ADA employer responsibilities

What are an Employer’s Responsibilities Under the ADA?

There are multiple laws in place to protect both employees and job candidates against workplace discrimination. One of those is the Americans with Disabilities Act (ADA). As an employer, it’s crucial that you understand your responsibilities under the ADA.

 

The Purpose of This Law

The ADA National Network explains, “This is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else.”

The term “disability” applies to anyone with a significant physical or mental impairment/condition. A few examples include:

  • Epilepsy
  • Multiple sclerosis
  • Visual, hearing or speech impairments
  • Asthma
  • Diabetes

An employer’s responsibilities involve two key components—not discriminating in all aspects of employment and providing reasonable accommodations.

 

Non-Discrimination

The main thing you need to know is that it’s unlawful to discriminate against a person based on a disability during recruitment, hiring, promotions, termination, etc. As long as a person with a disability is qualified for a position, they must be given the same consideration as other candidates. At the same time, a person without a disability shouldn’t be given any preferential treatment.

In other words, you should look at a person’s qualifications and not their disability. The US Department of Labor (DOL) states, “An employer is always free to hire the applicant of its choosing as long as the decision is not based on disability,” which is the main point here. Additionally, it’s your duty to ensure that an individual isn’t harassed because of their disability while in your workplace.

 

Reasonable Accommodations

It’s also your responsibility to provide “reasonable accommodations” that enable a person with a disability to effectively perform his or her job. Some examples include:

  • Modifying the height of equipment for someone in a wheelchair
  • Providing an employee handbook in large print or an audiotape version for someone with a visual impairment
  • Replacing doorknobs with accessible handles
  • Allowing a person to work remotely if possible

However, these accommodations must not create an “undue hardship” on your end, which means that it shouldn’t be too expensive or difficult to implement. If accommodations meet either of these criteria, then you’re not responsible for making them.

Note that it’s fairly rare that accommodations do provide an undue hardship for an employer. The DOL reports that 57 percent of accommodations cost absolutely nothing to make, and the remaining cost only $500. In many cases, these costs are tax deductible as well. More often than not, it won’t be of any major inconvenience to you.

 

The Bottom Line

According to the 2010 US Census Report, nearly 20 percent of the population had some type of disability, with more than half them being severe. By these numbers, roughly 1 in 10 individuals have a significant disability. Understanding an employer’s responsibilities under the ADA should ensure that you know how to respond when encountering either a disabled candidate or employee so that you’re legally compliant and treat each person fairly.

workers comp scam

Common Workers’ Comp Scams to Be Aware Of

Workers’ comp claims are filed all of the time. Most are legitimate, but not all. Unfortunately, workers’ comp scams happen more frequently than you may think, and it is something to be aware of.

 

Some Startling Statistics

According to the FBI, “The total cost of insurance fraud (non-health insurance) is estimated to be more than $40 billion per year. That means Insurance Fraud costs the average U.S. family between $400 and $700 per year in the form of increased premiums.” This is significant and shows just how big of a problem fraud has become.

In terms of percentages, J. Paul Leigh, a professor of the University of California, Davis states that workers’ comp scams account for 1-2 percent of all workers’ comp payments. By these numbers, you can expect for a minimum of 1 out of every 100 claims to be fraud. Of course, this can be quite damaging if your business falls prey to something like this, so it’s important to know about three of the most common scams.

 

Faking an Injury

In this scenario, an employee will try to gain disability benefits by filing a claim for a faked injury. The motive is simple—get free money and time off of work for pretending to have a serious injury. You would be surprised at how far some people will take this.

A good example is a bus driver from Florida who claimed that an on-the-job accident left him with a regressive mental ailment, which gave him the mental capacity of a five-year-old. He ended up collecting a grand total of $774,000 over the course of 10 years before a private investigator discovered him driving, hunting, and playing golf, and an audiotape proved that he was faking the entire thing.

 

Exaggerating an Injury

Other times, it’s a bit less over the top where a worker does experience a legitimate injury but they play it up and make it look far worse than it actually is. For example, they may slip and fall at your workplace and suffer a very minor injury. However, they’ll say that it’s much more severe to the point that it’s debilitating and they’re unable to work. At which point, they’ll file a claim.

 

Lying About the Cause of an Injury

Yet another scenario is when a person does suffer a serious injury, but it happens somewhere else outside of your workplace. In this situation, they’ll lie and say that it happened while on the job with the hopes of getting money and benefits out of the deal.

An example was when a California-based truck driver claimed that she had spine and neck injuries. However, there was video footage that she received the injury during a rodeo event and not while on the job. She was eventually charged with perjury and was put on probation after the truth eventually surfaced.

