Interact Sensitively with Employees Addicted to Opioids

According to the National Institute of Drug Abuse, 21-29 percent of patients who are prescribed opioids for pain will end up misusing them. Read this blog post to learn more.


Employees who abuse opioids often are given a second chance by their employers. But well-meaning employers could wind up being sued for discriminating against those workers in violation of the Americans with Disabilities Act (ADA) if they don't handle the situation very carefully.

Opioid addiction has been rampant in the U.S. for some time. More than three out of five drug overdose deaths last year involved an opioid, and overdoses rose 70 percent in the 12 months ending September 2017, according to the Centers for Disease Control and Prevention.

So what can HR professionals do about it? If a worker admits to the problem, the path is fairly clear. But if the employer merely suspects that an employee is addicted to prescription pain relievers but has no real proof, the employee should be treated like any other employee who is having attendance or performance issues, said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

An employer should never accuse someone of having an addiction, because if the employer is wrong, the accusation could lead to an ADA claim, Russo cautioned. Although current drug use isn't considered an ADA disability, a history of drug addiction is. Moreover, someone using prescription drugs might have an underlying condition covered by the ADA.

Statistics on opioid use

If an employee admits to opioid abuse, or the problem is discovered through drug testing, the employer should discuss it with the employee to determine if he or she needs a reasonable accommodation, such as leave to obtain treatment, Russo said. The illegal use of drugs need not be tolerated at work, she added.

Reasonably accommodate the employee so long as there's no direct threat to the health and safety of himself or herself, or others, recommended Nancy Delogu, an attorney with Littler in Washington, D.C.

Drug Testing

The Equal Employment Opportunity Commission has opined that employers may ask about an employee's use of prescribed medicine or conduct a drug test to determine such use only if the employer has reasonable suspicion that its use will interfere with the employee's ability to perform the job's essential functions or will pose a direct threat.

Many employers are expanding their drug-testing panels to include semisynthetic opioids such as hydrocodone, hydromorphone, oxycodone and oxymorphone, in addition to traditional opioids such as heroin, codeine and morphine, Russo said. This is lawful in most states as long as the employer does not take adverse employment actions when drugs are used legally, she noted, which is why an employer should use a medical review officer in the drug-testing process. If the medical review officer concludes that the positive test result is the result of lawful drug use, the result is reported to the employer as negative.

Sometimes an employer will say it has reasonable suspicion that the employee came to work impaired by drug use and is considering a mandatory drug test. At that point, some employees will say the drug test would be positive and the test consequently is not necessary.

Discussions with Employees

If there are performance problems and the employee has admitted to opioid addiction, some employers tell employees that they can remain employed so long as they go through inpatient treatment. Delogu discourages that approach. Employers aren't workers' doctors, so they shouldn't be deciding whether someone needs a treatment program, she explained.

But if someone voluntarily seeks to enter an addiction-recovery program, that person may have legal protections under state law, said Wendy Lane, an attorney with Greenberg Glusker in Los Angeles. For example, California has a law requiring employers with 25 or more employees to reasonably accommodate alcohol and drug rehabilitation.

Delogu recommended that employers that believe there is a problem with substance abuse ask if the addicted employee needs assistance from the employee assistance program.

An employer can require that an employee who has violated a policy be evaluated by a substance abuse professional and complete treatment prescribed for them, without dictating what that treatment will be, she said. The employer may choose to forgo disciplinary action if an employee agrees to these terms and signs an agreement to this effect. The employer then would not have to be informed about the person's decided course of treatment, whether inpatient, outpatient or no treatment at all, she said. The employee typically will be subjected to follow-up drug testing to make sure he or she hasn't resumed the use of illegal drugs.

Many employers are willing to give employees with performance problems resulting from opioid addiction a second chance, she noted.

SOURCE: Smith, A. (1 November 2018) "Interact Sensitively with Employees Addicted to Opioids" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/employees-addicted-to-opioids.aspx


How to create a strong communication plan for open enrollment

Do you have a communication plan for open enrollment? Once businesses have their plan changes locked in, it’s time to focus on communicating those changes to their employees. Continue reading to learn how to create a strong communication plan for open enrollment.


Ready or not… the Benefits Super Bowl is here! Whether you are a broker, benefits manager or anywhere in between, you have been knee-deep on plan updates, rate reviews and benefit changes for months. Now that the plan changes are locked, it’s go-time! The focus is now on communicating and educating employees about their benefit options.

It takes an enormous amount of planning and execution to provide a productive open enrollment experience for employees. But, it is well worth it as this is often the only time during the year that employees stop to consider their benefit options.

Learn from past wins and misses

Consider previous years’ open enrollment communications and ask yourself the following:

  • What is the feedback you received from employees (the good, the bad and the ugly)?
  • What were the most common questions?
  • Were there key pieces of information employees had difficulty finding?

Learn from the answers to these questions and then craft your content in a clear and concise manner that is easier for employees to digest.

The communication medium is key to your success

Now that you’ve developed the content to communicate, the next equally important step is determining how, when and where you deliver this information. Is there a centralized location where employees can find information for both core and voluntary benefits? Is the information in a format that the employee can easily share with his or her significant other?

