Employer mistakes with leave of absence policies can be costly
While both FMLA and ADA provide employees with the right to take a leave of absence under qualifying circumstances, employers often lose sight of the fact that the combination of these laws, as well as state leave law obligations, may increase employer responsibilities. When employers fail to consider their legal responsibilities under each law, the potential for legal exposure increases significantly.
Leave of absence issues can be frustrating for employers – particularly when a recently hired employee develops a medical issue that results in an inability to work. Most employers would like to tell new employees that their short tenure disqualifies them from leave. Yet, even where an employee does not meet the FMLA eligibility requirements because he has not worked for the employer for a total of 12 months, worked 1250 hours in the 12 month period preceding the commencement of the leave, or works at a small work site, that new employee, if disabled, may still be entitled to a leave of absence under ADA or applicable state law.
Likewise, even after an employee has exhausted FMLA leave, employers must be careful not to prematurely terminate an employee who cannot resume duties immediately and on a full-time basis.
The ADA and applicable state law require an employer to consider whether additional leave is a reasonable accommodation or presents an undue hardship and must be prepared to consider providing other types of reasonable accommodations (e.g., adjusted work schedule, work from home arrangements or the removal of non-essential job functions) to enable the employee to return to work. The failure to consider the potential leave obligations to an employee both before and after the use of FMLA leave creates significant legal exposure for employers.
Another area of concern for employers is the new EEOC guidance regarding pregnancy discrimination. The FMLA provides leave to employees related to the birth and care of a child. Moreover, while under the ADA, pregnancy is generally not considered an impairment and, therefore, not a disability, employees may have other medical conditions or impairments related to their pregnancy (e.g., diabetes) that are covered disabilities and for which an employee may be eligible for leave or other reasonable accommodations.
More recently, in considering an employer’s obligation under the Pregnancy Discrimination Act not to discriminate against employees on the basis of pregnancy, the EEOC has emphasized that an employer is obligated to provide leave and hold a position open for an employee with a pregnancy related absence for the same length of time that positions are held open for employees on temporary disability leave.
As an enforcement matter, the EEOC appears to be taking the position that pregnant employees with medical conditions are eligible for leave as an accommodation, even if not disabled. Similarly, some state and local non-discrimination laws (e.g., New Jersey and Philadelphia) have more recently expanded employers’ obligations to accommodate pregnant employees.
This trend requires that employers view their obligation to provide leave to pregnant employees more broadly than just the FMLA and should be prepared to consider and grant leave requests (and provide job protection benefits) to such employees even where FMLA is not applicable.
In many instances, an employee seeking a leave of absence for his or her own medical condition has also applied for short term disability or workers compensation benefits. Employers should be cautious not be base their decision on whether to approve an employee’s leave request on an insurance carrier’s decision regarding insurance benefits.
For example, while an individual may be denied short term disability benefits under an insurance plan’s definition of a covered condition, this does not diminish the fact that the employee may still have a serious health condition necessitating a leave of absence. Similarly, when an employee is denied workers compensation benefits while the carrier investigates whether the injury was work-related, the employee may still be disabled under the law, and therefore, entitled to a leave as an accommodation.
Given the varying definitions of qualifying conditions under the insurance contracts, employers should not rely on the carriers to make a determination of leave eligibility. Instead, employers take control of the leave approval process and require employees to directly provide supporting medical documentation.
In light of the complexities of managing the various leave laws, employers should regularly review and update their leave policies to ensure they adequately address obligations under the FMLA, ADA and state law. In particular, references to a fixed leave period after which employment is terminated should be removed and descriptions of the availability of disability and workers compensation insurance benefits should be clearly stated as insurance benefits, not leave entitlements.
Finally, managers should be trained to report all employee requests for leave to human resources to enable the prompt assessment of the obligation to provide leave.
Leading CEOs partner to inspire wellness programs across all U.S. employers
With an eye to the efforts near and dear to benefits managers across the country, the industry leaders are urging their peers to embrace wellness programs and improve employee health.
Current council members, calling themselves The CEO Council on Health and Innovation, include executives from: Verizon Communications, Aetna, Bank of America, Walgreen, McKinsey & Co, Blue Cross and Blue Shield, Coca-Cola, the Institute for Advanced Health and Johnson & Johnson – the most recent addition.