As you can see, workers’ comp scams are a serious issue. Being aware of common types of fraud and knowing how to spot red flags should help you avoid something like this from happening at your company.

Health Insurance Penalties Remain in Massachusetts: What You Need to Know

Health insurance has undergone a lot of changes in recent years, which has created quite a bit of confusion. One of the hot topics right now is President Trump’s attempt to repeal Obamacare. While federal health insurance penalties will be lifted for most Americans in 2019, this isn’t true for those residing in Massachusetts where the individual mandate remains state law.

 

Changes to the ACA

Starting back in 2014, the Affordable Care Act (ACA) required individuals to pay a penalty for not having health insurance coverage. The main goal was to encourage more people to buy health insurance so that they had at least minimum coverage. However, that will change for most Americans in 2019 due to a repeal that was set into place by the Trump Administration. Dan Morgan reports in CNBC saying, “The tax penalty for not having coverage will be suspended effective in 2019.”

He also references a quote given by Trump himself explaining the logic behind this move.”We eliminated an especially cruel tax that fell mostly on Americans making less than $50,000 a year — forcing them to pay tremendous penalties simply because they could not afford government-ordered health plans.”

 

A Caveat

While it’s true that the majority of Americans are no longer subject to health insurance penalties in 2019, this isn’t the case for Massachusetts residents. Individuals who lack creditable coverage will continue to pay a penalty in 2019 and beyond. Note that some other states are considering making the same move and reinstating the individual mandate.

This means that in Massachusetts things will basically continue on like they had been under the Obama administration. Specific penalties for 2019 have yet to be released but should be made available early next year. One thing we do know right now is that the penalty can’t exceed 50 percent of the least costly available insurance premium that a person would have qualified for through the commonwealth’s Health Connector.

Martha Bebinger adds on the website of Boston radio station WBUR that these penalties will only apply to Massachusetts adults 18 years of age or older who are able to afford health insurance but fail to enroll in available coverage.

 

Notifying Your Employees

The bottom line is that the health insurance individual mandate will remain in effect in the state of Massachusetts moving forward. However, instead of it being an ACA penalty, it will strictly be a Massachusetts penalty. If you’re a Massachusetts-based business, you’ll want to let your employees know about this update as soon as possible so they can plan ahead for 2019. This should give them enough time to figure out the best course of action regarding their healthcare moving forward.

This recent event is certainly something to be aware of, especially with talks of penalties dropping across most of America. If your business is located in Massachusetts, this can have a considerable impact on how you approach healthcare in 2019 and beyond. For more information on the individual mandate along with relevant resources, visit this page from Mass.gov.

Massachusetts pay equity

How the Massachusetts Pay Equity Act Can Impact Employers

Pay equity has recently been a hot topic of discussion. Even though multiple laws have already been put into place to narrow the pay gap between men and women, many would argue that progress has been only marginal. The upcoming Massachusetts Pay Equity Act is designed to remedy this issue and promote equal opportunities.

 

An Overview

This new law will officially go into effect on July 1, 2018, for Massachusetts Commonwealth employers and employees. The main purpose is to level the playing field in terms of salary for all workers within the state and give equal opportunities for both genders to earn a competitive salary.

In a governor’s office press release, Massachusetts governor Charlie Baker said, “I am pleased to sign bipartisan legislation to create a more level playing field in the Commonwealth and ensure that everyone has the opportunity to earn a competitive salary for comparable work.”

 

The Details

This new law involves two key changes. First, it mandates that Massachusetts-based employers remove salary inquiries from their job applications. Second, employers will be prohibited from screening candidates based on what they earned at a previous job or asking questions regarding salary until they’ve made a formal job offer.

In addition, employers won’t be permitted to contact a candidate’s prior company to confirm the wage until after an offer is made and they have received written permission from the applicant.

This ensures that employers make an offer based on a candidate’s skills and expertise. That way employees are more likely to be compensated fairly regardless of their gender.

 

How to Prepare Your Business

With the new law’s enactment just around the corner, it’s critical that Massachusetts companies prepare themselves. A great starting point is to perform a self-audit to determine whether or not your current policies regarding salary negotiation comply with this law. If not, you’ll need to modify them right away.

For instance, if your current application asks employees what their previous salary was, that section should be eliminated. If you’ve been directly discussing prior salary during job interviews, that must be omitted.

Mark Burak, an attorney with Ogletree Deakins in Boston also explains, “Employers need to understand what it is that drives pay divisions in their companies and why there may be pay disparities. They shouldn’t just assume that the reason is gender bias.” He also states, “Companies should take a good look at internal practices and make sure they are using good data. How is starting pay set, and what factors drive increases and promotions?”