It is critical to have multi-channel communications to reach your audience. Some employees may naturally gravitate to a company-wide email and the company intranet, while others lean on more interactive mediums like E-books, text messages, webinars or lunch and learns. Providing a variety of communication avenues ensures you are reaching employees where they want to receive information.

Make sure your communications campaign provides educational materials at each of the key milestones during the open enrollment journey–such as prior to enrollment, midway through enrollment, and right before enrollment closes. Wherever possible, always support employees through the process and give them options to reach out for help.

How to communicate the same benefits to a diverse workforce

You are likely communicating to a group of employees with diverse needs and wants. What may be appealing to an entry-level recent grad may not resonate with a senior-level employee nearing retirement. For example, employees with young children may be especially interested in accident insurance or pet owners might look to pet insurance to help offset the costs of well-visits and routine care. If possible, tailor your communications to different segments of the employee population.

Communicating voluntary health-related benefits

Core medical benefits are what employees gravitate to during the enrollment period. Are you offering voluntary benefits to employees? The most successful voluntary benefit programs are positioned next to core medical plans on the enrollment platform. This shows employees how those voluntary benefits (critical illness, accident insurance and hospital indemnity) complement the core offerings with extended protection.

When voluntary benefit programs are positioned as an integral part of the employee benefits experience, employees are more likely to understand the value and appreciate the support provided by their employer. For example, a critical illness program can help to bridge the gap of a high-deductible health plan in the case of a covered critical condition. Communicate that voluntary benefits can be an integral part of a “Total Rewards Package” and can contribute to overall financial wellness.

Review and refine

Finally, don’t miss your opportunity at the end of enrollment to review how your communication campaign performed. Pull stats and analyze your communication campaign for next year’s open enrollment… it is never too early to start! HR managers can glean valuable information and metrics from the employee experience.

SOURCE: Marcia, P. (1 November 2018) "How to create a strong communication plan for open enrollment" (Web Blog Post). Retrieved from https://www.benefitspro.com/2018/11/01/how-to-create-a-strong-communication-plan-for-open/


When Companies Should Invest in Training Their Employees — and When They Shouldn’t

A recent industry report revealed that U.S. companies spent over $90 billion on employee training and development activities in 2017. Read this blog post to learn more.


According to one industry report, U.S. companies spent over $90 billion dollars on training and development activities in 2017, a year-over-year increase of 32.5 %. While many experts emphasize the importance and benefits of employee development — a more competitive workforce, increased employee retention, and higher employee engagement — critics point to a painful lack of results from these investments. Ultimately, there is truth in both perspectives. Training is useful at times but often fails, especially when it is used to address problems that it can’t actually solve.

Many well-intended leaders view training as a panacea to obvious learning opportunities or behavioral problems. For example, several months ago, a global financial services company asked me to design a workshop to help their employees be less bureaucratic and more entrepreneurial. Their goal was to train people to stop waiting around for their bosses’ approval, and instead, feel empowered to make decisions on their own. They hoped, as an outcome, decisions would be made faster. Though the company seemed eager to invest, a training program was not the right way to introduce the new behavior they wanted their employees to learn.

Training can be a powerful medium when there is proof that the root cause of the learning need is an undeveloped skill or a knowledge deficit. For those situations, a well-designed program with customized content, relevant case material, skill-building practice, and a final measurement of skill acquisition works great. But, in the case of this organization, a lack of skills had very little to do with their problem. After asking leaders in the organization why they felt the need for training, we discovered the root causes of their problem had more to do with:

  • Ineffective decision-making processes that failed to clarify which leaders and groups owned which decisions
  • Narrowly distributed authority, concentrated at the top of the organization
  • No measurable expectations that employees make decisions
  • No technologies to quickly move information to those who needed it to make decisions

Given these systemic issues, it’s unlikely a training program would have had a productive, or sustainable outcome. Worse, it could have backfired, making management look out of touch.

Learning is a consequence of thinking, not teaching. It happens when people reflect on and choose a new behavior. But if the work environment doesn’t support that behavior, a well-trained employee won’t make a difference. Here are three conditions needed to ensure a training solution sticks.

1. Internal systems support the newly desired behavior. Spotting unwanted behavior is certainly a clue that something needs to change. But the origins of that unwanted behavior may not be a lack of skill. Individual behaviors in an organization are influenced by many factors, like: how clearly managers establish, communicate, and stick to priorities, what the culture values and reinforces, how performance is measured and rewarded, or how many levels of hierarchy there are. These all play a role in shaping employee behaviors. In the case above, people weren’t behaving in a disempowered way because they didn’t know better. The company’s decision-making processes forbid them from behaving any other way. Multiple levels of approval were required for even tactical decisions. Access to basic information was limited to high-ranking managers. The culture reinforced asking permission for everything. Unless those issues were addressed, a workshop would prove useless.

2. There is commitment to change. Any thorough organizational assessment will not only define the skills employees need to develop, it will also reveal the conditions required to reinforce and sustain those skills once a training solution is implemented. Just because an organization recognizes the factors driving unwanted behavior, doesn’t mean they’re open to changing them. When I raised the obvious concerns with the organization above, I got the classic response, “Yes, yes, of course we know those issues aren’t helping, but we think if we can get the workshop going, we’ll build momentum and then get to those later.” This is usually code for, “It’s never going to happen.” If an organization isn’t willing to address the causes of a problem, a training will not yield its intended benefit.