Working in partnership with the D.C.-based Bipartisan Policy Center, the council called on employers to accelerate the adoption of comprehensive wellness programs that will tackle four areas of wellness the Centers for Disease Control and Prevention say are the leading reasons for developing chronic disease: inactivity, poor nutrition, tobacco use and frequent alcohol consumption.
Half of all Americans have at least one chronic disease, says Jason Grumet, president of the BPC and moderator at the event. Grumet says that the major employers taking part in the CEO Council represent a unique combination of good ideas with great people who have the ability to get things done, he said.
Lowell McAdam, chairman and CEO of Verizon Communications, says technology and wearable devices are going to be some of the biggest wellness tools of the future. McAdam says the company is already using technology-enabled, mobile health clinics to connect children with quality health care, as well as employing remote monitoring tools to enable seniors with chronic conditions.
Brian Moynihan, CEO of Bank of America, says his company uses incentivizing measures to help employees maintain their health. The bank provides additional funding for biometric screenings, and each year, if an employee remains at or below their numbers, health care costs will remain flat the following year.
Along with issuing a joint report, BPC launched an interactive Web site containing a slew of resources to support implementation of new programs among other employers.
What are the 4 types of private exchanges?
Private exchanges are an ever-popular option for employers to provide health insurance to both their active and retiree populations. Estimates put the number of private exchanges at around 150, but according to PricewaterHouseCoopers Health Research Institute, they can be broken into four types. Barbara Gniewek, principal and private exchange lead with PwC in New York City, explains these are grouped based on their genesis, or their beginnings.
- Technology: This includes such companies as bSwift and Benefitfocus; many developed public exchanges in states that built their own, PwC says. Others are known for providing benefits administration as either an outsourced solution or enrollment for insurers. “They are like the vending machines [of private exchanges]; they provide infrastructure and you decide what products you want and what brands to have,” Gniewek says. “They are highly flexible.”
- Pure Play: These are very new technology infused and highly flexible systems that include such companies as Liazon. They are like a pre-stocked vending machine as they come with products on the shelves, including medical plans with certain carriers, Gniewek adds.
- Broker/Consultant: Calling these “really interesting,” Gniewek says they are built on technology platforms. They include such companies as Aon Hewitt and Arthur J. Gallagher & Co. Some of these are built in-house by the broker or consultant, but in many cases, are the result of partnering with a technology company
- Insurer: Including such companies as Cigna and Aetna, their strategy was to build their own private exchange to protect market share and separate themselves from the competition. The insurers, Gniewek adds, may also have relationships with networks and have clients they want to protect. Many of these also use technology developed by others.
So how does an employer pick which model to choose? Employers often rely on their advisers, including brokers and consultants – many of whom have their own exchanges. Gniewek says when PwC helps a client they do two main things as an evaluation:
First, an understanding what the employer is looking for, including making their own plan design or enhancing a strategy they already have. “Depending on what they are looking for, exchanges that meet their needs can differ greatly,” she says.
PwC also helps employers understand the different models and which plays to their employee size. “Which ones can best meet [employer’s] needs?” she asks. “That is what the consultant needs to do.”
6 ways to overcome distractions
Originally posted by Erin Bramblett, HR specialist with Insperity, an HR outsourcing firm on https://ebn.benefitnews.com.
If anyone knows a thing or two about multitasking, it’s benefit managers. From understanding the compliance complexities of the Affordable Care Act to navigating the nuances of ERISA, benefit managers are experts at juggling several priorities. Yet multitasking and having to deal with constant interruptions can negatively affect work quality, according to a recent study from the Human Factors and Ergonomics Society.
“Prioritize what you need to get done as an employee and do those things early in the day,” says Bramblett. “Focus on what needs to get done, whether it’s three things or five things, and focus on those until they’re done.”
“Write that bulleted list, include scheduled breaks and cross them off as you complete them. That will help you stay focused,” advises Bramblett. “And taking a mental break in between tasks will help employees shift gears a little more easily.”
A five-minute break to update your status can easily turn into a 30-minute waste of time, says Bramblett, who advises keeping social media pages closed during the work day. But if you absolutely can’t go all day without seeing what those crazy cats on Instagram are up to, then schedule it as part of your break on your to-do list.
