Navigating Transgender Leave: Updated 2021

A lot has changed since we first wrote about this in 2019. Here is an updated view!

Introduction

The societal understanding of what it means for an employer to be truly inclusive of all diversity groups has expanded exponentially since the turn of the 21st century. Employers are increasingly faced with multifaceted Human Resources related topics including cannabis, cybersecurity, sexual harassment, and a push, in many states, for equal opportunity for paid leave. Equal opportunity accommodations do not just vary between male and female employees but also between groups based on race, religion, and gender identity. Pride Month employers

Gender identity itself varies extensively, but one concentration is the difference between individuals that identify as either cisgender (the same gender as their sex at birth) or non-cisgender (not the same gender as their sex at birth). The non-cisgender identity includes a wide umbrella of individuals who do not identify or present themselves with the sex they were assigned at birth, including transgender (not the same gender as their sex at birth) and non-binary (neither exclusively female or male) individuals. This particular group of individuals has historically faced major roadblocks in society and until recently, had not experienced inclusion and accommodations in the corporate world. Even with the progress that has been made, there is still a gap in today’s employee benefits environment for anyone deviating from “the norm”.

To begin with, most transgender individuals have different day-to-day fundamental needs, such as public (retail stores, restaurants, etc.) accommodation, legal protection, and healthcare access than cis-LGBQ individuals. This gap in provided care and accommodation practices appears in a variety of system-related and brick and mortar ways, but also in regard to compassion and understanding regarding an employee’s reason for needing time away from work, and often whether or not they are granted a requested leave of absence.

We are happy to report that the Human Rights Campaign (HRC) Foundation reported a record number of 767 companies achieving a top score for LGBTQ-inclusive workplace policies in 2021, up from 686 companies in 2020. The report also shows that 94% of Fortune 500 companies have gender identity protections in their nondiscrimination policies, and that 71% of Fortune 500 companies offer transgender-inclusive health insurance, something that zero companies were providing in 2002. Despite this tremendous advancement, throughout the United States the trans population is still up against unique challenges and hardships, particularly when it comes to intentional or unintentional employment-related adversity.

Patchwork of Protections

While areas of the United States are becoming more progressive and accepting of the overall LGBTQ community, and indeed there are some regulations in place to protect this population, laws remain ambiguous at best and nonexistent at worst (i.e. in certain states). At the federal level, The Civil Rights Act of 1964 outlaws employment discrimination on the basis of “sex”, among other things, but until recently, the term was vague and ill-defined. This ambiguity caused historical irregularity in not only leave management but also court handlings. Because of this uncertainty, Congressional Democrats recently reintroduced the Equality Act, which would add “sexual orientation” and “gender identity” to the groups protected by the Civil Rights Act. The bill passed the House in May of 2019. Then, in June of 2020, the U.S. Supreme Court ruled that the Civil Rights Act does protect against gay or transgender employees from employment discrimination, effectively outlawing termination for sexual orientation or gender identity reasons. Most recently (May of 2021), President Biden restored a provision of the Affordable Care Act (ACA) that protects against sexual discrimination in healthcare, including sexual orientation and gender identity.

In the well-known case of Macy vs. Holder/Department of Justice, the court ruled that The Civil Rights Act does protect against gender identity and transgender discrimination. In this scenario, a police detective, at the time presenting herself as a man, aligning with her birth gender, interviewed for a job in California. A director at the company informed the individual that the position would be theirs as long as their background check did not present any ‘problems’. Following the individual’s open commencement of transition and promptly following a notification to the hiring company, the individual was informed the position was ‘no longer available’. Although this instance concluded in favor of the prospective employee and can serve as a guide and a beacon of hope for the transgender community, it does not mean that a different court will rule the same.

Many pieces of legislation are outdated simply by having language that omits a large portion of the population.  The Americans with Disabilities Act, for example, does not count transsexualism in itself as a disability, but medical conditions that may result from a difference between someone’s gender identity and sex assigned at birth, such as gender dysphoria, are not excluded.[1]  Further, the ADA may cover side effects from transgender exclusion, such as depression, drug addiction, and alcoholism.pride month HR

LGBTQ rights is one area where federal and state regulations often clash. From a statutory perspective, the following jurisdictions have the highest regard for LGBTQ equality, with laws in place that specifically and pointedly protect against transgender discrimination:

  • California
  • Colorado
  • Connecticut
  • Delaware
  • Hawaii
  • Illinois
  • Iowa
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • Nevada
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Washington
  • Washington, D.C.

New Hampshire, Delaware, Virginia, New Mexico and Puerto Rico are rated as “medium” when it comes to LGBTQ protective policies. In addition, the cities of Atlanta, Austin, Kansas City, Milwaukee and Philadelphia, among others, have their own ordinances in place, regardless of their state’s stance. This can both assist with and complicate matters, as does the fact that several states (Alabama, Georgia, Nebraska, South Carolina, South Dakota, Tennessee,) are classified as having “negative” policies when it comes to transgender rights[2]: Luckily, with the 2020 Supreme Court Ruling, employees in states without transgender protections still have legal recourse if they are fired for their sexual orientation or expression. This protection, however, does not cover all hardships a person could face such as difficulty in being hired or interviewed, experiencing harassment, or being treated differently when it comes to pay and career advancement.