The Massachusetts Pay Equity Act results in a significant change to the hiring process as it relates to negotiating salary. If this applies to your business, familiarize yourself with the changes and ensure that you’re up to speed by July 1. For a complete overview of this new law, check out the Massachusetts Legislature.

Demystifying Employee Benefits: A List of Common Benefit Terms

There are numerous types of employee benefits that cover everything from healthcare and paid leave to retirement and life insurance. As a result, some of the terminology can be confusing and open to misinterpretation. It’s helpful to have an overview on some of the more common benefit terms.

 

Deductible

A deductible is the amount of money that must be paid out of pocket by an employee before an insurance provider will contribute. Generally speaking, the higher the deductible, the lower the premium—the lower the deductible, the higher the premium.

 

Premium

A premium is the amount of money that an employee is responsible for paying each month on an insurance policy. This is determined by multiple factors including the type of insurance, the likelihood of an employee making a claim and the lifestyle/behavior of an employee.

 

Copayment

Also known as a copay, this is the fixed amount of money that an employee must pay out-of-pocket before they receive services. In most cases, insurance plans with lower premiums have higher copayments, while those with higher premiums have lower copayments.

 

Coinsurance

Healthcare.Gov defines coinsurance as, “The percentage of costs of a covered healthcare service you pay after you’ve paid your deductible.” If a trip to the doctor costs $100 and coinsurance was 20 percent, a person would need to pay $20 after paying their deductible, and the insurance company would pay the remaining $80.

 

Flexible Spending Account (FSA)

The most common flexible spending account is a health care FSA, which is an account an employee can put pre-tax money into in order to use later for specific out-of-pocket healthcare costs. Employers may or may not make contributions to an FSA. Many employees like an FSA because of the variety of medical expenses it can be used on (e.g. prescriptions, eyeglasses and home medical equipment). The main drawback is that the money saved must typically be spent within the plan year or forfeited.

 

Health Savings Account (HSA)

Similar to an FSA, a health savings account is exclusively for individuals who are enrolled in a high deductible health plan (HDHP). Employees can contribute up to the IRS limit. In 2018, that amount is $3,450 for self-only coverage and $6,850 for family coverage. Unlike an FSA, the money in an HSA does rollover and remains in the account until it’s spent.

 

Preventive Care

Preventive care is the care an employee receives to prevent injury, illness, and disease (usually not subject to a copay or deductible). Some examples include health screenings, immunizations, and wellness visits. The purpose of preventive care is to be proactive about health and wellness and decrease the chances of staff members becoming sick or injured.

 

Primary Care Physician (PCP)

A primary care physician is an employee’s main doctor. This doctor will usually provide health and medical services to the employee for an extended period of time and will treat most medical problems that do not require a specialist.

 

It’s helpful to have at least a base understanding of common employee benefits and the terminology involved. While the terms listed here are by no means exhaustive, they should help you grasp the fundamentals so that you can better explain them to your staff.

health savings account

Everything You Need to Know About a Health Savings Account (HSA)      

Individuals with a High Deductible Health Plan (HDHP) have low premiums but high deductibles. As a result, they may need a little extra money to fill in the missing gaps in their health coverage. One solution that effectively fills in those gaps is a health savings account (HSA).

 

What’s an HSA?

According to Investopedia, “It’s a tax-advantaged account created for individuals who are covered under HDHPs to save for medical expenses that HDHPs do not cover.” An HSA provides an effective way for employees to save extra money to meet their healthcare needs.

This is beneficial because of the high deductibles that come along with an HDHP. While this type of healthcare plan usually has low premiums, it can potentially lead to an economic hardship if a person incurs extensive medical costs from surgery, frequent doctor visits or expensive medications. In a true HDHP, all healthcare expenses (sometimes with the exception of preventive services) are paid out of pocket until the deductible is met.  An HSA offsets many of these costs and adds some wiggle room to health coverage.

 

Contributions

To open an HSA, employees must be enrolled in an HDHP that meets certain criteria.  Employees can contribute to their HSA account each year up to the government-mandated maximums.  For 2018, the maximum HSA contribution is $3,450 in self-only coverage and $6,850 for family coverage.  Participants over age 55, can make an additional annual $1,000 catch up contribution.  If an employee has an HSA set up through their employer, they can streamline the process with automatic payroll contributions.

The money saved each year can certainly help with the costs of medical expenses. One reason employees enjoy this type of account is the flexibility they have when spending the money. For instance, they can use it on things like dentist visits, prescription medications, eyeglasses and even psychological counseling.

