Category: Benefits

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2014 Game Changer: Kristin Lewis

It has been said that as a leader in the male-dominated human resources technology industry, Kristin Lewis “punches above her weight.” John Sumser, editor-in-chief for The HRExaminer also described Equifax Inc.’s director of product management and workforce analytics as a motivator and quick to innovate.

Sumser said Lewis, 27, is an industry thought-leader in a variety of forums related to employer Affordable Care Act compliance requirements and workforce analytics.

Lewis “continues to develop new solutions that will change the way employers interact with their workforce and market data,” Sumser wrote.

Sumser’s praise for Lewis makes sense. Lewis has a tendency to get into an organization, learn and continually develop. She began as a product manager before being promoted to director at Equifax. And at Blackbaud Inc., her former employer, she was promoted several times and was once labeled a rising star for sales performance.

As lead innovator and developer for an award-winning platform for ACA management, Lewis is now helping employers calculate risk, employee eligibility and offer a deeper understanding of today’s employment landscape.

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What the ADA Says About Employee Medical Information and Social Media

The Americans with Disabilities Act protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? It can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court — in Shoun v. Best Formed Plastics — began sketching an answer. 
 
George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” 

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

 
The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.
 
All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.
 
Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information — workers’ compensation claims, Family and Medical Leave Act claims, reasonable accommodation requests, and other medical information related to the performance of the job — is off-limits for discussion. 

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement — and, more importantly, training — on this issue could save you from a disability discrimination lawsuit down the road.

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Home in the Range: Health Care Retirement Costs as Much as a House

Many older Americans, stung by a recession that shattered investments and home values, have accepted the reality of a less financially secure retirement that comes later in life. As the golden years approach, they also are discovering that they are unprepared and increasingly concerned about health care costs after leaving the workplace.

Research from Fidelity Investments’ “2013 Retirement Savings Assessment” study released in March suggests that while 84 percent of pre-retirees (ages 55 to 64) wonder whether they’ll be able to cover health expenses during retirement, many greatly underestimate the amount of savings they will need. The study indicated that 48 percent of respondents believe they will need about $50,000 to pay for their individual health care costs in retirement. In contrast, Fidelity’s annual retiree health care cost estimate found that the average couple should expect to spend more than $220,000 in health care expenses over the course of their retirement, the same figure Fidelity reported last year.

The average couple should expect to spend more than $220,000 in health care expenses over the course of retirement.

According to Fidelity, retirees now spend more on health care than they do on food. If that trend continues, health care will be retirees’ second-largest expense in just a few years, with housing holding the top spot. Still, employees aren’t thinking that far ahead when saving money or managing their health.

“People aren’t making the connection between health today and health during retirement,” said Jeff Munn, vice president of benefits policy development for Fidelity Investments. “They’re thinking, ‘Am I going for an annual checkup? Am I taking my medication? Will I have Medicare?’ ”

Arthur Noonan, senior partner in the retirement business at Mercer, said less than 20 percent of companies provide retirement health care, and while baby boomers see how big of an issue this was for their parents, they’re not thinking about it themselves.

“Employees in that age bracket have a direct line of sight with the aging parent issue,” he said. “They see how unprepared their parents were, but they’re not thinking, ‘This is going to be me in 20 years.’ They need to take action, but they’re not, and companies aren’t always helping them take the next steps.”

At The Schwan Food Co., a Marshall, Minnesota-based frozen-food company, Chief Human Resources Officer Scott Peterson said it has implemented two programs designed to help employees meet health and financial retirement goals. Schwan recently announced an employee profit-sharing retirement plan that provides additional savings for employees and serves as a sign-up incentive for those not using the 401(k).

Schwan also moved to a consumer-driven health plan in 2013. Peterson saw that 60 percent of the company’s employees over the age of 40 contribute to their health savings account. Under Schwan’s new plan, employees can earn extra money for their HSAs by participating in wellness programs and achieving positive outcomes, such as healthy blood-pressure measurement and tracking physical activity. They also earn dollars by learning more about Schwan’s retirement savings plan. 