The Equal Employment Opportunity Commission (EEOC) is an independent federal agency that aims to safeguard transgender workers and uphold the Equal Employment Opportunity (EEO) laws. The EEO laws state that a person cannot be denied a job, fired, or harassed due to their gender identity. It also mandates that employees be given access to the restroom that coincides with the gender with which they identify, regardless of what it may say on their birth certificate. Most recently (May of 2021), President Biden restored a provision of the Affordable Care Act (ACA) that protects against sexual discrimination in healthcare, including sexual orientation and gender identity.

Despite movement forward, legal protections for the transgender population are full of disparities and confusion and may or may not be strictly enforced. Regardless of your political stance, lawsuits, grievances, and recruitment and retention problems surrounding transgenders in the workplace will continue to arise. In March of 2019, for example, the state of North Carolina was sued for having a health plan that violates federal law by eliminating coverage of certain medically necessary procedures for transgender people. Just before, in February of 2019, an Iowa nurse was granted $120,000 in damages as a result of being barred from using the gender exclusive restroom with which he identified. In 2021, despite recent progress, we have seen a record-setting number of anti-LGBTQ legislation, including a bill that outlaws gender-affirming treatment for minors in Arkansas; laws that allow discrimination based on religious principles in Montana and South Dakota; and many others related to sports, education, and birth certificates[3].

Medical Procedures

From an outside cis perspective, what is often sensationalized the most related to transgender employees taking leave is gender reassignment surgery. According to the National Survey of Transgender Individuals, approximately 55% of transgender women either have had or have wanted neovaginoplasty surgery, and 22% of transgender men have either wanted or have had phalloplasty surgery. It is important to note, though, that some transgender or non-binary individuals never have nor want to have surgery to align their physical anatomy with their gender identity.

Depending on the procedure, and without complications, an employee who chooses to undergo transitive surgery can expect to be out of work for about six weeks (although like any major surgery this may vary by individual). The financial costs and recovery time for an employee undergoing transgender surgery and hormone treatments may surprise you. Hormone replacement therapy costs are often undertaken alone by an individual, if not covered by an insurance carrier, and can cost around $130 a month out-of-pocket. Like all invasive surgeries, full transitive operations are costly
(up to $100K). Some health plans cover portions of these treatments, such as Medicare, which supports hormone therapy. Still, many individuals are left to tackle these costs themselves. In these cases, employers should at least be aware of the financial stress a transitioning employee is likely experiencing.

Gaps in Leave

Many working transgender individuals rely on sick leave or paid time off (PTO) banks as they recover from surgery, but it typically only covers a portion of the days taken. In terms of medical leave, FMLA leave should be an option, especially if there is overnight hospitalization at play, such as with a surgery. At this time, though, no clarifying law or regulation exists that addresses gender treatments specifically.

Instead, each instance must be fact specific in determining if it qualifies as a “serious health condition” under the FMLA. This has created challenges for trans and cis employees alike, as the federal definition may not include all treatments and conditions associated with things like Gender Identity Disorder (also known as Gender Dysphoria) or with a person’s medically supervised gender transition. Further, even if the protection is granted, the leave is unpaid under the federal FMLA.

Paid leave may be available through Paid Family and Medical Leave (PFML) laws or specific employer paid leave programs. PFML laws provide paid leave for medical and family care reasons, wherein medical leave is available to eligible employees experiencing a serious health condition. The definition of serious health condition varies by state and may or may not apply to an individual’s situation. These programs are currently in place in Massachusetts, Washington, and Washington, D.C. Connecticut, Colorado and Oregon will be implementing programs over the next few years. Additionally, states including California, New Jersey, New York and Rhode Island offer state disability insurance programs, wherein employees who meet the definition of disability may be eligible for paid leave. Similarly, many employers offer short term and long term disability to their employees, who may be eligible if they meet the specific conditions set forth. Various programs are continuously being considered by states and jurisdictions throughout the country, as well as on a federal level, so medical and disability leave programs may become increasingly available. Purchasing individual disability insurance as a transgender person is typically more difficult and costly, based on how the carrier calculates individual risk, but it is possible.

Parental leave is another area that is not always offered equally to transgender and cisgender employees. These policies are based on the definition of what qualifies as a parent, thus are subject to the specific federal, state or company-specific terms at hand. While the Department of Labor has clarified that employees, including LGBTQ employees, can take leave under the FMLA to care for a child for whom the employee is serving as a parent, even if there is not a legal or biological relationship to the child, the federal law does not recognize same-sex relationships. Employers continue to examine the inclusivity of their leave policies. A trend seen in the market is the language used to name and define leaves. Parental leaves, for example, are becoming more common than “maternity” or “paternity” leaves and may be available to “birth parents” or “non-birth parents” as opposed to a mother or father.