3. The training solution directly serves strategic priorities. When an organization deploys a new strategy — like launching a new market or product — training can play a critical role in equipping people with the skills and knowledge they need to help that strategy succeed. But when a training initiative has no discernible purpose or end goal, the risk of failure is raised. For example, one of my clients rolled out a company-wide mindfulness workshop. When I asked a few employees what they thought, they said, “It was interesting. At least it got me two hours away from my cubicle.” When I asked the sponsoring executive to explain her thought process behind the training, she said, “Our employee engagement data indicated our people are feeling stressed and overworked, so I thought it would be a nice perk to help them focus and reduce tension.” But when I asked her what was causing the stress, her answer was less definitive: “I don’t really know, but most of the negative data came from Millennials and they complain about being overworked. Plus, they like this kind of stuff.” She believed her training solution had strategic relevance because it linked to a vital employee metric. But evaluations indicated that, though employees found the training “interesting,” it didn’t actually reduce their stress. There are a myriad of reasons why the workload could have been causing employees stress. Therefore, this manager’s energy would have been better directed at trying to determine those reasons in her specific department and addressing them accordingly — despite her good intentions.

If you are going to invest millions of dollars into company training, be confident it is addressing a strategic learning need. Further, be sure your organization can and will sustain new skills and knowledge by addressing the broader factors that may threaten their success. If you aren’t confident in these conditions, don’t spend the money.

SOURCE: Carucci, R. (29 October 2018). "When Companies Should Invest in Training Their Employees – and When They Shouldn’t" (Web Blog Post). Retrieved from https://hbr.org/2018/10/when-companies-should-invest-in-training-their-employees-and-when-they-shouldnt


8 scary benefits behaviors employees should avoid

Are your employees mishandling their employee benefits? When employees fail to review open enrollment materials, they could be making decisions based on little to no knowledge. Read this blog post to for eight of the scariest benefit mistakes.


Halloween is already frightening enough, but what really scares benefits professionals are the ways employees can mishandle their benefits. Here are eight of the biggest mistakes, with tips on correcting them.

Participants don’t review any annual enrollment materials

Why it’s scary: Employees are making or not making decisions based on little or no knowledge.

Potential actions: Employers can implement a strategic communications campaign to educate and engage employees in the media and format appropriate for that employee class, or consider engaging an enrollment counselor to work with participants in a more personalized manner.

Employees don’t enroll in the 401(k) or don’t know what investment options to choose

Why it’s scary: U.S. employees are responsible for much of their own retirement planning and often leave money on the table if there is an employer match.

Potential actions: Employers can offer auto-enrollment up to the matching amount/percent; consider partnering with a financial wellness partner, and provide regular and ongoing communications of the 401(k)’s benefits to all employees.

Employees don’t engage in the wellness program

Why it’s scary: The employee is potentially missing out on the financial and personal benefits of participating in a well-being program.

Potential actions: Employers need to continuously communicate the wellness program throughout the year through various media, including home media. Employers also should ensure the program is meeting the needs of the employees and their families.

Employees don’t update ineligible dependents on the plan

Why it’s scary: Due to ambiguity where the liability would reside, either the employee or the plan could have unexpected liability.

Potential action: Employers can require ongoing documentation of dependents and periodically conduct a dependent audit.

Employees don’t review their beneficiary information regularly

Why it’s scary: Life insurance policy proceeds may not be awarded according to the employee’s wishes.

Potential action: Employers can require beneficiary confirmation or updates during open enrollment.

Employees do not evaluate the options for disability — whether to elect a higher benefit or have the benefit paid post-tax

Why it’s scary: Disability, especially a short-term episode, is very common during one’s working life; maximizing the benefit costs very little in terms of pay deductions, but can reap significant value when someone is unable to work.

Potential action: Employers can provide webinars/educational sessions on non-medical benefits to address those needs.

Employees do not take the opportunity to contribute to the health savings account

Why it’s scary: The HSA offers triple tax benefits for long-term financial security, while providing a safety net for near-term medical expenses.

Potential actions: Employers can select the most administratively simple process to enroll participants in the HSA and allow for longer enrollment periods for this coverage.

Employees do not use all of their vacation time

Why it’s scary: Vacation allows an employee an opportunity to recharge for the job.

Potential actions: Employers can encourage employees to use their vacation and suggest when the workload might be more accommodating to time off for those employees who worry about workloads.

SOURCE: Gill, S. & Manning-Hughes, R. (31 October 2018) "8 Scary Benefits Behaviors Employees Should Avoid" (Web Blog Post). Retrieved from https://www.benefitnews.com/slideshow/8-scary-benefits-behaviors-employees-have?brief=00000152-14a5-d1cc-a5fa-7cff48fe0001


7 Steps to Running Better Meetings

Are your employees engaged during meetings? According to a recent survey by Accountemps, office workers spend 21 percent of their time in meetings and feel that 25 percent of it is wasted. Continue reading to learn more.


We love to hate meetings. We groan about how annoying they are. We crack jokes about how much time gets wasted, about bureaucracy run amok.

But it’s not really a laughing matter.

