A downward economy is the perfect time to motivate employees and reward worker bees.

With the slowed financial landscape, not all companies can raise salaries and offer big bonuses this year. In a recent report by msn.com, employees stated that their biggest concerns included the price of fuel, and they’ve sacrificed going out to dinner and the movies in order to make ends meet.

Employers, this is your big opening. Instead of waiting until the end of your fiscal year to boost morale, why not get a jump on it now? Although a gift card cannot replace cold, hard, cash, keep in mind that one of a company’s most important resources are its people. If you can keep your talented employees happy during less-than-steller economic times, you can certainly keep them during an economic boon.

Here are some suggestions to reward your best performers:

(1) Time. Employees increasingly complain that they cannot balance life and work. Here’s your opportunity to improve the balance. When an employee has just finished an overtime project (perhaps without the overtime pay?) give them flex-time off. This gesture accomplishes several goals: your employee feels like their hard work has been acknowledged, they realize that “the man” remembers employees have lives outside of work, and you can promote how your company favors a work-life balance.

(2) Cake. Yes, Marie, let them eat cake. This one is simple. Each month, purchase cake to recognize employment anniversaries, birthdays, whatever. Just let your employees take a break for a piece of cake. Trust me, if you get a good baker, everyone will look forward to this month’s “cake day.”

(3) Gift cards. Who said there was no free lunch? An easy way to recognize an employee’s performance is with an inexpensive gift card to the movies, dinner, or your local gas station. Remember, these were on the list of things employees were most concerned about- the cost of fuel and giving up entertainment to make ends meet.

Now, not everyone will appreciate your efforts. National Public Radio recently reported on the growing number of “happiness committees” cropping up at large companies. The committee’s purpose was to surprise employees (a.k.a. worker bees) with unexpected milkshakes and cookies to entice employees to work late that day, or to reward them for working late the day before. Not all of the bees appreciated the effort, and some said they would rather the company take the Happiness Committee’s budget, divide it among the bees, and send a check appropriate for people. In any event, working towards keeping employees happy is never bad for business.

Employers and smokers have been making headlines. Just last week, Whirlpool made the news when it terminated 39 employees after they were caught smoking, despite having signed statements when they were hired swearing that they were non-smokers.

Over the past several years, it has become more and more common for employers to have stopped hiring smokers or to require smokers to pay higher premiums for health insurance. But not everyone agrees with the idea of punishing employees based on health-related factors. Some cite privacy concerns and paternalism as reasons why employers should not become involved in what employees do off the job. And others worry about what will come next. Currently, it is socially acceptable to ostracize smokers. And, in most states, including Delaware, there’s nothing unlawful about it.

But what about other health factors, like obesity? Will employers next target overweight and obese employees with higher health care premiums? Will businesses refuse to hire applicants who are over a certain body mass index (BMI)?

Some employers, like Westgate Resorts, a vacation-properties company based in Orlando, Florida, are trying to push employees into healthy lifestyles, which includes reducing obestity. At Westgate, employees aren’t penalized to lose weight but those who do are rewarded with a variety of incentives. Michigan is the only state, in addition to the District of Columbia, to prohibit discrimination based on weight. But, in other states like Delaware, where obesity is not a protected class, there would be little legal risk to implementing a weight-reduction policy. Of course, as my mother would say, “Just because you can, doesn’t mean you should.”

Employers should consider non-legal implications of such a policy. For example, how to define “obese.” If BMI is the only determining factor, you might not have many employees–more than two-thirds of Americans qualify under this definition. Or what about the woman who gained 60 lbs during pregnancy and isn’t in a real rush to get lose it right away? And how do you handle an employee who states that his obesity is related to another medical condition. This would sound the alarms of both HIPPA and the Americans With Disabilities Act (ADA). And would gastric bypass or other bariatric surgeries be pushed on employees as a “solution” to weight struggles? How will they regulate weight on a more organic level?

For example, will there be a ban on the sale of Girl Scout cookies?

That announcement would make headlines, for sure.

The new Florida Gun Law would prevent employers from banning workers from bringing guns to work. To describe the legislation a “controversial” would be a gross understatement.