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Employers Beware: EEOC Stepping Up Disability Discrimination Enforcement

Last month, the Equal Employment Opportunity Commission announced that it was seeking “public input on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973.” That Act governs employment of individuals with disabilities by the federal government, and was the Americans with Disabilities Act’s precursor. Without explanation, the Rehabilitation Act’s regulations impose an obligation on federal agencies to be “model employers” of individuals with disabilities; the EEOC is seeking to revise those regulations to provide a detailed explanation of that “model employer” obligation.

On the heels of that news, 10 of the 22 lawsuits filed or settlements reached by the EEOC in May included allegations of disability discrimination. That’s a .455 batting average for the ADA, which is none too shabby in anyone’s book. Some of the issues addressed by the EEOC in the past month include:

  • A $72,500 settlement with an Akron, Ohio, medical transportation services company, which fired an EMT-paramedic with multiple sclerosis instead of providing additional leave as a reasonable accommodation.
  • A $110,000 settlement with Norfolk Southern Railway Company, which medically disqualified a track maintenance worker because of degenerative disc disease without doing an individualized assessment of whether he could perform the essential functions of his job.
  • A $90,000 settlement with a Tennessee nursing home facility, which terminated an HIV-positive nurse. 
  • An $18,000 settlement with an Alabama athletic apparel retailer, which fired a legally blind sales clerk (who lost his full use of his sight while serving in the Army) without any consideration of whether an accommodation, such as a magnifying glass or a new computer monitor, might be reasonable.
  • A lawsuit claiming a Wisconsin energy company fired an wheelchair-bound employee instead of providing his requested reasonable accommodation of an automatic door opener.
  • A lawsuit claiming a Tennessee steel company refused to hire an applicant for a maintenance position after learning through a pre-employment medical examination that the applicant took prescription medications for an anxiety disorder and high blood pressure.
  • A lawsuit claiming a Connecticut electrical contractor refused to hire a dyslexic carpenter, without first exploring any possible reasonable accommodations for his disability.
What do all of these cases have in common? They all involve employers that failed, in some way, to engage an employee or applicant in the interactive process to determine if he or she could perform the essential functions of the job with, or without, a reasonable accommodation. Instead, the employer appears to have made snap judgments based on the individual’s disability and related stereotypes.

Disability discrimination is very much on the EEOC’s radar. Is your business sufficiently protected? Answer these questions—
  • Do you have a reasonable accommodation policy? 
  • Do you have accurately written job descriptions? 
  • Do your managers and supervisors know what the interactive process is, and how to engage in it? 
  • Have you trained your employees on disability awareness and reasonable accommodations? 

Unless you have answered “yes” to each of these important questions, your business is exposed to potential disability-discrimination issues. Considering how closely the EEOC is looking at these issues, is this risk is one your business wants to take?

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Making the Most of Mobile

Photo courtesy of Thinkstock.

Give employees the choice of using a smartphone or desktop computer to see paycheck or benefits information and mobile technology wins hands down.

When employees can use a smartphone to look up a paycheck or confirm a copayment for a doctor’s visit on a mobile-friendly website, 37 percent do. By comparison, when employees have to access the same data from a Web portal and desktop or laptop computer, only 23 percent use it, according to an Automatic Data Processing Inc. Research Institute report.

The report is based on analysis of 2 million employees at 25,000 U.S. companies that use both ADP’s Web- and mobile-based paycheck and benefits services and 25,000 that use only the Web-based service. The report was released in late February based on data collected in May 2013.

Years after HR departments first started using mobile to find and recruit potential employees, more are integrating it into internal workforce management functions as well.

Mobile-device users average 7.2 page views a month looking up information such as gross pay or withholdings.

It shouldn’t be a surprise given Americans’ obsession with all things mobile. Today, 90 percent of U.S. adults own a cellphone, and 58 percent own a smartphone, according to a February Pew Research Center study titled “The Web at 25 in the U.S.”

Mobile-device users average 7.2 page views a month looking up information such as gross pay or withholdings, and 4.1 page views a month checking medical, vision or dental coverage, as well as benefits such as flexible spending and health savings accounts and long-term disability, the ADP report states.

