Tag Archives: equal employment opportunity commission

What Trump Means for Workplace Wellness

Assume, reasonably, that voters chose Donald Trump to be the next president because they feel big business and government are in bed together. If indeed they are, workplace wellness is their sex toy.

There is nothing, certainly in healthcare and possibly anywhere, that more embodies the complete disdain for the average worker than the joined-at-the-hip partnership between big business and government known as workplace wellness.

That claim might seem extreme, but put yourself in the shoes of the average worker. You used to have a good health benefit. But then, following the passage of the Affordable Care Act, your benefits were reduced, and you were put in a high-deductible plan. True, your benefits might have been reduced anyway due to the increasing cost of healthcare, but coincidence to the average person smells like causality.

See also: The Value of Workplace Wellness  

A benefits reduction sounds like a wage cut. However, you are told you can earn some or all of it back. All you have to do is allow your employer (and, yes, it isn’t really your employer, but it smells like your employer) to pry into your personal life with a questionnaire; poke you with needles to do blood tests that over a 15-year period have proved useless at reducing the country’s heart attack and diabetes event rates; and prod you, in violation of all guidelines, to go to the doctor when you aren’t sick.

You (remember, “you” are still the worker) are then left with this Hobson’s choice: You must throw yourself at the mercy of an unregulated wellness vendor that – if last month’s C. Everett Koop award to Wellsteps for being the “best wellness program in the country” is any indication – is more likely to harm you than benefit you, while invading your privacy and sucking up your time.

As an employee, what recourse do you have? Basically none. The Equal Employment Opportunity Commission has no provisions against “voluntary” workplace wellness programs, and the word “voluntary” has now been defined to include even programs with non-compliance penalties that might exceed $2,000. The net result: You can be forced to pay a large fine for refusing to participate in a voluntary program, and there’s nothing you can do about it.

You can’t sue for malpractice because wellness vendors aren’t clinical professionals, and you can’t complain to the licensing authority because wellness vendors aren’t licensed. You can’t claim they violate the industry code of conduct because – unlike everything else, including war — wellness has no code of conduct: The wellness trade association has stonewalled on the code of conduct, which embraces only the simple notion that wellness should respect the dignity of workers and not harm them.

Should you opt to maintain your dignity and not violate clinical guidelines, by declining to be part of a wellness program, you may lose four figures in compensation just by wanting to be left alone to do your job.

Don’t take my word that this is how employees feel. Simply read the comments by employees to any article on wellness.

Meanwhile, what is the government doing? Simple. The government is carrying the Business Roundtable’s (BRT) water. The Senate is in the BRT’s pocket, holding “hearings” that are basically just ads for the BRT. And the president put the EEOC on a short leash after the BRT threatened him.

As members of the BRT, and their like-minded compadres at the U.S. Chamber of Commerce, corporations are gleeful. They can cut benefits and “offer” employees the opportunity to earn them back, or just fine employees directly. One vendor, Bravo Wellness, even dogwhistled to employers that they could get immediate “savings” by fining employees.

What happens now, and what should you do?

Wellness is likely to become a touchstone for all that is wrong with the Affordable Care Act, because, almost uniquely in the ACA, the wellness provision has basically no upside. (Disagree? Show I’m wrong, and claim the $1 million reward I’ve offered to anyone who can show wellness has broken even this century.) The American Association of Retired People (AARP) is already shining a light on wellness via a lawsuit, and the effort may make it much more difficult for the wellness industry, the BRT and the Chamber to hide behind the EEOC.

As representatives of the employers who may very well be abusing employees (and not knowing it, any more than the Boise School District realized it was being snookered by Wellsteps until the problem was exposed by a leading healthcare journalist — even though the invalidity and ineffectiveness of the district’s wellness program was perfectly obvious to Wellsteps’ colleagues on the award committee), you should get ahead of this curve. Drop punitive wellness programs, or programs with low participation (which reflects low satisfaction). Or swap out programs that “do wellness to employees” for programs that “do wellness for employees.” The difference is fairly self-evident. Are employees lining up, or do they need to be coaxed? Are there big bribes or fines involved? Is the program something you yourself would do without an incentive?

See also: ‘Surviving Workplace Wellness’: an Excerpt  

You shouldn’t need to wait for the law to change to make changes yourself now. “Pry, poke and prod” programs were a bad idea to begin with, and the passage of time and rise of populism hasn’t made them any better.

