HR Tip: EEOC issues final rule on wellness programs and guidance on leave as a reasonable accommodation under the ADA

HR Tips

Wellness programs

In May, the Equal Employment Opportunity Commission (EEOC) issued final regulations governing the treatment of wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

The final rules, which will go into effect January 2017, apply to all workplace wellness programs, including those in which employees or their family members may participate without also enrolling in a particular health plan.They cover a wide variety of issues, from financial incentives, defining “voluntary”, and notice requirements to how the medical information gathered must be protected.

The total allowable incentive cannot exceed 30% of the total cost of self-only coverage. This is at odds with the Affordable Care Act (ACA), which authorizes incentives of up to 30% of the cost of coverage in which the employee is enrolled. Also, the ACA wellness program rules allow incentives of up to 50% for tobacco cessation programs. However, under the final rule, if an employer requires any biometric screening or other medical procedure that tests for the presence of nicotine or tobacco, the 30% incentive limit applies.

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Employer-provided leave and the ADA

While this new guidance doesn’t carry the weight of official guidance, it is helpful in guiding employer decision-making when considering leave as an ADA reasonable accommodation. Attorney Jeff Novak, author of the blog,, notes the guidance offers illustrative examples and offers these highlights:

  • Equal access to leave under an employer’s paid leave policies. The employee requesting the leave should be subject to the same requirements as an employee who requests leave for reasons unrelated to a disability.
  • Unpaid leave must be considered as a Reasonable Accommodation. An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if: 1) the employee requires it; and 2) it does not create an undue hardship for the employer.
  • All requests for leave must be treated as a request for a reasonable accommodation.
  • Utilize “automatic termination” provisions at your own risk. Policies that call for termination of employment after the employee has been absent for a certain period of time (e.g., 3 mos., 6 mos., etc.), do not sufficiently meet the employer’s obligation to engage in the ADA’s interactive process.
  • Reassignment to a vacant position. Deemed by the courts as the “accommodation of last resort,” reassignment still must be considered if all else fails.
  • Approach the undue hardship analysis carefully. While there is some guidance on defining undue hardship, it is still nebulous.
  • Medical information. Employers can obtain critical medical information from the employee’s health care provider to help make decisions on leave requests. If an employee asks for an extension of ADA leave, employers can obtain even more information.

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NCCI -Channeling Change: Meeting the challenges of an evolving market

Each year, the National Council on Compensation Insurance (NCCI), which gathers data, analyzes industry trends and legislation, and prepares insurance rate and loss cost recommendations, holds an Issues Symposium. The theme for 2016 was Channeling Change: Meeting the Challenges of an Evolving Market.

The new President and CEO, Bill Donnell, noted the industry is on solid ground financially; the industry was profitable in 2015 and claim frequency continued to decline. Noting the tremendous strides made in reducing the number of workplace incidents, he said it was important to have a broader understanding of the intent of workers’ compensation: timely and appropriate medical treatment and positive outcomes that return workers to their job quickly.

Highlighting two employers, Iron Mountain and Harley Davidson, that have had significant improvement in their workers’ compensation results, he spoke of the need to adapt to the changing workplace. Both companies made fundamental changes that, over time, evolved into a culture shift, increasing accountability, risk awareness and discipline.The big emphasis was on personal and timely contact with injured employees, keeping injured employees active, return-to-work and stay-at work programs, honing in on incident types and proper training, improved hiring processes, and revamping the claims management process.

The results were remarkable. In 2009, every year one out of three Iron Mountain employees were going to the hospital with some sort of work-related injury. Workers’ comp costs were close to $18 million a year. By 2014, Iron Mountain reduced its costs by 50% to $9 million dollars and Harley Davidson saw claims reduced by almost 70% between 2009 and 2013.

O’Donnell continued the tradition of choosing one word to define the current state of the workers’ compensation industry and his choice for 2016 is “Transforming.” With increased automation and the new ways employees work, the workplace is transforming. Markets are transforming as underwriting becomes more important in low interest environments, and new regulatory agendas and more stakeholders increases uncertainty and risks.