Based on additional mobile-based HR processes that ADP provides and monitors, employees use iPhones, Androids and other smartphones even more frequently to punch in and out of work, request time off, view their W-2s and access a corporate directory, said Roberto Masiero, vice president and head of ADP’s Innovation Lab, which also produces the company’s widely read monthly employment report. “Once they’ve used mobile, they don’t go back,” he said.

Companies especially rely on mobile to connect with younger workers. At MyCorporation, a Calabasas, California-based business that helps companies incorporate, roughly 20 percent of 42 employees use their phones to look up 401(k) account and company match information. “We’re a young group, so encouraging the team to focus on saving and planning for the future via simple, mobile tools is a true win-win,” said Deborah Sweeney, MyCorporation’s CEO.

At retail chain Aéropostale, employees use Ceridian’s Dayforce HCM mobile app to view work schedules, update their availability and swap shifts. “For Aéropostale’s vast, part-time workforce comprised of high school and college students, mobile scheduling has empowered employees to work on their time,” a spokesperson said.

It’s not just younger workers, or employees in retail or services industries, using mobile devices to look up their HR and benefits records. In its report, ADP found employees in such industries as construction, mining, natural resources, manufacturing and hospitality are just as likely to use mobile devices to look up information.

Michelle V. Rafter is a Workforce contributing editor.  Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

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Investing in Employees to Invest in Health Care

Executives at New York-based publishing house John Wiley & Sons Inc. tried with little success to get employees enthused about their benefits and health care, from a nurse hotline to a disease management program to an employee assistance program, but nothing seemed to spark interest.

The first year after its debut in the early 1990s, just 52 of Wiley’s 2,500 U.S.-based employees called the 24-hour hotline. Last year, just two employees called, despite the fact that many of the employees suffer from diabetes and other chronic conditions. Not surprisingly, the hotline was dropped. A disease management program came next. Only 12 people responded.

“One year we got it to 18, but 18 out of 2,500 isn’t much,” said Patrick Nevins, Wiley’s director of benefits. “While some of these programs sound good on paper, colleagues didn’t seem to be interested. We also have an EAP, and while people had positive things to say about these programs, not enough were using it.”

Employers like Wiley seem to be on an endless quest to get employees to care more about their benefits and health care, giving rise to a booming multibillion-dollar wellness industry and an array of online tools and gadgets that help workers track steps, choose benefits or pick a doctor. And yet, employee engagement remains a frustrating mystery to many employers. But finding a way to connect with employees is becoming increasingly important as companies usher in an era of health care consumerism.

‘It’s like you’ve been driving an automatic your whole life and now you’ve been given a stick shift.’

— Jim Skinner, president, JMS Benefits Solutions

Passive patients and apathetic employees who for decades chose their benefits on a sort-of autopilot mode now are being asked to start thinking like smart shoppers when it comes to their health care. The philosophy of following doctor’s orders and not knowing the true cost of an emergency room visit is giving way to informed purchases based on factors like price, outcomes and negotiation — much like buying a car. Experts say this is the future of employer-sponsored health care, but just how prepared employees are for this transformation is unclear.

“It’s like you’ve been driving an automatic your whole life and now you’ve been given a stick shift,” said author and consultant Jim Skinner, president of JMS Benefits Solutions in central Texas. Skinner founded the Smart Patient Academy, a division of his consulting firm that specializes in teaching employers and employees how to use consumer-driven health plans — high-deductible plans that were designed to give consumers more control over their health care decisions.

“The holy grail is employee engagement, because without it there’s no management of cost and no responsibility on the part of the consumer,” he said. “Corporations are shifting risk to their employees and giving them little in the way of tools. They might offer a price shopping service but that’s just one part of it.

“As soon as you get into a chronic condition, your focus on money starts decreasing and your focus on outcome starts increasing. And when you get into life and death you don’t give a damn about the money. You’re talking to different consumers with different perspectives, and employers need to know how to communicate with all of them.”

Despite the failed programs, Wiley executives believe they’ve begun to solve the problem in the form of an online tool called WiserHealth, which matches patients with treatments that are most likely to work. Wiley launched the cloud-based platform created by Washington, D.C.-based tech firm WiserTogether Inc. on Jan. 1, and in the first two months more than 450 employees had logged on, Nevins said. WiserHealth allows consumers to research medical conditions, find the treatments and providers with the best outcomes, learn how much it will cost them, and what patients with similar conditions have to say about the treatment, among other information.

