Week in Review

April 20, 2015

EEOC will soon issue proposed wellness rule
The EEOC's proposed rule addressing employee wellness programs in the context of the Americans with Disabilities Act was approved on April 13, by the Office of Management and Budget (OMB). The EEOC has not yet released the details of the proposed regulation, but the agency's failure to issue earlier guidance or to reconcile its position with the Affordable Care Act's treatment of employee wellness programs has drawn much criticism. Employers have long waited for guidance from the EEOC that they hope will clear up widespread confusion and any perceived inconsistencies in the rules issued by various agencies that govern employee wellness programs. Now that the OMB has completed its review, the EEOC will likely release the proposed rule shortly.

ACA forcing employers to change business practices and health care benefits
The Affordable Care Act (ACA) is challenging employers by increasing the costs of providing health care coverage and restricting the ability to offer benefits that best meet the needs of employees, the Society for Human Resource Management (SHRM) told a U.S. House subcommittee on April 14. Sally Roberts, SHRM-SCP, speaking on behalf of SHRM addressed a U.S. House Education & the Workforce Subcommittee on Health, Employment, Labor and Pensions hearing, saying, "Effective health care reform should expand access to affordable coverage, but organizations should not have to change business practices and benefits in order to afford the required changes." Five years after the enactment of ACA, administrative challenges continue because of the complexity of the law, delays in effective dates of certain provisions, and coverage requirements. As a result, some employers have had to absorb the costs of employing insurance brokers to navigate the law and to ease the burden of reporting requirements. Roberts quoted results of SHRM's recent Health Care Reform Survey, which showed that 21 percent of respondents said their health care benefits decreased this year.

Revised OSHA guidelines target violence prevention for Healthcare, Social service workers
Earlier in April OSHA released an update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. The publication provides industry best practices and highlights the most effective ways to reduce the risk of violence in various healthcare and social service settings. OSHA noted that in 2013, the Bureau of Labor Statistics reported more than 23,000 significant injuries due to assault at work. More than 70 percent of these assaults were in healthcare and social service settings. Health care and social service workers are nearly four times more likely to sustain injuries as a result of violence than the average private sector worker, according to the health and safety agency. The new guidelines which update OSHA's 1996 and 2004 guidelines-incorporate research in the last decade into the causes of workplace violence on healthcare and social service settings, risk factors that accompany working with patients or clients who display violent behavior, and the appropriate preventive measures that can be taken amid the variety of settings in which health care and social service employees work. The guidelines also stress the importance of developing a written workplace violence prevention program. OSHA said that the program should include management commitment and employee participation, worksite analysis, hazard prevention and control, safety and health training, and recordkeeping and program evaluation.

EEOC announces first transgender discrimination settlement agreement
The EEOC has settled one of the first two lawsuits the agency leveled against employers challenging purported discrimination against transgender individuals. Lakeland Eye Clinic has agreed to pay $150,000 to settle allegations that the Lakeland, Florida-based organization of health care professionals violated Title VII when it discriminated against a transgender employee. Lakeland also agreed to implement a new gender discrimination policy and provide training to its management and employees on transgender/gender stereotype discrimination. Lakeland discriminated based on sex by firing its Director of Hearing Services after she began to present as a woman and informed the defendant that she was transgender, according to the EEOC's complaint, despite the fact that she had performed her duties satisfactorily throughout her employment. The EEOC asserted that Lakeland took the action because the director was transgender, transitioning from male to female, and because she did not conform to the employer's gender-based stereotypes. A federal court in Tampa approved the agreement on April 9th. The EEOC said that its lawsuit against Lakeland is part of the commission's ongoing efforts to implement its Strategic Enforcement Plan, which includes "coverage of lesbian, gay, bisexual, and transgender individuals under Title VII's sex discrimination provisions, as they may apply" as a top enforcement priority.

Suit over employee not permitted to return after heart attack is resolved
A Minnesota Company has agreed to pay $50,000 under a consent decree that resolves an EEOC lawsuit asserting that the Minneapolis-based distributor violated the ADA when it refused to let an employee return to work after he suffered a heart attack and fired him instead. The employee worked from April to July 2011 at the company's Hibbing, Minnesota, location as a laborer installing conveyor belts, the EEOC said in an April 6 release. After he had a heart attack, the employee was released by his doctor to return to work with no restrictions, according to the commission's complaint. But when he contacted the company to let it know he was available to work, the employer allegedly did not permit him to return to work except for two days. The employee contacted his managers on several occasions about returning to work, but the company did not contact him any further regarding returning to work, the EEOC said.