4 Ways ADA Management is Like Raising a Pre-Teen

The world of absence management is continually evolving and changing, and this is one of the many reasons I love my work.  One component of my role is assisting organizations in managing their disability and leave programs, which includes being compliant with the American’s with Disabilities Act (ADA) and Amendments Act (ADAAA).  The ADA has pained employers for years due to its regulatory complexity, and although they are making strides and building functional processes to address it, it can sometimes feel like two steps forward and one step back.

I recently conducted a training on the ADA for a large employer team of subject matter experts.   After a challenging week of what felt like personal parental fails, I used an analogy that managing your ADA program is a lot like raising a pre-teen! Truth be told, that wasn’t in the script, but it was top of mind at the time and I knew that most of the audience could relate to both parental and ADA struggles.

If you still aren’t convinced of the overlap, I have outlined four challenges with the ADA (that I also experienced with my 12-year-old daughter).

  1. Everything must be managed on a case-by-case basis

Organizations must have a prescribed process to identify and manage ADA cases to ensure potential accommodations do not slip through the cracks. However, the regulation is clear in that every case must be reviewed based on its own merit.  Employers must consider every request, examine what is needed, and consider solutions that will satisfy the employee’s needs without causing undue hardship to the organization. Key elements of any job must be considered, such as location, essential functions, organizational structure, hardship potential, duration and the like. A simple yes or no is rarely enough. There are often conditions that must be met, including the potential for extensive negotiation, and any decision may be accomp

ADA Management

anied by resistance from different parties.

At home I also take into consideration things like location, duration, hardship to the family unit and every request must be reviewed on its own merits.  Just like with your ADA requests, a yes is always met with delight, but a no will always cause additional work and difficult discussions. That said, that doesn’t mean that you can routinely go the “yes” route just because it’s the path of least resistance.

 

  1. There is a constant demand for “things”

Regardless of whether the request is for Instagram or a sit-stand desk, the requests just keep rolling in!  Giving a simple “no” just isn’t going to work. You must engage with your employee (or child) by asking questions, digging into the details, justifying your rationale and following documented policies and regulations (or family rules). Why do they need what they are asking for? Examine both sides of the argument.

With accommodation requests, a simple “yes” is rarely the optimal solution.  The key is to really understand what is needed versus what is requested, as there are often gaps in between.  The dialogue and documentation need to support what the employee can do and what will ensure they are able to do the essential functions of their job with or without accommodations.  Simply approving their request for something may not actually yield a successful solution.  Instead as the employer you need to find an accommodation that suits not only the employee but as many stakeholders as appropriate.  I recently worked with a client surrounding parking accommodations which were on the rise and extremely challenging given their various office locations and distances to sites.  It highlighted how a simple “yes” doesn’t always  work.  Instead great care needs to be taken with each request and each potential accommodation.

With my daughter it started with an iPod and grew to the iPhone, which has now turned into social media requests.  Just saying yes doesn’t work for me – I need to dig in and see what I can provide her that might satisfy her need to fit in without creating an undue hardship for me. And if I do say yes, you can bet there is going to be a social meeting

agreement (similar to an accommodation agreement) to hold us both accountable! .

 

  1. Your voice is drowned out by others

Employees requesting an accommodation typically have resources to work with at an organization.  They may be working with a disability or workers’ compensation partner, their supervisor, HR, benefits and even occupational health resources.  All those voices become noise in the ADA process.  Even with the best of intentions, those s

ources put pressure on the situation that may drown out the voice of the accommodation team. Some parties may be encouraging return to work too aggressively or not aggressively enough. Silence from those resources may be perceived as lack of support the same way that vocalization may be viewed as intimidating. How do you find the right balance?

The key is to manage expectations within the ADA process and bring the stakeholders together by giving them a seat at the table.  The interactive pr

ocess is a very critical part of accommodation reviews; it cannot be avoided in a compliant process.  Instead of dreading that part of the process, try to embrace it.  Use it to get to the best solution for the employee and the stakeholders and then make a firm decision on what can be implemented.