“I believe that most of us are on information overload,” Nevins said. “Most of us just Google [conditions], and we’re not so sure about the reliability of the information we get.”

Nevins said that WiserHealth encourages employees to “become active participants in decisions about their medical care,” by understanding all their options.

So Many Choices, So Many Tools

The health care technology market is going gangbusters, and tools to help employees pick their benefits, find treatment options or compare prescriptions are flourishing. Here are a few tools from some of the biggest players:

Alex: Chicago-based Jellyvision, a developer of interactive online programs and games, released “Alex,” a virtual benefits counselor, in 2009. The program helps employees figure out which health plan best suits their needs. Last year the company introduced Alex Does Health Care Reform, which helps employers talk to their workers about how the Affordable Care Act might affect them and helps employees understand the basics of health care reform. It also lets employees know if they qualify for tax subsidies or special programs.

Castlight Health: The company’s database offers pricing information for elective procedures, high-cost diagnostic tests, specialists, hospitals and other types of care. The company recently launched a pharmacy app to help consumers shop for the best prices on medication. Since it was launched in 2008, the cloud-based health care management system has become the leading cost comparison tool with clients like CVS Caremark Corp. and Kraft Foods Group Inc. In March, the San Francisco-based software company made headlines with its nearly $200 million initial public offering, more than doubling its value.

Change Healthcare: Employees can search for a prescription or medical, dental or vision services based on their health plan, network or location. The online system provides cost comparisons and quality ratings and sends users a personalized alert to remind them of preventive screenings, manage their medications or find nearby providers that offer the best value. The Brentwood, Tennessee-based company, which was founded in 2007, recently launched Healthcare University, an online training program for employees to learn about their health benefits through videos, games and quizzes.

Healthcare Blue Book: Launched in 2007, this price transparency tool uses an algorithm to give users not just the range of available prices, but also an estimate of what a “fair price” is for a given procedure or medication, like the Kelley Blue Book for cars. The information is provided both online and through an app. The Nashville-based tech firm offers a free version of its search tool that anyone can use by entering a ZIP code on the company’s website. The premium version is available to consumers only through their employer or health plan.

WiserHealth: Dubbed the “eHarmony” of health care decision-making tools by the company’s founder, this platform helps users find the most appropriate health care for their particular condition based on their cost limitations and personal preferences. It also provides feedback from other people who were faced with similar health issues about how satisfied they were with their treatments. WiserHealth was developed by WiserTogether Inc., a Washington, D.C.-based company founded in 2008.

—Rita Pyrillis

Shub Debgupta, the founder and CEO of WiserTogether Inc., describes WiserHealth as the “eHarmony” of health care decision tools. In fact, it was modeled after the dating service website, which uses an algorithm to determine compatible matches. WiserHealth offers information on the most effective treatments for a particular condition, like carpal tunnel syndrome, and surveys thousands of patients and doctors with the same condition about which treatment they chose, what the side effects were and so on. It is the platform’s ability to collect data from external sources like random surveys of patients and providers that sets WiserHealth apart from other tools that focus on one aspect like price transparency, Debgupta said. WiserHealth also provides cost information and lets users know which treatments are covered by their health plan.

“Will it work for me personally? That is the piece that’s missing from the health care system,” Debgupta said. “Trial and error costs the payer and the system a tremendous amount of money.”

For Nevins the hope is that Wiley employees with chronic conditions will use the information to pick the most effective treatments, which in turn will improve health outcomes and lower costs, although he’s quick to point out that cost was not the primary reason for introducing WiserHealth.

“Providing this wasn’t so much about reducing costs,” he said. “I believe that giving people guidance and educating them on their options about the most effective treatments will improve quality of care. And in the long term that will help to moderate increasing costs. We didn’t do this because we thought it would have a measurable ROI.”

But getting employees to take an interest in their health care after a lifetime in a health care system where “doctor knows best” is the prevailing wisdom and few people think about health care costs as long as their insurance copays are low is no small feat, experts say.