“It’s hard to not say ‘yes’ to every assignment that comes your way,” says Bramblett. “But you’ve got to make sure you’re keeping your to-do list at a realistic level.” She advises communicating with your team, your boss or your clients to make sure your daily priorities are correct and that you’re finding out which things are most important for you to get done each day.
“It is scientifically proven that individuals work better when they are single-tasking,” says Bramblett, citing an American Psychological Association study that showed multitasking undermines efficiency by as much as 40%.
“If employees feel like they have to multitask because their boss keeps coming at them with multiple projects and asking for updates on 15 different things in a day, that would certainly be something that would create that environment so you want to ensure you create that work-life balance,” advises Bramblett.
IRS drafts instructions for ACA reporting requirements
Originally posted September 11, 2014 by Keith R. McMurdy on https://ebn.benefitnews.com.
They promised they would be coming and now they have. On Aug. 28, the Internal Revenue Service issued draft instructions for Forms 1094-C and 1095-C and Forms 1094-B and 1095-B, which I provided in my July 31 entry.
These forms were provided in draft format and they are used to satisfy Affordable Care Act’s “information reporting requirements.” We also got draft instructions for Form 1095-A that relates to the statement about the Health Insurance Exchange Marketplace. The IRS has indicated that it will finalize the forms and instructions in 2014. On top of that, they issued some FAQs that address the reporting requirements.
As a starting point, the FAQs provide that some short-term penalty relief will be available for incomplete or incorrect information returns that are filed (or employee statements provided to employees) in 2016 for coverage offered, or not offered, in 2015. Under this relief, the IRS will not impose penalties on employers that can demonstrate that they made good faith efforts to comply with the information reporting requirements. This relief applies to returns and statements filed and furnished in 2016 to report offers of coverage in 2015 for incorrect or incomplete information reported on the return or statement, but the relief is not available if you fail to file. You have to show a good faith effort to comply so you cannot simply not file anything an expect relief.
With respect to the instructions themselves, to say that they are lengthy is an understatement. Employers should read them in detail to understand their obligations. However, some key provisions that help in compliance include:
- Clarification that employers must file Forms 1095-C and 1094-C with the IRS, and provide a copy of Form 1095-C to employees.
- A statement that, as noted above, forms 1095-C and 1094-C information returns are not required for 2014. Actual filings are not required until 2016 for the 2015 calendar year but employers may voluntarily file these forms in 2015 for 2014. If by chance an employer does choose to voluntarily files in 2015 for the 2014 year, penalties for the employer mandate payments will not be assessed for 2014.
- Establishment of specific dues dates for Forms 1095-C and 1094-C information returns. They must be filed by February 28 (for paper filings), or March 31 (for electronic filings) of the year following the calendar year to which the return relates.
- Clarification that a Form 1094-C must be attached to any Forms 1095-C filed by an employer. Each employer must file one 1094-C that reports aggregate employer-level data for all the employer’s full-time employees, which is referred to as the “authoritative transmittal” (and denoted accordingly on Line 19 of the Form 1094-C). Only one authoritative transmittal may be filed for each employer.
- Employers also must provide a Form 1095-C to each full-time employee by Jan. 31 of the year after the year to which the form relates (so that would be Jan. 31, 2016 for the 2015 reporting year). Incidentally, employee statements must be furnished to individuals in paper format by mail, unless the individual affirmatively consents to receiving the statement electronically.
As with the forms, the instructions are in draft format and subject to change and finalization. However, between the draft forms and the draft instructions, employers should now be able to ascertain generally what is required of them in reporting. Even though the mandatory reporting requirement does not completely kick in until after 2015, employers should spend some time reviewing these requirements with their plan professionals, preferably sooner rather than later, to get a sense of what data they will have to collect and how who has responsibility for making sure the information is accurate.
7 sins of wellness programs
Originally posted September 10, 2014 by Dan Cook on https://www.benefitspro.com.
Gold standards are starting to emerge for corporate wellness programs. Virgin Pulse, which has been monitoring wellness program adoption and design, says there are basically two categories extant in the corporate world today: wellness 1.0 and wellness 2.0.
The overarching difference lies in engagement levels. But engagement has been a tricky quality to define, and even harder to achieve. Virgin's idea with 1.0/2.0 is to simplify the process, identify the major components that can lead to engagement, and offer easy-to-adopt methods to begin to grow engagement.
