Oh Hiiiiii 2018, Time for an HR Review

Oh Hiiiiii 2018, Time for an HR Review

It's a new year which means new you, new resolutions, blah, blah, blah.  It also means new HR topics to consider for 2018, particularly considering all the fun 2017 brought us like this, this, this, and, oh yeah, this.  Here's some friendly HR advice to prepare for the New Year.

GINA get a Makeover in the EEOC's latest Proposed Rule

GINA is the ugly stepchild of Employment Law that is rarely noticed.  In fact, most employment law classes barely skim the surface of GINA, assuming they even talk about her at all. However, the EEOC is pushing GINA into the limelight with a proposed rule that impacts Employer Wellness Programs.  Considering healthcare is one topic that never gets old, this proposed rule is definitely worth learning (and watching).

Who is GINA?

Not "who" but "what." GINA stands for the Genetic Information Nondiscrimination Act.  As you may have guessed from the name, GINA is a federal law that prohibits employers with 15 or more employees from discriminating against employees or applicants based on their genetic information.  GINA also makes it illegal for an employer to use genetic information in any employment decision and has very tight restrictions on when an employer (or labor group) can request, require, or purchase genetic information.  The general rule is that genetic information is NEVER relevant to an individual's current ability to work so seeking genetic information is almost always going to be forbidden.  As you may have further guessed by my general tone, "genetic information" is broadly defined and includes anything from actual genetic/DNA tests to basic family medical history.  [Enter all the problems]. 

Under the Affordable Care Act, Employers can offer "Wellness Programs" to employees and their dependents (think: spouses and kids).  The problem is how do you operate a functional "Wellness Program" when you cannot ask the employee or her dependents about their medical history?  Its like organizing a math class without knowing anyone's aptitude or experience.  In other words, it doesn't really work.  Hence the need for some EEOC guidance. 

EEOC's Proposed Rule on Wellness Programs

In late October, the EEOC decided to step up its game and issued a proposed rule that reconciles GINA with the ACA Wellness Programs. Here is a summary of the key components (keep in mind this is still a PROPOSED RULE so not yet the law):

1-   Employers can offer "inducements" to employees and their spouses to get information about current and past medical conditions relevant to participation in an Employer Wellness Program.  This essentially creates a (new) narrow exception to GINA's rule against inquiring about employee (and their dependent's) genetic information. 

2-   Only spouses who are enrolled in the employer's group health plan qualify for these inducements and any information sought from the spouse (or employee for that matter) must be part of a health risk assessment (HRA) associated with the group health plan.  

3-   A spouse's consent to provide such information is only valid if they give "prior, knowing, voluntary, written authorization.  That's crazy law language for get the spouse to sign a piece of paper before giving away their health secrets and before having multiple glasses of wine.  

4-   "Inducements" offered can be in the form of money or can be something more tangible like vacation days, gift cards, etc... HOWEVER, the total inducement an Employer can offer cannot exceed 30% of the cost of the health plan in which the employee and his/her dependents are enrolled.  ALSO, the maximum portion of an inducement offered to the employee alone cannot exceed 30% of the total cost of self-only coverage.  IN PRACTICE, this means the employee and his/her spouse have to split any inducements.  I know this makes ZERO sense so here is an example:

Mark and Robert are married and both have health insurance through Mark's Employer.  Their family health plan coverage costs about $14,000 and includes a wellness program.   Because the maximum inducement is 30% of the total health plan ($14,000) Employer can only induce Mark and Robert with something worth $4,200. 

This $4,200 inducement is split between Mark and Robert.  Mark's "self-only" coverage is worth about $6,000.  Any inducement offered for Mark's info can only be worth 30% of the self-only value so no more than $1,800.  Because the total inducement is split, any inducement offered to Robert as the spouse can only be $4,200 minus $1,800 so $2,400. 

5-   Because of confusion with HIPAAACA, and GINA the EEOC distinguishes "true genetic information" (think DNA/genetic tests) from basic medical history and medical exams (think cholesterol and blood pressure checks).  However, "medical history" is limited to current and past health status only. 