Advocates say the intent of the bill is to ensure that citizens’ constitutional right to keep and bear legally owned firearms within their vehicles. Opponents have raised concerns about the increased incidents of workplace violence (and the liability that goes with it). They also argue that they should have the right to set rules on their property. Some workplaces are exempt from the law, such as nuclear power plants, prisons, schools, and homeland security businesses.

The law puts Florida employers in a seemingly unwinnable situation. On one hand, all employers have an obligation to protect the health and safety of their workers under the Occupational Safety and Health Act (OSHA). Yet, they cannot prevent or eliminate a serious safety risk by banning guns in the workplace.

A study by the American Journal of Public Health found that workplaces that allow guns on the premises are roughly five times more likely to have a homicide than those who are not. It is easy to imagine how an angry employee would be more likely to commit an act of violence in the workplace if he simply had to go out to his car to get a gun. So it’s understandable that many Florida employers are staunchly opposed to the bill.

Although the law passed through both houses of the state legislature and was signed by the Governor, it will likely face a difficult challenge in court. Oklahoma passed a similar bill, which was promptly injoined by a federal judge on the ground that it violated federal OSHA laws.

And, while Florida businesses are concerned about the risks that the law may cause, Delaware employers are using the resources offered by the State to prevent workplace violence.

Delaware state government has reached out to Delaware employers to provide guidance in preventing and addressing violence in the workplace. The Delaware Corporate Citizen Initiative, in collaboration with the National Workplace Resource Center on Domestic Violence, published a Model Policy on Domestic Violence in the Workplace. The Model Policy covers all aspects of how domestic violence can impact businesses–from the employee-aggressor whose intimidation tactics spill over into the workplace, to the employee-target who experiences peformance problems as a result of domestic violence.

The Delaware Capital Police have also begun a recent community initiative relating to workplace violence. The Delaware Capitol Police Department is a statewide law enforcement agency responsible for the security of all three banches of state government throughout the state. The Department’s central responsibility is the safety and security of the various state buildings, including the Governor’s Mansion, the Caravel Building, Legislative Hall, the state courts, and more than 80 other buildings in all three counties.

Responding to the current trend in policing, the Delaware Division of Capitol Police has undertaken a community-policing initiative. While the division does not service a traditional community, it does have a similar responsibility to State employees. The Division created a training program on “Violence in the Workplace.” The seminar provides state government employees with an explanation as to what workplace violence is, statistics, reporting, and what to expect of workplace managers and members of law enforcement when these actions are carried out by employees, co-workers, managers, or customers. It also incorporates the Delaware Workplace Violence Policy, giving emloyees a detailed explanation of the purposes of the policy and how it is intended to be applied.

Delaware businesses don’t look far for examples of local workplace violence. I wrote an article on workplace violence for the Delaware Employment Law Letter following last year’s shooting on the campus of Delaware State University. The article, titled Lessons Learned from Local Tragedies, is available at HR Hero.com.

Take Your Daughter to Work Day is held on the third Thursday of April each year. This year, that meant that the average age in your workplace probably took a sharp dive last Thursday, April 24. Like other participating organizations, our office hosted approximately 25 youngsters for a “day in the law.” Our Human Resources Director does a fanastic job with these events, and, in usual form, had a well-organized series of activities planned.

One of the morning events, following a “light breakfast” of donut holes, etc., was for an attorney from each Practice Group to talk briefly about the kind of work they do. I was asked to speak on behalf of the Employment Law Group and was happy to do so. But a little back-up never hurt anyone, so I asked my colleague, Michael Stafford, to join me.

On a side note for the event organizers, don’t pass over the males in the group when it comes to kids’ events! Mike was about the most enthusiastic speaker I’ve seen and a real natural with the children. He told them (in kid-speak) that we represent employers and businesses; that we get involved if someone is going to get fired or if someone doesn’t get paid like they should. He also talked about School Law, which makes up a large part of Mike’s practice.

Then, suddenly, it was my turn. Mike, was, by this time, in the middle of the “U” part of the U-shaped conference table, surrounded by a sea of children glued to his every word. Meanwhile, I hadn’t left the shore and was still standing at the front of the room, mystified by Mike’s ability to captivate.

Mike whips around towards the front of the room and extends his hand like a magician’s assistant trying to draw the crowd’s attention to the stage for the big finale. He says, “Molly, Why don’t you go ahead and tell them some more about what we do.”