All parents understand that our children aren’t always listening to us even though we may think every word we utter is critical and wisdom-filled (just like a strong HR professional). Further, what they hear from us may differ from what they hear from their friends, friends’ parents, teachers, or even your spouse. But regardless of the frustration or eye rolls, the ultimate decision related to our children rests with us.  They may try to change our minds or tell us all the reasons why other opinions should be valued, but we determine the best solution and do our best to implement it at home.

 

  1. The goal post is hard to see, but it’s there in the distance

An organization cannot be compliant with the ADA, or appropriately manage absence, unless they are dedicated to developing an accommodation program and following through with clear processes and documentation. With that said, it is a long game – a marathon, not a sprint.  Most employees and supervisors will not be singing your praises immediately. At first, they will feel like you are making it “too easy” for employees, or “rewarding” employees who are abusing the system.  At the same time employees may think you are “asking too many questions” or “forcing them to pay more money to get paperwork completed.” On any given day all those things may be true, but you are also working to provide a compliant work environment that accommodates employees fairly. You want a solution that returns employees to productive work, processes that are in good faith and interactive and a way that documents what steps were taken and what was agreed to.  All of those are beneficial to your organization and to the individual as well.

I was recently working with a client that learned the hard way about documentation. They had a healthcare resource that was given an accommodation around not performing CPR as it was not viewed as an essential function. This employee was transitioned to a new role where CPR was required but the knowledge of her accommodation and lack of ability to perform this function was missed during transition. Unfortunately, this placed an unanticipated strain on the organization, which could have been avoided with greater documentation. Instead, the involved parties were working to solve the immediate need without thinking about the long-term impact on the employee or the organization.

As you focus on return to work and accommodations, try to aim for incremental change toward the most successful program possible, keeping the long-term vision in your view. Start with your policies and procedures, ensuring they reflect the type of program your organization needs.  Consider them as living documents that will require revisions as your accommodation program matures.  Build an efficient process around those policies, doing your best to move toward that pre-defined, distant goal post.

At home, incremental change is necessary as well.  Do I want a clean room, laundry done, dishes finished and homework perfect? Yes.  But I will settle for incremental change toward a successful and productive member of society.  This may mean taking things one step (or chore) at a time or placing more focus on the achievements compared to the gaps.

So next time my daughter tells me I am “annoying” and “all the other kids have Instagram” and “I don’t know what it’s like,” I will remind myself that on any given day those things may be true, but I’m trying to raise a healthy, happy kid and building this foundation is necessary to create long-term success.  Right now, it’s hard for me to see the goal post but I know it’s there.

 

Regulation around the ADA is complex, like my pre-teen, but it’s important to remember that it is built on the core premise of avoiding discrimination and pushing employers to do what is right.  It sometimes forces a difficult dialogue between employers and employees, but the goal is optimal for both parties.

Spring’s Managing Partner Makes Captive Review’s Power 50

We are proud and excited to announce that our Managing Partner, Karin Landry, has been named to the Captive Review Power 50 Power 50list for 2018, a recognition she’s received for the past several years. This year, she comes in at #10 and is alongside impressive company.

In a male-dominated industry, Karin has worked hard to make a name for herself and is a known thought leader in the captive space. She holds eight patents in insurance and is an expert in things like employee benefits captive, multinational pooling, medical stop-loss and health plans of all kinds. Karin works with large, global corporations of varying industries and types, and delivers tailored solutions based on their needs. As a means to grow the profession and prepare the next generation of captive experts, she also teaches a course at the International Center for Captive Insurance Education (ICCIE).

She is not only an industry leader, speaking at conferences such as the World Captive Forum, CICA and VCIA regularly, but she also runs the ship here at Spring, and we are glad to have her.

Spring SVP Named 2019 Power Broker

Karen English Power BrokerWe are thrilled to announce that our Senior Vice President and Consultant, Karen English, has been named a 2019 Workers’ Compensation Power Broker by Risk & Insurance.

