Regional German labor courts have considered whether employees are entitled to half days’ leave and come to different conclusions. This article examines the issue and gives advice on how employers should deal with half-day leave requests.
An employer learned the full cost of ambiguity when a Connecticut federal district court agreed with an employee’s widow that the word “maximum” was ambiguous in the company’s life insurance plan, thus making the widow entitled to an additional $4 million in benefits. This decision serves as a warning for employers sponsoring insured benefits.
https://www.employeebenefitsblog.com/2019/09/tyll-v-stanley-black-decker-when-plan-ambiguity-cost-an-employer-4-million/
It’s been a decade since the Mental Health Parity and Addiction Equity Act went into effect, with the goal that insurers and health plans offer mental health and substance abuse benefits comparable to coverage of medical and surgical care.
Despite progress made since the law’s passage, some barriers to equality still exist. As vital as behavioral health care is for people with substance abuse and mental health disorders, unlike their physical health needs, employees with employer-sponsored coverage may face challenges in accessing and affording quality mental health care coverage.
The current environment sees employers, employees, the government and individuals spending more money on behavioral health than ever before, but the results just aren’t there, said Henry Harbin, a psychiatrist with over 40 years’ experience in the behavioral health field.
Harbin, whose experience includes senior positions at public and private health organizations, said that while fatality rates for many medical issues are decreasing, fatality rates from suicide and opioid overdoses — two major issues in behavioral health — are increasing. Between 2004 and 2014, the death rate for heart disease decreased by 16 percent and for stroke by 19 percent. In the same span, the death rate climbed by 17 percent for suicide and over 200 percent for opioids, according to the Centers for Disease Control and Prevention.
For employers, genuinely caring about their employees’ mental health issues is a good start, but providing quality coverage is important as well. Behavioral issues among employees are prevalent. According to the National Institute of Mental Health, 1 in 5 adults in the United States have a mental health disorder. Meanwhile, 1 in 22 adults have a serious mental illness like schizophrenia, major depression or bipolar disorder, the study noted.
Access Issues
There is a national shortage of seasoned behavioral health professionals in the United States, which can “constrain access to essential care and treatment for millions of individuals with mental illness of substance use disorders,” according to the Health Resources and Services Administration report “Behavioral Health Projections, 2016-2030.” The agency, part of the Department of Health and Human Services, focuses on improving access to health care services for individuals who are uninsured, isolated or medically vulnerable. The report stressed the fact that certain areas of the United States have few or no behavioral health providers available.
The shortage of behavioral health care providers impacts a majority of employer-sponsored health plans, according to Mercer’s May 2019 “10-Minute Survey on Behavioral Health” that surveyed 523 employers. Sixty-three percent of respondents reported that they lack adequate access to outpatient behavioral health care in some or all of their locations.
Some 74 percent of employers said they are taking action to improve employee access to quality behavioral care. Most commonly, 49 percent addressed this by enhancing their employee assistance program services or changing their EAP provider. Only 12 percent of these employers conducted a network analysis to identify gaps in behavioral health care.
Early intervention can be vital for behavioral health, especially for patients with a severe disorder, Harbin said.
For a patient with schizophrenia, for example, screening by one’s primary care physician or pediatrician can help identify the problem early on. The patient can then see a specialist sooner and will likely see better outcomes, Harbin said.
Tom Sondergeld, vice president, global HRIS, benefits and mobility at global pharmacy giant Walgreens Boots Alliance, said that one of the biggest priorities in their carrier analysis was to evaluate access. Employees with a behavioral health issue often face long wait times to see a behavioral health specialist such as a psychiatrist. “To me, that’s not parity,” Sondergeld said.
Walgreens has been pushing hard on its insurance carriers in recent years so that employees can find coverage for the care they need in a timely manner, Sondergeld said.
While larger organizations may have more resources to negotiate with insurance carriers, he suggested that small organizations can join coalitions such as the National Business Group on Health, allowing their voice to be heard within that larger pool of companies.
He also said that using data to tell a powerful story is a way smaller organizations can influence their carriers. Employers can get this information through their health plan, which can use its data to analyze utilization and costs across the various benefits to get a better picture of the overall spend and areas to concentrate on to improve spend.
For example, if a third of the workforce needs access to behavioral health care for themselves or their loved ones, but the data show that a majority of people can’t access care in a timely manner, that’s a powerful, data-supported story.
