Ask the Experts: Mandatory Flu Shots

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Question: Can we require our employees to get flu shots?

Answer: While there is no law that prohibits employers from mandating flu shots — and in some states, the law requires all healthcare workers to get flu shots — you should carefully determine if the benefits to your business outweigh the risks. There has been a rise in litigation brought by employees who object to this requirement for medical, religious or personal reasons. The Equal Employment Opportunity Commission (EEOC) has filed or joined several lawsuits over claims that inflexible mandatory vaccination policies are discriminatory.

Employees may be entitled to exemptions from a flu shot policy for medical reasons under the Americans with Disabilities Act (ADA) or religious reasons under Title VII of the Civil Rights Act of 1964. Requests for exemptions must be evaluated individually yet treated consistently; a difficult task. You will need to engage in an interactive process with the employee, just as you would for any other request for accommodations, to determine if they can be granted without presenting undue hardship to your company.

The EEOC recommends against mandatory flu shot policies, instead suggesting employers encourage employees get vaccinated on their own. Offering no-cost flu shots on site can further improve workplace vaccination rates by making it more convenient for employees.

If you choose to enact a mandatory flu shot policy, write it carefully to protect your company from the risk of discrimination claims. Make sure the policy:

  • Is worded concisely.
  • Outlines the reasoning behind the policy.
  • Is applied consistently. (Managers who enforce it should be trained on the policy and how to handle requests for exemptions.)
  • Explains the process for requesting exemptions due to medical contraindications or sincerely held religious beliefs. Any medical information obtained as part of the request for an exemption should be kept confidential.

Learn More

Get tips for maintaining a healthy workforce during a seasonal flu outbreak. ThinkHR customers can learn more about the ADA and Title VII by logging into their accounts. If a pandemic flu or other disease outbreak happens, our white paper, How to Handle an Infectious Disease Outbreak, is a good resource. The CDC maintains a list of vaccination laws for various illnesses.


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Ask the Experts: Marijuana and the ADA

 Ask the Experts” guest blog content provided to Q4iNetwork Consultants by Think HR thinkhr logo.png

Question: Is medical marijuana use protected by the Americans with Disabilities Act (ADA)? If so, what accommodations would be considered reasonable?

Answer: You are not required to accommodate medical marijuana use under the Americans with Disabilities Act (ADA). Even though medical marijuana is legal in many states, under the federal Controlled Substances Act (CSA), marijuana is still illegal. The ADA expressly excludes people who use illegal drugs from its definition of “qualified individual with a disability.”

However, as a best practice, you should still engage in the ADA interactive process if a request for a reasonable accommodation for medical marijuana use is made. Under the ADA, employers are required to provide reasonable accommodation to qualified individuals with disabilities unless doing so would cause an undue hardship on the employer. Any request for a reasonable accommodation triggers an interactive process with the employee to determine:

  1. Whether the employee or applicant is a qualified individual with a disability, meaning they can perform the essential functions of the job with a reasonable accommodation; and
  2. What the employee’s needs are, and which appropriate accommodations could be made.

If the employee’s physician has determined that medical marijuana is the most effective treatment, a possible reasonable accommodation would be a waiver of your anti-drug policy. However, if the employee is in a safety-sensitive position, it may pose an undue hardship to make that accommodation and you should consider any other possible accommodations before denying the request.

There are no reasonable accommodations that would work in every circumstance. You will need to review the essential functions and safety requirements of the job with the employee to determine what types of reasonable accommodations may be acceptable while not imposing an undue hardship.

The courts may not concur

While medical marijuana use is not protected by the ADA, this is being challenged at the state level. For example, in July 2017, the Massachusetts Supreme Judicial Court held in Barbuto v. Advantage Sales and Marketing that an employee who was fired after testing positive for marijuana could proceed with a “handicap discrimination” claim under the Massachusetts Fair Employment Practices Act.

In allowing the employee’s discrimination claim to go forward, the Court expressly rejected the employer’s argument that, because marijuana is illegal under federal law, requiring an employer to accommodate medical marijuana use is per se unreasonable.

Instead, the Court held that, at a minimum, the employer was obligated to engage in an interactive dialogue concerning the employee’s ongoing medicinal marijuana use before terminating her employment. The Court did not rule out the possibility that accommodating medicinal marijuana use could pose an undue hardship, leaving that issue open for the employer to address at a later date.

ThinkHR customers can find drug use policies specific to their state in the Employee Handbook Builder.

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Caution if Offering Health Coverage to Non-Employees

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A frequent Compliance Corner question asks whether employers can include independent contractors in their health plans or other benefits. The answer to this question is more complicated than one might think.

Most benefit experts advise against including independent contractors or other non-employees such as 1099 employees, non-employee directors or leased employees on employer’s benefit plans.

Here are three (3) reasons why this may be inadvisable:

1.) Treating an independent contractor like an employee may undermine an employer’s assertion that the individual is not an employee. The DOL and the IRS, as well as their state counterparts, have aggressive programs to uncover worker misclassification. By offering a non-employee employee benefits, an employer’s assertion to these regulators challenging whether an individual is really an employee is weakened. Moreover, if some non-employees gain benefits while others do not, an independent contractor excluded from a plan may sue for benefits exposing an employer to potential penalties.

2.) Covering individuals who are not employees on the health plan may result in creation of a multiple employer welfare arrangement or MEWA. The intent to create a MEWA is irrelevant. MEWAs have IRS reporting requirements such as a Form M-1. If the plan is self-funded there may be further complications with state laws that prohibit self-insured MEWAs

3.) Tax issues also come into play. For example, an independent contractor is not eligible for a Section 125 plan. Employer contributions to coverage may also be taxable.