6-   As evidenced in my inducement example, "spouse" means "spouse" - gay or straight.  It doesn't, however, include children.  

In addition to the above, the EEOC's proposed rule reiterates the importance of confidentiality and further states that confidentiality cannot be waived as a condition for receiving an incentive or participating in a wellness program.  Employers also cannot require authorization to sell genetic information as a condition of the wellness program or its incentives.  

Who cares?

Employers should - especially their Benefits Managers.  Although the EEOC's proposed rule helps reconcile some of the conflicting requirements under GINA, the ACA, and HIPAA, some conflict still remains.  For example, inducements under HIPAA for tobacco cessation programs are capped at 50% with no allocation requirement among employee and spouse. With different inducement rules for similar programs floating around in the legal netherworld, HR Benefit Partners are bound to have some extra work heading their way.  

The official comment period for this EEOC proposed rule ends on December 29, 2015 so we'll be watching closely in 2016 for the final rule. 

Let's talk about Religious Accommodation...

Courtesy of the Church of the Flying Spaghetti Monster 

Courtesy of the Church of the Flying Spaghetti Monster 

In a recent announcement, the EEOC stated that religious accommodation is the #1 litigation trend of 2015.   This may have a lot to do with the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, Inc. and the recent DMV smackdown given by Pastafarians, but it may also have to do with the changing religious atmosphere in the U.S.   As the U.S. learns to deal with Worldwide problems like the Syrian refugee crisis, we can only expect religious diversity to continue to grow which makes now a great time to review religious accommodation in the workplace. 

Employers with 15 or more employees, are forbidden from discriminating against employees and applicants on the basis of one's religious beliefs. This rule comes from the infamous federal statute called Title VII . Unlike the other protected classes in Title VII (race, color, national origin, & sex), religion also carries a requirement of accommodation.  (This should sound familiar because it is a similar requirement for "reasonable accommodation" under the ADA.)  In other words, employers must accommodate employee's and applicant's religious beliefs so long as the accommodation is reasonable and does not create an undue hardship.  

This all sounds great on paper until you read the various attempts by the Supreme Court (here, here, here, here, and here)  to define "religion" and quickly realize that there actually isn't a definition at all.  Instead we have some vague guidance that "religion" is virtually anything so long as the followers have a mutual "sincere and meaningful" belief that occupies their lives.  Why is the above problematic?  Because religion can literally be anything and now it doesn't even have to be known.

Flash back to 2013-2014:  Young woman applies for the highly coveted job on the Abercrombie & Fitch sales floor spraying perfume on overly-priced clothes that look like they have already been worn 10,000 times.  Young woman shows up for interview in a headscarf that is common for Muslim women.  Interview goes great and Abercrombie interviewer gives her top marks but expresses concern to supervisor that the headscarf violates Abercrombie's "Look Policy" for employees.  Supervisor thinks the headscarf will be worn by applicant due to her religion and agrees that it violates the "Look Policy" which bans "caps."  Applicant is denied employment.  Applicant files EEOC charge.  EEOC sues Abercrombie. 

Flash forward to June 2015:  The Supreme Court says in the Abercrombie decision that an employer need not be put on notice of an employee or applicant's religion in order to discriminate on the basis of religion.  In other words, if you assume an employee or applicant is of a certain religion based on arbitrary facts you've gathered with your super-employer senses, you may still be discriminating against that employee or applicant even if that person's religion is not 100% known. This is what we in the law biz call a BFD.  

Title VII has always protected employees and applicants from an employer's discriminatory motives  but now "motive" is independent of "knowledge."  This puts employers in a peculiar position because you can't ask applicants about their religion but now you can be sued based on motivating assumptions that may or may not be true.  For Abercrombie, they argued there was no discrimination because the applicant's religion was never actually known.  However, to the court merely suspecting one's religion and then basing a hiring decision on that suspicion is enough to show discrimination.   Enter a new slippery slope. 

