November 2014 - Labor and Employment Group News
November 14, 2014
While widespread concern about Ebola and its potential spread outside West Africa have dominated public health discussions in certain news media, most employers are quite unlikely to face the question of what to do with an employee suspected of having been exposed to Ebola. But the publicity around Ebola and potential carriers raises a number of legal concerns that apply as well to far more common infectious diseases, some deadly like influenza (between 3,000 and 40,000 U.S. deaths per flu season) and some generally not so deadly, like the common cold. Employers face a tension between the competing duties to provide safe workplaces for their employees (and potentially customers) and to comply with laws protecting employees from employer overreach into their personal medical lives. As the Ebola scare has taught us, the issues related to infectious diseases can evolve quickly. Employers should consider adopting a general policy concerning infectious diseases so that as new concerns arise employers have framework within which to address legitimate concerns.
Any such policy should begin with two basic principles. First, an employer has a duty under state and federal law to provide a safe workplace for its employees. Second, an employer generally may not prohibit an employee from working because of a medical condition unless the employee poses a direct threat of substantial harm to the health or safety of the employee or other people that cannot be reduced by measures short of barring the employee from work. Implementing both these principles with regard to infectious diseases requires understanding the actual threats related to any given disease and also understanding what appropriate steps might be taken to minimize those particular threats. Each specific disease may raise additional legal issues that must be taken into account in developing an appropriate response.
The recent Ebola panic provides a good case study for application of these principles. An employee actually infected with Ebola would present a “significant risk of substantial harm” to co-workers, and therefore would pose a “direct threat” under the Americans with Disabilities Act (ADA). But what about an employee who may have had some exposure, but may or may not be infected? In that case, the employer must act reasonably to assess the situation given the risk of harm to other workers. In carrying out that duty, the employer should obtain actual information about the threat from a reputable source such as the Centers for Disease Control (CDC). In the case of Ebola, the best information teaches that only individuals exposed to the bodily fluids of a person suffering from Ebola may be infectious, and the disease has a 21 day incubation period (meaning that if the individual exposed does not have symptoms within 21 days, then he or she did not contract the disease). Experts state that people showing no symptoms cannot infect others.
With any serious infectious disease—including influenza or SARS, the employer needs to gather whatever facts it can from the employee suspected of having been infected to determine the likelihood of infection. Such an investigation should start with basic questions related to potential infection (and there should be a reasonable basis for the inquiry) and may, if responses reveal a reasonable possibility of infection, continue onto medical inquiries. The ADA allows medical inquiries of employees only when job-related and consistent with business necessity. An employer must have a “reasonable belief” based on objective evidence that an employee may pose a direct threat to others due to a medical condition. While such a reasonable belief may vary from case to case, the simple fact of having visited a foreign country for example, would not provide the basis for a reasonable belief of a direct threat.
If after evaluating the facts it can obtain, the employer reasonably believes that the employee has a substantial risk of Ebola infection, then the employer should take steps to protect its other workers by not allowing the employee to come to work, consistent with CDC or other recognized medical guidelines. Those guidelines may be found here.
However, this does not mean that the employee should be terminated. Under the ADA, an employer needs to assess whether the “direct threat” can be reduced in ways other than terminating an individual’s employment. Short leaves of absence would be a reasonable ADA accommodation. Other accommodations, such as telecommuting, must also be considered. Terminating an individual for suspicion of having contracted Ebola would almost certainly violate the ADA. Moreover, regulations under the Family Medical Leave Act provide that time away from work for testing to determine whether an individual has a serious health condition is protected time off under regulations allowing time off for diagnosis.
Influenza poses more widespread and longstanding concern than Ebola. Unlike Ebola, influenza regularly kills thousands of people in the United States each year. Also unlike Ebola, a relatively effective vaccine for influenza exists. In the past several years, many health care organizations have mandated that employees receive flu shots each year. Where employees raise religious concerns or have specific health issues for which a flu shot is contra-indicated, employers must seek out reasonable accommodations. The Equal Employment Opportunity Commission issued guidelines several years ago addressing employment issues with regard to a potential flu pandemic, which can be found here. Those general principles – which attempt to balance an employer’s obligations regarding safety with an individual employee’s rights – likely apply to other infectious diseases as well.
Human Resources professionals should take the opportunity created by the publicity over the Ebola scare to develop a workable and flexible policy concerning infectious diseases generally so that when the next scare hits the organization has a framework around which to develop a specific response.
Please contact Lissa J. Paris at 860.240.6032 or firstname.lastname@example.org or Hugh F. Murray, III at 860.240.6077 or email@example.com if you have any questions concerning the issues discussed in this article.
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On October 27, the Equal Employment Opportunities Commission (“EEOC”) sued Honeywell International, claiming that its employee wellness program violates the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). This constitutes the third EEOC challenge to employer wellness plans in the last three months.
Under its wellness program, Honeywell asks employees and their spouses to undergo a biometric screening which tests cholesterol, glucose levels, and blood pressure. The screening also collects the employees’ height, weight and waist circumference. The EEOC claims that Honeywell charges employees who do not participate in the screening $500. It also claims that the company assesses a $1,000 "tobacco surcharge" on holdout employees and their spouses, even when the refusal to be screened does not relate to tobacco use. Employees who refuse to be screened also allegedly lose contributions to a Health Savings Account of up to $1,500.
Honeywell won the first round against the EEOC. A federal judge recently denied the EEOC’s request for an order that would stop Honeywell from imposing the surcharge on employees who refuse the screening. The EEOC’s action raises concerns because Honeywell’s wellness plan does not differ significantly from traditional plans and thus puts other wellness programs at legal risk.