In some of these scenarios, it can be difficult for the individual as well as the employer to determine which kind of leave, if any, would best suit the employee’s needs. As a rule of thumb, if your company has leave benefits for cisgender individuals, a transgender equivalent should be considered.

LGBTQ employeesAccommodating Your Transgender Employees

It is important for employers, especially those with a robust benefits program, to be educated, have a plan in place and perhaps consider a unique accommodation program, preferably before a trans employee is hired or comes out to their manager or an HR representative.

The extent to which you change or complement your existing benefits program and corporate policies is up to you, but below are some guidelines for treating transgender employees equally and with compassion. It is important to remember that although transgender people represent a minority group, their basic necessities should be able to be reconciled, same as if they were cisgender; anything else may be considered discrimination. At a minimum, consider the following:

  1. Educate yourself and the rest of your workforce as to correct pronoun usage and courtesy
  2. Enforce or reinforce your discrimination policy; train your workforce to be aware
  3. Understand what kind of coverage your health plan offers for things like hormone therapy, and consider alternatives if feasible
  4. Define the family members for which an employee is eligible to take leave to include same-sex partners as well as the children of a same-sex partner, regardless of biological or adoptive status
  5. Include Gender Identity Disorder and procedures relating to gender transition as qualifying conditions for employer granted medical leave for both the employee and their partners
  6. Implement a flexible work schedule or leave policy (whether paid or unpaid) for treatments and non-medical appointments
  7. Assign a suitably trained counselor or advocate for when your transgender employee returns from their leave
  8. Update your restroom and dress code policies for greater inclusivity – potentially including non-gendered restrooms
  9. Update records to reflect name and gender changes, as applicable
  10. Respect the privacy, or willingness to go public, of employees who are coming out as transgender to you

Conclusion

LGBTQ, and more specifically transgender, rights have become a hot topic and a widely debated political issue. Our intent here is not to change your beliefs or take a political stance, but merely to increase awareness of the reality of this timely and increasing human resources challenge.

 

 

[1] Result of Kate Lynn Blatt v. Cabela’s Retail, Inc. 2017.

[2] https://transgenderlawcenter.org/equalitymap

[3] https://www.hrc.org/press-releases/2021-officially-becomes-worst-year-in-recent-history-for-lgbtq-state-legislative-attacks-as-unprecedented-number-of-states-enact-record-shattering-number-of-anti-lgbtq-measures-into-law

 

The Paid Leave Momentum

According to SHRM, paid leave may have been 2020’s biggest workplace news.  A number of U.S. companies (between 27% and 52% depending on the study) expanded their paid leave benefits, with paid parental leave growing at a faster pace than paid family care leave1. The states and jurisdictions of California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, and Washington DC have passed paid family and medical leave (PFML) laws to date and at least another ten states are considering them. In addition, numerous localities have passed paid sick and safe leave laws. These can vary across cities and counties, even within a given state.Paid leave in US

On a federal level, laws exist such as the Family and Medical Leave Act (FMLA), enacted in 1993, which affords unpaid job-protection, and programs such as the Fischer Tax Credit, the Federal Employee Paid Leave Act (FEPLA), and the Families First Coronavirus Response Act (FFCRA). Federal programs offer limited coverage as wage replacement and job protection may or may not be included in each law. A federal paid leave program is now seemingly supported by both democratic and republican parties, with the biggest difficulty being how to pay for it.

In addition, and to complement paid leave policies, more companies are offering and triggering EAP and wellness programs than they have in the past. About a fourth of companies say they provide a caregiver benefit, separate from EAP, that might include flexible work hours, personal time, counseling services, free programs for finding and managing care, employer subsidized online resources, child, or eldercare.2 You can read more about the landscape for caregiver benefits here.

This momentum has been a positive move towards bringing our country closer to the other 40 nations that mandate some degree of paid leave3, and to help employees balance time for work, family, and medical needs, but creating such programs is not without its challenges.  With no two state PFML jurisdictions sharing the same standards, the varying employer, state, and federal programs result in a “patchwork” of definitions and standards for companies to contend with.  They can also limit employer flexibility to address the unique needs of their workforce, expose employers to financial liability, and create inefficient administration processes4 that result in an increased HR/Benefits workload5.

To overcome these challenges, the time is now for employers to review their state and national employee base and consider how leave benefits can be provided in accordance with their culture, appetite for risk and desired employee experience.  Key questions to begin with include:

  • Where do the bulk of my employees work?
  • What corporate disability, paid family and medical leave and sick or safe leave policies are they subject to?
  • How are these plans being offered, administered, and paid for?
  • To what extent do they coordinate or integrate with other leave of absence, workers’ compensation and sick or PTO policies? Or with broader health and wellbeing programs?
  • To what degree can the process be centralized? Can current vendor partners be leveraged to streamline? Can tools be provided to simplify, educate, and personalize?