While the industry must respond to these factors, all of this has important implications for employers. They must move beyond the myopic approach of reacting to work-related incidents and understand that health and safety management is an integral part of the overall business strategy. The continual question should be, “What would help employees do their jobs better and safer?” They must see risk management as an opportunity to improve the bottom line.

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Things you should know

Inflammation causes employees to be away from work longer than other common workplace injuries

The Traveler’s Injury Impact Report provides helpful information on the most common injuries and the costs of injuries. Although strains and sprains are the most common workplace injury, making up 30% of total claims, they lead injured employees to miss an average of 57 workdays per injury compared with inflammation, such as tendinitis, which causes an average of 91 days away from work. Fractures are more expensive than the other most common injuries, costing an average of $42,400 per claim.


Opioids: #1 prescribed drug in California; 8.4% of worker comp recipients prescribed opioids also take illegal drugs

  • In a report by the California Workers’ Compensation Institute, studies show that although there is an increased awareness of the dangers in prescribing opioid painkillers due to their addictive quality, they still were the #1 prescribed drug, making up 27.2% of total prescriptions in the state workers’ comp system in 2014.
  • Baltimore-based pain medication monitoring firm Ameritox Ltd.’ conducted an observational study of more than 450,000 urine samples submitted for testing between January 2013 and July 2015. Workers’ compensation was the primary payer for 22,525 of the 450,081 patients included in the study. The urine tests paid for by workers’ comp showed use of illicit substances 8.4% of the time.

Missouri – State prescription drug monitoring program dies in Senate

Missouri’s legislative session ended May 13, leaving a bill that would have enacted a statewide prescription drug-monitoring program to die in the Senate. It’s the only state without such a program.

Report: more employers buying into a healthy culture as a business strategy

U.S. employers are redefining workforce health with an emphasis on workplace culture over program design. By 2018, 94% expect to have a workplace culture that promotes employee well-being to get workers engaged in their health, according to the analysis by Willis Towers Watson P.L.C.

NIOSH releases new edition of Manual of Analytical Methods

NIOSH has released the fifth edition, and first exclusively electronic version, of its Manual of Analytical Methods. The manual is a collection of methods for sampling and analyzing toxins in workplace air and surfaces, as well as in the blood and urine of exposed workers.

Distance between snacks and beverages at work reduces snacking

A study from researchers at Saint Joseph’s University suggests workers engage in more mindless snacking when food and beverage stations are in close proximity to each other. Researchers observed about 400 workers in the break room of a Google office in New York that offers free snacks and beverages to employees.A beverage station was placed about 6 feet from a snack bar containing items such as cookies, chips and fruit and over a seven day period about 21 percent grabbed a food item. A second beverage station was placed about 17 feet from the snack bar and over the same period only 12 percent grabbed a snack.

Legal Corner

Limit of days on light duty upheld by appellate court

In Frazier-White v. David Gee, 2016 U.S. App. LEXIS 6318 (11th. Cir. 2016), a community service officer for the Hillsborough County Sheriff’s Office (HCSO), who was placed on light duty following a work-related accident, requested an extension of the 270-day light duty limit, which was a policy set by the HCSO. The employee had seen several doctors who put her at Maximum Medical Improvement (MMI) with no restrictions and HCSO encouraged a discussion of possible accommodations for her to return to work. When she did not respond, a hearing was held and she was terminated.

She sued under the ADA and the Florida Civil Rights Act alleging disability discrimination. However, the court found that HCSO was not obligated to create a permanent light duty position for her and since every employee is essential for efficient operation eligibility for light-duty status is limited to 270 days during a two-year period.

Takeaway: While courts have generally found that indefinite leave is an unreasonable request, policies that end light duty based either on a specific time limit or on reaching MMI should be flexible enough to consider requests for reasonable accommodation under the ADA or state civil rights law even after the time limit has ended.

