AHEAD OF THE GAME: Employer Information Alerts

What’s happened?

EEOC issues proposed rules on wellness programs and ADA

A newly proposed rule from the Equal Employment Opportunity Commission (EEOC) provides guidance on how worker wellness programs can comply with provisions in the Americans with Disabilities Act (ADA). The EEOC had been under fire for filing lawsuits alleging some employer-based wellness programs violate aspects of the ADA.

The notice of proposed rulemaking (NPRM), a Fact Sheet for Small Businesses, and a Question and Answer document for the general public are now available.

The NPRM makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability. EEOC’s proposed rule differs from the ACA and HIPAA’s wellness program incentives in that it extends the 30 percent limit on incentives under health-contingent wellness programs to participatory wellness programs. Also, unlike the HIPAA regulations, the 30 percent limit is for 30 percent of self-only coverage, not 30 percent of family coverage, even where the coverage is for a family.

Another key difference is a provision that would bar employers from using “gated health plans” to drive wellness program participation. Under the EEOC’s proposal, employers could not limit employee access to a particular group health plan or coverage options within a group health plan for not participating in a wellness program. They could, however, impose higher deductibles or other financial penalties.

Further, lawyers seem to disagree how the additional 20 percent incentive available for wellness programs related to tobacco cessation under the ACA is affected, with some interpreting that the limitation would apply to programs that do not require medical information. If it remains in the final rule, employers will need to evaluate what information is required for employee participation in the tobacco cessation program.

The proposed rule will also add paperwork. Employers must provide employees a notice that describes what medical information will be collected, with whom it will be shared, how it will be used, and how it will be kept confidential. Some suggest this may discourage employee participation.

NLRB offers guidance on employee handbooks for union and non-union employers

On March 18, The National Labor Relations Board (NLRB) general counsel, Richard Griffin Jr.,issued a comprehensive set of rules outlining the types of policies it considers legal – and illegal – in employee handbooks. Applicable to both union and non-union companies, these rules identify policies that the NLRB considers unlawful when they can be construed to violate employee’s rights to engage in group activity aimed at improving their terms and conditions of employment under Section 7.

For example, Section 7 gives employees the right to criticize or express negative feelings about their company or managers in connection with efforts to improve work conditions; therefore, the NLRB considers it unlawful for such rules to prohibit merely “rude” or “disrespectful” behavior toward managers or the “company” without sufficient clarification or context. Handbook policies are considered unlawfully overbroad if they leave employees with the impression they cannot discuss wages, hours, and other terms and conditions of employment with fellow employees and with non-employees. Also, rules that prohibit employees from posting anonymously on social media will generally be unlawful.

Employers are well advised to carefully review their handbooks with legal counsel in relationship to this report. The report, called Report of the General Counsel Concerning Employer Rules, is available at http://www.nlrb.gov/reports-guidance/general-counsel-memos.

NLRB rules profane-laced Facebook posting about manager and his family was protected, concerted activity

On March 31, the NLRB ruled that a profanity-laced posting on Facebook about a manager and his family was protected, concerted activity and that the employer violated the law by discharging the employee who posted the message. The case involved an employee of a catering service who was upset that his supervisor spoke to employees in a loud, harsh manner. During a break, the server posted the following message on his Facebook account: “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”

Three key factors in the board’s decision were that profanity was common on the worksite and usually went unpunished, the posting encouraged co-workers to vote for a union, and the post was just two days before a union election.

Employer takeaways:

  • “Protected concerted activity” decisions require employers to tolerate much more “disrespectful” and “inappropriate” language than they might expect. Companies should consult with legal counsel before disciplining or terminating employees for use of such language.
  • Especially with the new “ambush” election rules, which make sweeping changes to the procedures applicable in union representation cases, employers should develop a strong communication plan and train managers and supervisors so that the company’s message gets to employees and not delay in addressing supervisors who have poor relationships with their workers.

A copy of the decision is provided here.


Heads up: things to watch

Social Security proposal to require workers’ compensation reporting

The Social Security Administration’s proposed fiscal 2016 budget, includes a provision to require states, local governments and private insurers that administer workers’ comp and public disability benefits to report data on those benefits to the Administration. The onus will fall on employers and insurers and undoubtedly increase paperwork and costs.

Uber, Lyft drivers: employees or independent contractors

Alaska is considering a pair of bills that would exempt ride-sharing services such as Uber Technologies Inc. and Lyft Inc. from providing workers’ compensation coverage to drivers in their networks. Two lawsuits in U.S. District Court in San Francisco seek to classify Uber and Lyft drivers as employees, rather than independent contractors.

The outcomes hold broad relevance as the sharing economy model grows in many aspects of business. Workers’ compensation doesn’t neatly fit into a quickly shifting sharing economy business model. Yet, more and more workers seek benefits outside of traditional jobs.

Is Ebola covered by workers’ compensation?

A Texas district judge issued a temporary restraining order preventing Texas Health Resources’ from seeking a worker’s compensation claim for a nurse who contracted Ebola while caring for Thomas Eric Duncan, the first U.S. patient to die from Ebola. The nurse’s lawyers say Texas Health Resources’ pursuit of a worker’s compensation claim is meant to quash her lawsuit against the company. At issue is whether the district court or the worker’s compensation claim court has jurisdiction.

Challenges to NLRB “ambush rules”

Two groups have pending federal lawsuits challenging the NLRB’s “ambush rules,” one filed in the U.S. District Court for the District of Columbia (United States of America, et al. v. NLRB, Case No. 1:15-cv-00009), and one filed in the U.S. District Court for the Western District of Texas (Associated Builders and Contractors of Texas, Inc., et al. v. NLRB, Case No. 1:15-cv-00026). The cases are contending that the rules accelerate the election process so that employers are unable to respond effectively to union organizing campaigns.

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