For the record, I am a supporter of Title VII.  It can be a huge thorn in the side of employers but it means well.  However, I also recognize that most people are not psychic and I question whether it is fair to assume someone discriminated without actual knowledge.  Furthermore, what concerns me way more than any of the above is the Abercrombie "Look Policy."  Had they not had some bogus policy dictating employee be "cap"-free, we would't be having this debate and the applicant in the Abercrombie case would be doing just fine in the dark, dark world of an Abercrombie store.  I'll save my blog post on dress codes for another day. 

PS:  Curious about the photo accommodating this blog?  Its a real thing...

The more you know.



Haters gonna Hate (hate, hate, hate, hate): LGBT Discrimination in the Workplace


A lot of people are talking about LGBT discrimination.  Yesterday, Texans in Houston voted to repeal a local LGBT anti-discrimination law which was considered by most to be a major blow to the LGBT community.  Interestingly enough, based on a recent EEOC List of "Top 10 Litigation Trends," LGBT discrimination ranked #4 with over 1100 EEOC charges filed in 2014 and over 600 charges in the first half of 2015.  Despite having the right to be lawfully married in all 50 states, there are still no federal anti-discrimination laws that apply to LGBT discrimination in the workplace.  In fact, LGBT is not even a federally protected class as far as employment discrimination is concerned.   So how can LGBT discrimination rank #4 with the EEOC's hot topics list? Answer: Title VII.   DUN. DUN. DUN.

Title VII & LGBT Discrimination 

Employers who fall under Title VII (meaning they have 15 or more employees), cannot discriminate based on sexual orientation.  Yes, yes, I realize Title VII only protects race, color, national origin, sex, and religion but most courts have held that discrimination based on sexual orientation is the same as discrimination based on sex.  Here are a few examples of how this has played out in the courts:

EX 1: Transgender man transfers jobs for family reasons.  Upon being transferred, he informs supervisor that he will be transitioning soon and will need to change his name and sex on all employment forms.  Suddenly a budget is cut and the job is "eliminated."  Transgender employee files EEOC complaint.  EEOC (in eventual appeal) holds that transgender employee can sue based on sex discrimination under Title VII.  Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

EX 2:  Homosexual man is told his "gay stuff" is "distracting" to the workforce.  He is later denied a permanent position with the company.  EEOC (in another appeal) holds that he can sue under Title VII sex discrimination theory because being discriminated against for being gay is the same as sex discrimination for purposes of Title VII.  David Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

EX 3: Transgender employee denied job opportunity because she did not conform to social stereotypes about sex during the transitioning process.  EEOC filed suit on plaintiff's behalf (still pending but based on Title VII and sex discrimination).  EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014).

I think you get the point, but more examples can be found here. 

What about North Carolina?

North Carolina has few employment laws and LGBT protections are unfortunately not one of them.  There is a public policy in NC that employers with 15 or more employees cannot discriminate based on sex so you may be able to get into court based on a Wrongful Discharge Against Public Policy theory.  

Don't want to be a Hater? This is what you should do:

Employers should protect LGBT employees from discrimination in the same way they are supposed to protect other protected classes from discrimination.  Based on recent EEOC decisions, employers with 15 or more employees should go ahead and protect LGBT employees like they would any other protected class (meaning protection is pseudo-mandatory under Title VII for covered employers).  

This protection usually starts as an anti-discrimination policy in an employment handbook and ends with the employer enforcing this policy by actively investigating any claims of LGBT discrimination.  Do yourselves a favor and make the EEOC happy and revise your anti-discrimination policies to include LGBT employees.  If you want an extra credit gold star from the EEOC, consider offering support services for LGBT employees, especially transgender employees undergoing a formal transition.

For those of you that do not have an anti-discrimination policy in your handbook or a well-written reporting procedure, I encourage you to add both of these policies to your handbook.  If you do not have an employment handbook (GASP!),  I highly, highly, HIGHLY recommend you get one no matter how small your company and no matter how cool and fair you think you are. 


Interested in developing an Employment Handbook?  We've got you covered.