Consumer-driven health plans are touted as a way to change that dynamic, and they are becoming increasingly popular. More than half of large employers offer a CDHP, and this year 22 percent will offer them as their sole plan, according to a National Business Group on Health survey. While cheaper than other health plans, CDHPs have higher out-of-pocket costs, which critics say could be problematic for low-income people and those with chronic health conditions who use the health care system frequently. To help offset some of these costs, CDHPs are paired with a tax-exempt reimbursement account — typically a health savings account or a health reimbursement account — to pay for qualified medical expenses.

In a CDHP, enrollees must keep track of funds in their account. If their savings are spent before their annual deductible is met, they must pay the difference out of pocket until they meet the deductible. Once it’s met, the plan works like a traditional preferred provider organization plan with the plan paying the majority of the costs.

 “In 2006 we began working with CDHPs and HSAs and we realized that the consumer had no clue how these plans worked,” Skinner said. “They had no understanding of even their basic PPO plan and we want to transition these people into a more complex environment? These plans mean a huge cost shift to employees, and they’re completely unprepared.”

But proponents see CDHPs as an employer’s most effective tool in driving consumer behavior, according to Travis Klavohn, director of consumer health solutions at BenefitWallet, an online platform for managing HSAs. It was launched last year by copier company Xerox Corp. A 2013 study by Buck Consultants, which is owned by Xerox, showed that 51 percent of employees with HSAs set aside more money for medical costs than before they had the account, 29 percent are having more discussions with their doctors about costs, and 13 percent are actively managing their chronic conditions.

“They shop for the cost of care and talk to providers more,” said Klavohn, who identifies himself as a “consumerism evangelist” on his LinkedIn profile. “Because the HSA is owned by the individual, employees are making a cognitive link between their long-term wealth and short-term medical spending.”

Unlike an HRA, an HSA is controlled by the employee, not the employer, which allows workers to invest unused funds in interest-bearing accounts and also enables them to take their account when they leave the company.

 “It’s about taking control of the situation,” said Scott Matthews, vice president of marketing for Castlight Health, referring to the employee-managed aspect of CDHPs. “It’s nothing people want to do, but if there’s enough money at stake people will want to do it.”

Castlight is just one of several companies, including Change Healthcare and Healthcare Blue Book, offering cost transparency tools to help users shop for health care services. Matthews said they will need that level of awareness to effectively navigate the new consumer world.

“We’ve been lulled to sleep by the fact that we have insurance and low copays,” he said. “We need to wake up out of our insurance-induced sleep and start thinking about how we are spending our money.”

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How Do We Keep Up With Change?

Dear Staggered:

You are entirely on point in realizing that the choices you face with respect to learning and development are more important than they ever have been. And, not to put too fine a point on it, but the health care industry isn’t all that’s changing. So, too, is the deal in the workspace, the expectations of employees and clients, and a delivery window that is shrinking by the day. So, your L&D approach must take into account highly targeted, strategically anchored content offerings, intelligent and efficient delivery modes, and a host of changing expectations. Here are a few thoughts:

Voice of the Customer

The first stop on your journey should be to make sure that the client’s voice is well-represented. Don’t assume that you know what clients are facing and what they need from your organization. Take the time to engage them and ask about both their immediate and anticipated needs. Listen hard, and then make sure that their needs are well-represented in your L&D plans and priorities.

You would do well to look at your workforce as clients, too, albeit the non-paying type. They can tell you a lot about what’s working and what’s not with respect to their preparation, and identify some needs that paying clients haven’t even thought about yet. Avoid at all cost the trap of letting trainers clutter the agenda with their favorite chunks of content. Then, be exceptionally well-prepared to fight for the right L&D priorities and the resource Commitment (capital ‘C’ intentional) to breathe life into them.

One Size Fits One, But …

On one hand you’ve got to achieve critical mass by making sure that certain competencies are well-shared in the organization. But on the other hand, you need to do a fair amount of micro-targeting. People will no longer endure, let alone embrace or pay for, learning content that is poorly designed, delivered in the wrong mode or at the wrong time, or attempts to treat everyone the same.

Find a way to get senior executives, the organization’s rock stars and other centers of influence seriously involved. See to it that everyone has a personal development plan and is expected to accomplish it. For that matter, all staff members should negotiate both the terms and funding for their development plan. In other words, let them own it. Be willing to take a fresh look at various delivery modes, including gamification, coaching, shared services and the use of MOOCs. Don’t be afraid to incorporate a heaping dose of fun.