Karen is no stranger to this accolade, having been named a Power Broker several times in the past. However, the past year has been especially busy and successful for Karen, who continues to aid large, global employers with their workers’ compensation and other absence-related challenges, such as FMLA and disability. Not only does she lead projects hands-on, but she bolsters Spring’s industry expertise with her market research and survey team. She specializes in leveraging data to improve processes, and delivers a tailored solution for each individual client. Karen was one of the founding partners of Spring back in 2004, and has been the forefront of the company’s growth and high performance.

Karen is in good company on this impressive list, alongside leaders from fellow Alera Group firm, Orion Risk Management, Aon, Marsh and others. We are proud to have her on our team and look forward to her contributing to Spring’s continued success in the coming years.

Spring to Speak at 2019 CICA International Conference

The Spring team is excited to once again break from Boston’s cold winter and head to Arizona for the 2019 Captive Insurance Companies Association (CICA) annual international conference, which takes place from March 10th to 12th in TucsonCICA 2019 Conference

Spring has been involved with the annual CICA event for over a decade, and has acted as a sponsor, exhibitor, and speaker in the past. This year, Spring’s Managing Partner, Karin Landry, will be leading a session, “Getting Smart with Lost Time: Integrating Workers Comp & Disability”, on Monday, March 11th at 2:15 PM. The discussion will center around the advantages of integration between programs and the related trends, challenges and approaches. We will also cover optimization and impacts on various stakeholders. Several case studies will demonstrate cost savings opportunities as well as the different strategies available. The audience will leave with a framework for implementation and be able to draw upon real-life examples and best practices from large, leading global organizations.

We hope you have the chance to stop by Karin’s session, or at least find one of our team members amidst the workshops and networking opportunities to chat in person.

 

Let’s Give Them Something to Talk About

The Massachusetts Paid Family and Medical Leave Listening Sessions

Spring attended the listening sessions in Boston and Springfield where employers and their advocates provided constructive feedback to the proposed Massachusetts Paid Family and Medical Leave (“MA PFL”) regulations, a draft of which was released in late January.  We gained a lot of insight into the proposed plan, its gaps and possible hurdles to its approval, and we wanted to share with industry professionals who were unable to join.

To set the tone, those sharing their questions and identifying areas that require clarification were thoughtful and balanced in their approach.  Many voiced their concerns after an introduction that included appreciation for the core tenants of the statute.  Top-of-mind was a struggle with the lack of guidance around the exemption process, clarification on definitions and administrative complexities.  As an advisor in this field, who has worked with employers to implement paid leave in other states, multi-state employers were definitely highlighting provisions that have proven to be an ongoing challenge with other state paid leave programs. Paid Family Leave

At each session approximately twelve individuals submitted verbal commentary.  Although the Boston commentary was primarily from attorneys representing smaller employers that are struggling to implement the regulation, the Springfield representatives were primarily from employers and represented groups of all sizes.  The representatives from the Commonwealth were in listening mode, diligently taking notes and occasionally asking for clarification on the comments.  Feedback could be summarized into five primary categories, which we will further elaborate on:

  1. Definitions
  2. Exemption process and impacts
  3. Certification process, including retaliation and appeals
  4. Coordination with employer policies
  5. Taxation and cost considerations

Definitions

  • Organizations were looking for additional clarification on the definition of domestic partner, qualifying reason and increments of time.  The goal was to refine them to be more specific and, where possible, more in line with the federal regulation.  Similarly, for any time tracking (i.e. 90 days for certification, 6 months for retaliation) employers are seeking more specificity around when the clock begins.
  • Within the regulations there is a reference to providing information related to an employee’s position; clarification was requested on what that represents.  For example, will a job description suffice or will physical demands be required?
  • When considering the exemption process, employers want to better understand the definition of equivalency.
  • The regulation leverages 1099’s as a point of reference for “employees”, however many spoke about 1099’s not being the best assessment and the need for additional consideration to be given to defining employees.
  • The group was curious as to how the look back provision will work in the first year.

Exemption Process

  • Employers are anxious for more information related to the exemption process, especially private plan requirements.  Questions centered around how vendors will be approved and leveraged, what reporting will be required, and what will the bond process entail.  The timeline of the process was also discussed with particular interest in what happens to contributions from July 2019 – January 2021 (assuming exemption if approved) for exempted employers.
  • The sharing of wage information was of concern to many speakers, including both process and timelines.