 

Funds Roll Over

Another perk of an HSA is the funds roll over at the end of each year. Unlike a flexible spending account (FSA), the money isn’t lost if not spent by a certain deadline, so employees don’t have to worry about losing their money. Over time, the money saved in an HSA can really add up.  As both an HSA and an FSA are tax-advantaged accounts, participants generally can’t contribute to both an HSA and a Health Care FSA in the same year.

 

Other Advantages

This type of account is also beneficial from a tax standpoint. Matt Irvine, vice president of sales and marketing at Health Savings Administrators, points out, “HSA contributions are pre-tax/tax-deductible, so the money grows tax-free and the money can come out tax-free.”, if it’s used for qualified medical expenses.  It’s also portable, meaning that the funds a person has accumulated remain with them even if they change employers or leave the workforce.

In other words, the money stays in an HSA until it’s spent.  If the funds are used for reasons other than qualified medical expenses and you are under age 65, the money will be taxed as ordinary income and the IRS will impose a 20% penalty.

 

Employer Contributions

If you’re currently offering your employees HDHPs, you will definitely want to consider contributing to HSAs as well. This can be advantageous from a recruiting standpoint and add to the overall health and wellbeing of your workforce.

A study by Willis Towers Watson found that 62 percent of employers that offered HSAs contributed “seed money” to their employees’ accounts. The median seed amounts ranged from $300 to $750 for employee-only coverage and $700 to $1,400 for family coverage in 2017.

HDHPs have grown in popularity mainly because of the rising cost of healthcare. If some or all of your workforce is covered by an HDHP, a health savings account can be a nice addition to provide more robust health coverage.

 

HDHP

Should You Offer Your Employees a High-Deductible Health Plan (HDHP)?

Rising healthcare costs have forced many employers to rethink the type of coverage they offer employees. One option that’s especially popular these days is a high-deductible health plan (HDHP).

 

What is an HDHP?

As its name implies, an HDHP is a type of health coverage with a higher deductible and lower premium than a traditional healthcare plan. It ensures that employees are covered in the event of serious injuries and illness, but it doesn’t offer many extras. In other words, it’s a form of “catastrophic coverage.”  In a true HDHP, all healthcare expenses (sometimes with the exception of preventive services) are paid out of pocket until the deductible is met.

The main catalyst for the growing popularity of HDHPs is the increasing cost of healthcare. Many companies (and their employees) don’t have the money to spend on traditional health coverage, but an HDHP is a viable option. The Kaiser Family Foundation’s 2016 Employer Health Benefits Survey found the percentage of employees enrolled in employer-sponsored HDHPs was only eight percent in 2009, but that grew to 29 percent in 2016.

 

What Are the Benefits?

The most glaring benefit is the lower premiums, which are more affordable than most traditional healthcare plans. In some cases, this is the only way that a company can realistically cover its employees. This makes it ideal for employees who seldom use their health benefits. If they don’t take any expensive medications, their monthly bills tend to be lower.

Another benefit is the ability to open a Health Savings Account (HSA), to help cover the out of pocket costs.  An HSA is a tax-advantaged account you can contribute to for purposes of paying qualified medical expenses.

 

What Are the Drawbacks?

If an individual does require expensive medical care, they need to meet a high deductible before their coverage kicks in.  The IRS defines the limits for an HDHP deductible and out-of-pocket maximum.  For 2018, the deductible must be at least $1,350 for an individual or $2,700 for a family and the yearly out-of-pocket maximum can’t be more than $6,650 for an individual or $13,300 for a family. 

In turn, this can create a real economic hardship for some employees. If a person undergoes surgery, makes frequent visits to the doctor, or requires expensive medication, it can be financially difficult.

 

Is it Right for Your Company?

Determining the viability of a consumer-driven health plan depends on two key factors—the overall healthcare needs of your workforce and how much you and your employees are willing to spend on healthcare. If those needs are minimal and you’re looking to save money, it’s definitely something to consider. Otherwise, it may not be the best option.

It’s easy to see why an HDHP would be of interest to many of today’s employers. This type of plan provides a means of providing employees with basic coverage without costing an arm and leg. Before you jump in head first, it’s critical to look at it from all angles to decide if it makes sense for your company.

employee wellness program

Should Your Company Offer an Employee Wellness Program?

Health problems are a growing concern for many Americans. Issues like obesity, high blood pressure, heart disease and diabetes have become alarmingly commonplace. This has spurred many companies to offer an employee wellness program. But does this make sense for your business?

