UBP blog

01/13/2010

Recent anti-discrimination laws make rules on wellness program questionnaires a lot tougher

A new year is under way and companies everywhere are getting started with their 2010 resolutions. Given the rising health care costs that have plagued us all lately, it’s no surprise that improving employee wellness is a popular one.

Many employers are beginning to incorporate wellness programs and initiatives into their overall group health plan design. When implementing a wellness program, health risk assessments (HRAs) are a great tool employers can use to track employee progress and generate plan effectiveness metrics.

However, for employers that use HRAs in wellness programs, there are quite a few Federal rules to follow. Recent Federal laws such as the Americans with Disabilities Act Amendment (ADAA) and Genetic Information Nondiscrimination Act (GINA) have only made the rules tougher.

The new, tougher anti-discrimination rules as they stand:

ADA (and ADAA amendment):

Health risk assessments included in a group health plan’s wellness program (even if they are HIPAA compliant) still run the risk of being non-compliant with the ADA.

As amended by the ADAA, the ADA prohibits employers from requiring employees to undergo medical examinations or inquiries unless they are made on a post-job offer basis and they’re either job-related or designed to meet a specific business need. Also, medical examinations and questionnaires that are voluntary and part of a worksite wellness program do not violate the ADA.

So, essentially, if employees can opt-in to or opt-out of taking your wellness program’s HRA and their incentive/penalty does not violate HIPAA (i.e. the value of the incentive or penalty cannot exceed 20% of the cost of an employee’s coverage on the group health plan), then your group should be fine with ADA compliance.

GINA:

Effective the first of the plan year following December 7, 2009, employers must comply with the Genetic Information Nondiscrimination Act (GINA). But, how does GINA affect wellness program HRAs?

The GINA Act’s interim final rule prohibits (in most cases) the use of an HRA in conjunction with a wellness program if “genetic information” (i.e. result’s of an employee’s genetic tests or information on family medical history) is collected for “underwriting purposes”.

In the context of GINA, collecting information for “underwriting purposes” does not just mean you’re collecting it for the purpose of setting rates, the definition is very broad.  The Act’s “underwriting” exclusion restricts employers from collecting, requesting and requiring genetic information in connection with an incentive (i.e. premium discount or rebate, reduction in co-pays or deductibles). So, if you have an incentive-based wellness program, it’s better to be safe than sorry and leave genetic information out of your questionnaires.

What employers need to do:

To avoid costly excise taxes and civil penalties, employers that have or are considering incentive based HRAs for HIPAA-compliant wellness programs should consider the following:

  1. Partner up with your legal counsel and perform an objective review of your current wellness program. From this review you should determine whether or not your plan complies with GINA and ADA as amended. Also, if your plan’s not compliant, know what steps you’ll need to take to bring it into compliance.
  2. Keep the lines of communication open with your legal counsel on new developments related to HRAs in incentive-based wellness programs.
  3. Involve your service providers in developing HRAs, employee communication and wellness plan features that will comply with GINA and the ADA.
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01/07/2010

Identity theft in the workplace is more common than you think

And it can come from many different people, from a dishonest co-worker, to a temp working in HR, even a visitor to your office building.  If you’re not careful, any of these people can have access to your personal information—and who knows what they’ll do if they get their hands on it.

To keep sensitive information from falling into the wrong hands, here are 3 steps employers and employees both should take:

  1. Keep your personal property in a safe place: Don’t leave your personal belongings such as purses, wallets and laptops unattended. Either have them on your person at all times or keep them in a locked place to which  only you have the key. Also, make sure all documents you have containing personal  information are either on an encrypted computer or stored in a locked file cabinet. When you’re away from your desk, make sure you never leave one of these files open on your computer or one of these cabinet drawers open.
  2. Always assume your work computer is being monitored:  That’s because many employers will routinely scan the content of employees’ email and monitor their Internet use. Because of this, employees should never use their work computers to access password-protected personal accounts, do online banking, send non work-related emails containing personal information or store documents with personally identifying information.
  3. Maintain strict information security policies at your workplace: Among many other things, employers should restrict access of employee personnel data to authorized individuals only and make sure all files containing personal information are stored on encrypted computers, locked file cabinets or secure offsite facilities.

They should also educate employees on all information security measures they’re taking, train employees on their data security responsibilities and require them (as part of their jobs) to obey the data security policy.

12/30/2009

The top 4 policies employers should update for the New Year

Nearly all of us like to kick of the new year with a resolution; get in shape, eat healthier, break a bad habit, manage your money better, the list goes on. The new year gives us all a clean slate and our resolutions motivate us to start the year off right.

For HR professionals, one of the many ways to start the year off right is to make sure all policies in your employee handbooks are up-to-date and compliant with the latest regulations. This will help you strengthen your case in the event that an employee (or former employee) sues you for any type of bias.

When updating your handbook for the new year, employers and HR professionals should look at the following 4 policies first:

  1. FMLA: The U.S. Department of Labor (DOL) has revised FMLA Regulations several times this past year and requires employers to provide employees a notice of their updated FMLA rights in their handbook (or a handout for new hires). If employers fail to do this and an employee files an FMLA suit, failure to notify is the first area lawyers will attack.
  2. Genetic Discrimination: The Genetic Information Nondiscrimination Act (GINA) went into effect late this year prohibiting employers from using genetic information in any employment-related decisions.  This means that employers will need to update their handbooks so that genetic information is listed as one of the “protected traits” with EEO status.
  3. Privacy and electronic devices: Many employees may have privacy expectations in their use of company computers. However, courts generally rule that employers can monitor computer and electronic device usage—since these devices are, in fact, company property. Employers may also limit or prohibit certain activities such as sending inappropriate emails or accessing “adult” materials.  The handbook is often a very effective way for employers to notify employees of their monitoring practices and prohibited activities.
  4. Social networking: New media such as Facebook, Twitter and blogs have become a part of so many of our lives –both personal and professional. Social networking websites are a great way for companies to get their names out there and solidify their brands in the minds of consumers. However, if any employee makes disparaging remarks about his or her employer on Facebook or blogs about trade secrets, new media can become your company’s worst nightmare.

To combat this, many employers have put social media policies in place. If you have one of these policies, the time is now to make sure it’s in your handbook and up to date.

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