Certification Process

  • The certification process prompted dialogue around expanding the list of who can certify time.  In addition, extensions on certifications were identified as administratively complex under the draft regulations, as notice requirements may be compromised if employers are waiting for employees to see their provider before certifying an extension.
  • Given the timeline for certifications, employers raised concern over protecting time before an actual approval is made.  Similarly, when no claim is filed, how and when can an employer take action?
  • The retaliation provision was an issue for many.  Advisors and employers are seeking additional guidance in order to limit their potential liability.
  • Although appeal details are unclear, it is believed that an appeals process will exist in the final regulations.

Coordination with ER Policies

  • In the current state, employers are required to allow employees to continue to earn time while on leave; however, if earned time off is based on hours worked, what will be the requirement?
  • Some employers questioned how this leave will coordinate with complex policies related to time off.  For example, if an employee must work the day before a holiday and/or the day after a holiday to receive holiday pay, how will that impact employees that leverage MA PFL?  Will employers be able to maintain those provisions, or will MA PFL not allow for those constraints?
  • Coordination with workers’ compensation was highlighted as an area needing additional thought.  Similarly, how the regulation would impact an employer’s ability to explore restrictions and accommodations during leave could be negatively impacted.
  • Employers noted that a feature of the FMLA that could be transferred to MA would be to ensure employees that have no intent to return to work are not given paid time arbitrarily.

Taxation and Cost

  • Although the cost of the program including staffing and health care premium dollars were mentioned, we do not expect any sweeping changes. However, there may be an opportunity to add language that specifies if any costs can be recouped, especially if employees do not return to work.
  • A handful of people spoke about the need for clarification surrounding how the contribution will be calculated.
  • Taxation of the contribution as well as the earned income was a worry and requires resolution.

 

The Commonwealth seems to be setting a strong foundation by openly seeking feedback from its constituents and giving themselves a long runway, which we hope and expect will assist in a smoother roll out than experienced by other states.  In addition to the listening sessions there is a lot of work going on behind the scenes develop the infrastructure.  In February, they will be seeking feedback on digital tools they are developing to help employers understand the impacts of the law.  It is expected that this will also include contribution calculators and other tools.

Employers who did not attend the sessions should feel welcome to attend a session in the future submit written comments for consideration.  Written presentations may be sent to MassPFML@Mass.gov.  The Commonwealth will be used to refine the next draft of the regulation.  Although responses can reference the statute, changes to a passed statute are unlikely; however, the regulations supporting that statute and providing further details can provide necessary clarification to ensure the MA PFL can be managed with limited ambiguity.  Spring will continue to follow the MA PFL; if you would like to submit commentary please contact us at teri.weber@springgroup.com or karen.english@springgroup.com.

Government Shutdown and Its Impact on Employee Benefits

As the federal government partial shutdown continues, employers who rely on government contracts or have business models that depend on a fully operational government are now forced to make difficult decisions regarding their workforce. Some employers are contemplating reductions in force, layoffs, or furloughs to weather the financial ramifications of the
shutdown. This leads to questions about employee benefits, and how benefits should be handled during these leaves of
trump maternity leaveabsence.

Employers contemplating a reduction in force, layoff, unpaid leaves of absence, or furloughs, should review the following:

  1. Review their employee handbook and plan document for eligibility provisions. How plan eligibility is determined will be critical in determining how benefits are or are not continued.
  2. Review their carrier contracts, including stop-loss or reinsurance provisions regarding eligibility.
  3. If they are an applicable large employer, review their obligations under the employer mandate
    play or pay provisions.
  4. Communicate process for benefit premium payments, if applicable.
  5. Provide COBRA notices appropriately, when necessary.

Eligibility Policies

Employers are obligated to follow the provisions put forth in their plan documents, and mirrored in their employee handbooks, for benefit eligibility. Employers whose handbooks do not contemplate layoffs, furloughs, or reductions in force, or who have conflicting language between documents, should consult with their legal counsel.

