Breaking News...Interim Final GINA Regulations Impact Wellness Programs
Recently released interim final regulations, which implement sections 101-103 of the Genetic Information Nondiscrimination Act of 2008 (GINA), speak directly to group health plans. If your company uses an insurance company's group health plan, then most of these regulations won't affect you, unless, that is, you sponsor a wellness program. Specifically, while employers can ask that an employee complete a health risk assessment (HRA) that asks about genetic information (including family medical history), employers cannot offer a reward (e.g., a reduced premium) for the employee to do so. Employers can offer a reward for completing an HRA, as long as the assessment plainly states that the employee should not include any genetic information.
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1. FEATURE STORY:
DOMESTIC VIOLENCE: EMPLOYEES CAN BE VICTIMS OR ABUSERS
Domestic Violence Awareness Month reminds employers to be prepared all year round for the possibility that an employee is a victim or a perpetrator of domestic abuse.
Occasionally, your organization might employ both the victim and the perpetrator. That was the case at Cascade Foods, Inc. A female employee obtained a restraining order against a co-worker, who also happened to be her former boyfriend. The employee obtained the restraining order against him for physically and verbally threatening her safety. Despite knowing this, the company asked her to have the restraining order altered so that her abuser could continue to work for the company. When she refused, she was fired. The Equal Employment Opportunity Committee (EEOC) has since filed a retaliation lawsuit on her behalf.
"With nearly one-third of American women reporting being physically or sexually abused by a husband or boyfriend at some point in their lives, it is important that employers learn how to respond to domestic violence as it impacts the workplace," said EEOC San Francisco District Director Michael Baldonado.
Helping A Victim Of Abuse
It is important to have domestic abuse resources readily available at all times, not just during Domestic Violence Awareness Month or if you suspect an employee is being abused. Place pamphlets and posters throughout the workplace and even in restrooms.
If an employee confides that they are in an abusive relationship:
Suggest they designate a code word so that they can subtly alert management or security personnel to the abuser's presence.
Obtain the contact information for someone to call in the event the employee is missing and unreachable.
Move their work area if it's located near public entrances, stairs, elevators, or windows.
Switch up the employee's hours or days to make it harder for the abuser to figure out their schedule.
Allow them to park close to the building, or have security escort them to and from their car.
Change their phone extension, screen their calls, or have incoming calls sent immediately to voice mail. Also, remove the employee's name and phone number from the public eye (e.g., company directory on website).
If the employee wishes, have paychecks mailed to a different location or deposited into a different account.
Important: If an employee obtains a restraining order against their abuser, respect the parameters set forth in the document. Refrain from asking the employee to alter it in any way, as did Cascade Foods.
Your Legal Obligations
No federal employment law speaks directly to domestic violence, although victims may qualify for protection under the Family and Medical Leave Act, the Americans with Disabilities Act, or Title VII. For specific examples of how victims can qualify for leave under these laws, check out AHI's Free Report, Domestic Violence Isn't So Domestic After All, which also includes a sample policy and other practical advice.
You may have obligations under state law. For example, some states:
Allow employees to take time off to tend to issues related to abuse, e.g., to seek medical attention, attend counseling, find new housing, or for court appearances related to domestic violence. Leave may extend to employees who aren't victims themselves, but whose family member is, and leave is typically unpaid.
Prohibit employers from discriminating against individuals who are victims of domestic violence. In such states, it's a violation of state law to treat an employee who is the victim of domestic violence differently than any other employee based solely on that employee's status as a domestic violence victim.
Grant unemployment benefits to employees who are forced to leave work because of domestic violence. Most of these statutes provide that the employers' experience ratings will not be adversely impacted in such situations. Tip: Inform victims that they might be eligible for these benefits, which might be just the economic help they need to leave an abusive relationship.
It's important to keep your finger on the pulse of state law because more and more states are providing employment protections to victims of domestic violence. Illinois, New York, and Oregon, for example, all recently passed such protections.
Remember: Nothing prevents your organization from adopting policies that are more generous than what your state requires.
Managing An Employee Who Is An Abuser
What would you do upon learning that one of your employees was convicted of domestic abuse? The first thing you must do is look to the company's violence policy. Are there consequences for being convicted of a violent act? Have these consequences been imposed in the past in similar situations? Important: Before taking adverse actions against an employee convicted of a crime, always review applicable state law.
Next, investigate whether the employee used company equipment to threaten or harass the victim, or anyone else for that matter, or perpetrated any violent or threatening acts on company grounds or during work time.
If discipline or termination is warranted, focus on the policy violation and the need to maintain safety, and not on your disapproval of the employee's actions. Maintaining professionalism will minimize the risk of a violent outburst or retaliation. Further minimize the risk when disciplining or terminating the abuser by having a third party present, sitting close to the door, and placing physical obstructions (e.g., a desk) between you and the employee.
If you retain the employee, consider conditioning continued employment on completing an anger management class or similar program. Even if you decide against mandatory counseling, have counseling information available.
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