Complying with the EEOC Wellness Programs Regulations

Is Your Employee Wellness Program Discriminatory?

The EEOC has issued rules that set limits on wellness programs that require employees to answer disability-related questions or undergo medical exams, such as health risk assessments or blood pressure checks, to either earn a reward or avoid a penalty. The rules apply only to workplace wellness programs beginning on or after January 1, 2017.

The term "wellness program" generally refers to health promotion and disease prevention programs and activities offered to employees as part of an employer-sponsored group health plan or separately as a benefit of employment.

Many of these programs ask employees to answer questions on a health risk assessment (HRA) and/or undergo biometric screenings for risk factors (such as high blood pressure or cholesterol).

Other wellness programs provide educational health-related information or programs that may include nutrition classes, weight loss and smoking cessation programs, onsite exercise facilities, and/or coaching to help employees meet health goals.

Under the final ADA rule, companies may offer incentives of up to 30 percent of the total cost of self-only coverage in connection with wellness programs. If the incentives stay under the 30-percent threshold, the wellness program still will be considered voluntary and will not violate ADA prohibitions against disability-related inquiries or medical exams.

The final GINA (Genetic Information Nondiscrimination Act) applies to wellness programs offered by employers that request health information from employees and their spouses. It provides that the value of the maximum incentive attributable to a spouse's participation may not exceed 30 percent of the total cost of self-only coverage, the same incentive allowed for the employee.

No incentives are allowed in exchange for the current or past health status information of employees' children or in exchange for specified genetic information (such as family medical history or the results of genetic tests) of an employee, an employee's spouse, and an employee's children.

The rules permit wellness programs to operate consistent with their stated purpose of improving employee health while including protections for employees against discrimination.

Many employers offer workplace wellness programs intended to encourage healthier lifestyles or prevent disease. These programs sometimes use medical questionnaires or health risk assessments and biometric screenings to determine an employee's health risk factors, such as body weight and cholesterol, blood glucose, and blood pressure levels. Some of these programs offer financial and other incentives for employees to participate or to achieve certain health outcomes.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When your business requires professional Human Resources or Payroll advice to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

California Required Breaks

Employees Who Work Outdoors

Summer Heat is Coming- Make Sure You’re Complying with Recovery Period Requirements

Employers in California who have employees that work outdoors should evaluate their business’ heat illness risks and prevention programs before the warmer months to ensure they decrease the likelihood of heat illness and are in compliance with California law.

Cal-OSHA requires all employers with “outdoor places of employment” to implement a heat illness prevention program that includes providing workers five-minute “cooldown” rest breaks in the shade as employees feel the need to do so. “Outdoor places of employment” is not specifically defined.

Beginning Jan. 1, 2014, under Labor Code Section 226.7, California requires employers to provide one hour of pay to employees for missed recovery or “cooldown” periods to prevent heat illness.

A “recovery period” is defined as “a cooldown period afforded an employee to prevent heat illness.” Employers cannot require an employee to work during a recovery period.

The number of recovery periods, unlike the meal-and-rest periods is not controlled by the length of the scheduled work time in a day. The regulations do not address whether an employer may limit the number of recovery periods in a single shift or work day. They also do not address whether the employer may limit the length of a recovery period to five minutes or some other period.

Thus, at a minimum, employers with outdoor places of employment (or with employees who work outside for part of the day) should consider taking the following steps:

1. Revise meal-and-rest-period policies to include recovery periods or implement a separate, written policy providing recovery periods;
2. Adopt a written heat illness prevention program or reevaluate written materials for existing programs to ensure compliance with all applicable requirements of Section 3395; and
3. Implement procedures to pay employees for missed recovery periods.

Heat illness prevention regulations are not limited to employers in certain industries (such as construction). Under the California occupational safety and health regulations, all employers with outdoor places of employment must adopt and implement a heat illness prevention program.

The regulations apply to all outdoor places of employment regardless of the temperature. Therefore, even employers located in historically cooler areas are within the reach of the heat illness prevention regulations.

When outdoor temperatures exceed 85 degrees Fahrenheit, an employer must provide one or more areas of shade that are open to the air or have ventilation or cooling. When outdoor temperatures do not exceed 85 degrees Fahrenheit, the employer must “provide timely access to shade upon an employee’s request.”

An employer that fails to comply may be required to pay each affected employee one hour of pay, as well as being subject to Cal-OSHA citations and proposed penalties.

Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.

When your business requires professional Human Resources or Payroll advice to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us  for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation / training and payroll processing services for businesses throughout Southern California.

Employer Retaliation - # 1 EEOC Complaint

Protect Your Business from EEOC & DFEH Retaliation Claims

In recent statistics released by the US Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH), for the fiscal year 2016, retaliation was the number one charge against employers on both the state and national levels.

Nationally, retaliation took the No. 1 spot with 42,018 charges (45.9% of all charges filed).

In California, retaliation (all statutes) also took the number one spot with 2,937 charges filed (7% of total U.S. retaliation charges).

Employers must remember that the same laws the protect employees from discrimination and harassment also protect them from retaliation.

Under California law, workplace retaliation is unlawful if an employer punishes an employee for protected activities which include: reporting illegal conduct, refusing to engage in illegal conduct, reporting fraud, filing a wage claim with the California Labor Commissioner, filing discrimination lawsuits, complaining of workplace discrimination or harassment and assisting other employees in filing a lawsuit or complaint of illegal activity in the workplace.

Federal law also protects employees from workplace retaliation if they file a discrimination or harassment complaint at work. An employer also cannot lawfully punish an employee for cooperating with EEOC investigations or if they decide to serve as a witness against the business. This is also true of whistleblower activities such as complaining of unsafe working conditions.

Savvy HR Departments must keep a lookout. It may be easy to identify a manager’s retaliatory activity when they want to immediately terminate an employee shortly after they file a harassment complaint. However other times it’s not as clear. Remember that only those changes that have an adverse effect on employment are considered retaliatory.

Below are some examples of activity that can be considered retaliation:

• Unfair disciplinary action
• Negative performance reviews
• Micromanagement shortly after filing a complaint
• Exclusion from project meetings that you’ve been working on
• Denial of ongoing training
• Denial of promotions
• Denial of raises
• Increased workload
• Termination

How can you ensure that your company is not charged with retaliation?

HR must have an open door and empower employees to report complaints and must communicate to both employees and managers that there is a zero tolerance policy on retaliation.

HR can help deter retaliation by incorporating best practices that will help employers prevent or reduce the likelihood of a retaliation charge or lawsuit.

Employers should take the following steps to prevent retaliation:

• Create an anti-retaliation policy.
• Communicate with employees about the process for reporting alleged retaliation.
• Train managers and employees.
• Remind supervisors under investigation of the organization's anti-retaliation policy that they will be subjected to disciplinary action if they retaliate against individuals who complain of discrimination or who provide information related to a discrimination complaint.
• Monitor the treatment of employees who file a workplace complaint or who provide information related to a complaint.
• Investigate allegations of retaliation and take prompt corrective action when warranted.

Internal complaint procedures are an important component of any initiative to prevent retaliation claims. Ensuring that employees have an avenue to report concerns isn’t just helpful; in many cases, it is required by law.

Communicating and training your managers to identify protected activity and to ensure they moderate their own actions toward employees is also crucial in preventing retaliation.

Lauren Sims, the author this article, is an eqHR Solutions Principal Human Resources Consultant.

When professional Human Resources or Payroll advice is required to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, call for a no obligation consultation.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.