Termination for conduct caused by prescription drug side effect did not violate ADA

In Caporicci v. Chipotle Mexican Grill, Inc., Case No. 8-14-cv-2131-T-36EAJ (M.D. Fla. May 27, 2016), an employee had informed her employer that she was taking prescription drugs for bi-polar disorder. When her medication was changed, she arrived at work in what appeared to be an inebriated state and was acting erratically. The company argued that the conduct violated its Drug and Alcohol Policy, which prohibits any employee from reporting to work or being at work ‘under the influence of alcohol, drugs, or controlled substances.’ The court agreed noting an employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability.

Workers’ Compensation
Late IRM is valid – California

In the case California Highway Patrol and SCIF v WCAB (Margaris), the Court of Appeals disagreed with the WCAB and found that, although the Independent Medical Review (IMR) decision was issued thirteen days late, it was valid and binding. According to the court, the 30-day limit in the law is directory and that doctors should make decisions regarding the necessity and appropriateness of medical treatment, not judges.

Comp benefits for transportation accident responder approved – Missouri

A long-term employee of the Missouri Department of Transportation was assigned to respond to only the most serious accidents, many of which involved catastrophic injuries, dismemberment and death. After working more than 1,000 cases, she began to suffer from significant emotional and psychological symptoms such as panic attacks, mood swings, and insomnia. She filed a claim for workers comp benefits for mental injuries and disability. A law judge found she failed to prove that she suffered “extraordinary and unusual work-related stress when compared to similarly-situated employees.” However, the Labor and Industrial Relations Commission reversed the judge’s decision and was affirmed by the Missouri Court of Appeals. It noted that a 2005 amendment to the state’s workers’ comp act made it so workers were not required to prove the “extraordinary and unusual” nature of their work.

No comp for investigator claiming PTSD – New York

A senior investigator at the sheriff’s office alleged he developed post-traumatic stress disorder due to highly stressful work situations. These situations included a 10-hour hostage standoff with an armed suspect, his partner and the chief of police committing suicide, and no debriefing of any of these incidents. However, medical reports attributed the worker’s psychiatric condition to the dissolution of his marriage and undermined his claim. Orange County Sheriffs Office, 116 NYWCLR 41 (N.Y. W.C.B., Panel 2016)

Court approves comp for employee who denied hearing supervisor’s instructions – North Carolina

In Keaton v. ERMC III, the North Carolina Court of Appeals affirmed the state industrial commission’s decision that while disobedience to an order by a supervisor breaks the causal relation between employment and injury, in this case, the maintenance worker never heard the instructions. Along with others, the worker responded to an emergency call to help clean up water and debris from a sprinkler head that had burst open. After most of the work was done the supervisor said not to touch the hanging fluorescent light, which was energized and left for a lunch break. Concerned for other people’s safety, the worker attempted to remove the light but suffered an electrical shock and fell off the ladder, fracturing his ankle. While a co-worker heard the supervisor, the court believed that the maintenance worker did not.

Intoxication leads to denial of comp claim – North Carolina

In the North Carolina Court of Appeals case of Diaz v. Spanish Contractors, a subcontractor fell off a ladder and suffered numerous serious injuries. The employer denied the claim, arguing that the worker was not an employee and was drunk at the time of his fall. While it was determined that an employer-employee relationship existed at the time of the accident, the blood-alcohol level at the time of injury was the proximate cause of his injuries and he was not entitled to collect workers’ compensation benefits.

Worker attacked by co-worker entitled to benefits – Pennsylvania

In Cruz v. Cutone Mushrooms, the Workers’ Compensation Appeal Board affirmed the workers’ compensation judge’s finding that a mushroom picker was in the course and scope of his employment when he was stabbed by a coworker. While on break the picker went to a coworker’s residence, located on the employer’s property, to talk about a work-related dispute and was attacked.

