Tip of the Day: Mandating health risk assessments is an ADA no-no

Some employers have taken the bold step in recent years to mandate employees to participate in health risk assessments to obtain group health insurance. However, a new informal letter from the Equal Employment Opportunity Commission says that such a requirement is one bold step forward but two legal steps back, writing that the mandate is a violation of the Americans with Disabilities Act.

In part, the letter reads: "Although the Equal Employment Opportunity Commission has not taken a formal position on this issue, this office believes the policy you described would violate provisions of the Americans with Disabilities Act that require disability-related questions or medical examinations of employees to be job-related and consistent with business necessity."

I understand the EEOC's position, but in this economy, if every dollar in health savings isn't "business necessity," I don't know what is. What do you think, pros? Comment and let me know.

Click here to read the full text of the EEOC's letter.

News You Can Use: SCOTUS rules against crediting maternity leave in pension calculations

The Supreme Court ruled yesterday that women who took maternity leave before the enactment of the Pregnancy Discrimination Act of 1978 don’t have a legal claim in requiring employers to apply that leave on pension accruals.

In AT&T Corp. v. Hulteen, the Supreme Court had to decide whether the telecommunication giant was correct in refusing to calculate pregnancy leave incurred prior to 1979 in determining pension benefits.

In 1968, Hulteen took pregnancy disability leave for eight months. However, when she retired in 1994, she realized her pension checks were reduced because the eight months were not calculated as service time toward her pension benefits.

By a 7-2 vote, the Supreme Court overturned a lower-court decision stating that AT&T had violated the PDA by treating pregnancy-related disability leave differently from other disability leaves.

Although PDA requires employers to accord women who take pregnancy leave the same benefit as employees who take other types of temporary disability leave, AT&T argued, in part, that the court could no longer rely on previous case laws on retroactive principles because of a recent Supreme Court decision that limits applying federal statutes retroactively.

The majority of justices agreed. “Congress provided for the PDA to take effect on the date of enactment, except in its application to certain benefit programs, as to which effectiveness was held back 180 days,” Justice David Souter wrote.

Justices Ruth Bader Ginsburg and Stephen Breyer dissented: “Congress did not provide a remedy for pregnancy-based discrimination already experienced before PDA became effective,” Ginsburg wrote. “I am persuaded by the Act’s text and legislative history, however, that Congress intended no continuing reduction of women’s compensation, pension benefits included, attributable to their placement on pregnancy leave.”

Related EBN/BenefitNews.com coverage:
AT&T ordered to credit pregnancy leave in calculating pensions
HR policy high on Washington agenda

Tip of the Day: 'Freak case' offers tips on how to conduct layoffs without litigation

A cover report in this month's EBN details the case of Claire Cole, whom the Massachusetts Supreme Court recently ruled should have received full disability benefits after she suffered a heart attack within an hour of learning she would be laid off due to budget cuts in March 2000.

Although the majority of legal experts in the labor and benefits field regarded the situation as a "freak case," as Alden Bianchi, of the Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. firm in Massachusetts puts it, experts do expect a rise in workplace litigation, concerning both termination and benefits, stemming from radial layoffs. Therefore, complying with the ever-changing legislative landscape is imperative if employers hope to make it through what promises to be challenging legal times.

Read the article for advice from our legal eagles on conducting layoffs without litigation.

Tip of the Day: HHS guidance on HITECH amendments to HIPAA

Oh, just when you thought HIPAA couldn't get any more complicated, along comes HITECH (Health Information Technology for Economic and Clinical Health Act ), which amends notification procedures when a breach has occurred in protected health information.

The Health and Human Services Department recently released guidance on what counts as “unsecured” information -- if it is not secured through the application of a technology or methodology that renders it unusable, unreadable, or indecipherable to unauthorized individuals and that meets standards specified in guidance published by the government, according to law firm Ballard Spahr Andrews & Ingersoll.

Complying with a 60-day statutory deadline for issuing that guidance, HHS has published information and a request for comments on these technologies and methodologies. Read up, then let me know what steps you're taking to comply with the new normal on protected health info.

Overheard @: Supreme Court to hear discrimination case that could affect hiring

Today, the Supreme Court is expected to hear Ricci v. DeStefano, a case involving reverse discrimination that could change the way companies hire employees.