Taking these factors into account gives benefit professionals the opportunity to heighten the discussion with senior management, consider plan and policy design more holistically and determine administration that will minimize employee confusion, position managers for stronger engagement, and lead the organization towards better outcomes.

 

 

Sources

[1] Leave and Flexible Working Survey, SHRM Employee Benefits, 2019.  Paid Time Off Survey, WorldatWork and PTO Inc., 2019. Integrated Disability, Absence and Health Management Survey, Spring Consulting Group, 2020.

[2] Integrated Disability, Absence and Health Management Survey, Spring Consulting Group, 2020.

[3] Data compiled by the Organization for Economic Cooperation and Development (OECD), 2018.

[4] Paying the Way, Large Employers and the State Paid Leave Patchwork, The ERISA Industry Committee, 2020.

[5] Paid Leave: Exploring the Impacts to Other Benefits Programs, Spring Consulting Group and ClaimVantage, 2020

9 Areas of Focus for Employers Right Now: Parts 1 and 2

2020 has been a crazy year, and guess what? It’s not over yet. While we are still dealing with unusual circumstances and different challenges, we have all, to some degree, learned to roll with the punches over the last six month or so.
But as we all devised solutions for issues we did not anticipate facing, questions still remain. As we reflected on DMEC’s annual (virtual conference) and our discussions with our employer clients and vendors, we started jotting those blurry areas, and came up with nine items that are top-of-mind for benefits, HR, and absence management professionals.

HR Lessons 2020

  1. Telework

For the most part, employees that are able to telework are still doing so, a practice largely encouraged or required by employers. This is a safer and, in some ways, easier alternative and we are lucky to have technology to support remote working. Each employee has a different home situation, and their preference for remote working versus office working will depend on things like:

  • Where are their more distractions – at home, or at the office?
  • Do they have children at home that they are also homeschooling?
  • Do they have at-risk individuals in their home?
  • Do they have adequate space for a work setup conducive to productivity?

As teleworking continues for many employers further into 2020 and possibly beyond, companies need to be thinking about:

  • Do employees in remote areas have sufficient internet access?
  • Do employees have the equipment and amenities they need to do their job?
  • How will long-term or permanent teleworking affect corporate culture and camaraderie? What about the impacts on mental health?
  • Rethinking communications and management strategies in a virtual world.
  • Work-life balance issues and difficulties with shutting off work when working from home.

The consensus seems to be that regular communication, check-ins and different types of collaboration are a must. Employers may want to conduct surveys to gauge employee stress levels, the support they feel while teleworking, and family and home situations. One DMEC session reported that employers rated their teleworking experience as better than their employees did. Be sure to stay connected to ensure alignment.

Encourage employees to set boundaries and stick to them. Maybe they need an extended lunch hour to tend to their children’s needs, or they need a hard stop at the end of the day to ensure they disconnect from work, or they need 30 minutes a day to go for a walk to make sure they leave their house that day. Flexibility and compassion are key themes this year.

 

  1. Workplace Safety

To be clear, teleworking is strongly encouraged when possible, but depending on the job itself or the in

dustry of the employer, there are going to be people who cannot do their job remotely. When that’s the case, workplace safety takes on a lot more weight these days. Some of our recommendations are:

  • Creating a social distance plan, which could mean spreading out workspaces and/or designated one-way aisles for walking.
  • Requiring temperature checks each time an employee enters the building (this must be done confidentially and consistently for all employees). This might even include returning from a lunch or coffee break.
  • Installing plexiglass around workspaces.
  • Providing hand sanitizer, masks and thermometers for staff.
  • Installing antimicrobial door handles.
  • Propping doors open when possible so people can avoid high-touch areas.
  • Prohibiting non-employees from entering the office, such as vendors.
  • Implementing visual displays so people understand the proper distance to keep, where they should walk, where the high touch areas are, etc.
  • Assessing air ventilation in the office for possible improvements.

As a note, it is permissible for employers to require personal protective equipment (PPE) in the workplace, as well as to require testing for employees. In some cases, and when possible, some employers are going further and considering things like changing job responsibilities or moving the location of the job to a safer area. For example, perhaps you have a satellite office in a less infected region than headquarters that an employee can report to. Commuting concerns are something metropolitan businesses will need to address.

Some of these changes may be costly and timely, but some are simple. While the wellbeing of employees should always be top of mind for employers, there are other things at stake too. Failing to take preventative safety measures in the workplace could easily lead to workers’ compensation claims and OSHA lawsuits.

 

Stay tuned for #’s 3 and beyond…

Navigating Transgender Leave

The societal understanding of what it means for an employer to be truly inclusive of all diversity groups has expanded exponentially since the turn of the 21st century. Employers are increasingly faced with multifaceted Human Resources related topics including cannabis, cybersecurity, sexual harassment, and a push, in many states, for equal opportunity for paid leave. Equal opportunity accommodations do not just vary between male and female employees but also between groups based on race, religion, and gender identity.

