The case we’re referring to is Olsen v. Capital Region Medical Center, and it involves a mammography tech, Andrea Olsen, who suffered from epilepsy. During her employment, Olsen had 14 seizures over a period of just two years. Two of Olsen’s seizures actually occurred while she was conducting exams on patients, which led to a patient complaint.

The company took a number of steps to work with Olsen’s disability, such as installing anti-glare filters, but eventually the company moved her to a temporary file-clerk position. When that position expired, Olsen filed an ADA discrimination suit against Capital Region Medical Center.

In her suit, Olsen claimed that the company failed to provide an ADA accommodation for her disability by offering the “intermittent rest” that would’ve allowed her to continue to do her job.

What the court said

A court disagreed that discrimination was a factor in the company’s decision and ruled in favor of Capital Region Medical Center.

For one thing, the “intermittent rest” wasn’t a reasonable accommodation because it didn’t eliminate Olsen’s seizures or allow her to perform essential job functions during periods of temporary incapacity, the court said.

The court also said that Olsen wasn’t a qualified individual with a disability because she couldn’t “perform the essential function of [her] position while [she] was experiencing an uncontrolled and unpredictable seizure.”

But the most important aspect of the case was the safety issue. According to the court, Olsen’s seizure posed a “direct threat,” which under the ADA “exists when there is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

And, the court added, “The hospital need not subject its patients to potential physical and emotional trauma to comply with its duties.”

An array of ADA guidance

When it comes to ADA compliance, disabilities like epilepsy can present a major for employers. Plus, there are a number of other medical conditions that present a challenge for employers in terms of providing ADA accommodations.

As a result, the EEOC recently published the following new ADA guidance on specific medical conditions:

• Questions & Answers about Cancer in the Workplace and the Americans with Disabilities Act
• Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act
• Questions & Answers about Epilepsy in the Workplace and the Americans with Disabilities Act, and
• Questions & Answers about Workers with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act.

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Today’s HR pros are using voluntary benefit plans to create competitive benefits packages that help recruit and retain top talent. However, this often requires some effort on the part of HR managers to research and compare plans, and those efforts are often wasted when employees do not understand the full value of a new benefit.

To maximize satisfaction with employee benefits, HR managers must first encourage employees to enroll via clear, comprehensive communication.

Clear communication seems like a logical tactic, yet many companies are not making the grade in this area. According to MetLife’s 11th Annual Employee Benefits Trend Study, more than one-third of employees graded the effectiveness of their benefits communications with a “C” or worse. In addition, only 43 percent of workers believed the benefits communications they received were easy to understand.

Employees are more likely to enroll in a voluntary benefits plan when they fully understand the specific details of the offering, for example, the services they will receive, costs, and how much time and money they’ll save by participating in the group plan versus getting their own individual plan. Armed with this information, an employee can consider how the benefit will address their personal needs and act accordingly.

The MetLife study results showed that “employees who found their benefits easy to understand were more likely to recognize the range and relevance of their benefits.” Furthermore, these employees were three times more satisfied with their benefits and more than twice as engaged during open enrollment.

Top-rated communication tactics

Employees who graded their company’s communication tactics with an “A” or “B” in the study consider the following methods most helpful:

• post-enrollment confirmation of benefits elections (58%)
• personalized messages and materials reflecting individual needs and/or life stages (53%)
• employer benefits website (53%)
• one-on-one meetings (49%), and
• online decision-support tools, such as calculators, FAQS, etc. (48%)

Your benefit plan provider should make communication easy for you by customizing messages and tools specifically for your company. Multiple formats (print, electronic, in-person) allow employees to learn in a way that is easiest for them.

Employer support affects voluntary benefits plan success

Employer support is also critical to the success of a voluntary benefit plan. Employees often view their employers as their advocates, so it stands to reason that they will be more comfortable signing up for a service that their employer has vetted and stands behind. To demonstrate support, companies should integrate the plan into their existing employee benefits program and offer it on the ballot alongside traditional benefits.

Voluntary benefit plans have the ability to enhance the value of existing benefits packages. However, employees cannot appreciate that value unless they fully understand it. When companies utilize effective communication techniques and convey their support of the offering, employees feel comfortable making an informed decision about enrolling — and seriously consider doing so.

Brittany Schmigel works for Hyatt Legal Plans, a MetLife company and the country’s largest provider of group legal plans.

The post 5 ways to improve the success of your voluntary benefits plan appeared first on HR Benefits Alert.

1 in 5 charge a $100 surcharge

For one thing, the spousal surcharge isn’t nearly as drastic a move as it was just five years ago.