Disclosure

The editorial viewpoint in this article, though reflecting my opinion, is colored by my leadership of Quizzify. Quizzify does not “pry, poke and prod” employees, but rather just enhances their knowledge base in an entertaining way. Not just theirs – even yours. Play the sample game on the site and see for yourself. We hope to benefit from the likely retreat from government support for intrusive and ineffective wellness programs in the new administration. On the other hand, you are free to publish opposing comments or viewpoints. Join the conversation, even if it means hollering at me by quoting people who know they are wrong claiming savings they know are fabricated.

EEOC Caves on Wellness Programs

In a deep dark recess of the Federal Register this week, large corporations quietly received permission to “play doctor” with their employees. Corporations can now impose even more draconian and counterproductive wellness schemes on their workers. The hope of the corporations is to claw back a big chunk of the insurance premiums paid on the behalf of employees who refuse to submit to these programs or who can’t lose weight.

A Bit of Background on Wellness

The Affordable Care Act (ACA) allowed employers to force employees to submit to wellness programs under threat of fines. Specifically, the ACA’s “Safeway Amendment” — named after the supermarket chain whose wellness program was highlighted as a shining example of how corporations could help employees become healthier — encouraged corporations to tie 30% to 50% of the total health insurance premium to employee health behaviors and outcomes. (As was revealed while ACA was being debated, Safeway didn’t have a wellness program. The fictional Safeway success was a smokescreen for corporate lobbyists to shoehorn this withholding of money into the ACA.)

Once this 30% to 50% windfall became apparent, many corporations figured out what this vendor (Bravo Wellness) advertised: There is much more money to be made in clawing back large sums of money from employees who refuse to submit to these programs than in improving the health of employees enough to allegedly reduce spending many years from now. “Allegedly” because — unlike simply collecting fines or withholding incentive payments — improving employee health turns out to be remarkably hard and ridiculously expensive to do. It is so hard and expensive that:

Most importantly, the complete lack of regulation has allowed the wellness industry and health plans to expose employees to significant potential harms to maximize revenue.

See also: Wellness Promoters Agree: It Doesn’t Work

The Federal Government Green Lights “Wellness-or-Else” Programs

There are no regulations, licensure requirements or oversight boards constraining the conduct of wellness vendors, and there is only one agency — the Equal Employment Opportunity Commission (EEOC) — providing any recourse for employees. The Business Roundtable has taken on the latter at every opportunity. First, the Business Roundtable threatened President Obama with withdrawing its support for the ACA unless he declawed the EEOC. Then, the Business Roundtable arranged for sham Senate hearings titled “Employer Wellness Programs: Better Health Outcomes and Lower Costs.” Finally, it threatened to push the “Preserving Employee Wellness Programs Act” to legislatively eviscerate the EEOC’s protections.

But it turns out the legislation was not necessary; the EEOC has now caved in. These programs are defined as “voluntary,” yet, as of now, employees can be forced to hand over genetic and family history information or pay penalties. So, as in 1984, where “war” means “peace,” employees can now be required to voluntarily hand over this information.

Let’s be clear. Genetic information isn’t about employee wellness programs, which do not work. It is all about the penalties. Genetic information is worthless in the prevention of heart disease and diabetes, as Aetna just showed in a failed experiment on its own employees.

Knowing family history does have some predictive value, but it is unclear how employees are going to benefit from employers collecting it. Self-insured employers could either fire the employee or do nothing. Neither is useful for the employee. If the employer is fully insured, this information is akin to a “pre-existing condition” in the old days. The employer’s premiums will increase as long as employees with bad family histories remain on their payroll.

See also: The Yuuuuge Hidden Costs of Wellness

The Good News, Part 1: Corporations Wising Up

The Business Roundtable — and its friends at the U.S. Chamber of Commerce — might want to connect their computers to the Internet. It turns out that many companies are finally realizing that compelling employees to submit to medical screens just to claw back some insurance money isn’t worth the morale hit.

Increasingly, employers are learning that what the national data shows is also true for themselves: These programs simply do not work. For example:

And the morale hit? A formerly obscure faculty member who led the successful employee revolt against the Penn State wellness program was just elected president of the Penn State Faculty Senate — largely because employees were so grateful for his leadership in that revolt.

The Good News, Part 2: Wellness for Employees

As a result, many companies are deciding that clawing back some insurance money is not worth the damage done to their workforces. They are replacing “wellness done to employees” with “wellness done for employees.” These companies are improving the work environment, upgrading their food service, encouraging fitness or simply adding features like paternal leave or financial counseling. They might still hold a “health fair” every now and then, but their medical tests are conducted infrequently (based on actual clinical guidelines) instead of allowing vendors to screen the stuffing out of employees to find diseases that do not exist.

