Not a week goes by without at least one call from a client asking about what it can and should do about an employee who has been off work due to a work-related injury for one, two or even three or four years. What often prompts the client to call is the realization that the company has been paying for the injured employee’s portion, as well as the company’s portion, of the employee’s health insurance premium, which can amount to thousands upon thousands of dollars over time.
In terms of “what can we do,” it always depends on the specific circumstances of the situation. However, these types of situations always present an opportunity to remind clients that it is criticalthat the company actively manage all open or potential workers’ compensation claims from the very beginning. Active management ensures that no one loses track of the employee and ends up calling legal counsel to see what can be done about an employee whose status is unknown and has been off work for upwards of four years. In the spirit of avoiding that conversation, here are some tips for managing workers’ compensation claims:
Train all employees on the necessary safety procedures that must be followed in order to ensure a safe work environment. Be open and communicate with employees about safety concerns.
Implement a comprehensive workers’ compensation policy that, amongst other things, requires employees to promptly report all workplace injuries to their supervisors. The policy should also inform supervisors of who they must notify so that the necessary people in the organization are informed of the injury.
Develop a relationship with the company’s insurer. The insurer is going to be (or should be) an expert in “active management,” and will be a great resource.
Get to know the local occupational health facility and/or medical providers. The company should not rely solely on the employee’s medical evaluation from his or her own doctor. Also, if the company has the ability to provide light-duty or modified work, it is important for the medical facility evaluating the employee’s fitness for duty to know of such options. The sooner the employee can return to work, even with restrictions, the better.
Train supervisors so that (1) they are cognizant of the potential for workplace injuries; (2) they can assist in determining the validity of a potential claim; and (3) as injured workers return to work, they can ensure that any work restrictions are being adhered to and that the employee is capable of safely performing the necessary job duties.
Immediately investigate and document all claims—even potential claims.
Promptly report all claims to the company’s insurer. Again, workplace injuries can spiral and minor injuries could turn out to be major.
Stay in touch with the employee and ensure that the employee is staying in touch with the adjuster.
The more actively the company manages the claim, the sooner the employee will return to work and the less likely it is that the employee will fall through the cracks.
The recent focus on the U.S. Supreme Court’s analysis of the constitutionality of the Patient Protection and Affordable Act (ACA) has again amplified the health care debate – including, the growing trend of employer wellness incentive programs. If the ACA is upheld, in 2014, the current 20% limit on financial incentives tied to patient health standards will increase to 30% (with the potential that the limit could be increased at the government’s discretion). In light of sky-rocketing health care costs, and glaring statistics, employers are paying attention. See, Society for Human Resource Management, “Wellness Initiatives Can Ease the Pain of Rising Benefit Costs,” 4/4/2012.
A wellness program to promote better health for employees while reducing business costs seems like a no-brainer. However, despite the increasing popularity of these programs, be aware – a poorly designed program could invite litigation and liability under federal, state and/or local laws. For example:
Under the ADA (Americans with Disabilities Act), an employer generally cannot ask for medical information from current employees unless the request is “job-related and consistent with business necessity.” There is an exception to the rule for medical information collected through a voluntary wellness program. However, the EEOC has issued an opinion letter indicating that while some health risk assessment questions regarding eating habits may be acceptable, questions related to how much alcohol the employee drinks would violate the ADA because they are directed at a specific disability.
Under GINA (Genetic Information Nondiscrimination Act), employers are generally prohibited from “using, acquiring, requiring or disclosing genetic information.” It prohibits discrimination against individuals based on their “genetic information” — which is defined broadly enough to include family medical history that may be included in a health risk assessment. GINA has some exceptions for voluntary wellness programs, but there are specific rules on how that information can be obtained from the employee. Notably, the EEOC has taken the position that a program is not “voluntary” when it penalizes an employee who does not complete a health risk assessment by making him ineligible to receive program incentives.
BOTTOM LINE: A well-designed wellness incentive program has the potential to significantly benefit employers and their employees. However, these programs have not been tried and tested under the discrimination laws and regulations. New legislation will continue to be introduced and new lawsuits will be filed to challenge the legality of these programs. As the statistics reflect, the number of individuals who are most likely to be negatively affected by wellness programs tied to health factors is significant and growing. Accordingly, the safest course seems to be to opt for a program that rewards participation, not performance.
The potential claims and penalties associated with violations of the various discrimination laws could be significant, especially in light of recent amendments that include penalties and taxes. Whether you are considering a wellness program or already have one in place, be sure to have counsel review it for compliance with all related laws. Really, do you need more incentive?
The Patient Protection and Affordable Care Act (ACA) requires all large employers (with more than 200 employees) to automatically enroll full-time employees in a health plan, if they offer one. This provision was scheduled to take effect in 2014. Interestingly, it was done as an amendment to the Fair Labor Standards Act (FLSA)–a law that allows plaintiffs, i.e. employees, greater remedies than the Employment Retirement Income Security Act (ERISA) currently does.
The automatic enrollment provision of the ACA will most likely cause employers to feel an immediate cost impact. Increasing enrollment in a sponsored health plan will instantaneously increase the monthly invoice an employer receives from its insurance carrier.
Pursuant to the automatic enrollment provisions, employers are required to notify employees that they will be automatically enrolled in a health plan and give them an opportunity to opt out—not much else is known outside of that.
On February 9, 2012, the Department of Labor (DOL) issued a Technical Release which, among a few other things, announced that guidance on automatic enrollment will not be ready by 2014. The DOL made clear that until such final regulations are published, employers will not be required to comply.
The DOL has indicated that this delay is necessary “[i]n view of the need for coordinated guidance and a smooth implementation process….” While this applies to just about every provision of Health Care Reform, we’ll take any additional time to seek any clarity that we can get.