In fact, 20% of businesses said they impose a monthly surcharge of around $100 on spouses that don’t take advantage of their own employers’ health insurance when it’s offered.

Another 13% say they’ll take such a step in 2014.

This data comes from the 18th Annual Towers Watson/National Business Group on Health Employer Survey on Purchasing Value in Health Care.

And experts believe healthcare reform compliance is only likely to increase the use and amount of the spousal surcharge among employees.

As Matthew Kersting, a consultant for Sibson Consulting put it, “Employers are continually seeking ways to lower costs, and the ACA (Affordable Care Act) has increased their challenge. Since many of the penalties and fees under the ACA are based on the cost of employee-only coverage, this can be an effective way to lower costs while remaining compliant.”

Walk workers through the decision

When it comes to the spousal surcharge, communication is key. Employers that simply spring the added cost on workers with very little notice tend to face the most pushback from employees.

That’s why HR and benefits should be as upfront as possible with workers. Let employees know why the company decided to institute the spousal surcharge, as well as some of the potential benefits.

Example: The spousal surcharge will allow the company to continue offering a healthcare option for spouses without minimizing the coverage of the group health plan. You can even add that some firms have actually done away with coverage for spouses altogether.

Also, there are certain types of organizations that should be extra careful when it comes to imposing a spousal surcharge.

That’s because, according to National Business Group on Health President and CEO Helen Darling, “research shows that women are statistically more likely to take a job for health benefits for the family, and men care more about cash wages.” And businesses with a disproportionate number of women workers, “might find that a spousal surcharge hurts their ability to recruit and retain the talent they need,” says Darling.

The post Spousal surcharges: Minimizing workers’ resentment appeared first on HR Benefits Alert.

The Congressional Budget Office (CBO) thinks not.

With construction of the health insurance exchanges nearing completion and insurance companies beginning to submit 2014 policy proposals to states, Republicans are continuing to push legislation through the House in an attempt to repeal Obamacare.

Republicans’ latest bill is entitled H.R. 45: To repeal the Patient Protection and Affordable Care Act and health care-related provisions in the Health Care and Education Reconciliation Act of 2010.

On May 16, it passed the House by a vote of 226 to 192.

The bill is part of a long line of bills attempting to repeal Obamacare that have passed the House recently. And like those to come before it, the bill’s expected to die in the Senate.

Requested CBO cost estimate

But what makes this bill noteworthy is that prior to taking up the bill, House Budget Committee Chairman Paul Ryan (R-WI) put in a request to the CBO asking it to provide a cost estimate for the legislation.

In a nutshell, Ryan’s request asked the CBO what it would cost to repeal Obamacare.

The CBO denied his request, stating that it would take resources away from completing its analysis of President Obama’s latest budgetary proposals.

But the CBO did point to estimates it — along with the Joint Committee on Taxation (JCT) — prepared for House Speaker John Boehner (R-OH) last July on the budgetary impact of repealing the law.

The CBO said that although it hasn’t updated its projections since July, it said that it would expect similar results were it to do so in response to Ryan’s request.

Cost: $100 billion

Last July, the CBO said … repealing the ACA (Affordable Care Act) would affect direct spending and revenues in ways resulting in a net increase in budget deficits of $109 billion over the 2013–2022 period.

Why the $109 billion price tag? Because any savings achieved from eliminating the insurance coverage mandates in the law would be more than offset by “other spending increases and revenue reductions that repeal of the ACA would entail,” said the CBO.

In total, the CBO estimated that savings from 2014 to 2022 resulting from the repeal of Obamacare insurance coverage mandates would be $1.2 trillion. But the cost of repealing other provisions of the law would total about $1.3 trillion.

The post What would it cost to repeal Obamacare? appeared first on HR Benefits Alert.

A recent FMLA lawsuit provides a valuable lesson in what NOT to do when employees request medical leave.

Heather Curry was a manager of a Goodwill Center in Campbellsville, KY. On July 22, 2009, Curry informed her supervisor that she’d need to take medical leave to have surgery. She indicated her leave would start near the beginning of September, depending on when her surgery was scheduled.

A few days later, her supervisor informed Curry that she wasn’t happy Curry would be taking time off, because that meant she would have to cover Curry’s post at the Campbellsville Goodwill.

On July 31, 2009, Curry informed Goodwill’s HR department of her need to take FMLA leave. The department then sent her FMLA paperwork and requested that she return her certification forms by Aug. 15, 2009.

The finalized certification forms were not submitted until Aug. 19 (more on that later).

Terminated for timekeeping, performance issues

Just prior to submitting her paperwork, on Aug. 17, Curry was informed by Goodwill that she’d been terminated for falsifying timekeeping records and other performance issues.

