Continuing his posts on wellness programs, my colleague Marc Herman fills us in on what’s the latest.  

hermanI return today with the second part of a two-part post on wellness programs.

Reference to my prior post is not to be braggadocious, but to remind you that both posts ought be read in tandem.  Shameless, I know.

As I mentioned last time, the EEOC has finally published its long-awaited regulation that attempts to clarify the meaning of a voluntary medical examination.

Why long awaited? I hear you ask.

Well, if you recall, over the past couple of years, the EEOC has embarked on a slightly manic litigation spree against wellness programs.

In its typical altruistic self, the EEOC set-out to remind us that involuntary medical examinations are largely prohibited under the ADA.  I call this the No Exam Rule.

nurseNow, let’s get to the regulation itself.

According to the regulation, a voluntary medical examination (i.e., a lawfully incentivized wellness program) means that an employer:

  1. Does not offer an incentive that, in monetary terms, exceeds 30% of the total cost of self-only coverage for an employee;
  2. Does not deny an employee access to a health plan on the basis that the employee declined participation in a wellness program; and
  3. Does not retaliate against those employees that otherwise choose not to participate.

My self-proclaimed cynicism aside – please, I am English (Editor’s note: Too true!) – the above rules set forth a pragmatic, and dare I say workable, framework.  Employers that are considering such programs or that already have such programs, should be mindful of the regulations.

One thing to keep in mind — the regulation applies prospectively.  Thus, it will apply only to wellness programs that begin on or after January 1, 2017. With that said, the shake-up (or shake-down) due to take place in Washington D.C. very soon could relegate this new regulation to the history books.

Watch this space. Because I have a feeling we haven’t heard the last about wellness programs regulations.

 

Air Force Memorial in Arlington, VA
Air Force Memorial in Arlington, VA

UPDATED

Continuing to recap various employment law bills out of the Connecticut General Assembly, the legislature passed a measure Wednesday night that brings Connecticut’s FMLA law more in line with the federal counterpart.

The federal FMLA was amended back in 2008 (prior post on the subject here) to provide coverage for any “qualifying exigency” arising out of the fact that the spouse, son or daughter, or parent of the employee is on active duty or has been notified of an impending call to order in the armed forces.  Regulations were put in place as well.

The new Connecticut rule — which will go into effect immediately upon the Governor’s signature — covers that same type of qualifying exigency. Indeed, it defines such an exigency by reference to the U.S. Department of Labor’s regulations on that very subject.

What this means is that employees in Connecticut will now have 16 weeks over a 24 month period for such a leave.  You can review Senate Bill 262 here.

The new rule, however, is not a mirror image of the federal counterpart but brings its nearly up to date with it. And as readers will recall, there is a 26 week period for caregiver leave also in place in Connecticut as a result of P.A. 09-70 back in 2009.

Ultimately, employers in Connecticut will have to update their FMLA policies and procedures to account for this leave, if you haven’t been allowing military leaves under CTFMLA.

And while it’s obviously important to support the military and those that serve — the confusing and overlapping laws on the subject don’t make it easy for employers who want to do right by their employees.

USDOL Headquarters in DC
USDOL Headquarters in DC

Over the years in the employment law “blawgosphere” (isn’t there a better term by now?), I’ve had the pleasure of meeting with and conferring with several other attorneys who blog. One of those is Jeff Nowak, whose FMLA Insights blog has become a go-to place on all things FMLA.

So, it was no surprise yesterday that Jeff was one of the first to talk about a new FMLA notice that will be issued by the U.S. Department of Labor that can be used interchangeably with the existing notice. He also added this scoop:

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice. She confirmed that employers would be allowed to post either the current poster or the new version. In other words, employers will not be required to change the current poster. For those that want to use the new poster, I will post a link as soon as DOL releases it.

Jeff also linked to a new employer’s guide to the FMLA, a companion of sorts to a 2012 release by the DOL for employees.   This 71-page guide will be a good starting point for employers on the basics of the law but it leaves more complex issues about the law unanswered.  For more on it, see Jeff’s post and a followup post by Jon Hyman, of the Ohio Employer’s Law Blog this morning as well.

Connecticut employers though should exercise extreme caution about using this guide as a bible.  As most employers in Connecticut are aware, there are significant differences between Connecticut’s FMLA law and the federal counterpart.  And because employers with 75 or more employees in Connecticut are covered by both, there is a significant risk that employers using only the federal FMLA guide will get the law wrong.

Connecticut has historically posted a comparison of the two laws that is helpful, again as a starting point.  But that comparison is now 17 years old and doesn’t address many of the current issues or things such as a military exigency leave that have occurred through changes to the FMLA law over the years.

So what’s an employer in Connecticut to do? Ignore it? Read it?

Probably a little of both.

There are certainly items helpful in both guides but, in my view, they aren’t a substitute for talking with counsel about more complicated issues such as intermittent leave and FMLA’s interaction with the ADA and Connecticut’s Paid Sick Leave law.

If nothing else, be aware that when FMLA leaves do occur, there may be more to the solution than what is posted in the USDOL’s employer guide.

 

It’s been nearly two months since Connecticut’s “medical marijuana” law became effective.  Yet many employers have been blissfully ignorant about what the law provides, perhaps because Connecticut does not yet have a home-grown supply of marijuana and the registration process is just beginning.