Gender identity itself varies extensively, but one concentration is the difference between individuals that identify as either cisgender (the same gender as their sex at birth) or non-cisgender (not the same gender as their sex at birth). The non-cisgender identity includes a wide umbrella of individuals who do not identify or present themselves with the sex they were assigned at birth, including transgender (not the same gender as their sex at birth) and non-binary (neither exclusively female or male) individuals. This particular group of individuals has historically faced major roadblocks in society and until recently, had not experienced inclusion and accommodations in the corporate world. Even with the progress that has been made, there is still a gap in today’s employee benefits environment for anyone deviating from “the norm”.

Fill out the form below for the full white paper, which covers:

  • Unique challenges faced by LGBTQ employees and their employers, including leaves of absence and insurance coverage
  • Terminology and proper usage
  • Protective regulations, including a state-by-state analysis
  • How to expand inclusivity to the LGBTQ population and tips for building a benefits program and culture that accommodates accordingly

 

The Latest in MA Paid Family and Medical Leave

By Karen English and Teri Weber

What You Need to Know

In June of 2018, Massachusetts passed a paid family and medical leave policy, making it the fifth state to do so after California, New Jersey, Rhode Island, New York, and Washington, and almost in tandem with D.C. Since then, Massachusetts employers, employees and industry professionals like ourselves have been closely following the regulatory progress and stipulations of this new program.

The Law: A Brief Overview

The Massachusetts Paid Family and Medical Leave law provides employees working for a Massachusetts employer with up to 26 weeks of job protected, paid family and medical leave for qualifying reasons, which include but are not limited to:

  • One’s own or a family member’s serious health condition
  • Bonding with a newborn or adopted child
  • Tending to a family member who is an injured servicemember

The law also offers job protection during and after a leave. The nuances of the policy and modifications have been slowly rolled out over the last year. More details about employee eligibility, employer requirements and readiness, and pay allocation can be found here. As with all state-wide legal overhauls, the policy is quite complex.Paid Family and Medical Leave Massachusetts

The program is meant to be funded through employer and employee contributions, with employers using MassTaxConnect to determine contributions and appropriate tax filing.

The Latest

The Paid Family and Medical Leave benefits were set to be available to employees starting January 1st, 2021 for bonding, military exigency and one’s own serious health condition, with a second wave being rolled out on July 1st, 2021 for other available and applicable benefits. To ensure sufficient funding for the program, employers were to start paying paid leave taxes starting July 1st, 2019.

As the deadline approached, however, employers in the state became concerned over unanswered questions and lack of time to prepare. Members of the Associated Industries of Massachusetts sent more than 2,500 messages to Governor Charlie Baker explaining that they lacked the time and clarity to stay on track for the July 1st deadline. Massachusetts lawmakers heard the grievances and acted accordingly. On June 11th, 2019, the state agreed to a three-month delay on paid leave tax collection, which will now begin on October 1st, 2019.

What This Means For Employers

The extension allows us all to get more familiarized with the ins and outs of the law and plan accordingly. Employers will be focused on whether an exemption applies, how the breakdown of corporate tax vs. payroll deduction will work, and what portion(s) of their workforce are eligible for the different benefits outlined. The additional time will also enable employers to effectively communicate the changes. Updated key dates to be aware of include:

  • Required Withholding Now Starts October 1, 2019
  • Contribution Rate Has Been Adjusted from 0.63% to 0.75% of Employee Qualifying Earnings
  • Remittance of Contributions for the October 1 to December 31 Quarter Will Be Due January 31, 2020
  • Timeline Has Been Extended for Required Employee Notices to September 30, 2019
  • Timeline Has Been Extended for Exemption Applications to December 20, 2019
  • PFML Final Regulations Are Scheduled To Be Posted on June 17, 2019 and Become Effective on July 1, 2019

Please get in touch if you have questions about the Massachusetts Paid Family and Medical Leave law and how to prepare for the program’s rollout. We have experts in leave management and compliance that are happy to help you navigate this new policy.

 

2018 IBI Annual Forum: An Overview

The Spring team has been involved with the Integrated Benefits Institute (IBI) and its events for quite a few years now. The organization provides valuable resources for employee benefits and absence management professionals, and their annual forum is a great opportunity for industry experts to come together and share their experiences and strategies.

For these reasons and more (such as escaping winter in Boston), I was excited to head back to San Francisco earlier this month for the 2018 IBI Annual Forum. Over the course of the three days, I joined over 500 employers and service providers in helping each other advance our professional knowledge and capabilities. Acquaintances were made, colleagues were reunited, lessons were learned and cocktails were had. I even had the chance to join some clients on a panel to speak about, “Evolving Your Absence Management Strategy: Let’s Talk Best Practices.” In the spirit of shared learning, I like to relay what I found to be the most significant topics at a given conference.