Career Development Isn’t What It Used to Be

During the last 60 years, average job tenure in the U.S. has shrunk from nearly 20 years to about four years. Indeed, in a gig economy the word “career” has taken on completely new meaning, since a person’s body of work can be literally all over the map, housed in an assortment of short, disparate stays. For L&D purposes, that means you’ve got a much shorter and steeper runway to help people gain the needed proficiency.

Nowhere is that more evident than with your leadership cadre. Not unlike football quarterbacks who go straight from the college ranks to starting NFL jobs — something that used to take five years — emerging leaders are commonly thrust into managerial roles with little to no preparation whatsoever. On Friday, you’re an individual contributor, and on Monday, having had all weekend to get ready, your life changes.

Unlike the college player, most of them have not even had the benefit of coaching, because their bosses are completely overwhelmed by their own jobs. Make a determined effort to provide your emerging leaders with some coaching. If you can do nothing else, make sure that real leadership qualifications are baked into the selection criteria for management positions at all levels. Good luck.

Bill Catlette, Contented Cow Partners, Jacksonville, Florida, April 7, 2014

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6th Circuit Recognizes Telecommuting as an ADA Reasonable Accommodation

In Core v. Champaign County Board of County Commissioners, the U.S. District Court for the Southern District of Ohio opined that telecommuting (i.e., work-from-home) might be an Americans with Disabilities Act reasonable accommodation under the right circumstances, but that case did not present those circumstances. The Core court specifically noted that the 6th Circuit does not “allow disabled workers to work at home, where their productivity inevitably would be greatly reduced,” except “in the unusual case where an employee can effectively perform all work-related duties at home.”

Yesterday, in Equal Employment Opportunity Commission v. Ford Motor Co., the 6th Circuit, for the first time, recognized that modern technology is making telecommuting a realistic reasonable accommodation option. The case involved an employee with Irritable Bowel Syndrome who could not drive to work or leave her desk without soiling herself. Ford declined her telecommuting request because it believed in its business judgment that her position — a buyer who acted as the intermediary between steel suppliers and stamping plants — required face-to-face interaction.

The 6th Circuit disagreed, in large part because Ford could not show that physical attendance at the place of employment was an essential function of her job.

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.…

[W]e are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.… We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” … [C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Like it or not, technology is changing our workplace by helping to evaporate walls. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes work-at-home arrangements more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider the following three-steps:

  • Prepare job descriptions that detail the need for time spent in the office. Distinguish one’s physical presence in the office against one’s working hours.
  • Document the cost of establishing and monitoring an effective telecommuting program.
  • If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).
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When an Employee Can’t Return to Work After an FMLA Leave

The plaintiff in Demyanovich v. Cadon Plating & Coatings (6th Cir. Mar. 28, 2014) suffered from congestive heart failure. He returned from his latest Family and Medical Leave Act leave in 2009 with a no-overtime medical restriction. The employer, however, ignored the restriction, kept assigning overtime hours, and denied an early-2010 FMLA request. Demyanovich’s doctor advised him to quit his job and apply for social security benefits. Shortly thereafter, the company terminated him for excessive absenteeism.

In the subsequent FMLA lawsuit, the employer claimed that Demyanovich could not prove his FMLA claim because he could not have returned to his job at the end of the 2010 FMLA leave, had it been granted. The court, however, disagreed:

Although there is ample evidence that Demyanovich might have had difficulty returning to work within twelve weeks of his February 23 request for FMLA leave, it is not indisputable that he would have been unable to do so. Dr. Mussani, Demyanovich’s primary physician, “advised [Demyanovich] to quit work” and seek Social Security benefits, but he did not draft any documentation stating that Demyanovich was categorically unable to continue working. We may not draw the inference, adverse to Demyanovich, that because Dr. Mussani had always cleared Demyanovich to return to work after past examinations, his advice to quit on this occasion demonstrates that Demyanovich was no longer capable of working.