Gulp.

I love public speaking. No, really, it’s true. I love teaching and giving seminars and presenting to groups of every size. But for this, I was not prepared. I had no idea how to explain employment discrimination to a room of 9-12 year olds. Admittedly, I stumbled for a minute, at a total loss for words. But what I finally did say, though, was probably more insightful to me than to the audience members. It was from-the-heart and unrehearsed:

What we do in the Employment Law Group is to make sure that the workplace is a good place to be. Our job, at the end of the day, is to make sure that everyone plays nice. We try to show people how to respect each other and be nice to one another, even though we are all different in a lot of ways. We want people to learn how to respect those differences so the workplace can be a great place to go every day. That’s what we do.

After I finished, some of the other lawyers who had come to speak nodded their heads in agreement. I thought, yeah, that really is exactly what I do. We guide our clients to make the workplace free of discrimination. We counsel clients on how to pay employees properly and fairly. And we’re called when an employee is doing more harm than good and the client wants our advice on the best way to proceed. You might say that we work hard to prevent our clients from being sued. Or, you might say, we try to make sure that the workplace is a good place to be. That seems to sum it up pretty well.

Genetic testing is a key advance in preventative health care. But opponents of DNA testing worry about privacy issues–that employers may use genetic data in making employment decisions. The Genetic Nondiscrimination Act of 2007 (GINA) is intended to prevent that.

The Act was unanimously accepted by the Senate with a vote of 95-0. After final approval from the House, it will go to the President’s desk for signature. It could be signed into law as early as next week. The act will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. These protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. The purpose of GINA is to ensure that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. Up until now, individuals who tested positive for a certain type of cancer gene could be denied insurance coverage or employment based on his or predisposition to developing cancer years down the road.

“It means that people whose genetic profiles put them at risk of cancer and other serious conditions can get tested and seek treatment without fear of losing their privacy, their jobs, and their health insurance,”

said Ted Kennedy (D-Mass.).

The debate is not a new one–the bill was rejected more than 10 times before it passed. And during those 10+ years, Delaware passed its own genetic antidiscrimination law. Delaware is one of 35 states to prohibit genetic discrimination in employment. State laws typically protect “genetic information.” A number of states, including Delaware, have passed or are considering bills that expressly include and requests for genetic services. The Delaware law also makes it unlawful for an employer to “intentionally collect” genetic information unless it can be demonstrated that the information is job-related and consistent with business necessity or is sought in connection with a bona fide employee welfare or benefit plan.

Of the 35 states with these laws, though, there has not been a single suit filed on the grounds of “genetic descrimination,” although the EEOC did settle a genetic-discrimination claim that was filed under the Americans With Disabilities Act. In that case, the employer, Burlington Northern Santa Fe Railroad, was alleged to have obtained blood samples from employees that would later be used for genetic testing, unbeknownst to the employees. The employer ceased the conduct within days of receiving the EEOC’s complaint and eventually settled the suit.

Additional Resources:
The National Conference of State Legislatures maintains a comprehensive website on laws dealing with genetics and genetic testing if you’re interested in where your state currently stands.

But the most detailed resource, by far is that of the National Human Genome Research Institute, (NHGRI) at genome.gov. The NHGRI’s site inlcudes dozens of helpful explanations about just about everything genetic–including the legal, social, and ethical implications of genetic testing.

To review GINA’s passage through the House and Senate, visit thomas.loc.gov.

From a women’s health perspective, U.S. News & World Report’s Deborah Kotz’s article is a worthy read.

And, as always, our friends at HR Hero has a whole cache of easy-to-read and to-the-point articles on the Genetic Testing page of their website.

[Not] Hiring & Firing Smokers

Of the four posts in this series on Smokers & the Workplace, the common action we have seen Delaware employers take is simply not hiring applicants who smoke. Many who implement this type of policy permit current employees to be grandfathered into the new program and do not require them to quit smoking as a condition of continued employment. But that, also, is a viable alternative.

Weyco Inc. stopped hiring smokers in 2003 and prohibited smoking anywhere on company property in 2004. Then, citing evidence on how smokers drive up its health-care insurance costs, Weyco informed its 200 employees that smokers would have fifteen months, until January 1, 2005, to quit smoking. If they didn’t (or couldn’t), they would lose their jobs. Four employees left rather than be tested for the presence of nicotine in their system.