Medical expert’s testimony must be persuasive – Pennsylvania

In IA Construction Corp. and Liberty Mutual Insurance Co. v. WCAB (Rhodes), the Supreme Court of Pennsylvania reversed a decision by the Commonwealth Court and held that a WCJ’s rejection of the expert medical opinion of the IRE physician was authorized where the WCJ found the IRE’s opinion was underdeveloped and out-of-specialty. In the decision, the court emphasized that with regard to expert medical testimony, one should not conflate the qualifications of the expert with the persuasiveness of the expert’s testimony.

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OSHA watch

Retaliation rules on reporting injuries into effect August 10

Included in the new electronic reporting of workplace injuries and illnesses rule is the requirement that employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately. Effective August 10, the rule prohibits employers from deterring or discouraging a reasonable employee from accurately reporting a workplace injury or illness. The rule also prohibits any retaliation for reporting an injury or illness. Under this new reporting standard, employer policies that request or require post-accident drug or alcohol testing may now face scrutiny by OSHA because, the agency claims, post-incident testing deters injury reporting.


Fine increases start August 1 and employers may also face retroactive fines

Starting August 1, penalties will increase to reflect the change in the consumer price index since the last pre-1996 update. Maximum fines can increase up to 78%, meaning that the existing $70,000 cap for repeat and willful violations could increase to $124,709, while the top fines for serious and other-than-serious violations could rise to $12,471 from the current $7,000 maximum. Employers inspected before the Aug. 1 effective date, but receiving citations after that date, will be subject to the higher penalties. It can take up to six months after the start of an inspection to issue citations and propose penalties, so employers being investigated as far back as Feb. 1 could face the higher fines.


Annual campaign launched to help outdoor workers beat the heat

In launching the campaign, a representative noted that new workers who have not been acclimated to the heat are particularly vulnerable and the majority of recent heat-related deaths investigated by the agency involved workers who were on the job for three days or less. The campaign informs employers and employees about the dangers of working in hot weather, includes illustrations of heat exhaustion and heat stroke, provides safety tips and training materials, and links to an updated safety phone app. In 2014, heat-related illnesses sickened more than 2,600 workers and caused 18 fatalities.


New pilot program targeting severe violators of whistleblower rights launched in Kansas, Missouri, Nebraska, and Iowa

The Whistleblower-Severe Violator Enforcement Program will focus on employers that engage in egregious behavior and blatant retaliation against workers who report unsafe working conditions and violations of the law. Criteria for inclusion on the Whistleblower-Severe Violator Enforcement Program log will include:

  • All significant whistleblower cases.
  • Cases deemed worthy of either litigation or the issuance of merit findings from the Secretary of Labor in connection with egregious citations, a fatality, or a rate-based incentive program for work-related injuries.
  • A merit whistleblower case where the employer is already on the enforcement SVEP log
  • A company with three or more merit whistleblower cases within the past three years.

After three years, a company may petition the regional administrator for a follow-up visit and removal from the program.


New fact sheet on lightning

Lightning is a frequently overlooked occupational hazard, according to a new fact sheet issued jointly with the National Oceanic and Atmospheric Administration (NOAA). It provides information about lightning hazards, what should be included in emergency action plans, and protective measures that can be taken to ensure workers’ safety.


Recent fines and awards


  • U.S. Pipe Fabrication LLC of Gainesville faces nearly $76,000 in fines for three repeated, three serious and one other-than-serious safety and health violations related to energy control procedures, unguarded equipment and inadequate written respiratory program among others.
  • Reich Installation Services of Forest Park was issued two willful and two serious safety citations for failure to inspect the rail supporting a scaffold system nearly 80 feet off the ground for visible defects after a 27-year-old laborer fell to his death at a Kroger distribution center. Proposed penalties total $121,800.
  • Evergreen Nursery of Statham was cited for 18 serious violations after an overturned forklift crushes a worker who was not wearing a seatbelt. Proposed penalties are $46,900.
  • Savannah-based Arboris L.L.C. was cited for violating process safety management procedures for the handling of hazardous materials and lack of certain emergency shutdown procedures following a fire at its Newark, Ohio facility. The food addictive manufacturer faces $180,180 in fines.


