Life without a Department of Labor isn't as efficient as some will tell you

What happens if the Department of Labor vanishes? It's not some dystopian fantasy—it's an actual possibility under Elon Musk and Vivek Ramaswamy's "Department of Government Efficiency." They could eliminate the DOL entirely. The pitch? Let states handle it. The reality? It's a disaster waiting to happen.

Denying gender-affirming health care to transgender employees is unlawful discrimination

Morgan Mesi, a transgender man, has just sued his former employer, Tenzing Wine & Spirits, along with his labor union and group health plan, claiming that they discriminated against him because of his sex by denying medical insurance coverage for gender-affirming care.

To me, Bostock v. Clayton Cty. clearly resolves this issue. In Bostock, SCOTUS held that Title VII's prohibition of sex discrimination also prohibits discrimination because of an employee's sexual orientation or gender identity. Indeed, Bostock could not have been clearer regarding the treatment of transgender employees: "[a]n individual's … transgender status is not relevant to employment decisions."

5 tips to help support our trans employees in the workplace

Transgender people are under attack. They often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender nonconforming.

Here are five steps you can take in your business to support transgender and gender nonconforming employees at work:

The best response to the end of Roe v. Wade came from a company called DICK’S

Within hours of the Supreme Court announcing its decision in Dobbs v. Jackson Women’s Health Organization, Lauren Horbart, the President and CEO of DICK'S Sporting Goods, posted the following on LinkedIn.

At DICK’S, our teammates are the heart of our business, and we are committed to protecting their health and well-being.… 

In response to today's ruling, we are announcing that if a state one of our teammates lives in restricts access to abortion, DICK'S Sporting Goods will provide up to $4,000 in travel expense reimbursement to travel to the nearest location where that care is legally available. This benefit will be provided to any teammate, spouse or dependent enrolled in our medical plan, along with one support person.

We recognize people feel passionately about this topic -- and that there are teammates and athletes who will not agree with this decision. However, we also recognize that decisions involving health and families are deeply personal and made with thoughtful consideration. We are making this decision so our teammates can access the same health care options, regardless of where they live, and choose what is best for them.

Employers are making new dog ownership a little less ruff by offering “pawternity” leave

In three days, my family grows by one. We’re adding a puppy.

My wife and kids have been clamoring for a new dog for a year. Loula (our current dog) is seven years old, and they don’t want to be in a position of not having a dog in our family. Plus, we don’t want to wait until Loula’s too old to tolerate the energy of a new puppy.

New surveys reveal that most employees favor paid leave and flexible schedules

America remains the only industrialized nation that doesn’t mandate some level of paid maternity and/or family leave for employees. Meanwhile, while the FMLA provides 12 weeks of unpaid leave, many will tell you that benefit is woefully inadequate for employees. Indeed, more than 40 percent of employees are not covered by the FMLA and are not eligible to take FMLA leave.

http://dilbert.com/strip/2013-05-10

Thus, the results of a recent survey conducted by the Pew Research Center should surprise few.

Swapping DNA for lower insurance costs is one wellness step too far

It is no secret that health care costs for employers and their employees are out of control. Many employers have attempted to hold down these rising costs by offering wellness-program incentives. The EEOC has signed off on these programs as legal as long as employee participation remains voluntary, which the agency defines as financial incentives for employee participation at or below 30 percent of the cost of coverage. Thus, employees have a choice—participate in the wellness program, or pay a surcharge of up to 30 percent.

One area that has remained off limits for employers under these wellness programs, however, has been genetic testing and other personal and family medical histories. A new bill moving through the House of Representatives, however, aims to change that.

Paw-ternity leave is a great idea, but please don’t forget about us humans

This is Loula, our vizsla.

We love our dog. And, when we brought her home four summers ago, it was a great benefit to our family that my wife had yet to return to work. She was home for Loula’s first two months, to acclimate her to our house and family. What if, however, you lack the luxury of not working during your puppy’s first few weeks at home?

BrewDog, a Scottish brewery set to open up in Columbus this Spring, has your answer—paw-ternity leave.

OSHA publishes final rule on whistleblower complaints under the Affordable Care Act

As I’ve previously documented in this space, OSHA does a whole lot more than just regulate workplace safety. Its other responsibilities include enforcing the anti-retaliation whistleblower protections of a veritable alphabet soup of federal laws.

One such law is the Affordable Care Act (aka, Obamacare). And, just last week OSHA published its final rule on whistleblower complaints under the Affordable Care Act, available for download as a pdf here.