The human impact of mental health problems is notable, as mental illness impacts how people handle stress, how they relate to others and whether they make healthy choices, according to the Centers for Disease Control and Prevention. Still, HR can use the business case to support the need for better access.
Poor mental health and stress can impact an employee’s job performance, their relationship with co-workers and their physical capabilities and daily functioning, according to the CDC. Depression interferes with a person’s ability to complete physical job tasks about 20 percent of the time and reduces cognitive performance about 35 percent of the time, the agency notes.
“When [employees] can’t find the care they need, the business suffers because they aren’t engaged,” Sondergeld said.
Network Issues
A host of issues exist even when an employee does access care for behavioral health problems. A majority of people with behavioral conditions are screened and treated through primary care and not a specialist, Harbin said. The quality of this behavioral health care is often low, with many people not necessarily even getting a diagnosis but getting a prescription for a psychiatric drug. Harbin noted that the patient’s response to the drug may not be tracked efficiently, the drug and dosage may remain unchanged, and this may help lead to low efficacy outcomes.
Employers should urge employees to use specialists if they want improved outcomes, he said.
Patients accessing out-of-network providers is another issue, he added, citing a 2017 Milliman Inc. report, “Addiction and Mental Health vs. Physical Health: Analyzing Disparities in Network Use and Provider Reimbursement Rates.”
Patients seeking behavioral care more often need to use an out-of-network provider than patients seeking medical or surgical care, according to the report, which also found that medical and surgical providers are paid at higher rates than behavioral providers. The lower reimbursement rates are one reason for low network participation rates among behavioral health providers, making it difficult for patients to find more affordable in-network care.
Employers can work with their providers or vendors to understand if there are places where there are more complaints about access issues than others, said Mandie Conforti, a licensed clinical social worker and senior consultant at Willis Towers Watson.
Even though the mental health stigma is lifting, it’s still there, she said. Many employees hesitate to call HR to complain about not being able to find a behavioral health provider.
“We’ve been asking behavioral health centers to do more customized networks, enhancing the network in locations where employers may have a larger base of employees,” she said.
Quality Control Issues
It’s difficult for a patient to find the right provider for their unique situation or one who can get them the best results.
Employers have historically not asked their insurers many questions about behavioral health or the quality of these provider networks, said Sandra Kuhn, Mercer’s national lead for behavioral health consulting. This is an area in which they have potential to be more proactive and really push for more information from their insurers.
Questions can include: What quality measures do you use to bring carriers in and keep them in-network? Can you share with us at the end of the year a data set to show how many people were in treatment and the average length of time people stay in treatment? Also, did people improve while they were in treatment?
“Tools exist to measure those things, they’re just not being uniformly applied,” Kuhn said.
She also suggests that employers look for specific data points as indicators of whether the health plan is adequately addressing behavioral health, starting with data on what the employee population looks like. Then, look at EAP utilization. If utilization is low but a lot of people are using the behavioral health network in the health plan, then perhaps employees aren’t aware of the EAP services. That knowledge could give employers the opportunity to close the gap.
Data can also educate employers on how much out-of-network behavioral health care employees are getting. Maybe employees are having access issues, or maybe they’re unsure of how to go about finding care. They could be relying on friends’ referrals rather than something more evidence-based.
“If [employees] don’t have a clear way to obtain information about the network, the types of providers and what provider is good for what types of challenges, they’re just randomly picking, and that’s problematic,” she said.
She continued that quality metrics are “reasonably established” for certain areas of the behavioral health system. The type of care people may need ranges from outpatient care for mild or moderate cases to more complex and higher levels of care for more severe conditions. This inpatient care is where quality metrics are consistent, but most people come into contact with behavioral health services at the outpatient level, Kuhn said.
There are some insurance carriers and tech solutions like Ginger.io and Lyra Health that are using their own measures, but these aren’t consistent with each other, she said. This can lead to inconsistency and member confusion.
“They don’t know if they’re going to a quality provider or not, and oftentimes they don’t know how to judge if they’re improving,” Kuhn said. That may lead to people thinking that if they go to their friend’s therapist, they’ll get the best care.
“There are all sorts of wives tales that come out of there not being a good way to determine quality,” she added.