  • In less than one month, two workers at a California-owned Ajinomoto Windsor Inc. facility in Piedmont suffered amputation injuries. The company faces eight serious and three other-than-serious safety violations and $140,000 in penalties, for lack of proper safety guards and more.
  • Americold Logistics of Carthage received nine serious safety violations for lack of proper procedures for use of potentially dangerous ammonia. Proposed penalties: $54,800.


  • Five companies face fines of $115,000 after inspectors observed multiple safety hazards at a Lincoln construction site. While East Framing Inc. of Grimesland, North Carolina faces the largest fine ($65,450), South Georgia Framers, America’s Best Siding of Fort Collins, Colorado, Aspen Heights, and ProCon Construction Services LLC also were cited.
  • Clau Chin Construction LLC, the employer, and Larry Kessler Construction LCC, the project’s contractor, were cited with three safety violations after a trench collapse kills a 61-year-old plumber in Alliance. Proposed fines: $33,000 and $21,000 respectively.

New York

  • Yeshiva Kehilath Yakov was cited for 21 serious violations related to potentially fatal electrical and fall hazards at a Williamsburg building site. Proposed penalties: $49,200.
  • Wegman’s Food Market’s Rochester bakery faces $140,000 in fines for repeat safety violations after an operating conveyor injures employee’s arm.
  • Jamestown MVP LLC of Falconer, dba MVP Plastics, a manufacturer of disposable plates and bowls, was cited for failing to correct fall hazards and allowing recurring electrical hazard. Proposed penalties: $87,520.
  • Alstom Transportation Inc., a leading rail equipment manufacturer, was cited for 17 serious violations and fined $105,000 for exposing workers to several cancer-causing chemicals and other hazards.


  • Despite an extensive violation history (56 failed inspections nationwide), Dollar General had sealed exits and electrical hazards at its Shamokin store. Proposed penalties: $70,000.
  • PhytogenX Inc., a cosmetic manufacturer in Morgantown, faces fines of $285,300 after an inspection initiated by an employee complaint. The inspection found flammable chemicals caused fire hazards and unguarded machinery caused the amputation of a worker’s fingertip.
  • Dent Wizard is facing $51,000 in penalties for failing to protect workers from toxic compounds at its Manheim location, as well as other violations. The inspection was initiated in response to a complaint.
  • BC Stucco and Stone of Upper Darby was fined $93,000 after a second inspection revealed continuing scaffolding dangers. The company was cited for one serious and three willful violations.


  • Fort Worth steel fabricator, K-T Galvanizing Company Inc. faces penalties of $53,200 for 13 serious violations, including lack of a hearing conservation program, hazard communication program, and forklift and electrical violations.
  • MillerCoors Fort Worth brewery faces $77,000 in penalties, including one willful violation for an unguarded lathe that led to employee finger amputation.
  • Whistleblower action: Two Houston companies, Eustis Cable Enterprises and Continuum Integrated Health Services, that allegedly fired employees who reported workplace safety concerns have been sued.


  • Town City Construction of Eau Claire was cited for allowing roofers to work on a residential roof without safety harnesses and ignoring previous violations. This was the sixth failed inspection in six years and the company faces $70,000 in fines.
  • Ashley Furniture of Arcadia, the nation’s largest retailer of home furnishings, reached a comprehensive agreement to abate all hazards and implement safeguards to prevent future injuries. The company will correct all cited violations and will pay penalties of $1.75 million.
  • Motor Castings Company of West Allis was cited for machine hazards and exposing workers to silica after a machine part crushes an employee’s hand. Proposed penalties: $62,370.

Detailed descriptions of the citations above and other OSHA citations can be found here.