Since Delaware, like Michigan, is one of the states without a “smokers’ rights” law, an applicant who is not hired or an employee who is terminated for smoking would have to look to other statutes for protection. The most likely law would be the Americans with Disabilities Act (”ADA”).

While no Delaware court has addressed the issue, smokers have had little success in other jurisdictions using the ADA to attack their termination. Under the ADA, an employee must show that they have an impairment that substantially limits a “major life activity” like walking, talking, speaking, breathing, etc. While a smoker who develops cancer or emphysema or heart disease from smoking might be protected under the ADA because of the symptoms of those diseases, it is unlikely that smoking alone will be sufficient to invoke ADA protection. As a result, a Michigan state court ruled that an employee’s “addiction to nicotine” was not a disability because it did not substantially limit any major life activity.

Indeed, the U.S. Supreme Court refused to hear a case involving smokers who were rejected from jobs because they had used tobacco within the last year. That refusal let stand a Florida state court ruling that the rejections were lawful because they were based on evidence concerning worker productivity, absenteeism, and public health objectives.

Conclusion
It is unlikely that this hot issue will be tamped out. It pits the right of individuals to engage in a lawful activity off the job against an employer’s right to hire who it wants. In the absence of a smokers’ rights bill in Delaware, it seems that the employer’s rights will prevail in most instances.

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Delaware Employers & Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Are Today’s Wellness Programs Running Out of Steam?

DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.

Employee Incentive Programs Targeted to Smokers

In Part 2 of this series of posts, we talked about employers who charge higher health care premiums to employees who smoke. These types of programs are commonly lumped together under the broader term of “Wellness Programs.”

But, in fairness, a true Wellness Program involves more than a financial penalty. The modern workforce expects more rewards than punishments from a wellness program. And most employers have answered that call to action by using positive reinforcement strategies–either alone or in conjunction with higher premiums.

Employers may offer special discounts, rebates, and incentives in return for employees’ adherence to certain wellness initiatives, such as smoking cessation. In order to offer these benefits to non-smokers, employers must comply with additional HIPAA regulations. The incentive program must be reasonably structured to promote health; the rewards must be proportionate to the employer’s gain; and the incentives must be strictly based on the employees’ compliance with the program.

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Are Today’s Wellness Programs Running Out of Steam?

DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.

Charging Smokers Higher Health Care Premiums.

It seems settled that smoking poses a substantial health threat to those who smoke. The federal Centers for Disease Control and Prevention lists smoking as the leading cause of preventable death in the country, resulting in 400,000 deaths a year. The risk of dying from lung cancer is more than 22 times higher among men who smoke and about 12 times higher among women who smoke compared with nonsmokers. Cigarette smokers are 2–4 times more likely to develop coronary heart disease than nonsmoker.

Of course, smokers’ health problems show up in medical expenses. Men who smoke incur $15,800 and women who smoke incur $17,500 in additional lifetime medical expenses. These additional costs inevitably affect an employer’s health care costs. As a result, employers across the country are now attempting to shift some of these additional costs back to smokers. Some are charging smokers a higher co-pay for their health insurance benefits. Is this practice legal in Delaware? The answer is probably yes.

Currently, approximately thirty states, including New Jersey, have implemented some form of “lifestyle discrimination” statutes. These statutes make it illegal to discriminate on the basis of legal activities. More specifically, some states have “Smoker’s Rights” statutes which prohibit employers from discriminating against smokers in the workforce. Under these statutes, employers may not terminate employees because they are smokers or refuse to hire applicants who smoke. Some of these laws do permit employers, however, to charge higher health care premiums to employees who smoke. Delaware does not have any such law.

While no Delaware law prohibits employers from charging smokers higher health insurance premiums, HIPAA regulations should be consulted before beginning to impose such a surcharge. HIPAA prohibits employers who offer health insurance from charging an employee a higher premium than required of a similarly situated employee, on the basis of any health-related factor unless that surcharge is based on participation in a “bona fide wellness program.”

Wellness programs vary widely, and the features of such programs will determine whether they are subject to the HIPPA regulations. In order to lawfully implement a wellness program, employers should ensure that the reward is limited to a specified percentage (e.g. 10-20% of the cost of contributions for the employee’s health care); the program is available to all similarly situated individuals and offers written notice of an alternative for employees with physical limitations to meeting the program’s standards (e.g., by attending a smoking cessation program).