So if you missed the IBI forum this year or lost your notes, here’s a brief overview:

1. Data
This was probably the biggest buzz word at IBI this year. Big data, small data, data of all kinds. In 2018, this is not surprising.Specifically, Dr. Bruce Sherman from Case Western Reserve University emphasized the importance of HR professionals incorporating health-related statistics into their strategy, and treating well-being as a means to improve business performance. Then on Monday afternoon, folks from UPMC discussed the power of Big Data, demonstrating their use of an integrated platform that ties in all sorts of metrics and allows employers to view customized reports from which they can act upon. Along the same lines, representatives from Aon and PSEG explained how PSEG was able to tap into data to increase employee safety and risk, productivity and well-being while decreasing absence. Lastly, another session entitled “Unlocking Data to Analyze, Benchmark and Diagnose Absence Drivers, Culture and Impacts on Outcomes” demonstrated how to use qualitative and quantitative data to better inform absence programs. The panel discussed the ability to use this data to modify plan design, improve administration, optimize plan expense, minimize plan liability and more.

2. Change
By this I mean that words like “innovation”, “new” and “revolutionary” were commonly heard at IBI 2018. This is to be expected, since many attend the event to hear the freshest ideas and trends, and they weren’t let down this year.Gary Earl presented on the rise in chronic diseases over the past several decades. He urged the audience to sway from the status quo by modifying systems, behaviors and environments to make positive changes in health. Then, a team from Morneau Shepell explained their innovative approach to a “total health strategy”, which looks at employee health at the individual level and demands dual-accountability from both employer and employee for better outcomes in the areas of physical and mental health as well as productivity.In “Work is Changing and Reshaping Return to Work”, Dr. Glenn Pransky of Liberty Mutual outlined the changes we are seeing in the American workforce: more automation, more remote workers, the incorporation of artificial intelligence, the emergence of the gig economy, the trend toward later retirement and so on. These changes, Pransky argued, warrant an aligned shift in return-to-work tactics through the use of more digitally-friendly systems in particular. This was a nice segue into a later presentation on virtual healthcare, which emphasized the efficiency and effectiveness of telehealth through actual case study results. A representative from Walgreens then spoke on a panel about the importance of employee engagement in their whole health program, which aims to make services more convenient.Lastly, as mentioned above, I spoke with colleagues from Robert Half, Guardian Life Insurance, Adventist Health System and Chevron about the need for organizations to evolve their absence management programs. Our focus was on offering results and experiences that exhibit how to identify trends within your company and within the market, how to choose and work with different vendors, the importance of gathering feedback post-implementation from all stakeholders, and the ways in which metrics can help inform all of these integrations.

3. Paid Leave
As more and more states are passing paid leave laws and regulations, and more employers are implementing their own policies whether or not they are mandated to, I was glad to see that this was one of the hot topics at IBI this year.One session included a case study from Norwell Health, a New York based organization with 60,000 employees who recently developed a new paid parental leave program. The presentation provided guidance on how Norwell Health considered things like benchmarks, predictive cost and productivity analysis, competitive advantage and measurement. On the second day of the conference, Michelle Jackson of Unum and Kristi Stormer of American Family Insurance provided an overview of several organizations who have implemented a paid family leave policy. They presented  on the business case for such programs as well as the time and funds needed to establish a PFL benefit.

4. Mental & Behavioral Health
Eliminating the stigma and getting to the core of mental health problems has been a core focus over the last couple of years, both within and outside of the workplace. The 2018 IBI Annual Forum helped continue and advance the conversation.One panel highlighted the importance of creating an understanding workplace environment where anxiety and depression are treated as normal issues and are allowed to be discussed and recognized. The speakers explained how creating such a culture will help an organization’s morale as well as its bottom line. During “Mental Health in the Workplace. Challenges. Strategies. Opportunities!” further addressed the problematic stigma of mental illness, citing that while 20% of the US workforce suffers from it, only 1/3 will seek help or treatment, for fear of prejudice. This presentation, led by on mental health specialist, one employer and one ADA attorney, focused on ways to increase access to education and support for mental health at work, including EAP programs and other accommodations. On the last day of the conference, a mental-health related session drew from the experiences of The Home Depot and Comcast in their efforts to destigmatize the issue. Specifically, speakers illustrated the role that sleep can play in mental illness and therapeutic solutions. Sleep is so often the answer, isn’t it?

 

I hope you’ve enjoyed this glimpse into the 2018 Integrated Benefits Institute (IBI) Annual Forum. Please don’t hesitate to reach out with questions about employee benefits, disability and absence management, or anything else related. Lastly, keep an eye out for a similar write-up regarding the 2018 Disability Management Employer Coalition (DMEC) 2018 Annual Compliance Conference at the end of April.

 

 

 

DMEC Recap: 5 Employer Policies to Consider

After every conference I attend, I try to take time to reflect on the core themes that popped up. In fact, this is one of the primary ways that I can stay on top of industry trends and employer needs. As an advisory board member for the Disability Management Employer Coalition (DMEC), I am wholly familiar with the organization and have been attending their events for many years. To this day, each conference leaves me with new knowledge gained and something(s) unexpected.Employee Absence Management

DMEC celebrated its 25th anniversary and welcomed over 700 professionals in the absence and disability management fields to its summit in Anaheim from July 31st to August 3rd.  With summer having winded down I’ve finally had time to put my thoughts together on the event. So if you didn’t have a chance to make it to the conference, or could merely use a refresher, here are the highlights from my perspective, organized into policies for employers to consider.