But because of the law’s appeal, I would expect the impact to increase substantially in 2013.  Here are some key facts employers ought to know now:

What does the law provide?

  • It is legal for certain individuals to possess limited quantities of marijuana for “palliative use.”

    Are Policies “Up In Smoke”?
  • “Palliative Use” refers to the alleviation of a “qualifying patient’s” symptoms of a “debilitating medical condition.”
    • A “Qualifying Patient” is a Connecticut resident aged 18 or older who has been diagnosed by a physician as having a debilitating medical condition.
    • A “Debilitating Medical Condition” includes cancer, glaucoma, AIDS or HIV-positive status, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, Crohn’s disease, PTSD, and any other medical condition approved by the Department of Consumer Protection pursuant to regulations to be adopted.
  • Persons who may possess marijuana include qualifying patients and their “primary caregivers.”
How is the law being implemented and enforced?

What is the impact for employers?

  • Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.
  • Employers may discriminate if required by federal funding or contracting provisions.
  • Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
  • Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.
  • But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.
What about the interaction with the ADA?
 
There has yet to be a Connecticut case on this, but a recent case from the Ninth Circuit suggests the answer to the question: “What do I do if my employee asks to be permitted to smoke medical pot at work as a reasonable accommodation for a disabling medical condition?”  Because federal law still prohibits possession/use of marijuana, the court concluded that the ADA does not require this accommodation.
 
Will Connecticut law follow? We likely won’t have an answer to this question for some time.
 
What should employers consider doing now?
 
Employers should educate their staff as to the requirements of this new medical marijuana law and update policies, where necessary, to reflect the new legal requirements. 
 
For more on the national marijuana legalization trend, see this article in today’s Employment Law Daily.  And for more on the Connecticut law in general, see this article from the Connecticut Lawyer magazine (CBA membership required.)

Regardless of your political affiliation, you have to appreciate the magnitude of the moment.

Sweeping health care insurance legislation has passed Congress. (The Senate will still take up  the "reconciliation" part of the bill which will make some additional modifications because the House only approved of the Senate version.)

So, now’s the time to ask: What does this mean for employers?

No one really knows. Oh, you’ve been hearing lots of commentators talk about how lots of jobs will be lost (or saved) as a result of this.  Or they will talk about what this means for our country.   But in truth, it’s much like looking at a crystal ball — you’re much more likely to get a distorted picture than a real one.

So rather than guess about what will happen for employers in the future (or speculate about future changes that may or may not be made), let’s talk about what we know.   

Employers are not, technically, required to provide health insurance to their workers under the bill that passed.  But if employers with 50 or more employees do not provide health insurance, they will be required to pay a fine of $2000 per worker each year if any worker receives federal subsidies to purchase health insurance. Fines will be applied to entire number of employees minus some allowances (under the formula — at least in the reconciliation bill — the first 30 employees are probably not going to be counted).

But again, here’s the most important part: If you are an employer will less than 50 employees, you will not be impacted directly from this bill because you will not be penalized if you don’t offer health insurance.  

For those employers that do offer coverage, you’re not out of the woods just yet. Under the passed bill, if the employee finds the insurance too expensive because it would represent too much a percentage of their income, the employee may purchase insurance on the open market (or at least the marketplace of exchanges that the measure also establishes).  The employer would then be required to provide a voucher to the employee on the percentage that the employer would have kicked in had the employee chose to continue with the employer-sponsored plan.

There is an additional provision for employers of 200 or more employees: If you, as an employer, do offer health insurance to your employees, then you will have to automatically enroll those employees in the plan.  

So, you might be wondering, should I start planning for this? Well, unlike some of the COBRA-subsidy provisions that have gone into effect immediately, this law has a great deal of buffer built in.  In fact, many of these provisions do not start until January 1, 2014 — or nearly four years from now.

But there are others that go into effect more quickly, including a provision to require employers to extend coverage to include adult children (up to age 26) of employees. 

As you might expect from a 2000 page bill, there are certainly other provisions that might affect employers. Various blogs and publications have begun summarizing some of those provisions including Business Insurance and Washington Employment Law Update.  I expect we’ll hear more this week too as everyone starts to analyze it in more detail.

For employers that have low-cost workers, there is no doubt that this measure will have some impact because of the penalties that may be applied if health insurance is not offered. But how much of an impact that will be will have to be determined by each company on a case-by-case basis.

For now, each employer should consider appointing a small group of employees (including those from human resources and finance areas) to figure out what health care reform will mean to that employer.  And stay tuned, I don’t expect we’ve heard about this for the last time.  

While the current outbreak of H1N1 Influenza is turning out (for now) to be less lethal than previously thought, the EEOC released guidance this week (available here) to help employers prepare for a possible pandemic and still comply with the ADA.

Some of the guidance is lifted from previous statements of the EEOC but applied to this situation. For example, the EEOC again reminds employers of the limits of making medical-related inquiries to employees:

Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability. This requirement affects when and how employers may request health information from applicants and employees regarding H1N1 flu virus.

The EEOC also goes out of its way to emphasize that there are ways an employer can legally survey its workforce before a pandemic strikes to allow it to be prepared.  In fact, it provides a model survey for the employer to use.  

Lastly, the EEOC addresses infection control measures and states what should be obvious: "Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA."

It’s a helpful reminder to employers that even in times of crisis, we remain a nation under the rule of law.  Let’s hope that this current outbreak wanes and that it does not reoccur in the fall in a more virulent form.