Or, companies are actually focusing efforts where they can make a difference, such as steering employees to safer hospitals or educating employees on how to purchase healthcare services wisely. (Disclosure: My own company, Quizzify, is in the business of teaching employees how to do the latter.)

Notwithstanding this disruption and regardless of the harm it has caused, the $7 billion wellness industry has excelled in perpetuating its own existence. Industry thought leaders recently proposed a scheme to encourage companies to disclose how fat their employees are and have even managed to get a few large employers to sign on to it.

The sheer audacity of that scheme and the complete disregard for its consequences on overweight employees means the war on “voluntary” wellness-or-else programs is by no means over. Like every other industry threatened by reality but supported by deep-pocketed allies such as the Business Roundtable, the wellness industry can rely on the government to delay the inevitable.

Consequently, it might be quite some time before the inevitable course of reality overcomes the wellness-or-else pox on the healthcare system.

When Are Background Checks Not Allowed?

The Equal Employment Opportunity Commission (EEOC) has been quite active in challenging employers’ use of criminal background and credit history checks during hiring. There is still significant uncertainty as to the current standards and law about the checks of criminal and credit history. The lack solid guidance makes it difficult for employers to determine how to evaluate their current use of this information, as well as to understand the legal pitfalls and hurdles that the EEOC has placed in front of them.

EEOC Directives

The recent activity emanates from the EEOC’s recent directive and key priority (as per its December 2012 Strategic Enforcement Plan (SEP)) to eliminate hiring barriers. This priority includes challenges to policies and practices that exclude applicants based on criminal history or credit check. The EEOC has a keen interest in this area, as it believes that criminal/credit checks have a disparate impact on African American and Hispanic applicants. As the EEOC pursues the directive, expect the EEOC to scrutinize failure-to-hire claims where a criminal history or background check was conducted. Even if the background check was “facially neutral” and was uniformly given to all applicants, the EEOC may investigate to determine if the check had a “discriminatory effect” on certain applicant(s).

The EEOC asserts that criminal background checks must be “job-related” and “consistent with business necessity.” Employers are advised to consider: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct or completion of the sentence; and (3) the nature of the job held or sought. The EEOC stresses the need for an “individualized assessment” before excluding an applicant based on a criminal or credit record.

Local/State/Federal Laws

Employers face additional legal hurdles regarding hiring practices because of recent local and state legislative developments. These laws are commonly referred to as “ban the box” (i.e., restrictions on the use of criminal history in hiring and employment decisions). Making matters even more difficult, employers have also been subject to a surge in class action litigation under the Fair Credit Reporting Act (FCRA). The FCRA regulates the use of and gathering of criminal histories through third-party consumer reporting agencies with respect to conducting background checks on applicants or employees.

Legal Actions

In pursuit of its directive, the EEOC has filed several large-scale lawsuits against employers. We expect that the EEOC will continue to file similar lawsuits throughout 2015 and beyond. Most have been brought as failure-to-hire claims. For example, an African-American woman brought a claim alleging that she was discriminated against based on her credit history. This claim started out as a single plaintiff action, but, after the EEOC conducted its initial investigation, the EEOC dramatically expanded the scope of the initial charge, alleging that the employer was engaging in a “pattern and practice of unlawful discrimination” against: (1) African-American applicants by using poor credit history as a hiring criterion and (2) African-American, Hispanic and white male applicants by using criminal history as a hiring criterion.

Reasonable employers complain that the EEOC has placed employers in a Catch 22. Employers have to choose between ignoring criminal history and credit background, exposing themselves to potential liability for criminal and fraudulent acts committed by employees or to an EEOC lawsuit for having used this information in a discriminatory way.

Takeaway for Employers

Claims involving criminal background checks and credit checks are an EEOC priority. At this time, employers have little guidance from the courts or the EEOC as to exactly what “job-related” and “consistent with business necessity” mean and just how closely a past criminal conviction has to correspond with the duties of a particular job for an employer to legally deny employment to an applicant. Moreover, employers continue to witness expanding restrictions dealing with criminal history at the state and local level based on ban-the-box legislation, as well as with an increasing number of class action lawsuits involving background checks as required under the Fair Credit Reporting Act.