The case involves a team of firefighters in New Haven, Conn., that took a promotion exam. All of the white firefighters passed, but the city threw out the results because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities that would most likely violate the 1964 Civil Rights Act.

However, the white firefighters claim the action not to promote violated their rights under the Civil Rights Act. And in a related case, the city of Chicago last month paid a $6 million settlement to 75 white firefighters who said they lost promotions when their test scores were tossed out in 1986.

According to an alert from Pepe & Hazard LLP, the case could affect employers' hiring practices -- specifically, questioning whether they need to achieve racial parity be considered legal.

Comment and let me know your thoughts on this case, and the steps you've taken to safeguard your hiring/promotion practices from litigation.

Tip of the Day

Revisit employee medical confidentiality requirements.

With changes to the ADA and FMLA, and the persistent unknowns of HIPAA, experts at Ogletree Deakins advise employers to brush up on the laws and their provisions for employers regarding maintaining workers' medical privacy. Click here for the firm's advisory.

Tip of the Day

Avoid legal liability during the holiday season.

Even employers with the best of inclusive intentions can get into hot water if holiday celebrations do not follow the letter of the law. Advice from Snell and Wilmer LLP covers religious observances, parties and bonuses.

Overheard At: WARN your employees

Welcome to an exclusive online podcast with Joel Rice of Fisher & Philips, a national labor and employment law firm. In light of the economy, we know employers out there are struggling with difficult decisions regarding layoffs and termination of employees.

Joel is with us today to talk about WARN, the Worker Adjustment and Retraining Notification Act, which requires companies with more than 100 employees to give at least 60 days notice before triggering massive layoffs.

News You Can Use: IRS Guidances

IRS Issues Guidance on Cafeteria Plan Distributions to Reservists Called to Duty
This past week the Internal Revenue Service ("IRS") issued guidance on implementing provisions of the Heroes Earnings Assistance and Relief Tax Act of 2008 or "HEART," relating to health Flexible Spending Accounts (FSAs) in cafeteria plans. See IRS Notice 2008-82. The HEART legislation was passed overwhelmingly by the House and Senate in late May and signed into law by President Bush in June. This legislation provides tax relief to members of the armed forces, particularly reservists who are called to active duty and those who are killed in the line of duty. See the June 20, 2008, edition of CAB eNEWS for a complete discussion of the HEART Act.

Thanks to SMART for the heads up.

News You Can Use: Retiree medical and ERISA updates

Proskauer Rose LLP has issued two recent client briefings about new legal developments.

Click the links for more information:

• Ninth Circuit Concludes That San Francisco's "Pay or Play" Ordinance Is Not Preempted By ERISA
• MetLife v. Glenn: Supreme Court Struggles to Determine Judicial Standard of Review for Benefit Determinations Made by "Dual Role" Administrators

News You Can Use: Another court rules in favor of cash balance plans

Making it the fifth appeals court to find that cash balance plans do not violate age discrimination law, a San Francisco court joined four others to rule in favor of the plans.

All five courts rejected the argument that the plans unfairly helped younger workers because the annuities they received ultimately would be worth more than the benefits of older workers. Many legal experts believe this is the end of litigation on this issue, with one actuary telling Workforce Management, “There is little doubt that the issue finally has been settled.”

Scone: Bush attempting to pave over glass ceiling?

The Paycheck Fairness Act, recently approved by the House (247-178) aims to help end pay discrimination against women and close the pay gap that has persisted for decades between the sexes.

Despite the passage of the Equal Pay Act in 1963, women still earn only 76 cents to every dollar earned by a man (a lifetime income loss ranging from $400,000 to $2 million, according to one estimate). This, in spite of the fact that women are receiving degrees at rates higher than men and the number of dual-earner households in the United States is higher now than any other point in history.

Aside from the issue of simple fairness, the legislation may help strengthen middle-class families depending on two incomes to make ends meet. Sadly, President Bush has threatened to veto the bill.

The veto threat isn’t too surprising, I suppose, given this president’s affection for the business industry that – God forbid – would have to spend more to meet the legislation’s requirements. And if he couldn’t get behind health insurance for poor children, women probably shouldn’t expect any better.

Still, it’s disappointing when the person elected to do what’s best for all Americans, maintains the standard of what’s best for only half.