“While wellness 1.0 is a great start to showing your employees you care, it’s limited from the very beginning — many of these programs can be inapplicable and unappealing to a vast majority of people,” Virgin says in “Moving Beyond Wellness 1.0. “They may not offer enough variety or flexibility for people at different stages of their journey to better health. For some, there may be too many barriers to participation for them to overcome.”
Wellness 2.0 programs tend to include options that address three key health areas:
- Exercise options, which make “people more energetic, focused, and productive”;
- Healthy food options and health eating support, which offset “poor nutrition stemming from eating too much sugar, carbs, or fat can actually [which] cause cognitive impairment”; and
- Sleep assistance options, because people who are well rested perform much better on the job than do those who don't get enough sleep.
But beyond those elements, the 2.0 programs don't have the characteristics that Virgin found in programs that are bedeviled by lack of engagement.
Virgin starts by examining the 1.0 level of wellness programs, and offering a list of defects that these low-engagement programs typically display. The Seven Deadly Sins of wellness 1.0 programs are:
- They only target the sick
Positive: Good for those with health issues who want to change.
Negative: Limits the number of employees who will be interested in the program or who can take advantage of what is offered. - They don’t encourage lasting behavior change
Positive: Elements of the program can lead to quick benefits.
Negative: Healthy behaviors aren't reinforced so health gains are often lost later on. - They don’t engage your potential wellness champions
Positive: For those they target, these plans can work well in the short term.
Negative: If the program is all about helping people with health problems get somewhat healthier, the program leaves out the healthy workers who want to further enhance their health. These people can be champions of the wellness plan, Virgin says. But too often they are not considered in plan design, so they don't participate.
- hey lack daily engagement
Positive: There isn't one for this category.
Negative: Poor communications with employees about their wellness options can doom even a robust wellness program. As Virgin notes, “Once the kickoff meeting is over, an employee’s health risk assessment is complete, and they have their login for the wellness site, most don’t engage with the program again until they’re nudged — or as far out as the next wellness kickoff meeting.” Engagement needs to be daily, Virgin argues, to drive engagement. - They focus on HRAs and biometrics alone
Positive: Both are great tools for evaluating the physical well-being of your workforce.
Negative: Too often, the information from HRAs and biometrics screenings isn’t used to create an actionable wellness plan that helps address the health concerns these assessments uncover.
- They only offer rewards upfront
Positive: The upfront “bonus” attracts people to the program initially.
Negative: That bonus is often the only tangible reward employees ever see for participation. “The unfortunate result is that many of the people you’d like to see in your program may very likely disengage after the big initial reward is gone,” Virgin says. - They’re an administrative burden
Positive: Keeps employment strong in the HR department.
Negative: Costly! “The last thing you need is a system that’s tough for you to manage and tough for your people to use. Unfortunately, that’s often what happens with wellness 1.0 programs. The harder it is to administer, the further down the list of priorities it falls.”
How to help alleviate specialty Rx costs
Originally posted September 9, 2014 by Melissa A. Winn on https://ebn.benefitnews.com.
Half of large employers say the cost of specialty pharmacy drugs is their second or third highest cost-driver, behind high-cost claims and special conditions, according to a recent survey by the National Business Group on Health. Brian Marcotte, NBGH’s president, calls the concern “significant,” considering specialty pharmacy currently impacts only about 2% of the population, but advancements in the manufacturing of these expensive drugs threaten to greatly increase the number of employees using them.
As employers consider their 2015 health plan designs, they “are very focused on specialty pharmacy drugs and the potential impact they have” on the company’s bottom-line, says Marcotte. Benefit advisers can add value by offering solutions to reign in the costs of these drugs, including programs to limit the quantity of the drugs dispensed at any one given time, the use of prior authorization to confirm the necessity of the treatment, and even the use of a freestanding specialty pharmacy.
“Benefit advisers should make sure employers are utilizing all of the specialty clinical programs offered by the medical and pharmacy vendors for their benefits,” says Brenda Gagnon, a pharmacy benefit adviser and president and CEO of the health care consulting firm B.M Gagnon Associates.
This is especially true in light of the fact the utilization of the drugs is bound to increase. “Current estimates for specialty medications are that they will cost an employer 50% to 60% of their total health benefits by 2016,” says Gagnon.
