Saturday, May 30, 2009

EEOC Says Health Risk Assessment Violates ADA

Many employers require their employees to participate in a health risk assessment (HRA) in order to be eligible for health insurance coverage. But in a recent informal opinion letter, the Equal Employment Opportunity Commission (EEOC) stated that requiring employees to participate in a health risk assessment in order to be eligible for health insurance would violate the ADA.

Disability-related inquiries prior to a job offer are prohibited by ADA, and they are permitted only if they are required of all employees in the same job category and if they are job-related and consistent with business necessity. The EEOC determined that requiring all employees to take this HRA that includes disability-related inquiries and medical examinations as a prerequisite for obtaining group health coverage does not appear to be job-related and consistent with business necessity, and therefore it would violate the ADA.

To be job-related and consistent with business necessity, the employer must have a reasonable belief based on objective evidence that a medical condition will impair the employee's ability to perform essential job functions, or that the employee's medical condition will cause a direct threat. As part of the HRA, employees are required to fill out a short health-related questionnaire, take a blood pressure test, and give a blood sample for screening. None of them related to the employee's ability to perform the essential job functions.

The EEOC noted that disability-related inquiries and medical exams are permitted as part of voluntary wellness programs. A wellness program is considered voluntary only if employees are neither required to participate nor penalized for non-participation. If employee’s decision not to participate will lead to rejection of a significant employment benefit, then such a program is not voluntary. Thus, employers should review their programs to determine whether such programs are truly voluntary.

Monday, May 25, 2009

DOL Pays $400 Million in Benefits to Colorado Residents under EEOICPA

The U.S. Department of Labor announced on May 11 that it has paid more than $400 million to compensate Coloradans sickened by working in the atomic weapons industry under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

The act was created to help those individuals who suffered cancer and other illnesses caused by exposure to toxic substances. Survivors of such individuals may also be eligible for benefits.

The department said that the money went to 5,042 Colorado claimants under the EEOICPA.The department also said Coloradans had filed 8,713 cases under the act, but about 15% were ineligible for benefits. There are still 929 cases awaiting a final decision.

The act covers several facilities in Colorado including Rocky Flats, the Rulison Nuclear Explosion Site, and the Rio Blanco nuclear explosion site.

"It is our goal to compensate eligible claimants as quickly as possible. This milestone further demonstrates that we are working hard to achieve our goal," said Rachel P. Leiton, director of the department's Division of Energy Employees Occupational Illness Compensation. "We have compensated many deserving individuals from the state of Colorado. But we also believe there may be other Coloradans who have not yet filed for these benefits."

Thursday, May 14, 2009

Swine Flu--What Should Employers Do

Until now, the swine flu (Influenza A virus, H1N1) has not reached pandemic status, but it could. No one has a natural immunity to it, so everyone must be careful. The number of swine flu cases reported in the United States and Mexico is increasing and the media are paying close attention to the outbreak, so many of the employees may have concerns regarding their potential for exposure to the flu at work and the steps employers are taking to ensure their well-being.

If you are an employer, then you have the duty to protect your employees. You should let your employees know that you’re aware, and you have made some preparation to deal with the flu. Basically, you can share with your employees various infection control instructions, such as frequent hand washing with soap and water, or even alcohol-based hand gels. Besides, there are some other aspects you should pay attention to:

First, you should review your safety policies and develop an emergency response plan. You should try to reach the “best practices” that go beyond legal requirements. This will be helpful. And an emergency response plan can deal with both natural and man-made disasters to protect employees and ensure continued operations at the facility.

Second, you’d better review your telecommuting policies and adjust them. If necessary, employees can be encouraged to stay at home if they experience flu-like symptoms. In this way, you can continue your operation in a crisis. This will be helpful and reduce your loss.

Then, you should make plans for the impact of a pandemic on your business, your employees and customers. Try to communicate to your employees that you are following the situation closely and will take all necessary steps to ensure their safety and health.

Thursday, May 07, 2009

New Pregnancy Discrimination Regulations

According to a recent EEOC discrimination suit, employers should be cautious about routinely requiring fitness-for-duty certification from pregnant workers. This suit involved Britthaven, Inc. a corporation that owns and operates a chain of nursing homes and assisted living facilities.

Since 2002, the EEOC charged that the employer has subjected pregnant employees to different terms and conditions of employment, compared to non-pregnant employees. Specifically, the pregnant women are required to furnish a full medical clearance in order to continue working, even if the employee took no time off and did not indicate that she couldn’t perform her usual duties. This was contrast to the treatment of non-pregnant employees.

This practice resulted in employees being forced to take medical leave or were terminated in spite of the fact that they were fully able to perform all their job duties.

“Working women who chose to have children, should not be penalized or treated differently than other employees simply because they are pregnant,” said Lynette Barnes, regional attorney for the EEOC. “Employers must remember that paternalistic attitudes toward pregnant employees that result in unequal treatment at work violate federal law.”

In the past, pregnant workers are often required to work in the last 30 to 60 days of a pregnancy. That practice is now called into question, unless the employee has taken time off or otherwise indicated that she has restrictions or limitations.

Wednesday, May 06, 2009

California Got Nearly $4 Billion for Education

U.S. Secretary of Education Arne Duncan announced on April 17, 2009 that nearly $4 billion is now available for California under the American Recovery and Reinvestment Act (ARRA) of 2009. California is the first state to benefit from a special fund for states that was created by the economic stimulus law.

Duncan said the money will "save jobs and lay the groundwork for a generation of education reform." California will be eligible to apply for another $2 billion this fall. The funding is being made available per California's successful completion of Part 1 of the State Stabilization Application, which was made available April 1.
According to the Department of Education, the State Fiscal Stabilization Fund (SFSF) program is a new one-time appropriation under ARRA. The funding in the program could help save hundreds of thousands of teaching jobs nationwide at risk from state and local budget cuts, and also pay for projects to repair and modernize schools. In order to get the fund, California and other states had to submit applications that assure they will make progress in several areas, including teacher quality, turning failing schools around, allowing more charter schools to open and reporting whether state academic standards are rigorous enough. States also must set up sophisticated data systems to track student performance.

Duncan said he'll come down "like a ton of bricks" and withhold the next round of funds from anyone state or school that defies President Barack Obama's wish that the money be used to save teaching jobs and overhaul failing schools.