Scone: Actually, being fat does pay

In the “I-don’t-know-whether-to-laugh-or-cry” files, an Oregon man has successfully sued his employer to foot the bill for his gastric bypass surgery, using the state’s workers’ compensation law.

After injuring his knee on the job in 1976 and reinjuring it in 1999, his physicians told him that his obesity -- he’s 350 pounds – would prevent effective treatment for the injury. He’s elected to undergo gastric bypass surgery and sued his employer to pay for it with workers’ compensation benefits. The state workers’ comp board and an appeals court gave the greenlight.

I admit I don’t know all the facts of this case, but it seems a pretty big leap to suggest an employer caused a worker’s obesity, particularly to the point where the company would be on the hook to pay for a procedure to reverse said obesity.

Personally, I think employers are doing all they can and then some to help employees get healthy – and perhaps this case is a sign that truly no good deed goes unpunished. Wellness programs, disease management, walking trails and onsite fitness facilities, healthy vending/cafeteria options, free health risk assessments and on and on cost employers millions of dollars each year.

Not out of complete altruism, certainly, but the bottom line is that employees can benefit from the programs at no cost to them. This is the kind of case that might make employers wonder whether the effort is worth it.

News You Can't Use: Employee sues for the right to pee

So very sad that this had to come to litigation, but here you have it. A female crane operator has won the right to pursue a discrimination lawsuit against her employer for telling her that she would have to urinate off the back of the crane like her male colleagues when she needed to go to the bathroom. Citing the "obvious anatomical and biological differences between men and women, and the unique hygienic needs of women," (I can't make this stuff up), a U.S. District Court allowed the woman's suit to proceed.

News You Can Use: Discrimination suit over English ability can proceed

Whoo boy! That sound you just heard was a new can of worms being opened on the employer liability front, as a D.C. appellate court has ruled that a worker who was fired for not speaking English well enough can pursue a discrimination lawsuit. This is one for employers to watch, as such issues likely are to persist as workforce demographics continue to diversify.

Tip of the Day: Create policies regarding use of wireless devices

Employers are being urged to put in practice guidelines for use of company wireless devices like BlackBerries and iPhones, states a new bulletin from Pepper Hamilton LLP.

Amy McAndrew, an attorney with the firm, says that new provisions under the Fair Labor Standards Act may compel employers to pay overtime for employees responding via electronic message in off hours.

Courts have found that “insubstantial or insignificant periods of time” are considered de minimis (minimal), and do not need to be counted as compensable work time. “However, the regulations interpreting the FLSA say that working as little as 10 minutes per day should not be considered de minimis under the law. Therefore, if a nonexempt employee uses technology such as a cell phone, a remote Internet connection, or a BlackBerry outside of regular work hours and, as a result, works more than 40 hours per week, that work may have to be compensated as overtime,” McAndrew said.

McAndrew suggests creating written policies governing off-hours work on wireless devices and laptops. The policies should include:

• Limiting the amount of time that non-exempt employees can spend using these devices outside of normal work hours.
• Requiring nonexempt employees to receive permission before using these devices after normal work hours.
• Requiring nonexempt employees to report all work time outside of normal working hours to ensure payment for work completed.

Furthermore, employers should beware the dangers of employess who use company-issued cellular devices while operating motor vehicles. Employers should consider the potential liabilies that could result from an accident and modify policies accordingly, McAndrew states.

She suggests the following policies be put in place:

• Requiring the use of hands-free cell phones while driving.
• Directing employees to comply with applicable state laws governing cell phone use.“If an employer operates in a state that does not have a law forbidding hand-held cell phone use while driving, this action alone may not be sufficient to avoid liability related to accidents involving employees working within that state,” said McAndrew.
• Requiring employees to pull their cars over to the side of the road before answering cell phone calls.
• Requiring that employees do not pick up cell phone calls while driving, unless it is an emergency.
• Limiting the scope of job descriptions to avoid including the use of cell phones while driving.
• Prohibiting cell phone use while driving in adverse weather or difficult traffic situations.
• Emphasizing the importance of safety while taking calls on the road.

“It is vital that employers carefully consider the use of technology by their employees and adopt clear, written policies as a means to mitigate potential liability,” McAndrew said.

**This Tip was adapted from a WorldatWork.org news bulletin