Complicating this decision is that some insurance carriers will allow independent contractors to be included in an employer’s health plan. But, compliance is the employer’s responsibility, not the insurance carrier’s.

The best answer to whether non-employees can be offered coverage is that employers who wish to evaluate or pursue covering non-employees should consult their legal and benefit advisors.

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How Employers Can Offer Dependent Benefits

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With skyrocketing healthcare costs, how can employers afford employee coverage and still offer dependent benefits? This is a very real challenge facing employers today. 

Most companies follow a similar pattern when offering employee benefits. They start off with health insurance, paying 50% or more of the employee premium, and allow employees to add their dependents at their own cost. Some employers will also pay for dental coverage, life insurance, vision insurance, and disability coverage – usually in that order, though it can vary based on what benefits the employer thinks are important or believes the employees will appreciate.  

Due largely to costs, most employers no longer pay for dependent coverage. The employees’ family members don’t work for the company, and providing benefits to the whole family would be really expensive, so they leave that up to their workers. Plus, we’re even seeing a new trend developing among larger companies to limit participation of spouses in the health plan when other employer options are available.

But, let’s remember most employees get up in the morning to provide for their families. Not including benefits for the ones they love most can leave hard-working employees feeling like an adult stuck at the kids’ table. If a company can figure out ways to extend a few of the benefits to family members, employees will appreciate those benefits even more, which means the company will see a higher return on its investment.

It’s probably not practical for most companies to pay 100% of the cost of health insurance for employees, their spouses, and their children. But then again, health insurance isn’t the only benefit out there. Here are a few ideas for companies that want to provide some cost-effective benefits for the whole family…

1. Contribute to a Health Savings Account

Employees can use their HSA funds on themselves, their spouses, and their tax-dependent children, even if they’re not on the health plan. This is a point that brokers and employers should emphasize during the annual enrollment meeting. With the employer HSA contribution, parents can take their kids to the doctor or the dentist, get them glasses, or pay for monthly prescriptions. They’ll appreciate the employer’s benefit plan every time they use their HSA card.

2. Pay for Ancillary Benefits

For some reason, employers get it in their minds that they have to be consistent in the way they pay for the various benefits they offer. However, the truth is that they can leave the dependent health insurance costs up to the employees and pay for lower-cost benefits like dental or life insurance. Dental insurance is about one-tenth of the cost of health insurance and people value it almost as much, so it’s a great benefit for a company to pay for (one with orthodontia benefits for the kids will be especially appreciated). And group life insurance is cheap, so employers can provide a base level of benefits for the employee, spouse, and children and then allow them to buy up if they want.

3. Allow employees to purchase voluntary benefits

Even with no employer contribution, there’s value in offering voluntary or worksite benefits like accident or critical illness insurance. Why? Because it’s a lot less expensive than health insurance and can help to offset high medical bills. This means that an employee who can’t afford to cover his family members on his health plan can still reduce their exposure with these relatively inexpensive products.

4. Educate employees about CHIP

The Children’s Health Insurance Program offers quality coverage to low-income families at a very affordable price. The cutoff level, costs, and benefits vary by state, but here’s a quick example of how it works. In Texas, families with incomes below 200% of the federal poverty level, or $50,058 per year, can qualify for CHIP. For those who qualify, they can cover all of their children for just $50 per year or less. Spending a couple of minutes explaining the Children’s Health Insurance Program during an enrollment meeting and handing out a free brochure is a great way to help employees at no cost and with almost no effort. Why wouldn’t an employer want to do that?

5. Offer telehealth!

While almost all employee benefits have an additional charge for family members, telehealth benefits are often good for the employee, spouse, and tax-dependent children (and/or tax-dependent parents). This is especially important for employees who can’t afford to cover family members on their health plan. While telemedicine is not insurance and not intended as a replacement for insurance, it does provide family members with access to health care.

For example, an uninsured spouse can pick up the phone and call a doctor (for herself or her child), get a prescription if necessary, and then save on the cost of that prescription at the pharmacy. She can also email a specialist to get her medical questions answered, consult with an advocate when searching for lower-cost providers, and get help reviewing, organizing and negotiating medical bills. That’s a lot of benefits!

Ultimately, employers offer benefits to attract and retain employees, and for this to work they need to provide benefits their employees truly appreciate. Any benefits that the employer can make available not only to the employees, but also to the employees’ family members, will be doubly appreciated.

Keep this in mind when you’re designing your organizational benefits package. If your goal is to get the most out of your benefits dollar while keeping your employees and their families happy and healthy, considering these options is a great strategy.


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Ask the Experts: Inappropriate Dress in an Interview

 Ask the Experts” guest blog content provided to Q4iNetwork Consultants by Think HR thinkhr logo.png

Question: We had a job candidate who we think would be a good fit for one of our open positions, but she was dressed inappropriately for our office during her interview. Can we say anything to her about her attire during the offer process?

Answer: You can, as long as you frame it as a discussion about your company’s appearance and dress policy. As an employer, you can make rules for the standard of dress and grooming you want in your workplace. Should you determine that you would like to make an employment offer to this job candidate, discuss with her the standard you expect to see in your workplace.

If you don’t already have a written dress and appearance policy, now is the time to create one. The policy should include examples of what is considered acceptable dress and grooming in your workplace and the consequences for employees who report to work and do not meet your standards.

There are caveats to this discussion: do not create dress or appearance policies that interfere with an employee’s religious beliefs or practices. Be sure your policy includes language stating that you are willing to make an accommodation for religious practices (unless it creates a safety or workplace hazard). Similarly, employees whose clothing represents their country of origin or that stem from a disability may require an accommodation. Consider applicable federal, state, and local laws in developing your policy.

Finally, once you have created your policy, be sure to obtain a legal review and apply it evenly to avoid claims of unfair treatment.


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