Prior to the termination notice, Curry had never received any disciplinary reports or reprimands from the company. In fact, her store had received a number of company awards and she’d been given a raise due to a positive performance review she’d received in the past year.

On Aug. 27, Curry received a notice that her FMLA request had been denied because “Goodwill has no obligation to provide a leave of absence to a former employee.”

As a result, Curry sued Goodwill claiming it had interfered with her right to take FMLA leave and retaliated against her for requesting medical leave.

Goodwill requested summary judgment in an attempt to get the cause thrown out before it made it to trial.

The request was shot down by the court because there appeared to be a legitimate reason to suspect that Goodwill did in fact terminate Curry because she requested FMLA leave.

So now the case will proceed.

Two areas where Goodwill dropped the ball:

• Curry’s supervisor was on record as having said she wasn’t happy that Curry had requested medical leave, and
• Goodwill had no paperwork to back up its claims that Curry was terminated for timekeeping violations or performance issues.

A reason to always document

It’s important to note that many at-will employers feel as though they do not need to document performance issues to support a termination — and in some cases that’s true.

But supporting documentation will inevitably be needed in cases where an employee is terminated after having just requested FMLA leave. And seeing as how most FMLA requests are unforeseeable, it’s crucial to always document performance problems and violations of company policy.

Employers’ policy can’t be more stringent than FMLA

In issuing its ruling that Curry’s case could proceed, the court provided additional guidance on complying with the FMLA that employers should take note of.

In the case, the issue of whether or not Curry’s FMLA certification paperwork was late was put under the microscope.

As you know, the FMLA says employees can have up to 15 days to return their certification unless it is “not practicable” under an employee’s specific circumstances to do so. And if an employee fails to return their certification “in a timely manner,” their employer may deny FMLA leave until the required certification is provided.

That, according to the court, meant Curry’s FMLA leave couldn’t have been denied if she missed her Aug. 15 paperwork deadline, just delayed — assuming she were still an employee.

In addition, the court said as long as Curry provided her completed certification paperwork prior to the date her leave was scheduled to begin, her leave request couldn’t be denied for not handing in her paperwork in a timely manner.

Bottom line: If Goodwill had denied her leave request for failing to hand in her paperwork in a timely manner, that would mean the company’s procedural requirements would’ve been more stringent than the FMLA’s — which is not allowed.

Cite: Curry v. Goodwill Industries of Kentucky, Inc.

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Not according to James Kwak, a law professor at the University of Connecticut, who writes The Baseline Scenario blog.

The problem, says Kwak, isn’t simply employees’ inability to adequately sock away enough money for retirement,which study after study would lead employers and employees to believe.

The major underlying issue is the “deeply flawed ‘system’ of employment-based retirement plans that shifts risk onto individuals and brings out the worse of everyone’s behavioral irrationalities,” he said.

Essentially, Kwak’s argument is that the majority of defined-contribution plans (401ks, 403bs, etc.) consist of expensive, actively managed mutual funds that either:

• logically cannot beat the market on an expected, risk-adjusted basis, or
• overwhelmingly fail to beat the market on a risk-adjusted basis.

As a result, these plans could be in violation of ERISA.

 ’Violates the existing fiduciary duty’

Granted, the DC retirement plan model is far from perfect, as many retirement-ready participants found out when the market crashed in 2008. But isn’t it a stretch to say that a high percentage of employers are breaking the law with the retirement plans they’re offering employees?

Not really, says Kwak, because offering costly, under-performing investments, “violates the existing fiduciary duty of employer and plan trustees to invest participants’ money prudently.”

And there have been a few high-profile cases where employees have successfully argued that their employers — as plan sponsors — didn’t do enough to negotiate lower fees, and therefore, violated their fiduciary duties and ERISA.

Still, the idea that most plan sponsors are technically in violation of their fiduciary duties is a pretty extreme notion.

DOL partly to blame

Another interesting point Kwak made: The DOL is partly to blame because of its lack of clear guidance on the role of a fiduciary and its duties.

And he even offers a recommendation to the feds — as well as a prediction for what would happen for 401k participants if that recommendation is followed: “the Department of Labor should clarify its guidelines under ERISA (which could be done without Congressional action) to make it clear that actively managed funds create potential liability for plan fiduciaries.”

Should this happen, Kwak says: “The likely result is that most plans would shift to index funds in order to avoid liability, investor costs would fall by about 80 percent, and, in aggregate, investors would do slightly better than before even on a gross (before fees) basis.”

The post Most firms’ 401ks are potentially illegal, says legal expert appeared first on HR Benefits Alert.