Poorly run meetings can sap the lifeblood out of an organization. Not only are they mentally draining, but they can leave staff disengaged and demoralized, experts say.

On average, office workers spend 21 percent of their time in meetings and feel 25 percent of it is wasted, according to the results of a recent survey of 1,000 employees by Accountemps. One of the top complaints was that meetings are called to relay information that could have been communicated via e-mail.

Managers are also dissatisfied. In a Harvard Business School study last year, researchers found that 71 percent of the 182 senior managers interviewed said meetings were unproductive and inefficient, and 65 percent said meetings kept them from completing their work.

Fortunately, leaders can help improve how meetings are run. Indeed, their behavior is critical to achieving better results and a more positive outlook and engagement from employees, according to a 2017 study published in the Journal of Leadership & Organizational Studies. In an earlier University of North Carolina study, researchers found a link between how workers feel about the effectiveness of meetings and their job satisfaction.

Other studies have found that dysfunctional communication in team meetings can have a negative impact on team productivity and the organization’s success.

What happens in these gatherings is a reflection of the workplace culture, experts say.

“It gets down to identity and performance,” says J. Elise Keith, co-founder of Lucid Meetings in Portland, Ore., and author of Where the Action Is (Second Rise, 2018). “The way in which an organization runs its meetings determines how it views itself.”

“Bad meetings are almost always a symptom of deeper issues,” Keith notes in her book.

Unfortunately, many business leaders don’t receive adequate training on how to manage or facilitate meetings, she says. “I believe that a lot of leaders have bought into the idea that poor meetings are inevitable.”

Here are 7 steps to making the time employees spend together more meaningful:

1. Prepare. Are you clear on the meeting’s purpose? What is your desired outcome? How will you achieve that?

More prep time is typically devoted to senior-level meetings compared to those held for individuals in lower-level positions, says Paul Axtell, a corporate trainer and author of Meetings Matter (Jackson Creek, 2015). He says that executive get-togethers are more effective “because people take them seriously.”

2. Limit the number of participants. The most productive meetings have fewer than eight participants, Axtell says. A larger group will leave some disengaged or resentful that their time is being wasted.

3. Send an agenda and background material in advance. If you want a thoughtful discussion, give your team members time to think about the problem or proposal that the meeting will focus on, he says.

4. Start and end on time. Don’t punish people for being punctual by waiting on late stragglers to get started. At the same time, it’s best not to jump right to the heart of the discussion in the first few minutes, Keith says. Provide a soft transition that will help those coming from other meetings to refocus.

5. Make sure all attendees can participate. One common complaint about meetings is that a few people tend to dominate the conversation. Call on other individuals to share what they think, Axtell says. Who is most likely to hold a different view? Who will be most affected by the outcome? Who has institutional knowledge that might be useful? Think about who to draw out on specific topics as you prepare. You’ll collect more ideas and leave participants with a more positive experience.

To feel good about work, people need to feel included and valued. “That means you have a voice and are allowed to express your opinions,” Axtell says.

Because you’re a leader, your views already hold more weight. If you share them too early, you may discourage others from presenting alternate perspectives. Focus on listening, and stay out of the discussion as long as you can, he says. You might learn something.

Avoid PowerPoint slides or other technology if it’s not required for an agenda item. They tend to shut down dialogue, Axtell says.

A surefire way for leaders to alienate participants is to use up most of the meeting time presenting a proposal and leave only a few minutes for questions and comments, Keith says. When people do speak up, thank them for their contributions. And use their ideas, she says.

6. Keep a written record. Posting the meeting agenda and taking notes that everyone can access will help keep participants on track. Unfortunately, many organizations fail to do so, Keith says. The written record ensures that faulty memories or differing interpretations don’t lead people down the wrong path. Are the notes detailed enough to allow you to tackle the action items days later? Are the deadlines reasonable? Be realistic. It doesn’t help the team to accept a giant list of action items that it likely can’t complete, she says.

7. Follow up. What percentage of the action items get completed by the deadlines? If you don’t achieve 85 percent, participants’ sense of effectiveness breaks down and they may disengage, Axtell says. Most groups complete just 50 percent to 60 percent.

“Whether you pay attention to them or not, meetings are in fact where your teams and your people are learning how they should behave and what they should be doing,” Keith says. “So identify the specific types of meetings your organization needs to run. Find great examples of how to run those meetings. You shouldn’t have to invent it. And set up a system that people can use successfully to become the organization that you want to become.”

SOURCE: Meinert, D. (30 October 2018). "7 Steps to Running Better Meetings" (Web Blog Post). Retrieved from https://www.shrm.org/hr-today/news/hr-magazine/1118/pages/7-steps-to-running-better-meetings.aspx/


When is a Workers’ Compensation Claim Compensable?

Carefully evaluating workers’ compensation claims is crucial in helping your company save money and prevent fraud. Workers’ compensation is simply a form of insurance that offers employees medical coverage in the event they are injured during a work-related function. Depending on the state of residence, it may also give compensation for disabilities sustained or cover rehabilitation costs so the employee can return to the workplace quickly and smoothly.

Compensable workers’ compensation claims have specific characteristics that will help you determine if and when an injury is covered.