That’s true not only because the high cost of developing and manufacturing the drugs is reflected in their high price tag, but also Gagnon says, because “drug manufacturers have put more effort into finding more than one drug therapy for the drug.”
For example, she notes, AbbVie’s Humira is used for rheumatoid arthritis, Crohn’s disease, colitis and psoriasis.
Research and development costs are “passed onto the employer when an employee is taking a specialty medication,” Gagnon adds, saying the cost of the drugs can be anywhere from $1,200 to $12,000 a month, depending on the disease.
Utilization controls
An employer client has no control over the high price tag on these drugs, says Michael Zucarelli, national pharmacy practice leader for the employee benefit and financial firm CBIZ.
Where benefit advisers can help employers tame their client’s drug spend, however, is through health plan options designed to manage these drugs’ utilization, he says.
First and foremost, plans should have some sort of appropriate use protocol or prior authorization. Such a procedure would ensure claims are reviewed to make sure the drugs are safe and effective for the employee, as well as safeguard the plan financially, suggests Zucarelli.
In addition, employers have an opportunity to manage drug use as the number of specialty drugs available to treat any one disease expands, creating competition within the drug classes.
Employers “can now become a little more creative in how they set up their plan. They may prefer one or a couple of treatments over another,” he says.
This can be designed as a formulary in which a less expensive drug option would be covered at 100% and the more expensive option would require the employee to pay 100% of the cost share, he says. Otherwise, it can be set up as a step-therapy program, in which the more expensive drug cannot even be used until the less expensive option has been tried and failed.
“We’re seeing plan sponsors look at that as an option and more are adopting it,” says Zucarelli, adding that he typically advises employers to institute a step-therapy program as soon as possible, while it affects only a small number of plan members.
Advisers can also work with employers on channel management, Zucarelli suggests, saying employers should have a consultant, pharmacy benefit manager, or medical plan carrier evaluate where the drug spend is to gain visibility and look at opportunities for site-of-care management.
“Maybe a patient is getting a particular specialty drug in a hospital infusion suite and that may not be the most convenient or cost-effective treatment,” he suggests.
Gagnon agrees employers can use a third-party consultant company like Artemtetrx, which uses data analytics to evaluate claims data and identify high drug spend and opportunities for cost management across clinical management, reimbursement management, site of care management and plan design.
When an employer client raises a question about a high-dollar claim, Zucarelli says the plan’s PBM or carrier could also be asked to do a case review and insure the patient is taking the high-cost drug for an appropriate use.
“Unfortunately, once an employee is on a certain drug, it’s hard to get them off of it or switch it,” he says, adding that that’s why he suggests employers get a lot of these tactics in place now, before the use of the drugs increases, which is inevitable.
“Getting these management techniques in place now is going to further minimize disruption,” he adds.
Are e-cigarettes friend or foe to employee wellness?
Originally posted September 8, 2014 by Nick Otto on https://ebn.benefitnews.com
As the gap widens on whether e-cigarettes are part of the solution or still part of the greater problem of employee smoking cessation, their popularity is still on the rise. Experts from the health management group HealthFitness have provided some additional tips for employers taking on the challenge of creating e-cigarette policies in the workplace.
The group advises workplace policies which classify e-cigarettes in the same regard as tobacco products. In doing so, it will minimize risks from known and unknown toxins as research continues on the long-term health impact of the devices.
“This recommendation is the highest standard of public safety,” Dennis Richling, HealthFitness’ chief medical and wellness officer, says in a recent blog post. In doing so, benefit managers’ policies will align with the current trends other employers are reportedly doing, he adds.
Currently, the Food and Drug Administration doesn’t regulate the use of e-cigarettes as smoking cessation devices. As such, the use of incentives to discourage the use of e-cigarettes has no clear right or wrong answer, “but is driven by what an employer believes best fits their situation.” Before making that decision, Richling says he recommends employers consider the following questions:
- Are you prepared to add complexity to your incentive programs?
- Does adding e-cigarettes matter?
- Do you use blood or saliva testing with your smoking cessation program?
As one example, HealthFitness notes there are several ongoing trials researching use of e-cigarettes as cessation devices. Adding their use as an incentive may “create an extra level of effort to manage what may be an appropriate use of e-cigarettes.”