Employers can also push vendors on how they assess quality, said Conforti. Many times providers self-report quality to behavioral health centers. Whether they actually have the competencies to do so, they could simply check the boxes that they can work with any disorder.
“There has to be a better way at assessing and making sure that providers are doing good, sound, evidence-based care,” she said.
https://www.workforce.com/2019/09/12/the-mental-health-parity-challenge/
Alcoholism is an ADA-protected disability.
Yet the ADA does not require that employers accommodate alcoholics by permitting them to drink, or otherwise be intoxicated, on the job.
Case in point? Dennis v. Fitzsimmons (D. Col. 9/5/19).
Jared Dennis was employed as a deputy in the Summit County, Colorado, Sheriff’s Office. He’s also an alcoholic. While on administrative suspension following his wife’s allegation of domestic violence, Dennis got drunk at home the night before his criminal arraignment. The following morning, he failed his intake breathalyzer. Thereafter, the Sheriff’s Office terminated him for, among other rules violations, conduct unbecoming of an officer and being impaired while on duty.
Dennis sued his former employer for disability discrimination, claiming that it fired him because of a protected disability — his alcoholism.
The court disagreed, and dismissed Dennis’s lawsuit.
It is generally recognized that alcoholism can constitute a disability entitling the employee to protection under the ADA…. The more difficult question is whether Deputy Dennis has come forward with evidence that his termination resulted from his disability, rather than his conduct.…[W]hen the disability at issue is alcoholism, the ADA … draw[s] a distinction between “having a disability” and “disability-caused misconduct.”
It is undisputed that the SCSO based its decision to terminate Deputy Dennis’ on the fact that he reported for his arraignment in an intoxicated state. Thus, there is no dispute that SCSO’s decision arose from his unsatisfactory conduct on the morning of July 28, not from his abstract status as an alcoholic. As noted, the ADA … do[es] not extend protection to actions of alcohol-influenced misconduct, even if the employee’s alcohol use is related to the disability of alcoholism. Accordingly, Deputy Dennis has not come forward with evidence that indicates that his termination was based on his status as a disabled person (as opposed to his conduct).
Addiction is a protected disability. But it does not mean you have to permit its use to accommodate the disability. Under the influence at work does not equal a disability, ever.
https://www.workforce.com/2019/09/11/when-alcohol-is-involved-the-ada-distinguishes-between-having-a-disability-and-disability-related-misconduct/
A Texas federal court certified a class in case brought by participants in one plan, and allowed those participants to represent participants in unaffiliated plans. The claims alleged that the defendants, who marketed and provided services to all of the plans, breached fiduciary duties by imposing excessive fees. See Chavez, et al. v. Plan Benefits Services, Inc., et al., No. AU-17-CA-00659-SS, United States District Court for Western District of Texas (Aug. 30, 2019).
https://www.employeebenefitsblog.com/2019/09/federal-court-certifies-class-in-multiple-plan-erisa-challenge-to-health-plan-and-retirement-plan-fees/
Boosting productivity and wellness is a challenge for which organizations are looking to more creative solutions.
Color choice of the office is one relatively simple yet impactful tool that organizations from hospitality to tech are implementing to elevate the level of productivity, wellness and experience in their spaces.
“People are starting to see the psychological effects that color has on us, especially in the workplace,” said PPG Color Design Manager Vanessa Peterson. “It can really spark certain emotions and spark certain responses from people because they’re integrated into a space for so many hours.”
This reaction, Peterson said, has to do with what certain colors communicate in a space and how that communication works with other elements of office design to create an overall atmosphere. For this reason, blue is often chosen over others for interior design.
“Many of the colors that we find in nature, specifically blue, have caused a lot of really great health and mental benefits because of its serene and peaceful nature,” Peterson said. “It reminds people of the sky, or it reminds people of the ocean, in a very calm and tranquil space.”
Even within the color spectrum of blue, slight variations in shade can communicate different things, which in turn affects how people might feel in a space.
“One of the great things about blue is that for the most part, each version of blue has an identity of its own but also reflects the idea of either calmness or wellness. That idea of wellness can be integrated into an atmosphere where it gives you this feeling of power and it can feel very regal,” Peterson said. For example, a stronger blue such as cobalt is often used in sports companies’ marketing and darker shades of navy that exude a sense of maturity are used by universities.