Workers’ compensation is crucial to protecting employees, but it is often a source of contention among employers because it comes with considerable gray areas. When is a claim compensable? How do we identify a fraudulent claim? How do we report a claim, and should we report all workplace injuries no matter how serious? This piece is designed to help you determine when—and if—an injury is covered by workers’ compensation.

Requirements

The claim must meet all five of these requirements in order to be compensable:

Happened to One of Your Employees

The first requirement is in place to ensure it is your employee filing the claim, not an independent contractor or vendor who works for themselves or a third party. Even if the incident occurs on your property, unless it is someone who works directly for you, the claim is not compensable.

Resulted in an Injury or Illness

Injury is not the only thing that can potentially be covered by workers’ compensation. Illnesses could also qualify as a compensable claim, but only if they are related directly to the job. The illness also must be caused directly by the working conditions to be covered in a workers’ compensation policy. For example, a miner’s contraction of black lung would be compensable in all states. However, an employee in an office with a co-worker who smokes would not be eligible for workers’ compensation for treatment of illness due to secondhand smoke.

Arose Out of Employment

This requirement means there must be a direct connection between the injury and the desire or attempt to further the employer’s business. If the employer benefits in some way, whether monetarily or otherwise, from the employee’s activity, then the claim meets this qualification.

Occurred in the Course and Scope of Employment

The employee must be at work when the injury occurs. This includes any place or location mandated or expected by the employer. So when an injury occurs at the employee’s physical everyday work site, that employee must prove he or she was injured while actively engaging in the furtherance of the employer’s business. There is a special provision called the “coming and going rule,” which maintains that benefits are denied for injuries received when traveling to or from work. Additionally, injuries arising out of transit from one work site to another, for instance when traveling to visit clients, are compensable. This provision also requires that the actions leading to the injury of the employee in question be prompted by the aspiration to further the employer’s business interests.

Resulted in Impairment and/or Lost Wages

The injury or illness in question must cause the employee to be impaired in some way and lose wages from not being able to complete his or her tasks completely. It is also a compensable incident if the injury or illness results in impairment but without lost wages, or vice versa.

Identifying a Fraudulent Claim

Studies commonly show that roughly 90 percent of all workers’ compensation claims filed are legitimate. However, it is still important as an employer to watch for these red flags that may indicate a fraudulent claim:

  • Filing multiple claims
  • Longer absences than anticipated by the employee, combined with an unwillingness to return to work
  • Unwillingness to be assigned to other, lighter jobs within the company or to complete partial duties
  • Constantly missing medical appointments
  • Employee will not provide date, time or location of the incident that caused injury
  • Employee has no recollection of services provided for related medical bills
  • Lack of witnesses to an accident or incident
  • Employee cannot produce specific information about the nature of the injury
  • Employee has a history of short-term employment

If any of these red flags occur, it by no means makes the claim automatically fraudulent. These are simply guidelines to keep employers proactively evaluating the legitimacy of a workers’ compensation claim.

Newsletter Provided by: Hierl's Property & Casualty Experts

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Tri-Agency Proposed Rule on Health Reimbursement Arrangements

The DOL, Department of Treasury and Department of Health and Human Services recently proposed a rule with the intention of expanding the flexibility and use of HRAs. Continue reading to learn more.


The Department of the Treasury (Treasury), Department of Labor (DOL), and Department of Health and Human Services (HHS) (collectively, the Departments) released their proposed rule regarding health reimbursement arrangements (HRAs) and other account-based group health plans. The DOL also issued a news release and fact sheet on the proposed rule.

The proposed rule’s goal is to expand the flexibility and use of HRAs to provide individuals with additional options to obtain quality, affordable healthcare. According to the Departments, these changes will facilitate a more efficient healthcare system by increasing employees’ consumer choice and promoting healthcare market competition by adding employer options.

To do so, the proposed rules would expand the use of HRAs by:

  • Removing the current prohibition against integrating an HRA with individual health insurance coverage (individual coverage)
  • Expanding the definition of limited excepted benefits to recognize certain HRAs as limited excepted benefits if certain conditions are met (excepted benefit HRA)
  • Providing premium tax credit (PTC) eligibility rules for people who are offered an HRA integrated with individual coverage
  • Assuring HRA and Qualified Small Employer Health Reimbursement Arrangement (QSEHRA) plan sponsors that reimbursement of individual coverage by the HRA or QSEHRA does not become part of an ERISA plan when certain conditions are met
  • Changing individual market special enrollment periods for individuals who gain access to HRAs integrated with individual coverage or who are provided QSEHRAs

Public comments are due by December 28, 2018. If the proposed rule is finalized, it will be effective for plan years beginning on or after January 1, 2020.

For more information on ways this proposed rule will affect HRAs, request the full Compliance Advisor from your local UBA Partner Firm.

SOURCE: Hsu, K. (1 November 2018) "Tri-Agency Proposed Rule on Health Reimbursement Arrangements" (Web Blog Post). Retrieved from https://blog.ubabenefits.com/tri-agency-proposed-rule-on-health-reimbursement-arrangements


How to Handle Employee Requests for Time Off to Vote

Did you know how to handle employee requests for time off to go and vote last Tuesday? Laws related to voting leave varies between states, leaving some employers questioning how they should address employee requests. Read on to learn more.