According to the FMLA, employees who, at the end of the 12-week leave period, remain “unable to perform an essential function of the position because of a physical or mental condition … [have] no right to restoration to another position under the FMLA.” Thus, if Demyanovich truly could not have returned to work at the end of the FMLA leave, then he would have a claim. In this case, the court concluded that the employer could not measure that inability prospectively, since Demyanovich presented no medical paperwork to that end.

What are the takeaway from this case?

  1. When dealing with medical issues under the FMLA, get it in writing. In this case, it appears that the employer was attempting to justify its decision based on information in learned after the fact — that Demyanovich’s doctor recommend that he quit and seek social security benefits based on a total inability to work. Had the company learned this information at the time of the termination from medical information provided by Demyanovich at that time, this case likely would have turned out differently.
  2. Don’t forget about the Americans with Disabilities Act. Just because an employee cannot return to work at the end of an exhausted FMLA leave does not mean you can always terminate the employee. Instead, you have an obligation under the ADA to explore, through the interactive process, reasonable accommodations such as temporary light duty or an unpaid leave of absence. Even if you are on solid legal ground to terminate under the FMLA, ignoring your obligations under the ADA will still buy you a lawsuit.
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Guardian Does It for the Kids: Acquires Dental Carrier Premier Access

Photo courtesy of Thinkstock.

An old-guard major player among dental benefits providers sunk its teeth into a relatively young competitor.

New York-based GuardianLife Insurance Co. of America, which was founded pre-Civil War, will acquire Premier Access Insurance Co., a dental benefits provider that was started in Sacramento, California, by a single dentist in 1989.

The deal, announced April 9, extends Guardian’s reach into the state-run Medicaid and Children's Health Insurance Program markets, which are expected to grow significantly due to expanded eligibility under the Affordable Care Act.

“As of January, dental coverage is required for all children,” said Chris Hill, CEO of Spotlite, a Chicago-based provider of cloud-based enterprise applications for employee benefits. “Guardian’s decision to acquire Premier Access strategically extends their entire service territory and places them in geographical reach of more American children.”

Premier Access has approximately 620 employees, serves over 5,000 employer plans and operates 18 dental centersand provides dental insurance to more than 634,000 members in five states and Mexico. Guardian, as one of the industry’s behemoths, coversmore than 8 million employees and their families at over 115,000 companies, according to a company statement.

The deal is pending regulatory approval, and terms were not revealed.

The Affordable Care Act’s two key components — accessibility for all and profit limitations for insurance carriers — may be prompting insurers to re-evaluate their business models, Hill said.

“Dental insurance is a relatively low-margin product in terms of profitability, so it is no surprise that Guardian is looking to expand their service territory and utilize the increased need for their product in order to balance how the ACA regulates their profits,” Hill said. 

Guardian also will gain a presence on six individual state exchanges, which complements its existing offering on 48 of the Small Business Health Options Programs, or SHOP, exchanges, Guardian said in a written statement.

Guardian Executive Vice President Dong Ahn said that the Affordable Care Act played a role in the acquisition of Premier Access.

“ACA is changing the dental benefits landscape. It is the responsibility of insurers such as Guardian to deliver cost-effective, quality dental care to more Americans where and how they are looking to be served,” Ahn said in a written statement. “Guardian’s acquisition of Premier Access demonstrates our commitment to maintaining our position as a leading dental company while expanding our reach to serve more customers who are seeking access to dental insurance through Medicaid and the exchanges.”

Premier Access is something of a success story. Sacramento dentist Reza Abbaszadeh started a dental health maintenance organization called Access Dental Plan. According to the Sacramento Business Journal, Abbaszadeh launched Premier Access to local employers in 1998 as a less-restrictive PPO plan. Annual revenue in 2012 was $175 million, the most recent data available, according to the Business Journal.

Premier Access has about 620 employees nationwide and an estimated 110 at its Sacramento, California, headquarters, while Guardian counts 5,000 employees in the United States and a network of more than 3,000 financial representatives in more than 80 agencies nationwide, according to a Guardian statement.

Hill said it’s possible that Premier Access is the first domino to fall, as more acquisitions could follow.

“The ACA has created higher demand for benefits and it is very possible that other benefit carriers will take similar action to Guardian in order to combat the profit regulations of the ACA and reach more people,” Hill said.