The Affordable Care Act encourages companies to offer wellness plans. Companies may create wellness programs with "health contingent" incentives (up to 30% of medical coverage costs, and up to 50% for programs which discourage tobacco use). However, the EEOC sees a conflict between the Affordable Care Act, the ADA and GINA. In all three lawsuits, the EEOC claims that the companies violated the ADA. It asserts that biometric testing constitutes a "disability-related inquiry and medical examination," which the ADA prohibits because the testing does not relate to the job, and is inconsistent with business necessity. In the Honeywell lawsuit, the EEOC also claims that the company violated GINA because the biometric testing imposes penalties on employees whose spouses do not provide their medical information, and because the company offers a financial incentive to obtain genetic information.
Significantly, the EEOC ignores the ADA’s "safe harbor" provision that exempts certain health plans from ADA scrutiny [including required medical examinations and disability-related inquiries] if those actions result from the terms of a group health plan and assess risk for underwriting purposes. Honeywell claims that it uses the information to design plan changes. The only court to rule on a similar plan found that the ADA did not prohibit a similarly structured wellness plan.
The EEOC claims that Honeywell collected genetic information in violation of GINA by collecting spousal information. In an obvious response, Honeywell asserts that spousal biometric information (blood pressure readings and the like) cannot constitute genetic information because the employee and spouse have no genetic relation. Honeywell did not collect family medical history. Honeywell also disputes the EEOC’s statutory authority to challenge wellness plans as well as its failure to consider GINA’s safe harbor, which allows it to collect genetic information in conjunction with "voluntary" wellness programs. Honeywell claims its "modest" surcharges constitute part of a voluntary wellness program.
We will keep you up to date on the further developments. If you have any questions, contact Lissa J. Paris at 860.240.6032 or firstname.lastname@example.org.
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Massachusetts voters recently approved a ballot measure that will require employers in the Commonwealth with more than ten employees to provide paid sick time to every employee beginning July 1, 2015. For employers who do not currently provide any paid sick time, implementing the new law will be relatively straightforward: read the law and develop a policy that tracks it. However, most employers already provide employees with significant amounts of paid time off. Those employers must review, and in all likelihood revise, their policies in order to avoid unintended violations of the new law.
Under the new law, an employer that provides employees paid time off under a “paid time off, vacation or other paid leave policy” does not need to provide additional paid sick time so long as the employer “make[s] available an amount of paid time off sufficient to meet the accrual requirements of this section that may be used for the same purposes and under the same conditions as earned paid sick time under” the new law. While the intent of this provision is to avoid additional mandates to employers already providing paid time off, most existing policies will need to be adjusted in some respect in order to comply with the new law. Some existing policies may be more difficult than others to conform to the new law.
A policy must meet three elements in order to comply with the new law. First, it must provide an amount of paid time off sufficient to meet the accrual requirements of the new law. Under the new law, an employee earns one hour of paid sick time for each 30 hours worked, up to 40 hours of paid sick time per calendar year. Accrual begins on the date of hire (or July 1, 2015, whichever is later). Exempt employees are assumed to work 40 hours per week and therefore accrue 1 and 1/3 hours per work week. Employees may carry over up to 40 hours of unused sick time each calendar year. An employer with an existing paid time off policy, therefore, must ensure that each employee has sufficient paid time off to equal or exceed what he or she would have earned under the Massachusetts law.
Second, the time off must be available for the same purposes as the paid time off under the law. The law provides four separate qualifying purposes: (1) to care for a close family member (child, spouse, parent, or parent of spouse, as defined in the law) with an illness; (2) because of the employee’s own illness; (3) to attend routine medical appointments for the employee or the employee’s family member; or (4) to address the psychological, physical or legal effects of domestic violence. Some employers currently provide significant amounts of paid time off, but limit the use by category. Some sick time policies, for example, apply only to the employee’s own illness. An employer in Massachusetts must review its policy to ensure that there is sufficient time available for the specific purposes listed and, if there is not, change the policy so that there is.
Finally, an employer’s policy must provide leave “under the same conditions” as earned paid sick time under the new law. An employee under the new law may use up to 40 hours of accrued leave in each calendar year, beginning on the 90th day of his or her employment. Employers that use some period other than a calendar year may need to carefully track leave usage or change its policy. Employees may use paid sick time under the law in the smallest increment used by the employer’s payroll system. Thus, sick time could be used in increments of 15 minutes if that is how the payroll system works. Employer will need to modify policies that require time to be used in longer increments – hours, days, weeks – to allow use in smaller increments. Under the law, employers may only request certification from a health care provider if the employee uses more than 24 consecutive hours of sick time. Therefore, employers need to examine existing sick time practices to conform to the new law.
In adjusting old policies to reflect the new paid sick leave law, employers must also consider other laws, such as the Massachusetts Small Necessities Leave Act, the Massachusetts Domestic Violence Leave Act, and the federal Family Medical Leave Act. Moreover, employers with employees who are represented by a union may not make changes to terms and conditions of employment – including paid time off policies - unless they first bargain with the union and reach either agreement or, in the absence of a collective bargaining agreement, impasse. Such bargaining may take some time, so unionized employers should start this review immediately.
Employers with existing policies that provide employees with paid time off have at least as much work to do between now and July 1, 2015 as do employers with no existing paid time off at all. Although it is possible that the Legislature will fine tune the law and the Attorney General will issue regulations under the law before July 1, 2015, the time to start a review is now.
Please contact Susan J. Baronoff at 617.457.4031 or email@example.com or Hugh F. Murray, III at 860.240.6077 or firstname.lastname@example.org if you have any questions concerning the issues discussed in this article.
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