unwritten policy that prohibited any driver who self-reported alcohol abuse from ever returning to driving. The Equal Employment Opportunity Commission sued after an employee who availed himself of the Open Door policy to self-report an alcohol addiction was banned from any future driving for the company.
Even though the company offered the driver a part-time dock position as an accommodation, the EEOC successfully argued that the employer failed to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment,” and that “to maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving — with no individualized assessment to determine if the driver could safely be returned to driving — violates the [Americans with Disabilities Act].”
Employees need to be able to engage in protected activity without any retribution or other negative consequences. In this case, the employer learned of a disability and failed to engage in the interactive process for a reasonable accommodation. In others, employers might retaliate against an employee who uses an open-door policy to complaint about discrimination or harassment.
Open-door policies are laudable. They foster the communication that is necessary between employees and management necessary for a healthy (and hopefully union free) work environment. With that openness, however, comes responsibility — the responsibility to learn information without retaliating. Employers need to train management so that they know what to do with protected information once they learn it, and how to act without violating any of our EEO laws. Without this training, employers are setting up their open-door policies and programs for a litigation fail.
Yesterday, I wrote about the need for employers to be more accommodating for their employees’ protected needs. Today, I bring you two real-world illustrations.
In both instances, the EEOC made the same point — the Americans with Disabilities Act imposes on employers an absolute duty to determine whether or not they can accommodate an employee’s disability. Absent that consideration, the law has been violated. Moreover, after engaging in that interactive process, the employer can only deny the request: 1) if it poses an undue hardship, or 2) if the employee cannot perform the essential functions of the job with or without the accommodation. Otherwise, you may find yourself on the receiving end of an EEOC press release, which is not the position you want to be in.
The U.S. Equal Employment Opportunity Commission recently filed a lawsuit charging Honeywell International Inc.’s wellness program with violations of both the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
According to the lawsuit, which was filed in federal district court in Minnesota, beginning in 2015 Honeywell’s employees and their spouses may participate in a wellness program, which includes a biometric screening. Such screening will include checks for blood pressure, high-density lipoprotein, commonly referred to as HDL, and total cholesterol, nonfasting glucose levels, body mass index and waist circumference. Blood will also be screened to determine whether the employee or spouse smokes tobacco.
The EEOC initially sought a temporary restraining order to keep Honeywell from imposing any penalty or cost upon an employee under the program. Judge Ann Montgomery denied the EEOC’s request, finding that Honeywell could refund any improper penalties if she ultimately ruled in the EEOC’s favor. The lawsuit will proceed without the restraining order.
Employees will be penalized (or lose incentives) if they or their spouses do not take the biometric tests, as follows:
A $500 surcharge applied to the employee’s premium cost for the medical plan.
Loss of health savings account contributions from Honeywell of up to $1,500.
A $1,000 tobacco surcharge even if the employee does not participate in biometric testing for reasons other than smoking.
Another $1,000 tobacco surcharge if the employee’s spouse does not take part in the testing, even if the spouse does not participate for reasons other than smoking.
Honeywell claims that its wellness incentives are permissible because they fall within the guidelines established under the Health Insurance Portability and Accountability Act as amended by the Affordable Care Act.
Under HIPAA, the total financial reward that may be given to an individual for participating in a wellness programs is limited. Beginning in 2014 the total reward cannot exceed 30 percent of the total premium cost of the employee’s coverage under the employer’s medical plan. The total reward can be increased to a total of 50 percent of such premium cost for a program that includes a tobacco cessation program.
The limits on awards apply only to programs (or portions of programs) that require outcomes based on a health factor, such as being tobacco free for a certain period of time or maintaining a certain BMI. There is no limit for programs that merely require participation in a program without regard to the outcome, such as incentives to undergo a biometric test without regard to the results of such test.
Regardless, the EEOC claims that Honeywell’s incentives violate the ADA. Under the ADA, an employer may require employees to undergo medical examinations or respond to disability-related inquiries only if they are “job-related and consistent with business necessity.” There are two possible exceptions: the “voluntary” exception and the “safe harbor” exception.
Under the voluntary exception, a program does not violate the ADA if participation by the employee is voluntary. Under the “safe harbor” exception, the rules regarding medical examinations and disability-related inquiries do not prohibit an employer from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that are based on underwriting, classifying or administering risks.
The EEOC’s lawsuit claims that the Honeywell program does not comply because employees are penalized for not participating in medical examinations that are not job-related or consistent with business necessity. Although recognizing that there is an exception for “voluntary” medical examinations, the EEOC claims that these exams are not voluntary because of the financial penalties.
The EEOC does not specify whether lesser financial incentives would be permissible. However, an EEOC attorney stated: “employers have to respect employees’ and their spouses’ rights to the privacy of their medical information, and cannot seek to compel it by imposing prohibitively high penalties.” The EEOC’s lawsuit does not address the application of the “safe-harbor” exception.
The EEOC also claims that Honeywell’s wellness program violates GINA because employees are penalized if their spouses do not complete the biometric testing. According to the EEOC, “Honeywell is offering an inducement within the meaning of GINA to obtain medical information of its employees’ spouses” and “medical information relating to manifested conditions of spouses is family medical history — or genetic information — under GINA.”
The EEOC’s lawsuit is the third time in 2014 that the agency has challenged an employer’s wellness program. This challenge is noteworthy in that it involves a program that does not shift the entire premium cost to the employee, cancel coverage or subject an employee to other disciplinary action. Honeywell’s program was seemingly designed to fall squarely within the HIPAA guidelines.
Employers have been seeking guidance from the EEOC for years regarding its position on when a wellness program will be considered “voluntary” for purposes of the ADA. However, the EEOC has not provided guidance or indicated an intention to do so. With this lawsuit, the EEOC has demonstrated that the ADA should not be overlooked by employers when structuring these programs.
Sandra R. Mihok,chair of the Employee Benefits Group of Eckert Seamans Cherin & Mellott in Pittsburgh. Comment below or email editors@workforce.com. Follow Workforce on Twitter at@workforcenews.
Last year I reported on the possibility that Internet use could become a protected disability under the Americans with Disabilities Act.
Now, we have one of the first documented cases of this phenomenon. From CNN:
A man who checked in to the Navy’s Substance Abuse and Recovery Program for alcoholism treatment was also treated for a Google Glass addiction, according to a new study.
San Diego doctors say the 31-year-old man “exhibited significant frustration and irritability related to not being able to use his Google Glass.” He has a history of substance abuse, depressive disorder, anxiety disorder and obsessive-compulsive disorder, they say.
The man was using his Google Glass for up to 18 hours a day in the two months leading up to his admission in September 2013, according to the study…. “He reported that if he had been prevented from wearing the device while at work, he would become extremely irritable and argumentative,” the doctors write.
The Guardian adds that “the patient repeatedly tapped his right temple with his index finger, … an involuntary mimic of the motion regularly used to switch on the heads-up display on his Google Glass.”
This supposed addiction is not limited to wearables like Google Glass. For example, CBS News recently reported on the physiological changes to the brain that could result from too much Facebook use.
What results when we toss this story into the employment-law blender?
Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, you may have to engage them in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area?
Do you have a policy that prohibits non-work-related Internet use? If so, it might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.
These are difficult issues, exacerbated by the novelty of the concept. Nevertheless, the more the Internet becomes entrenched in our lives (if that’s possible), the greater the likelihood that employees will begin embracing ideas such as Internet addiction as a disability and the need for employers to consider and provide reasonable accommodations. It’s a brave new world, we just happen to work in it.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.
