Posted on May 13th, 2009 by Randy Enochs | No Comments »
Filed under: ., Discrimination, Employee Benefits, HR Issues | 
The Equal Employment Opportunity Commission recently opined that “an employer violated the Americans with Disabilities Act when it required employees to undertake a health risk assessment (“HRA”) as a condition of participating in the employer’s group health plan.” The case the EEOC based its informal opinion letter on involved a county that had implemented an HRA which included answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Employees declining to participate in the program (and members of their families) were ineligible for coverage under the employer’s self-funded health plan.
The EEOC, in forming their opinion, distinguished between disability-related inquiries and medical examinations that are job-related and consistent with business necessity and voluntary wellness programs:
[O]nce employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. The EEOC determined that requiring all employees to take this HRA that includes disability-related inquiries and medical examinations as a prerequisite for obtaining group health coverage does not appear to be job-related and consistent with business necessity, and therefore it would violate the ADA. …
A wellness program is considered voluntary only if employees are not required to participate and are not penalized for non-participation. With regard to the HRA, an employee’s decision not to participate resulted in the loss of the opportunity to obtain health coverage through the employer’s plan. Thus, even if the HRA could be considered part of such a wellness program, the program would not be voluntary because individuals who do not participate in the assessment are denied a benefit (i.e., they are penalized for non-participation).
Posted on April 8th, 2009 by Randy Enochs | No Comments »
Filed under: ., HR Issues, Labor Law |
The Wall Street Journal has a story today about the boom in workplace legal advice spawned by recently enacted and pending legislation in the labor and employment law arena. Of particular interest to employers is advice on legally preventing union organization due to the Employee Free Choice act looming in Congress currently.
The article points out that labor lawyers are using EFCA to their advantage:
Labor consultants and lawyers are looking to profit from interest in the Free Choice Act by briefing companies large and small on a range of matters such as complying with current and recently enacted legislation, and how to detect union organizing and prevent it without breaking the law. Another pressing issue is whether companies have opened themselves to union organizing drives because they have cut jobs, pay or benefits to weather the economic slump.
Now the question is: if the Free Choice Act falls apart like it seems it might, or gets negotiated into a watered-down shell of its former self, will the offshoot work dry up, too? Or worse – will clients, having just spent precious money on EFCA training (or as the AFL-CIO calls it, “fear mongering ” to sell “products”), feel squeezed and back off?
To be sure, EFCA will mean across-the-board changes for most companies’ labor policies, and it should be given the weight it deserves. But if the economy has taught us anything, it’s the need to balance consumers’ emotions with their actual needs.
99% of clients seeking L&E work out of fear probably do need help, many more than they realize. It’s our job as their lawyers to get it to them without exploiting their fears.
Posted on April 7th, 2009 by Randy Enochs | 1 Comment »
Filed under: ., Labor Law, Politics |
In yet another blow signaling a need for a compromise of the Employee Free Choice Act, Senator Blanche Lincoln (D-Ark.) announced this past Monday that she will not support the union-backed legislation–at least not in its current form.
Meanwhile, Senator Mark Warner (D-Vir.) seems to be wavering. Warner announced that he backs a vote for cloture, but he said he will evaluate his stance on the measure after EFCA has reached the floor.
Workplace Prof Blog recently reported on a story floating around about the compromise operations that have already begun in an effort to get EFCA passed through Congress.