Why the DOL’s federal contractor paid sick leave rules matter for all employers

Last week, the Department of Labor rolled out its final regulations mandating paid sick leave for the employees of federal contractors. According to the DOL, Once fully implemented, more than one million employees of federal contractors will be covered. At the highest of levels, the rule mandates that covered workers earn up to 56 hours (7 work days) of paid sick leave annually. Notably, the rule does not apply retroactively, and only applies to new federal contracts and replacements for expiring contracts on or after January 1, 2017.

When COBRA and workers’ comp collide

Every now and again I get a question from a client to which I don’t know the answer, or the answer surprises me. It doesn’t happen that often, and when it does I’m man enough to admit it.

Yesterday I received just such a question. Must an employer continue the health insurance of an employee out of work with a workers’ compensation injury?

EEOC’s final rules on employer wellness programs provides clear path for employers

Yesterday, the EEOC published its long-awaited rules that describe how the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act apply to wellness programs offered by employers that request health information from employees and their spouses. Both rules take effect July 18, 2017.

Ohio introduces paid-sick-leave legislation

There is little argument that the U.S. lags behind the rest of the civilized world on paid sick leave. As the federal government has failed to act on this issue for all but a small minority of federal-contractor employees, the state and local governments have started to pick up the slack.

Now, Ohio is considering getting in the game. H.B. 511—the Family and Medical Leave Insurance Benefits Act [pdf]—would, in essence, create state-administered short-term disability insurance for employees who need time off for an FMLA-covered reason.

Is it illegal to “right size” employees to avoid ACA obligations?

In the past six months, I’ve had more questions from clients about group health insurance than I’ve had in the first 18 years of my practice combined. All of the questions start the same: “Our health insurance premiums are out of control. How do we…?”, finished by some inquiry about moving older workers to Medicare, or shifting high-cost workers to the exchange, or some other machination to avoid the Affordable Care Act.

The reality, however, is that the ACA makes it pretty damn hard to move high-cost employees off of your health insurance to combat out-of-control (and still rising) insurance costs.

Dave & Buster’s thought it had the answer—reducing employees from full-time to part-time.

Last month, however, the district court hearing an employee-challenge to this insurance “right sizing” handed round one to the employees.

Feds say you can't force high-cost employees onto Health Care Exchange

Do you have an employee with a high-cost medical condition? For example, an employee with hemophilia could incur hundreds of thousands or dollars or more in medical costs per year. That one employee could be catastrophic for the overall cost of your company’s group health plan. As a result, many employers are taking advantage of Obamacare’s health-care exchanges by paying these employees to secure their own private medical insurance.

This practice, however, may be changing, and it’s not for the better. According to TLNT, the Departments of Labor, Health and Human Services, and the Treasury have jointly warned employers not to dump high-cost employees from group health plans:

As employers try to minimize expenses under the health law, the Obama Administration has warned them against paying high-cost workers to leave the company medical plan and buy coverage elsewhere. Such a move would unlawfully discriminate against employees based on their health status….

The Affordable Care Act requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness. Because most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. That’s far more than the $10,000 or so it might give an employee to pay for an exchange plan’s premiums….

The Affordable Care Act itself doesn’t block companies from paying sick workers to find coverage elsewhere…. But other laws do, including the Health Insurance Portability and Accountability Act and the Public Health Service Act, according to three federal agencies. Specifically, paying a sick worker to leave the company plan violates those statutes’ restrictions on discriminating against employees based on medical status, the departments said in their bulletin.

I understand how dropping an ill employee from health coverage because of a medical condition would violate a variety of laws, including the ADA. But, in these cases, employers are not “dropping” employees. Instead, they are merely shifting coverage from an employer-sponsored plan to a government-sponsored plan. The cost to the employee, and the coverage available to the employee, should not change. If the cost and coverage does not change, this practice should not violate any laws.

EEOC files historic lawsuit challenging biometric testing by employers

It’s no secret that health insurance costs are out of control. To help combat this surge, many employers have turned to biometric testing for their employees. Biometric testing is part of corporate wellness programs where employees measure certain levels, such as blood pressure and cholesterol, for breaks on insurance premiums under the Affordable Care Act.

If the Affordable Care Act expressly permits this testing, then why is the EEOC claiming that Honeywell’s biometric testing program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act?

On Monday, the EEOC filed a lawsuit seeking a temporary restraining order declaring Honeywell’s biometric testing illegal. According to the EEOC’s lawsuit, ­Honeywell’s program creates up to $4,000 in penalties for employees unless they and their spouses take blood and medical tests that can identify smoking, diabetes, high blood pressure, obesity and other health problems. The Minneapolis Star Tribune quotes an EEOC attorney, who said, “Honeywell’s tests and threatened penalties go too far because they are not job-related and are not consistent with any business necessity…. They can only do that in ­situations where it’s ­voluntary for the employee to answer.”