Carrier Contracts

Employers should work closely with their carriers, including stop loss and reinsurance carriers, to ensure that both parties agree about who is and who isn’t eligible for benefits. Conflicts between parties will require legal counsel.

Applicable Large Employers (ALE)

To comply with the ACA, applicable large employers must offer their full-time employees health coverage or pay one of two employer-shared responsibility/play or pay penalties. An applicable large employer has 50 or more full-time or full-time equivalent employees in the prior calendar year. Full-time employees are employees who are credited with 30 hours of service a week or more. A full-time equivalent employee is calculated by combining the number of hours of service of all non-full-time employees for the month (not including more than 120 hours of service per employee) and dividing the total by 120.

Under the ACA, any hour for which an employee is paid or entitled to payment must be counted as an hour of service. This includes:

  • An hour worked
  • Holiday
  • Incapacity (including disability)
  • Military duty
  • Vacation
  • Sick time
  • Layoff
  • Paid leave

This means that employees of applicable large employers will continue to accrue hours of service during a leave of absence due to the layoff provision if they are paid. If the employer is an ALE, and the employee is still considered full-time (e.g., due to being in a stability period), the employer will continue to be obligated to offer the full-time employees affordable, minimum value health coverage. Failure to do so would risk triggering ACA penalties (i.e., the “affordability” penalty, as the COBRA coverage offered due to the reduction in hours is likely to be “unaffordable”).

Employers are provided with two methods to determine an employee’s full-time status: the monthly method, and the measurement
and lookback method.

  • Under the monthly method, the employer looks at each employee’s actual hours of service each calendar month (an hour worked or an hour of paid time for vacation, holiday, sick time, incapacity including disability, layoff, jury duty, military duty, or other paid leave) each calendar month. An employee is full-time for the month if he or she works 130 hours, no matter how long or short the month is.
    • Under the look-back method, the employer looks at the number of hours the employee averaged during a look-back period called a “measurement period.” Once the employer determines whether the employee worked full-time during the measurement period, that determination generally will apply throughout the immediately following stability period regardless of the number of hours the employee actually works during the stability period (unless the employee’s employment ends).

Layoffs

If the employee is laid off during a stability period (not terminated) and is considered full-time, affordable coverage must be offered during the layoff to avoid exposure to potential penalties. Once the layoff is over, if the employee returns to work within 13 weeks (26 weeks for educational institutions), coverage must be reinstated by the first day of the month
following his return to work.

The time on layoff will not count as hours of service for purposes of the measurement period if the leave is unpaid. If coverage is terminated and the layoff exceeds 13 weeks, the employee can be treated as a new employee, with a new waiting period or initial measurement period, when he returns (of course, the plan may be designed to reinstate all returning employees immediately upon return). Generally, if the employee had coverage during the layoff (e.g., through COBRA or another extension of coverage), coverage will be reinstated upon return. There will be no hours of service to measure during unpaid leave (except for unpaid jury duty, FMLA or USERRA leave).

Unpaid Leave

If the employee is on an unpaid leave of absence (except FMLA) and in a stability period as full-time, the employee must be offered affordable coverage through the stability period to avoid potential penalties. When the employee’s hours are calculated during the measurement period, the leave of absence (except FMLA) will count as zero hours of service. Employers that are ALEs should seek experienced legal counsel to ensure that their plan documents reflect their practices during any furlough, layoff, reduction in force, or leave of absence to mitigate risk under the ACA.

Payment of Premiums

Employers who continue offering benefits during a furlough, layoff, or reduction in force will need to establish a process for premium payment.

Employers that already have an established process for premium payment during unpaid FMLA leave or during a pay shortage (for example, for tipped employees) should utilize those policies. The IRS has not provided guidance or regulation for handling pay shortages without a loss of benefit eligibility. Employers often refer to the rules provided for handling employee contributions during an employee’s unpaid Family Medical Leave Act (FMLA) leave. There are three options that employers have during unpaid FMLA leave:

  • Pre-payment
  • Pay-as-you-go on an after-tax basis
  • Catch-up salary reduction upon return from leave

During the government shutdown, it is likely that only the second two options would be feasible. The premium payment policy should be uniformly enforced for all employees. Employers may set a time limit for the employee to catch up on contributions before terminating coverage, as well as a maximum period of time over which employees may spread payments. Employees should be allowed uniform periods of time to pay back missed contributions; for instance, management should not be given three months to pay back missed contributions when other employees are only given one month.