The design industry is also seeing a heightened interest in color choices for products, Peterson said.
“Not only are you having desk and wall colors and furnishings go into this more serene setting, but you’re having tech companies do this with their products as well,” she said. “They’re going into a lot more beiges and a lot more soft corals, mints and blues, even into the actual technology to give that overall feel.”
The search for the equilibrium of office color and design is also about more than just improving productivity. Creating a sense of serenity in a space that people go to everyday can improve mood, too.
A study conducted by the University of Texas found that more bland colors such as beige, gray and white induced feelings of sadness and depression, particularly among women. This was in contrast to colors like blue and pale green, which produced feelings of productivity and peace in study participants.
PPG also named “Chinese Porcelain” its color of the year, which is a rich, natural blue and was selected with the idea of serenity and clarity in mind.
“With everything that we’ve been seeing happen socially and culturally around the world, we really felt that that shade of blue emoted that sense of serenity that people are looking for in this day and age,” Peterson said. “They want to have that sense of wellness, that sense of peace and they want to see a color and feel something that’s outside of that idea of intensity or anything that would make you feel disturbed.”
https://www.workforce.com/2019/09/10/what-color-choice-can-do-for-your-workforce/
Holiday entitlement varies in Italy, France, the United Kingdom and Spain. Employers with operations in these countries should become familiar with the differing legislation in each country to ensure compliance.
When Mani Mueller landed a plum job at a biotech firm in Wisconsin in 2013 she brought her parents from Pennsylvania to help care for her two young daughters while she found her footing at work.
The timing was perfect. Her mother had just retired and her father, who suffered from Parkinson’s disease, was doing well and looked forward to spending time with his granddaughters. But what promised to be a dream scenario fell apart within a few months as her father’s condition declined and her mom couldn’t keep up with his care.
Parkinson’s is a progressive nervous system disorder that affects movement, and her father began falling frequently, requiring constant supervision. Soon, Mueller was tackling not only the demands of a new job, but also working a second shift as her father’s primary caregiver and power of attorney, shuttling him to doctor’s appointments, researching treatments, and learning to navigate the Medicare and Medicaid systems. Since her father, a Laotian immigrant, spoke little English she also became his translator.
At 37, Mueller had joined the ranks of 44 million adults in the United States who provide unpaid care for a loved one who needs support, according to AARP. She also became a member of the “sandwich generation,” caring for both a parent and children. Like many caregivers in the workplace, she never told her employer for fear of damaging her career. Instead, she used her vacation and personal days to meet the demands of caregiving.
In January 2018, five years after she placed her father in a nursing home, her company, Promega, introduced a caregiver leave benefit that provides employees with an additional two weeks of paid time off a year to care for a sick parent, spouse or child, or to welcome a new child. But even then Mueller was reluctant to come forward.
“I didn’t want to advertise that I was dealing with all of this or put on paper that my dad has this condition and my kids have that condition,” said Mueller, now 43 and a manager in supplier quality at Fitchburg, Wisconsin-based Promega. “I keep everything to myself. I thought sharing this information would negatively impact my career. I’m very quiet and private, but internally, I thought ‘How much more can I deal with?’ I was exhausted and stressed out.”
Mueller’s story illustrates the dilemmas faced by many caregivers who must choose between what’s best for their families and what’s best for their careers. It also sheds light on the complexities of caregiving in a time of great demographic change. Older people will outnumber children for the first time in U.S. history by 2030, traditional family structures are changing with families getting smaller and more geographically dispersed, and thanks to medical advances people are living longer with disabilities and chronic conditions.
This is resulting in a caregiving crisis that many employers are failing to acknowledge or understand, according to a Harvard Business School study released in January. “The Caring Company” report highlights a disconnect between the kinds of supports caregivers in the workplace need and what most companies provide.
Fear Factor
One reason that employers don’t understand the impact of caregiving on their businesses is that many employees are afraid to tell them, according to Linda Roundtree, an HR consultant who specializes in the aging workforce.
“When people don’t feel free to come forward, they have to make an excuse for why things happen or why they’re distracted at work,” she said. “There’s fear about hurting their careers. You see that fear when women are afraid to disclose that they’re pregnant.”