 

The Pros

Studies have found that most companies experience a favorable return on their investment. According to Health Affairs, “Medical costs fall by about $3.27 for every dollar spent on wellness programs and absenteeism costs fall by about $2.73 for every dollar spent.” So in the long run, an employee wellness program should be profitable with a positive ROI.

In terms of productivity, you can expect it to increase by promoting health and wellness among your employees. The CDC reports, “Productivity losses linked to absenteeism cost employers $225.8 billion or $1,685 per worker annually.” When employees have perks like health coaching, medical screenings and gym memberships, your staff should be healthier and more productive as a whole. This should ultimately lead to reduced absenteeism and increased output.

There’s also a correlation between wellness programs and improved company culture. Healthy employees tend to have stronger relationships with their co-workers and better morale. It can also serve as a great recruiting tool, especially among millennials who are often health-conscious. According to a 2014 survey by Virgin Pulse, “87.4 percent of employees state that wellness positively impacted work culture, and 88 percent describe access to health and wellness programs as an important factor for defining an employer of choice.”

 

The Cons

Perhaps the biggest roadblock for most companies is simply having the financing to get an employee wellness program off the ground and running. The New York Times reports, “Medium-to-large employers spent an average of $521 per employee on wellness programs in 2014, double the amount they spent five years earlier.” Although there may be a positive ROI long-term, many companies just don’t have the budget to get the ball rolling.

Another issue relates to privacy or the lack thereof. With many employers collecting medical data from their employees, some individuals view this as an invasion of privacy and don’t wish to share personal information on their health conditions. In some cases, this can be the catalyst for litigation and other battles.

Finally, some people view employee wellness programs as discriminatory. That’s because it’s hard to implement a program without discriminating against employees with chronic health problems, disabilities and even those of lower socioeconomic status. In this case, it may end up doing more harm than good.

 

Making the Right Choice

Deciding whether or not an employee wellness program is right for your company depends on a variety of factors. If you have a sizable budget to work with and are looking to improve productivity, morale and gain a recruiting edge, it probably makes sense.

However, it’s important to see the whole picture and take the negatives into account as well. If you have a limited budget and are worried about the potential HR headaches that could come along with it, this type of program may not be right for you.

 

 

long term leave

Long-Term Leave No Longer a Reasonable Accommodation Under the ADA

The Americans with Disabilities Act (ADA) is a law that’s designed to prevent employers from discriminating against employees on the basis of disability. In the past, long-term leave was considered a reasonable accommodation under the ADA. However, a recent ruling has changed that.

 

The Backstory

This update was spurred by a recent case called Severson vs. Heartland Woodcraft, Inc. The plaintiff, Raymond Severson, was employed by Wisconsin-based retail display fixtures fabricator Heartland Woodcraft Inc., since 2005. During that time, he received multiple promotions and was operations manager.

In 2010, he was diagnosed with myelopathy, which according to Johns Hopkins Medicine, “Is an injury to the spinal cord due to severe compression that may result from trauma, congenital stenosis, degenerative disease or disc herniation.” As a result, Severson experienced significant back problems that resulted in him being unable to work.

Under the Family and Medical Leave Act (FMLA), he was granted 12 weeks to tend to this issue and recover. After exhausting his FMLA leave, he told his employer that he required surgery, which would result in absence from work for an additional two to three months.

 

The Lawsuit

At that point, Heartland Woodcraft told Severson that his job would be terminated at the end of his FMLA leave, but he could reapply once he had recovered from his surgery and was able to return to work. Severson then sued Heartland Woodcraft on the basis that they failed to provide reasonable accommodation under the ADA.

On September 20, 2017, the Seventh Circuit ruled in favor of Heartland Woodcraft saying that their actions did not violate the ADA. According to Judge Sykes, “A long-term leave of absence cannot be a reasonable accommodation.” After analyzing the language of the ADA, he concluded, “It’s an anti-discrimination statute, not a medical-leave entitlement.”

 

What This Means for Employers

Attitudes are shifting when it comes to long-term leave. Although you’re still required to remain compliant with the FMLA, you may not be responsible to provide long-term leave once an employee’s 12 weeks have been exhausted. The decision from the Severson vs. Heartland Woodcraft case makes it clear that this isn’t a violation of the ADA. The courts are siding with employers on this one.

Seyfarth Shaw LLP summarizes everything perfectly with the following statement. “If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request.”

They also point out that if other circuits follow suit, companies may no longer be required to provide post-FMLA long-term leave. It’s critical to obtain updated medical information from an employee as they near the end of FMLA. This will protect your company and prevent unnecessary litigation.

Severson vs. Heartland Woodcraft represents a key change in the way employers approach long-term leave. The ruling is a definite victory for small to mid-sized businesses and means increased flexibility moving forward.