COBRA

The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) allows qualified beneficiaries who lose health benefits due to a qualifying event to continue group health benefits.COBRA

COBRA qualifying events include what is called a “reduction in hours.” A reduction of hours commonly occurs when an employee goes from full-time to part-time, when an employee is temporarily laid off or furloughed, or when an employee goes on a leave of absence. The IRS COBRA regulations provide that a reduction of hours in a covered employee’s employment “occurs whenever there is a decrease in the hours that a covered employee is required to work or actually works, but only if the decrease is not accompanied by an immediate termination of employment.”

In this event, employers who are subject to COBRA should timely provide affected employees with their COBRA election notice if their reduction in hours results in a loss of coverage under the plan.

COBRA Strategy for ACA Compliance or Culture Concerns

In the event that a plan document, employee handbook, or carrier policy determines a furloughed or laid off employee is no longer a benefits eligible full-time employee, employers who are subject to COBRA could offer impacted employees COBRA coverage and assist the employee with premium payment.

Under the ACA play or pay provisions, an offer of COBRA coverage is considered an “offer of coverage” and if an employer assists in premium payments, COBRA coverage could potentially be made affordable to ensure the employer was not triggering ACA penalties for failing to offer affordable, minimum value coverage.

Spring to Speak at World Captive Forum 2019

We’ll be packing our bags for sunny Florida soon enough! Spring’s Managing Partner, Karin Landry, will be speaking on three different panels at this year’s World Captive Forum.

The three-day event will run from January 30th to February 1st in Turnberry Isles, Florida and we expect a great turnout of employers, regulators and service providers alike, all there to share their experiences and perspectives.World Captive Forum 2019

Karin will lead the following sessions:

  • State Regulation Again! Time for a Fresh Look! from 10:45-11:45 AM on January 31st. She will be speaking alongside Joseph Holahan, Attorney at Morris, Manning & Martin, LLP about the varied regulatory issues facing the captive industry today. They’ll be looking at Washington state and others who have passed recent tax regulations related to captives, and fleshing out how captive professionals can move forward.
  • US Benefits – It’s a Better Year from 1PM to 2PM on January 31st. Karin and David Slenn, Partner at Shumaker Loop & Kendrick LLP, will discuss benefits captives – where they stand today and where they’re headed. They will specifically address updates from the Department of Labor (DOL) and share a case study to bring the topic to light.
  • Stop-Loss in Captives from 2:15-3:15PM on January 31st. In this session, Karin will be joined by Steve Kroll of International Capital Investment Company and Tom DeNoma of Nationwide to discuss the growing trend of stop-loss captives and best practices in doing so. They will represent the employer, insurer and consultant viewpoints.

Spring has been to the World Captive Forum several times and always finds it to be a strong indicator of industry hot topics. Karin is excited to learn and share her knowledge. Not to mention she’ll get to escape from the Boston cold! If you’ll be in Florida too, don’t forget to catch a session (or two or three) or Karin’s and say hello.

Spring to Exhibit at Yankee Dental Congress 2019

Our team is excited to head to the Yankee Dental Congress in Boston’s Seaport from January 30th to February 2nd. As a long-time broker and partner for hundreds of Massachusetts Dental Society (MDS) members, this event has always been a rewarding way to meet with small business owners and vendors in the dental arena. In fact, this will be Spring’s 10th year in a row being involved with the Yankee Dental conference, and we are thrilled!

Captive Insurance

The four-day event is sure to bring the best and brightest in the field, drawing a crowd of almost 20,000. We look forward, as always, to this networking and learning opportunity. If you will be at the conference – which takes place at the Boston Convention and Exhibition Center – please stop by booth 2234 and say hello! We will have plenty of fun giveaways, as well as information about the services we offer to so many of the area’s dentists (among others).