For its part, Honeywell has called the lawsuit “frivolous”—

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace…. The incentives we provide are specifically sanctioned by two separate Federal statutes—HIPAA and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs…. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

Because the EEOC is seeking a TRO, I would expect this case to unfold quickly. I will keep everyone updated as this important story develops. Special thanks to Kate Bischoff for brining this to my attention.

Hear me on The CYA Report discussing Hobby Lobby

Today we’re going to try something a little different. Usually, you get to read my thoughts on the employment law issues of the day. Today, you get to hear my voice, waxing philosophical on the Supreme Court’s Hobby Lobby decision.

Last week, Kris Dunn (old friend, and proprietor of, among other things, The HR Capitalist) asked if I’d appear on his podcast, The CYA Report, to discuss the case.

Kris and I discussed: What does Hobby Lobby mean? Are corporations people? And, what employment law areas can we expect its holding to challenge?

Take a listen here.

FAMILY Act would provide paid leave for employees

Tony Soprano once said, “Family: they’re the only ones you can depend on.” If Congressional Democrats get their wish, American workers will be able to depend on the FAMILY Act to provide up to 12 weeks of paid leave each year for the birth or adoption of a new child, the serious illness of an immediate family member, or a worker’s own medical condition.

Late last week, Representative Rosa DeLauro (D-CT) introduced H.R. 3712—the Family and Medical Insurance Leave Act of 2013 (aka, the FAMILY Act).

Five years ago, Ohio tried to enact its own paid sick leave law—the Healthy Families Act. At that time, I strongly opposed the OHFA, not because I’m against paid leave for employees, but because it was expensive for employers and would have labeled Ohio as unfriendly to businesses.

Here’s the key difference between the FAMILY Act, and Ohio’s old plan. The paid leave employees would receive under the FAMILY Act does not come out of ordinary payroll. It’s essentially an insurance benefit, paid by a nominal 0.2 percent payroll tax shared equally by the employer and the employee. As a result, employees would be eligible to collect paid-leave insurance benefits equal to 66 percent of their typical monthly wages, with a capped maximum of $1,000 per week for up to 12 weeks per year.

This solution seems like a win-win. The United States remains the only industrialized nation that does not guarantee working mothers paid time off after childbirth. This legislation would bring us up to par with the rest of the civilized world without imposing a significant monetary penalty on employers. I expect partisan lobbying on this bill, which could prevent it from progressing. That would be a shame, since I view the FAMILY Act as a business-friendly approach to solving one of our workplaces’ nagging problems.

[Hat tip: Eric Meyer]

More companies offer pet insurance as an employee benefit

We love our pets. This year, it is estimated that we will spend more than $55 billion on them. More than $14 billion of that total will be for veterinary care alone. Vet bills are expensive, and often unplanned and unbudgeted. Given our emotional attachment to our pets, we pay them, regardless of the cost. To mitigate the unexpected nature of these costs, after losing our last dog we opted for vet insurance for our current one.

Corporate America is following suit by beginning to offer pet insurance as an employee benefit.

According to Yahoo, one out of every three of the Fortune 500, plus 3,400 other smaller companies, now offer pet insurance as a benefit to their employees. Ohio employers offering this benefit include Procter & Gamble, Cliffs Natural Resources, and Quest Diagnostics.

Employee recruitment and retention is difficult. Companies struggle to locate, attract, and retain the best employees. Thinking outside the box with employee benefits is one way to attract, and keep, good employees.

Is your wellness program discriminatory?

It is no secret that health care costs for employers and their employees are out of control in this country. Many employers have attempted to hold down these rising costs by offering wellness-program incentives — insurance premium reductions to employees who meet certain health-related incentives such as tobacco-use cessation, BMI goals, or minimum cholesterol levels.

Yesterday, however, the Obama administration made these wellness incentives more difficult for employers to implement. Pursuant to the Affordable Care Act, the administration issued final regulations on Incentives for Nondiscriminatory Wellness Programs in Group Health Plans [pdf].

Among other restrictions, these regulations require companies to provide “reasonable alternatives” to employees who cannot meet health benchmarks but still want the discounts. The regulations further clarify that this “reasonable alternative” standard is different than an ADA-required reasonable accommodation, and providing a reasonable alternative to achieve a wellness-program incentive does not mean that an employer has met its obligations under the ADA. Note that earlier this month, the EEOC held a public meeting discussing the treatment of employer wellness programs under the ADA.

These new rules will affect all group health plans for plan years beginning on or after January 1, 2014.

If you are among the many of employers that has implemented a wellness program, these regulations are required reading to ensure that your program meets these new nondiscrimination rules.