Many employees will be eligible to cast their ballot on Nov. 6, but will they have time to vote? Some states require employers to give workers time off to vote, and even in states that don't, some businesses are finding other ways to get employees to the polls.

With Election Day around the corner, employers should be mindful that, while no federal law provides employees leave to vote, many states have enacted laws in this area, said Marilyn Clark, an attorney with Dorsey & Whitney in Minneapolis. Depending on the state, employers may have to give workers notice about their voting rights and provide paid or unpaid time off to vote.

Even in states where there is no voting leave law, it is good practice to let employees take up to two hours of paid time off to vote if there isn't enough time for the employee to vote outside of working hours. "Encouraging and not discouraging employees should be the general rule," said Robert Nobile, an attorney with Seyfarth Shaw in New York City.

Encourage Employees

"Here in the United States, too many people don't vote because they don't have time due to jobs, child care and other responsibilities," said Donna Norton, executive vice president of MomsRising, an organization of more than 1 million mothers and their families. "Getting to the polls can be especially challenging for people in rural communities [or] single-parent households, and those who are juggling multiple jobs."

About 4 in 10 eligible voters did not vote in the 2016 presidential election, according to research conducted by Nonprofit VOTE and the U.S. Elections Project. And voter turnout has been historically lower for midterm elections, such as this year's, which are held near the midpoint of a president's four-year term, according to Pew Research Center.

"Businesses can help solve this problem by making sure that all employees have paid time off to vote," Norton said.

Some employers are offering solutions by making Election Day a corporate holiday, offering a few hours of paid time off for employees to vote and giving employees information about early and absentee voting, according to TheWashington Post.

Giving employees time off to participate in civic or community activities tends to improve worker performance, said Katina Sawyer, Ph.D., an assistant professor of management at George Washington University. Employers who are offering paid time off to vote will likely reap the benefits through improved employee attitudes and performance.

Know the Law

Employers in states with voting-leave laws should be familiar with the specific requirements, as some state laws have a lot of details. Even in states without such laws on the books, employers should check to see if there are any local voting leave ordinances in their cities.

Employers required to give workers time off to vote should plan for adequate work coverage to ensure that all employees can take time off, Clark said.

In many states, the employer may ask workers to give advance notice if they need time off and may require that workers take that leave at a specific time of the workday. In some states where leave is paid, employers might have the right to ask employees to prove they actually voted. Most states prohibit employers from disciplining or firing an employee who takes time off from work to vote.

"Ultimately, fostering an environment that generally encourages employees to exercise this important right is a good practice to mitigate the risk of a potential retaliation claim," Clark said.

Although state laws vary, "the general theme across the U.S. with respect to voting laws is that employees will be given time off to vote if there is insufficient time between the time the polls open and close within the state and the time employees start and finish work," Nobile said. "Typically, two to three consecutive nonworking hours between the opening and closing of the polls is deemed sufficient."

Some state laws provide unpaid leave to vote or do not address whether the leave must be paid. Oregon and Washington no longer have voting leave laws because they are "vote-by-mail" states.

voting leave laws.jpg

In some states, such as California and New York, employers must post notices in the workplace before Election Day to inform employees of their rights. Employers might have to pay penalties if they don't comply.

The consequences for denying employees their voting rights can be harsh, with some states even imposing criminal penalties, Clark noted.

Create a Policy

At a minimum, employers should adopt a policy spelling out the voting rights available to employees under applicable laws, Clark said. For businesses that operate in states that don't have a voting-leave law, employers may still wish to adopt a policy outlining their expectations about time off for voting.

Multistate employers may elect to adopt a single policy that includes the most employee-friendly provisions of the state and local laws that cover them. "By taking this approach, employers avoid the administrative burden of adopting and promulgating multiple policies for employees working in different locales," Clark said. All voting-leave policies should be sure to include strong anti-retaliation provisions, which make clear that the employer will not take any adverse action against employees for exercising their voting rights.

"It's important to remember that the law sets the floor," said Bryan Stillwagon, an attorney with Sherman & Howard in Atlanta. "Companies with the happiest and most-engaged employees recognize that positive morale comes from doing more than what is required."

Nagele-Piazza, L. (29 October 2018) "How to Handle Employee Request for Time Off to Vote" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/How-to-Handle-Employee-Requests-for-Time-Off-to-Vote.aspx

Dana Wilkie contributed to this article. 


How to Optimize Open Enrollment for Workers

How is your business facing the many challenges associated with healthcare programs? Issues like the ever-changing status of the ACA and rising cost of prescription medications continue to impact every type of employee. Read on to learn more.


Administrators of employer-sponsored healthcare programs face myriad challenges these days, from the rising cost of medications to the fluctuating status of the Affordable Care Act and state healthcare exchanges. As we head into the 2019 open enrollment season, it’s clear that these issues will continue to impact every type and rank of employee in the coming year.

To that end, I’ve outlined several key trends in open enrollment that frazzled HR leaders should explore before enrollment season begins. If it’s too late to make changes to your program this year, use these key points as a basis for measuring and evaluating current programs so you can begin planning for a more engaging, transparent and streamlined process next year.

You don’t have to take it all on yourself.