Only 28 percent of employees who care for a loved one were willing to admit that their family responsibilities harmed their careers, according to the Harvard Business School report. Around half of caregivers surveyed were afraid of being overlooked for challenging assignments, or missing out on salary increases or bonuses. And while 80 percent of employees admit that caregiving has affected their productivity, less than one-fourth of employers said that caregiving influences employee performance.
Mueller said that if Promega had a caregiving benefit when she started there it’s unlikely that she would have taken it. But by 2018 Mueller had been a manager for two years and was confident in her position. So, when her dad’s condition worsened again that May and her daughter was diagnosed with a kidney infection she signed up for time off under the company’s caregiver leave policy. Her father died the following November.
“Exceptional caregiving” is the term that Roundtree uses to describe the new realities for caregivers who are caring for loved ones with a host of cognitive impairments, physical disabilities and chronic conditions.
“There is a huge chunk of the workforce that will be taking care of a child with special health care needs or an elderly parent,” said Roundtree, who co-authored a 2018 paper on the changing nature of caregiving for Boston College Center for Work and Family. “Today even young, single people understand that complex things will happen either to themselves or to a partner or spouse and they need employers that know how to support them.”
The Young Caregivers
While the typical caregiver is a white woman in her late 50s, about one-fourth of all caregivers are between the ages of 18 and 29, according to AARP. They are also the fastest growing and most diverse demographic in the workplace. Employers need to understand that caregiving affects workers of all ages, Roundtree said.
The scope of the problem came as a surprise to executives at Promega when the company surveyed its own workforce in 2017 to better understand the caregiving needs of its employees.
It looked at all kinds of situations from parents of newborns to parents of children with special needs to children caring for parents and adults caring for a spouse, according to Promega benefits manager Diana Clark. She said that everyone was surprised by the variety and intensity of the demands on employee caregivers. They discovered a hidden population of employees who were spending about 29 hours a week on caregiving duties, basically working a second unpaid shift.
Also a surprise was the average age of their caregivers: 33 years old.
“I would have thought three years ago that average caregiver is 55 or 60 years old and nearly retired, but it’s a parent with kids and an elderly parent who is struggling with cancer or some other health condition,” Clark said.
“When you talk to people in those roles they will tell you that’s just what they do and that it’s not a burden. They’ll say that ‘dad just needs me to get groceries, or he can’t drive, or I have to make sure that mom takes her meds.’ There so many tactile details involved that we couldn’t help but see the strain.”
This led Promega to launch caregiver leave benefits in January 2018 that provide employees with an additional two weeks of paid time off a year to care for a sick parent, spouse or child, or to welcome a new child. The benefit can be used in daily increments or all at once. So far, 120 employees, or 12 percent of Promega’s 1,400 employees, including subsidiaries, have used the benefit.
Employees Open Up
Clark said that the program has taken on a life of its own with employees coming forward to share their stories and even launching their own initiative called Circle of Caring. The initiative connects caregivers and employee volunteers willing to help with meals, shopping, lawn care, transportation and other errands. One group of volunteers even planted a garden for an employee who was an avid gardener but was unable to use his arm after a surgery.
This year, the company also began offering free onsite psychological counseling one day a week for caregivers and plans to offer health care navigation services, among other supports for caregivers, such as bereavement support and financial counseling.
Deb Notstad, 57, a complaint investigations specialist at Promega, is grateful for the benefits, even though they came too late to help her. In 2016 her elderly mother was dying and she was caring for her 28-year-old son Adam, who is physically and developmentally disabled. Notstad, a single mother, is also the legal guardian for her brother who is a critical diabetic and is developmentally disabled. While she thinks that two weeks of paid leave is great, it’s not nearly enough for those with complex caregiving needs.
“When they introduced the benefit I had already spent weeks in the hospital with my son,” she said. “My first reaction was, ‘Are you kidding? This is a drop in the bucket.’ But I don’t know too many businesses that offer something like this.”
While a growing number of companies including Starbucks, Cigna, Best Buy and Microsoft offer caregiver supports such as extended paid leave, long-term care insurance for parents and grandparents, and counseling, the vast majority do not offer benefits that are valued by caregivers, according to the Harvard Business School study.
The top reasons that caregivers quit their jobs is the high cost of paid help, the difficulty in finding trustworthy support, and the inability to manage the demands of work and home — all areas where employers could provide support, the study found.