 

  1. Parental & Family Medical Leave

With states such as New York and Washington having recently passed paid family leave laws, it’s no wonder this topic was prevalent throughout the conference. Each year, there is something new to discuss on this topic – if not several.

Paid Family LeaveThis year, speakers from MetLife discussed the challenges of striking a balance between productivity, compliance and retention when it comes to leave management. A panel including Mary Chavez of Levi Strauss & Co. and Dianne Arpin of T-Mobile spoke about how and why employers in the US, the only developed nation without a standardized leave policy, are still going above and beyond what is legally required. Robyn Marino from Cigna led a session on where the current White House administration stands on paid leave and how it relates to employer mandates and decision making. On Wednesday afternoon, speakers from Aetna discussed the relationship with Family Medical Leave and Short-Term Disability – how the former often leads to the latter, and what to do about it.

Ultimately, many employers are determining how to best to structure their policies with regard to paid leave, whether or not it’s legally required of them.

 

  1. Drugs in the Workplace

While the topic only played a key role in two of DMEC’s education sessions, they were both strong in emphasizing the crisis. With an uptick in awareness and new laws being passed in states like Massachusetts around the legality of marijuana, it is definitely a topic worth noting.

One session did a deep dive on how to navigate marijuana in the workplace – how does legislation affect workplace policies? Does this change employer drug testing? If marijuana is legal, does that mean it should be allowed in the workplace?

Further, Michael Coupland of IMCS Group got serious when presenting on opioids in the workplace. As the opioid crisis continues to sweep the nation, the session provided employers with guidance on how to stay ahead of the issue and steps to intervene and mitigate problems should they arise.

 

  1. Getting Ahead of Mental and Behavioral Health Issues

Having long been a “taboo” issue, it’s great to see mental health continuing to get more attention and being spoken about openly. In fact, the pre-conference was incredible and gave so many real-time examples Employee Behavioral Healththat many of us in the audience were beside ourselves, and wanting to do more. The question “Are you okay?” has taken on a new meaning for so many of us as a result, and will no doubt prompt us to work on increasing awareness and making tools and resources available for those struggling. This also includes offering benefits or EAP programs that align with tackling mental and behavioral health problems.

On the second day of the conference, a presentation led by Broadspire highlighted ways to identify different types of mental health issues – what are the red flags? How can they be addressed early on? They also discussed how and when it’s appropriate for an employer to intervene, and encouraged the audience to help de-stigmatize mental health. As one in five of your employees is suffering from a behavioral health problem, it’s important to learn how to motivate them and help them get better.

 

  1. ADA and Compliance Challenges

Keeping up with regulations and compliance requirements is very difficult in this industry; new regulations are sprouting up across different regions of the country every day. Luckily, several presentations at DMEC helped attendees come to grips with these challenges.

A panel including Adrienne Paler from Sutter Health discussed the importance of integrating and accounting for Workers’ Compensation as it relates to federal laws like the ADA and the FMLA. A later session addressed obscure or difficult-to-manage FMLA requests and how to best handle such claims. Representatives from Aetna talked about how oftentimes a family medical leave will turn into a disability leave, and let employers know what to watch out for, providing research-based stay-at-work strategies for at-risk employees. A different presentation went over ERISA regulations and, lastly, a Thursday morning session covered how to use mobile apps and platforms to improve FMLA and overall leave compliance, providing employers with more efficient and modernized solutions to respond to an evolving workforce.

 

  1. Returning to Work

It’s not uncommon for employees to realize that coming back to work after some sort of leave is a great hurdle. It’s important for employers to recognize that the transition isn’t easy, and provide ways to mitigate anxiety and make the shift run as smoothly as possible for employees.

Return to Work ProgramReturning to work has been a hot topic for years, but with each passing year there are new challenges to overcome and new strategies to help do so. A group of representatives from Guardian discussed the positive impact of vocational rehabilitation, while another panel explained how to proactively get in front of leaves and how to retain employees, happily and healthfully, upon returning to work.

Spring partner and my close colleague, Teri Weber, led a Thursday morning session with Memorial Sloan Kettering that looked at return to work from a broader perspective, that is accommodations overall. She emphasized the difference between merely doing what’s legal vs. doing what is best for your employees. The group recommended expanding the stakeholders involved in return to work strategies to include those who work in areas like health and safety, recruiting and diversity. They presented the client’s methodology and showcased how it’s helped in communication, compliance and record-keeping in a timely manner.