Lastly, HealthFitness recommends using health assessments to educate employees on e-cigarettes. Because the likelihood that current users are either former tobacco users or current “dual users” of both e-cigarettes and regular tobacco progress, tracking e-cigarette data independently is still limited.
“However, the information needed to inform almost all e-cigarette users can be gained by assessing smoking status,” HealthFitness says. “And there is value in providing messaging to health assessment users who use tobacco products about the risks and the facts concerning e-cigarette use.”
5 tips to make retirement education meaningful
Originally posted on https://eba.benefitnews.com.
Through the use of education and communication, employers and benefit advisers can have a huge impact on their employees’ retirement readiness. Making that education meaningful, however, is key to employee engagement and understanding. Here are five tips from Grinkmeyer Leonard Financial and investment advisers with Commonwealth Financial Network on how to make retirement education meaningful.
1. Paint a picture of their "future self"
Employees who can envision their future selves are more likely to understand their financial needs during retirement. The advisers with Commonwealth Financial Network suggest one strategy for embracing your future self is to have employees envision not only their financial retirement goals, but also lifestyle retirement goals. By forcing today’s self to recognize how he or she will look in the future, employees are more likely to save for that future, they say.
2. Help them plan for an achievable number
For too long the financial services industry has focused on the daunting pot of money people should accumulate in order to retire, the advisers say, adding that breaking the number down to monthly saving increments is less scary and seems more achievable to employees.
3. Account for health care
A 2013 study conducted by Fidelity's Benefits Consulting Group estimated that out-of-pocket health care costs for a 65-year-old couple with no employer-provided retiree health care will be $220,000, assuming a life expectancy of 17 years for the man and 20 years for the woman. As part of a comprehensive financial education plan, the Commonwealth Financial Network advisers say it is imperative that medical and insurance costs be incorporated into the retirement planning discussion.
4. Start 'em young
The power of compounding interest is evident in retirement plan balances, the advisers say, adding that evidence has shown the benefits of starting to save at a young age. Interest adds up over time, so even starting to save at 30 instead of 40 can save exponentially more money.
5. Keep the message relatable
Paramount to the success of any education strategy is using simple terms and relatable examples to illustrate potentially complex issues, the advisers say. For example, telling a group of participants that inflation will erode the buying power of their dollar over the entirety of their retirement may be lost in translation, they say. But telling that same group of participants that the $5 sandwich they enjoy today will cost $22.93 in 30 years will likely keep their eyes from glazing over.
Better understanding of benefits helps both employee and employer
According to new research from Unum, a recent survey of more than 1,500 employees shows only half of U.S. employees would rate their employer as excellent or very good. Even less than that, the 47% who were offered benefits by their employer, rated the actual benefits as excellent or very good — some of the lowest ratings for benefits the Unum has seen in recent years.
The data points to a lack of employees getting information needed on the benefits being offered. Only 33% of those surveyed who were asked to review benefits in the prior year rated the benefits education they received as excellent or very good — a drop from 2012 and reversal of the upward trend since 2009.
“Offering employees effective benefits education can contribute to satisfaction with their employer,” says Bill Dalicandro, vice president of the consumer solutions group at Unum. “Even if employees don’t have a particularly good benefits package, those who say they received quality education about the benefits they are offered are far more likely to consider their employer a very good place to work.”
Employers can also get a win when providing educational guidance in choosing the right benefits. Correlation between employee satisfaction with their benefits continues to run parallel with overall employer satisfaction.
More than three-quarters of those employees who rate their benefits package as highly also rate their employer as an excellent or very good place to work. By contrast, only 17% of employees who consider their benefits package to be fair or poor rate their workplace as excellent or very good.
Additionally 79% of employees who reviewed benefits in the past year and rated their education as excellent or very good also rate their employer as excellent or very good — compared to 30% who said the education they received was fair or poor.
The survey also found:
- 40% of employees say they understand supplemental medical coverage somewhat or very well.
- 47% say they understand critical illness insurance somewhat or very well
- 48% whose employers offered long or short term disability insurance said no one explained disability insurance to them.
- 66% agree employers should do a better job educating employees about these important benefits.
“This research underscores the value of an effective benefits education plan, because when an employee understands their benefits, they tend to value them more and in turn may then value their employers more for providing access to them,” Dalicandro adds.