Those that fail to address the problem will pay the price in “hidden costs” such as turnover, loss of institutional knowledge, absenteeism and other factors that are difficult to quantify, according to the study.
Katie Boer, 31, never thought that two years after landing her dream job as a broadcast journalist she would be quitting to look after her 71-year-old mother. In 2016, shortly after she began working at a Las Vegas television station, Boer’s mother, who lives in Seattle, was diagnosed with Lewy body dementia, which can cause hallucinations and Parkinson’s-like symptoms such as body rigidity, tremors and balance problems.
At first, Boer handled things by phone and took paid time off for regular trips to Seattle, but as her mother’s condition worsened the situation became unmanageable. Her mother would call her at work several times a day confused and agitated, often minutes before she went on the air. Eventually, Boer installed a video camera in her mom’s apartment to keep a closer eye on her. But when she saw her mom lying on the floor in the middle of the night crying out Boer’s name for hours, she reached a breaking point.
“I’d be lying in bed watching her not sleeping with tears falling sideways down my cheeks,” she said.
“I’d cry all night and go to the bathroom and throw up. Even though I had a dream job I felt like I was selfish for not being there. So I sacrificed my job and moved to Seattle.”
For employees at smaller companies without caregiving supports or benefits like flex time or paid time off the burden of caregiving can be especially crushing.
Amanda Smith, 34, works at a small nonprofit arts foundation on the East Coast that is not required to provide leave under the Family and Medical Leave Act. With a toddler who has cerebral palsy along with other disabilities and requires round-the-clock care, managing a career is an enormous challenge.
While her boss was initially accommodating, allowing her to work from home one day a week, he has become impatient with the lack of flexibility in her schedule, she said.
“He’d like me to come in without any warning but our lives our very, very choreographed because of all the doctor’s appointments, services and nursing care that my son needs,” she said. “We can’t just call a babysitter. My husband would have to call in sick or my mother-in-law would need to come because she’s the only one besides us who knows how to take care of him. I don’t think employers really understand how complicated caring for a child with a disability can be.”
But many are trying, according to LuAnn Heinen, vice president at the National Business Group on Health, a coalition of large employers.
“It’s definitely on their radar,” she said. “We did a survey in 2017 and 88 percent of employers think caregiving will be a big issue over the next few years. Paid leave is important but we know that it won’t solve the problem if you’re caring for someone over a number of years. There must be more supports like flexible work arrangements, health care navigation, and services to help employees find caregiving services. Employers realize this.”
For those that fail to address the needs of caregivers, Clark warned that companies like Promega will be happy to hire their employees away.
“Unemployment is low and there are great people out there who are not getting their needs met and will want to work for an employer who recognizes them as a whole person,” she said. “You lose so many aspects of what that person can bring to the table when they are trying to take care of their families and are not supported.”
https://www.workforce.com/2019/09/06/facing-the-caregiving-crisis/
In two opinions—one published and one unpublished—the Ninth Circuit overturned prior precedent and held that a Plan amendment requiring arbitration meant that an individual had to arbitrate, on an individual basis, purported class claims alleging imprudent and disloyal management of 401(k) investments. This decision, although unpublished, provides support for plans wishing to add binding arbitration provisions that apply to ERISA 502(a)(2) claims.
https://www.employeebenefitsblog.com/2019/09/ninth-circuit-answers-some-questions-about-arbitration-of-erisa-claims/
A growing number of medical organizations, courts and administrative bodies have stated that transition-related medical care is medically necessary and should be covered by employer-sponsored medical plans. Access to employer-sponsored healthcare coverage for transgender workers has become an issue of focus for civil rights advocacy groups such as Lambda Legal and the American Civil Liberties Union, and there has been an uptick in discrimination lawsuits filed against health plans and insurers denying such care.
These trends highlight the importance of weighing the legal and business considerations that come with providing (or not providing) comprehensive health benefits for transgender workers. Health plan sponsors and insurers should consider how the decision to provide or exclude transition-related medical coverage will affect their legal compliance, overall costs and workplace culture—all of which are discussed in this article.
Originally published in Benefits Magazine, August 2019.
https://www.employeebenefitsblog.com/2019/09/transgender-health-benefits-best-practices-and-legal-considerations/
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Upcoming Events
2019 HR Summit
October 8 @ 7:30 am - 5:00 pm