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HR Tip: Employee happiness enhances productivity and the bottom line

A new study by health and performance experts Global Corporate Challenge (GCC) confirms the role emotions play in business, and that happiness is critical for productivity and talent retention. While employee happiness can reap rewards for employers, the workplace doesn’t seem to be promoting it. A joint study by the University of Sussex and the London School of Economics found that being at work reduced employee happiness by up to 8 percent – second only to being sick. And more than half of U.S. employees (68 percent) are disengaged, according to Gallup.

Psychological health can impact physical health as well as attitude. Disengaged workers are not hostile or disruptive, but they do the minimal amount of work required, rarely put in extra effort, and are less vigilant. They are also more likely to miss work and look for other jobs. They’re thinking about lunch or what to do after work, rather than better ways to do their job or how to move the company forward.

GCC’s Chief Medical Officer Dr. David Batman urged employers to look for signs of discontent long before they spiral into resignations. Quoted in an EHS Today article, he said, “Interpersonal relationships often provide key insights into whether employees are happy or not. So leaders should look around their teams; if there’s a continual lack of collaboration, or tension and conflict, then these may be signs that all isn’t well… So just as workplace wellbeing strategies create opportunities to manage stress and improve psychological wellbeing, so too should they provide opportunities to be positive.” Reflecting on achievement, practicing gratitude and saying thanks are small things, Batman acknowledged, but he added, “Our findings show they add up to a big difference.”

Employees believe employers put productivity over safety

Many employees, especially those in high-risk jobs such as construction believe their employers value productivity over safety, according to a new survey released by the National Safety Council (NSC). While employees acknowledge that safety is a priority at their workplace and proper training is provided, the pressure to complete tasks often trumps safety in their view. The figures are as high as 60% in construction and 52% in agriculture, forestry, fishing, and hunting. Among all respondents it is 33%.

Other key findings include:

  • 62 percent of construction workers, as well as workers in agriculture, forestry, fishing and hunting, said management does only the minimum required by law to protect workers.
  • 61 percent of employees in agriculture, forestry, fishing and hunting said workers resist working safely.
  • 49 percent of temporary and contract workers, and 41 percent of workers in health care, reported being afraid to report safety issues.
  • 70 percent of employees reported that safety training is a component of their job orientation and said their workplace promotes employee health and well-being.

Takeaway: Employees are getting mixed messages from employers. On the one hand, safety is a priority and on the other, productivity is more important. The relationship need not be contentious; safe work environments can lead to higher productivity, quality work, and lower turnover. While companies are taking safety training seriously and are OSHA compliant, many have failed to establish a culture that creates a safe work environment, maximizes productivity and reduces the cost of lost time. Identifying why there is a disconnect and at what level of management is key. See Turn your safety culture into a profit center for tips on establishing an effective behavior-based safety program.


Fewer than 50% of workers believe employers support healthy lifestyles – senior leadership key

According to a new survey, Work and Well-Being by the American Psychological Association (APA) less than half of working Americans (44 percent) say the climate in their organization supports employee well-being, and 1 in 3 reports being chronically stressed on the job. The survey offers a solution: senior leadership support. Nearly three-fourths (73 percent) of employees with senior managers who show support through involvement and commitment to well-being initiatives said their organization helps employees develop a healthy lifestyle, compared with just 11 percent who work in an organization without that leadership support.

Strong links between senior leadership and employee motivation, job satisfaction, positive relationships with supervisors and co-workers, and lower turnover were also found. Yet, lack of support may be one reason wellness participation is still fairly low among employees. Despite the prevalence of workplace wellness efforts, only one-third of American workers say they regularly participate in the health-promotion programs provided by their employer.

Takeaway: Many employers recognize the value of wellness initiatives, but too often the efforts are singular, standalone programs that are not integrated into the culture of the organization. Having leadership that encourages employee involvement and interchange of ideas is critical for success. Other important components include “involving employees in the development of workplace programs, using evidence-based practices that are grounded in good science, tailoring the efforts to fit the unique needs of employees, communicating effectively, and measuring your results, so you can fine-tune the program over time.”

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