Consider the following example. An employer circulates a form to all employees to sign, which would certify that they have not used tobacco products in the past twelve months. Individuals who do not complete the form are assessed a surcharge equal to 20% of the total cost of the employee’s coverage. Employees who are unable to meet the standard due to a medical condition (addiction to nicotine) are not assessed the surcharge so long as they participate in a smoking cessation program. This is an example of a bona fide wellness program that satisfies HIPPA’s non-discrimination regulations.

The Department of Labor has a helpful online checklist employers can use to determine whether their wellness program is HIPPA-compliant. The link is below.

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Are Today’s Wellness Programs Running Out of Steam?

DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.

Smoking Breaks

YCST Partner William W. Bowser posted earlier about the controversy over employees who smoke at Whirlpool, where 38 employees have been suspended after caught smoking. We often get questions from Delaware employers about what they can and cannot do to respond to the various effects of employees who smoke.

In this series of posts, we’ll address some of the most common questions Delaware businesses have about smokers’ rights.

Smoking Breaks

The most often asked question is whether an employer has to facilitate a smoker’s habit by giving smoking breaks. The answer is no. There is no state or federal law that requires smoking breaks.

Delaware employers must, however, provide most employees with a meal break of at least 30 consecutive minutes if the employee is scheduled to work seven-and-one-half or more hours per day. Meal breaks must be given sometime after the first two hours of work and before the last two hours of work in a workday. Of course, smokers could use this meal break to smoke.

If an employer chooses to allow its employees to take smoking breaks, it probably has to pay them for the time. According to an opinion letter issued by the Wage and Hour Division of the U.S. Department of Labor, short smoke breaks are to be included in the calculation of an employee’s “hours worked.” Specifically, smoke breaks of 3-4 minutes at a time, the total of which do not exceed 15 minutes a day, may not be excluded from “hours worked” under the Fair Labor Standards Act.

Thus, the ability to smoke during work hours is largely under an employer’s control. Smoking breaks aren’t required; but, if they are allowed, the employees must be compensated for that time.

Other posts on Smoking in the Workplace:

Whirlpool of Excitement About Employees Who Smoke

Employers who charge higher health premiums to employees who smoker has been a heated issue for several years. The trend first took the national spotlight in 2003 when Weyco, Inc. stopped hiring smokers and gave current employees 1 year to quit [smoking] or be fired.

The issue of charging smokers more for health care has flared up again this week when it was reported that Whirlpool has suspended 38 smokers who claimed they were non-smokers to get a lower health care premium. According to press reports, the workers were seen smoking or chewing tobacco at the company’s smoking huts even though they signed paperwork claiming they did not use tobacco.

Whirlpool charges smokers an additional $500 per year in health premiums. According to a 2007 survey of employer-sponsored health plans by consulting firm Mercer, 16 percent of large employers vary employee premiums based on smoking status. Among small and midsize employers, 5 percent vary premiums.

Whirlpool, like most employers, uses an honor system requesting employees to honestly fill out paperwork regarding their smoking status. It remains to be seen as this case will lead to mandatory nicotine testing as at least one article has suggested.

The Lilly Ledbetter Fair Pay Act was proposed as a measure to increase the length of time in which employees could file claims for unequal pay based on discrimination. Currently, under Title VII of the Civil Rights Act of 1964, employees have up to 300 days to file a claim from the date of the discriminatory act. Under the Equal Pay Act, claims of pay discrimination based on gender can be filed up to two years after the discriminatory act.

The Lilly Ledbetter proposal generated signficant debate. Opponents saw the bill as preventing employers from closing the door on equal-pay claims because employees would no longer have a hard and fast deadline for filing claims. Advocates saw the bill as a safeguard to ensure that those who were subject to unequal pay but who had no way of learning of the discrimination would not lose their claims on a technicality.

Senate Republicans killed the bill in a 56-42 vote on Wednesday, April 23. Senator John McCain, who stated that he opposed the bill but favors fair pay for women, was campaigning in New Orleans, so he was not present for the vote. Senators Barack Obama and Hillary Clinton both voted in favor of the bill.