Employers are realizing that as great as some decision support and health advocacy tools may be, attempts to make employees better healthcare consumers have been only marginally effective.  High-performing (aka narrow) networks may be a viable solution as they enable better rates negotiated with the carriers and providers while reducing waste, errors and unnecessary costs. It’s the steerage option, but plan designs can provide incentives for employees to elect these plans and networks. In turn, the HPNs can provide:

  • more concierge-like service;
  • better coordinated care between providers for high-cost claimants—where much of runaway costs reside; and
  • support to ensure compliance with treatment protocols—for chronic conditions such as diabetes, CAD, COPD, etc.

In turn, these plans have the potential for shaving points off healthcare cost trend.

But it’s vital that communication strategies help reduce fears of reduced network choices (avoiding bad memories of restrictive HMO networks) while increasing confidence in the ability of the HPNs to drive results that actually enhance care while also reducing costs.

The best strategy is to provide easy-to-understand examples and scenarios that represent typical situations based on your company’s demographics and employee personas.

Use all the channels you have.

Education and engagement need to be done through a variety of channels to address the specific needs and preferences of demographic groups. Employees need to compare their options based on anticipated needs to look at both premiums (per paycheck costs) and out-of-pocket costs (deductible, copays, coinsurance), as well as employer-provided HSA contributions and incentives. The premium doesn’t tell the whole story—some people over-insure themselves by paying a higher premium for coverage that they may not use because they fear a higher deductible and out-of-pocket maximum.

Cost-comparison tools, interactive personalized assessment tools, microsites that are mobile-optimized with clear, consistent messaging, and extremely brief interactive videos make the message relevant to each individual.

Remember too that your company portal is both a useful tool in ensuring a personalized message to the employee, and a way for you to collect aggregated data about your employees’ interests, needs, action or inaction, and the user experience.

Don’t try to hit all the bases.

Trying to communicate too much information at one time tends to obscure the key message. Focus only on providing information needed to make effective enrollment decisions and use other points during the year to educate about broader topics like wellness.

A common failure is going paperless and forgetting that you really need to drive employees to resources to get them to pay attention. There may be very robust online content and resources but a very low rate of use of that valuable information. Remember that spouses at home often may be making the majority of the healthcare decisions for a family or, at the very least, for themselves. So going too far with the paperless approach can miss getting the message—and the needed information—to those key stakeholders.

Don’t fear transparency.

It’s intriguing to me that some employers are wary about communicating their level of cost-sharing with employees and how it benchmarks against peer companies. Employees often assume they are paying a far larger share than they are. There are other ways of being transparent about cost-sharing beyond the employer-employee split. For instance, we created an infographic for a client to explain the concept of self-insurance and are using it in an ongoing educational series with fact sheets and videos, getting across the idea that the decisions each of us make about our health and informed healthcare purchasing affect the costs in our individual as well as collective pockets.

The bottom line is that helping employees get smart about how they use healthcare and choose insurance options will save your company money. That’s not as callous as it sounds. If employers can’t find more and better ways to control healthcare and benefits costs, they’ll simply have to shift more of the burden to employees. Healthcare access is onerous enough. No one wants to make it harder or deprive workers of needed care. Healthy, satisfied, financially stable workers are better for business, productivity and the overall economy. Commit to exploring these key trends and making meaningful improvements to open enrollment in 2019 and beyond.

SOURCE: Brooks, B. (16 October 2018) "How to Optimize Open Enrollment for Workers" (Web Blog Post). Retrieved from http://hrexecutive.com/how-to-optimize-open-enrollment-for-workers/


8 ways to maintain HSA eligibility

Employers sponsoring high-deductible health plans with HSAs have to ensure their HDHPs maintain their HSA eligibility. Continue reading for eight ways employers can maintain HSA eligibility.


For employers sponsoring high-deductible health plans with health savings accounts, ensuring that the HDHP continuously remains HSA qualified is no easy task. One challenge in this arena is that most of the rules and regulations are tax-related, and most benefit professionals are not tax professionals.

To help, we’ve created a 2019 pre-flight checklist for employers.

With 2019 rapidly approaching and open enrollment season beginning for many employers, now’s a great time to double-check that your HDHP remains qualified. Here are eight ways employers can maintain HSA eligibility.

1. Ensure in-network plan deductibles meet the 2019 minimum threshold of $1,350 single/$2,700 family.

To take the bumps out of this road, evaluate raising the deductibles comfortably above the thresholds. That way, you won’t have to spend time and resources amending the plan and communicating changes to employees each year that the threshold increases. Naturally, plan participants may not be thrilled with a deductible increase; however, if your current design requires coinsurance after the deductible, it’s likely possible on a cost neutral basis to eliminate this coinsurance, raise the deductible and maintain the current out-of-pocket maximum. For example:

Current Proposed
Deductible $1,350 single / $2,700 family $2,000 single / $4,000 family
Coinsurance, after deductible 80% 100%
Out-of-pocket maximum $2,500 single / $5,000 family $2,500 single / $5,000 family

This technique raises the deductible, improves the coinsurance and does not change the employee’s maximum out-of-pocket risk. The resulting new design may also prove easier to explain to employees.