Employers are encouraged to work closely with legal counsel as to what they should and should not ask on applicants as well as how and when they can use background information they obtain. Based on this evolving area of the law, we additionally recommend that employers purchase a robust EPL policy that will defend them in the event that the EEOC or a well-skilled plaintiff’s counsel pursues a claim against them for discrimination, or for failure to hire based on criminal or credit background checks.

How Strict Can a Dress Code Be?

Does your company have a “look” or standard of dress it requires in the workplace? No hats, or maybe no beards? Can you deviate from the dress code?

Increasingly, employees and applicants for employment are making “failure to accommodate” claims on the grounds that they were discriminated against based on their need for a change or exception to a workplace grooming or dress policy. Examples of religious discrimination or failure to accommodate can include: not hiring the applicant because she doesn’t fit the company’s “look” or placing an employee in a non-customer-facing position because of religious attire or grooming (e.g., long beard, piercings, head scarf ).

The law

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et. seq., as amended, prohibits employers with at least 15 employees from discriminating in employment hiring, recruitment, promotion, benefits, training, job duties, termination or any other aspect of employment on the basis of religion. It also prohibits retaliation for complaining of religious discrimination or for participating in the investigation of such claims, and for denying reasonable accommodations, including accommodations for religious attire or grooming standards. It is the EEOC’s position that an employer is required to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

Title VII only provides protection to sincerely held religious beliefs and practices about dress code. These protections are broadly interpreted and cover not only traditional religious beliefs but also those that are new and uncommon. If an employee merely makes such a request for accommodation based on personal preference rather than religious belief, there are no Title VII protections or implications. However, the requirement that employers and their management learn to distinguish between these two types of requests can be daunting and dangerous in light of the litigious society we live in.

Recent case

In February 2015, the United States Supreme Court heard arguments in a case filed against Abercrombie & Fitch, where a Muslim applicant was rejected after wearing a head scarf (known as a hijab) to an interview, based on the hiring manager’s belief that such covering violated the company’s rigid “look” policy, which forbids caps and hats. The applicant never asked for an accommodation, and the employer never opened a dialog as to whether a reasonable accommodation to the dress code would be necessary. Once a ruling is issued, we hope the Supreme Court will provide guidance as to when an employer has any obligation to open dialog about religious accommodation without the employee or applicant making such a request.

Takeaway

To ensure compliance with the law, employers must be informed and vigilant when applying workplace uniform, “look” or grooming policies, particularly as they apply to employees or applicants in need of a religious accommodation. Management or hiring decision makers should be trained on how to implement religious accommodation requests, specifically, learning to identify and understand religious clothing accommodation requests and how to properly engage in such discussion. When in doubt as to the proper handling of a religious clothing accommodation, we suggest that you contact a labor and employment lawyer before making employment decisions. Your attorney can also help identify potential pitfalls in uniform, look or other clothing policies. Further, a well-designed employment practices liability (EPL) insurance policy should be purchased to mitigate potentially costly financial damage, should you be faced with a discrimination suit based on religious dress or grooming.

Is EEOC an Unlikely Friend on Work Comp?

The traditional school of thought since the Americans with Disabilities Act (ADA) was enacted in 1990 is that it did not apply to state workers’ comp cases because they involve temporary disabilities and work restrictions. Claimants were not considered “qualified individuals with a disability” under the ADA. Even if the ADA provision for a “reasonable accommodation without undue hardship” is to be taken into consideration, the process would not begin until the claimant reached maximum medical improvement (MMI). But informal EEOC guidelines released in December 2014 stated that these traditional understandings may not be legal.

The EEOC release stated that it is “not true” that MMI should be considered the trigger for ADA-related protections for employees and obligations for employers. Employers must begin the ADA interactive process for return to work (RTW) much sooner than commonly thought. The EEOC is saying that workers’ comp and the ADA process are to run simultaneously, not sequentially. In addition, the worker must be an active participant in the process. This is a major surprise to many in the industry.

I have been a proponent of using “the spirit of the ADA” to implement return-to-work practices in workers’ comp programs for 25 years. (See previous ITL article, “Return-to-Work: A Success Story,” June 25, 2014.) However, these new “interactive process” guidelines may change the whole practice of RTW in workers’ comp because most employers and their third-party administrators (TPAs) or insurers typically postpone attempts at a reasonable accommodation until the claimant reaches MMI. That may now be construed as a violation of employee rights and employer obligations under the ADA.

In addition, the EEOC guidelines give a very broad definition of disability and when it applies under the ADA. The EEOC spokesperson said the ADA applies “all the time” and “as soon as notified” when “a medical condition has the potential to significantly disrupt an employee’s work participation. . . . The only relevant question is whether the disability is now, or is perceived as potentially, having an impact on someone’s ability to perform their job, bring home a paycheck and stay employed.”