Exchange notices, SBC changes

The most recent guidance came from the DOL and offered some highly anticipated info on the notices that businesses are required to distribute to employees on the availability of health insurance exchanges.

If you remember, employers were initially scheduled to distribute these notices back in March, but the feds pushed back that compliance deadline because they decided it was “impracticable” for firms to hand out the notices since many of the state exchanges haven’t been set up – and they don’t become operational until Jan. 1, 2014 (although open enrollment is scheduled to begin this October).

Now the DOL says employers must provide this notice to all current employees by October 1, 2013 — and new employees hired after that date must receive the notice at the time of their hire. Then, starting in 2014, new hires must receive the notice within 14 days of their start date.

In addition to guidance, the agency issued two model notices that employers can use to satisfy the Obamacare exchange notice requirement.

The first model notice the DOL released is meant for firms that offer health insurance to some or all of their workers. The second notice is for businesses that don’t offer a health plan.

Also, the DOL released a revised COBRA Model Election Notice, which includes info about the health insurance exchanges, as well as a redline document that shows the changes to the initial COBRA notice.

Prior to its guidance on the exchange notices, the DOL released an FAQ that included info on changes to the Summary of Benefits and Coverage (SBCs) documents employers are required to distribute, as well as model SBCs firms can use to comply with this Obamacare provision.

HRA, HSA contributions

In addition to the DOL’s exchange notice guidance, the IRS issued a proposed final rule to clarify a number of Obamacare provisions.

One major area of clarification: How employer contributions toward health reimbursement arrangements (HRAs) and health savings accounts (HSAs) should be counted when it comes to determining a plan’s minimum value.

When it comes to HSAs, employers’ contributions should be used when calculating a plan’s minimum value or “metal” level.

Employers’ contributions to a HRA can also be factored into the minimum-value equation as long as those contributions aren’t used to pay premiums.

Also, as the feds clarified previously, HRAs must be integrated with an employer-sponsored health plan to comply with the Obamacare rules on lifetime and annual limits.

Minimum value, affordability & wellness

The IRS guidance also clarified how employer-sponsored wellness program incentives will factor in to determining whether a health plan meets the minimum value and affordability standards under Obamacare.

A previous HR Benefits Alert report covers what the feds said in detail, and offers a few examples of how this guidance is likely to impact employers’ wellness plans moving forward.

The post Breaking down the barrage of new Obamacare guidance & forms appeared first on HR Benefits Alert.

Just weeks ago, a Davenport, IA, jury awarded 32 intellectually disabled men $240 million in damages for the way they were abused by their employer, Hill Country Farms (d.b.a., Henry’s Turkey Service), a turkey processing outfit.

Award slashed

But in what must have come as a big blow to the workers, the EEOC just acknowledged in a post-trial brief the award — which was being touted as the largest in the agency’s history — must be slashed significantly to $1.6 million due to a federal cap on damages for a company with less than 101 employees.

That means instead of each worker being slated to receive $7.5 million, which the EEOC said was an “appropriate and meaningful measure of the actual harms suffered by these victims of discrimination,” they’ll only recover $50,000 each, plus interest.

Add those figures to a wage discrimination judgment levied against Henry’s Turkey Service last fall, and the damages awarded to each man will total $2.9 million.

Suffered injustices

The EEOC filed suit, under the ADA, against Henry’s Turkey Service after it came to light that the company was abusing the men, who were tasked with eviscerating turkeys.

The suit claims the workers’ disability made the men particularly vulnerable to abuse because they were unaware of the extent to which their rights were being denied and violated.

Some of the things the workers had to endure, according to the EEOC’s suit:

• hitting and kicking by co-workers
• name-calling — “retard,” “stupid” and “dumb a**”
• being restrained or confined to rooms (with at least one reported case of handcuffing)
• denials of bathroom breaks
• being housed in “deplorable and sub-standard living conditions”
• having to carry heavy weights as “punishment,” and
• being denied medical care.

The EEOC said the treatment had gone on for 20 years, but the lawsuit only covered the period between 2007 and 2009.

It was even reported that company supervisors and the workers’ supposed caretakers often dismissed the employees complaints of injuries and pain.

Denied proper wages

As if all of that wasn’t bad enough, last September Henry’s Turkey Service was found guilty of another violation of the ADA after it was discovered the company paid the disabled workers substandard wages.

A federal judge awarded $1.3 million in back wages to the workers — between $28,000 and $45,000 per individual — because they should’ve been paid an amount equal to what other non-disabled workers were paid for doing the same work, which was between $11 and $12 per hour. But instead, they only received $65 per month.

Cite: EEOC v. Hill Country Farms

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