2. Ensure out-of-pocket maximums do not exceed the maximum 2019 thresholds of $6,750 single/$13,500 family.

Remember that the 2019 HDHP out-of-pocket limits, confusingly, are lower than the Affordable Care Act 2019 limits of $7,900 single and $15,800 family. (Note to the U.S. Congress: Can we please consider merging these limits?) Also, remember that out-of-pocket costs do not include premiums.

3. If your plan’s family deductible includes an embedded individual deductible, ensure that each individual in the family must meet the HDHP statutory minimum family deductible ($2,700 for 2019).

Arguably, the easiest way to do so is making the family deductible at least $5,400, with the embedded individual deductible being $5,400 ÷ 2 = $2,700. However, you’ll then have to raise this amount each time the IRS raises the floor, which is quite the hidden annual bear trap. Thus, as in No. 1, if you’re committed to offering embedded deductibles, consider pushing the deductibles well above the thresholds to give yourself some breathing room (e.g., $3,500 individual and $7,000 family).

For the creative, note that the individual embedded deductible within the family deductible does not necessarily have to be the same amount as the deductible for single coverage. But, whether or not your insurer or TPA can administer that out-of-the-box design is another question. Also, beware of plan designs with an embedded single deductible but not a family umbrella deductible; these designs can cause a family to exceed the out-of-pocket limits outlined in No. 2.

Perhaps the easiest strategy is doing away with embedded deductibles altogether and clearly communicating this change to plan participants.

4. Ensure that all non-preventive services and procedures, as defined by the federal government, are subject to the deductible.

Of note, certain states, including Maryland, Illinois and Oregon, passed laws mandating certain non-preventive services be covered at 100%. While some of these states have reversed course, the situation remains complicated. If your health plan is subject to these state laws, consult with your benefits consultant, attorney and tax adviser on recommended next steps.

Similarly, note that non-preventive telemedicine medical services must naturally be subject to the deductible. Do you offer any employer-sponsored standalone telemedicine products? Are there any telemedicine products bundled under any 100% employee-paid products (aka voluntary)? These arrangements can prove problematic on several fronts, including HSA eligibility, ERISA and ACA compliance.

Specific to HSA eligibility, charging a small copay for the services makes it hard to argue that this isn’t a significant benefit in the nature of medical care. While a solution is to charge HSA participants the fair market value for standalone telemedicine services, which should allow for continued HSA eligibility, this strategy may still leave the door open for ACA and ERISA compliance challenges. Thus, consider eliminating these arrangements or finding a way to compliantly bundle the programs under your health plan. However, as we discussed in the following case study, doing so can prove difficult or even impossible, even when the telemedicine vendor is your TPA’s “partner vendor.”

Finally, if your firm offers an on-site clinic, you’re likely well aware that non-preventive care within the clinic must generally be subject to the deductible.

5. Depending on the underlying plan design, certain supplemental medical products (e.g., critical illness, hospital indemnity) are considered “other medical coverage.” Thus, depending on the design, enrollment in these products can disqualify HSA eligibility.

Do you offer these types of products? If so, review the underlying plan design: Do the benefits vary by underlying medical procedure? If yes, that’s likely a clue that the products are not true indemnity plans and could be HSA disqualifying. Ask your tax advisor if your offered plans are HSA qualified. Of note, while your insurer might offer an opinion on this status, insurers are naturally not usually willing to stand behind these opinions as tax advice.

6. The healthcare flexible spending account 2 ½-month grace period and $500 rollover provisions — just say no.

If your firm sponsors non-HDHPs (such as an HMO, EPO or PPO), you may be inclined to continue offering enrollees in these plans the opportunity to enroll in healthcare flexible spending accounts. If so, it’s tempting to structure the FSA to feature the special two-and-a-half month grace period or the $500 rollover provision. However, doing so makes it challenging for an individual, for example, enrolled in a PPO and FSA in one plan year to move to the HDHP in the next plan year and become HSA eligible on day one of the new plan year. Check with your benefits consultant and tax adviser on the reasons why.

Short of eliminating the healthcare FSA benefit entirely, consider prospectively amending your FSA plan document to eliminate these provisions. This amendment will, essentially, give current enrollees more than 12 months’ notice of the change. While you’re at it, if you still offer a limited FSA program, consider if this offering still makes sense. For most individuals, the usefulness of a limited FSA ebbed greatly back in 2007. That’s when the IRS, via Congressional action, began allowing individuals to contribute to the HSA statutory maximum, even if the individual’s underlying in-network deductible was less.

7. TRICARE

TRICARE provides civilian health benefits for U.S Armed Forces military personnel, military retirees and their dependents, including some members of the Reserve component. Especially if you employ veterans in large numbers, you should become familiar with TRICARE, as it will pay benefits to enrollees before the HDHP deductible is met, thereby disqualifying the HSA.

8. Beware the incentive.

Employers can receive various incentives, such as wellness or marketplace cost-sharing reductions, which could change the benefits provided and the terms of an HDHP. These types of incentives may allow for the payment of medical care before the minimum deductible is met or lower the amount of that deductible below the statutory minimums, either of which would disqualify the plan.

SOURCE: Pace, Z.; Smith, B. (22 October 2018) "8 ways to maintain HSA eligibility" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/opinion/8-ways-to-maintain-hsa-eligibility