That is a mouthful to swallow and think about. The ADA would apply if the disability is “perceived” as having an impact on the ability to perform a job. Perceived by whom? The employer? The employee? The physician? What physician?

What does this mean for employers?

The EEOC stated that its biggest concern is the employee who has a disability but who can perform the essential functions of a job with a reasonable accommodation. The cause of the disability is considered irrelevant under the ADA. It will now be very difficult for employers to say that a worker is not a “qualified” individual under the ADA because the person obviously held the job prior to the disability.

The EEOC stated that everyone, including treating physicians, TPAs and employers, should “keep that in mind” but that only the employer is accountable for complying with the ADA. Treating physicians and employer vendors who fail to communicate with employers during the “stay @ home” process may be exposing the employer to increased risk and liability, and the EEOC spokesperson said this failure would be particularly troublesome if a treating physician who is picked by the employer doesn’t tell the employee about adjustments that might allow her to work. The employer may be liable for failing to provide that accommodation even if not properly passed along. The EEOC spokesperson went on to say that physicians and vendors should be educating employers. But who, may I ask, is educating the physicians and employer vendors?

How should employers react to these EEOC process guidelines for workers’ comp and other non-occupational disability programs? Employers should embrace them!

Most that is truly considered workers’ comp managed care and RTW best practices are encompassed in these interactive guidelines: prompt, high-quality medical care followed by 24-hour contact between workers, treating providers and supervisors. Safe return to work, with or without reasonable accommodations, should be the goal from day one and documented in each case, even without intervention by the EEOC.

Sebastian Grasso, CEO of Windham Group in Manchester, NH:

sgrasso@windhamgroup.com

which specializes in “failed return-to-work,” agrees and argues that the EEOC action should be a “wake-up call” for employers. Grasso, like several other industry experts interviewed for this article, said that in his 25-year career in the RTW business his employer/insurer clients have never brought up the ADA in workers’ comp cases. He said the two problems faced on a daily basis in the workers’ comp industry that severely hamper RTW efforts are erroneous job descriptions and inflexible employers who won’t take injured workers back unless they are “100%.” This traditional mindset and passive approach to RTW may now be considered an ADA violation, so employers and insurers may have to re-think their RTW policies and procedures.

Grasso stated; “We get injured workers back to their original jobs; it’s what we do every day. It’s the right thing to do; it’s non-adversarial and benefits all the players in the process.” This approach appears to be both within the spirit and now actual guidelines of the ADA, according to the EEOC.

Ted Ronca (medsearch7@optionline.net), a leading workers’ comp and disability attorney based in New York, also stated that he never saw the ADA brought up in a workers’ comp case in New York in the past 24 years. Ronca also feels employers should “champion” the new approach for workers’ comp RTW programs. He recommends the first thing for employers is to establish job requirements and bring the employee into these preliminary discussions. Ask the worker for his input on reasonable accommodations and document the discussion.

Back when the ADA was enacted in 1990, many believed a slew of litigation would result from workers’ comp cases. This has rarely, if ever, happened. Most experts I have spoken to are not aware of any cases, but the original fears may now come to fruition. As Ronca noted; “75% of the cases in the New York work comp system involve cases where the claimant’s attorney is claiming total disability and seeking a lump-sum award.” Getting that injured worker back to work is not on the claimant’s attorney agenda but should be on the employer’s.

Employers should not fear the ADA but embrace it. The ADA has built-in protections for employers such as that any accommodations must be “reasonable without undue hardship.” This means significantly difficult or expensive. In addition, employers are not required to eliminate or reduce the essential functions of a job even temporarily. The EEOC is simply saying that employers may choose to reduce job demands and productivity expectations on a case-by-case basis and that no blanket policy is appropriate.

However, the EEOC goes on say that the ADA cannot be used to deny a benefit or privilege to which an employee is entitled, such as time off under the Family and Medical Leave Act (FMLA), workers’ comp, disability, sick leave, accrued vacation or any other leave and benefits. The EEOC considers the ADA “civil rights for people with disabilities.”

I just loved the EEOC comment that an employer’s stay @ home policy is not a reasonable accommodation. Not only is an interactive process the right thing to do for disabled workers, it will save money, improve productivity and protect employers from potential ADA violations and obligations.

It may be time to rethink your return to work program. It’s about time!