Overall, the 25th annual DMEC conference exceeded my expectations. I always enjoy going and seeing familiar faces, as well as meeting new ones. The topics covered at the event were informative, grounded in research, relevant and diverse. Beyond that, DMEC always does a great job organizing activities and networking opportunities throughout the course of the conference, and I caught my first Angels game!

If you have questions about any of the topics above, feel free to reach out. I’d love to chat about your disability and leave management goals and challenges – any time!

Natural Disasters & Employee Benefits: Legal & Moral Considerations

Making Natural Disasters Less Disastrous for Your Employees

With the recent hits of Hurricanes Harvey, Irma and José as well as the 8.1 magnitude earthquake that hit Mexico and the ongoing wildfire problems in the Western United States, many are left wondering what they’re supposed to do in the face of such tragic, unprecedented damage caused by natural disasters.

This goes for everyone – if you’re a victim, how do you cope, and get back on your feet? If you’re lucky enough to be far away from destruction, how can you help? If you work in politics, what is the plan for disaster relief? However, working in the space that we do, we’d like to weigh in on the employer perspective: what benefits and leave allowances your employees are legally entitled to in the midst of a natural disaster and what employers might want to consider, while not required, in order to alleviate the burden for their employees.

natural disasters employee benefits

FMLA & ADA and Natural Disasters

What’s Required

When it comes to FMLA and/or ADA related leaves of absence, there’s essentially no real change in process in the face of a natural disaster, at least in terms of the law. There are, however, a few factors to consider, even if you’ve no plans to make a policy change:

  • A bad storm or earthquake may heighten the severity of any pre-existing conditions your employees might have. A spike in FMLA or ADA leave requests is not uncommon in the aftermath of a natural disaster; someone with an exiFMLA Accommodationssting nervous disorder may be dealing with stress-related conditions, blood pressures may be on the up-tick, people may need time to care for relatives who didn’t fare the storm well, etc.
  • It is possible for a natural disaster to spur a new condition or injury, such as backpain from home repair, stress-induced migraines, or anxiety over destroyed property.
  • Employees who are members of the National Guard and are called for disaster-related duty are not necessarily protected under USERRA, but certain states do protect such absences.
  • Even in face of a natural disaster, the FMLA does not account for absences due to things like tending to flood damage, home repair, or looking for missing relatives after a storm. For these situations, employees would need to take personal or company leave to take care of such matters.
    • Absences that are protected by the FMLA that might arise would include the onslaught of an existing condition or a new one brought about by the natural disaster (as mentioned above), as well as the need to care for a spouse, child, or parent who cannot tend to their own medical needs. For example, perhaps a relative is diabetic and they need help managing their medication, which needs to be refrigerated, as they’re now without power.
  • If your office is impacted by a natural disaster and you need to shut down business operations, or if employees are not expected to work, FMLA entitlement days should not be counted for any employee during that time.
    • If an employee is on FMLA leave at the same time that the office is shut down, you need to treat them (in terms of pay, benefits, etc.) as if they are on non-FMLA leave according to your organizational policies.
  • A natural disaster can very well be considered an “extenuating circumstance”  that might prohibit an employee from completing the requisite claim and eligibility paperwork by the original deadline. See below.

What Some Employers Are Doing, “Just Because”

As a high-category hurricane or powerful earthquake are no doubt devastating both materially and emotionally, many employers are doing their best to show empathy and support for their employees during such difficult times. A few ways they are doing so are:

  • Allow more time for claims.
    • For example, we have clients in areas affected by Hurricane Harvey who are allowing employees an additional 30 days to meet any claims requirement – whether STD, FMLA or any other kind. Keep in mind that if people have been evacuated, relocated, and/or are experiencing a power shortage, they should not be expected to meet the same deadline. They may not receive a certification form in the mail because they haven’t been at their home address, and without power and internet they might be unable to complete any such documentation online.
  • Consider those in FEMA-designated disaster areas.
    • Individuals in these areas may need unique assistance and, depending on the damage, there could be cause for a temporary process change on a case-by-case basis.
  • Expand or discount any available medical services.
    • We have a clients who, as a benefit, offer telehealth services to their employees. Some organizations, in the aftermath of a natural disaster, allow employees to access this service for doctors’ visits and consultations completely free of charge, regardless of their health insurance plan.
  • Remind employees of support services.
    • In times like these, employee assistance plans (EAPs) can be essential. Whether it’s providing updates to community situations, arranging access to local services or offering a counselor to talk to, employers are reminding employees how to contact the EAP and in many cases extending access to be 24/7, rather than restricting it to regular business hours.
  • Take your employees’ word.
    • If an employee requests FMLA leave while you suspect they might be using the time for something like assisting an elderly parent with their flooded home, it might behoove you to simply allow it and take their word for it.

As with all matters relating to employee benefits, there are things that employers legally have to accommodate for, and things that are just nice for them to do. It is important to understand the difference and come to an agreement as to what kind of plan will be put in place, if any. Further, if your organization has not yet been faced with a serious a natural disaster, there’s never a better time than the present to start developing a system should the need ever arise (and we certainly hope it doesn’t).