Understanding the EEOC’s New Guidance on Accommodating Visual Disabilities Under the ADA
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
On July 26, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities. The EEOC originally issued guidance on how ADA discrimination requirements apply to individuals with visual disabilities on May 7, 2014. The new guidance revises and amends the EEOC’s original document. It addresses reasonable accommodations, safety concerns, workplace harassment and discrimination issues arising from the use of artificial intelligence.
In 2022, the Centers for Disease Control and Prevention found that approximately 18.4% of all U.S. adults are blind or have “some” or “a lot” of difficulty seeing, even with corrective lenses. Unfortunately, many of these individuals struggle to find employment. Data from the most recent U.S. Census Bureau’s American Community Survey indicate that only 46.2% of people with visual disabilities were employed in 2019, compared to 78.6% of people without disabilities. These statistics show that there are still significant barriers to employment for people with visual disabilities.
Employers who successfully accommodate job applicants and employees with visual disabilities can gain access to a talented group of workers. They may also experience benefits such as improved productivity and decreased absenteeism from individuals with visual disabilities, decreased workers’ compensation costs and improved workplace diversity. Additionally, compliance with EEOC guidance is required under federal law and can reduce the risk of costly discrimination lawsuits.
This article provides a general overview of the EEOC’s new guidance and highlights key strategies for employers to respond to accommodation requests.
Understanding the New EEOC Guidance
In question-and-answer format, the new guidance provides information on the following topics:
- When employers may ask individuals about their vision
- How employers should treat voluntary disclosures about visual disabilities
- What types of reasonable accommodations individuals with visual disabilities may need
- How employers should handle safety concerns relating to individuals with visual disabilities
- How employers can ensure that no employee is harassed due to a visual disability or any other disability
- How the use of artificial intelligence and algorithms in employment decisions can impact individuals with visual disabilities
Additionally, the EEOC guidance states that individuals with vision impairment, including limited or low vision, may be entitled to accommodation if they are or have a record of being substantially limited in their vision or another major life activity. Accommodation must be based on the needs of the individual requesting them and determined through an interactive process. Examples of reasonable accommodations provided in the recent EEOC guidance include:
- Assistive technology, such as text-to-speech software
- Accessible materials (e.g., Braille or large print)
- Modification of employer policies or procedures, such as allowing guide dogs in the work area
- Ambient adjustments (e.g., brighter office lights)
- Sighted assistance or services, like a qualified reader
Considerations for Employers to Accommodate Individuals With Visual Disabilities
According to the EEOC, employers should provide reasonable modifications for employees with visual disabilities (e.g., flexible scheduling, human or technological readers, or audio alarms) if it doesn’t cause undue hardship for the business. This duty is required under the ADA. Successfully accommodating job applicants and employees with visual disabilities may include the following:
- Understanding when an accommodation request is being made—Requests for accommodation may be made verbally or in writing. To make a request, individuals do not have to mention the ADA or use the term “reasonable accommodation.” For example, an employee may make an accommodation request simply by telling their manager they’re having trouble reading due to a degenerative eye condition. If employers become aware of an individual’s need for an accommodation or believe that a medical condition is causing a performance or conduct problem, they may ask the employee how to solve the problem and if the employee needs a reasonable accommodation. This can reduce misunderstandings and the risk of potential litigation if accommodation requests are ignored.
- Determining appropriate accommodations through an interactive process—Once a reasonable accommodation is requested, the employer and the individual should discuss the individual’s needs and identify the appropriate reasonable accommodation. These discussions allow employers to find the best solutions for an impacted employee’s individual needs and show the worker they’re valued. When deciding which accommodation to implement, employers can consider the affected employee’s preference but are not required to do so. Employers can refer to the examples of reasonable accommodations provided in the recent EEOC guidance.
- Determining if accommodation is reasonable—When an individual requests workplace accommodation, employers must determine if they can provide accommodation without undue hardship. Such decisions should be made on a case-by-case basis, taking into consideration the cost of the accommodations, the financial resources of the employer and the impact the accommodations will have on the organization.
- Asking for medical documentation when appropriate—Employers may request documentation to establish that an individual has an ADA disability that requires reasonable accommodation in the workplace if the disability isn’t obvious. Alternatively, employers can discuss the disability with the employee requesting accommodation.
- Communicating openly with affected individuals—An individual’s needs for accommodation may change over time. While some accommodations may be permanent, others may only be necessary for weeks or months. Employers should keep communication open with individuals who have reasonable accommodations to ensure they’re able to be as productive as possible and the employer follows all legal requirements.
Conclusion
Individuals with visual disabilities can contribute to a talented and diverse workforce. Employers who successfully accommodate such individuals may experience improved retention and productivity from valued employees. Employers can use the recent EEOC guidance to create a safe and accommodating environment that complies with federal regulations for individuals with visual disabilities.
Contact us today for more workplace resources.
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Your Business Risks in an Economic Downturn
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
Without a thorough evaluation of its business model, any manufacturer can be severely threatened by an economic downturn. While devising creative solutions to keep your business running despite unfavorable economic conditions, keep in mind that changes to your business can result in changes to your liability exposure.
Facing Your Supply Chain
It’s no secret that the financial security of your business hinges on that of your partners, vendors and suppliers and that in tough times, everyone is looking for a way to cut costs.
Never rely on the insurance coverage of your business partners to protect your assets or protect against third-party liability claims. In the event of financial insolvency, a business’s upstream partner organizations could eventually be held liable for claims filed against it. However, healthy, well-insured partner organizations are no substitute for comprehensive liability coverage for your business.
Ultimately, in order to protect your company it may be a smart long-term investment to expand your coverage limits. While many businesses may opt to cut costs by lowering their coverage, dropping coverage could result in paying out of pocket for an expensive claim caused by suppliers’ shortcomings. If you are involved in outsourcing or are considering this option to mitigate costs, first talk to RISQ Consulting about covering the associated risks.
Verify Contracts
In a turbulent economic climate, it is more important than ever to have thorough, seamless contracts. They should clearly outline the obligation of each party and discuss dispute resolution policies so that if something goes wrong, you avoid a messy and expensive disagreement.
It is never a good business decision to sign a contract hastily, but especially in difficult economic times be sure to look into all the risks and legal ramifications. Small companies who partner with larger companies are often strong-armed into making decisions with which they are not completely comfortable.
When you experiment with new products or services, you will inevitably face a learning curve, which puts you at a larger risk of facing product liability claims.
Making Changes
In many cases, change is the best way of reacting to an economic crisis. It allows you to explore and exploit new customer bases and offer additional products or services. While expanding in either of these ways can revolutionize your business and keep you afloat in tough times, it could also expose you to additional liability.
When you experiment with new products or services, you will inevitably face a learning curve, which puts you at a larger risk of facing product liability claims. You may want to consider purchasing additional lines of coverage to protect yourself, as your surplus lines insurance policy may only cover claims arising from one particular product.
By the same token, shifting or expanding your client base may put you at risk of unexpected class action lawsuits. The same product or service may evoke disparate reactions in different sectors of the market. This is another instance in which it is important to be covered for potential liabilities resulting from a change in your business. Contact RISQ Consulting today to be sure your plan for escaping an economic downturn unscathed does not backfire.
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The RISQ RECAP:
August 28th – September 1st, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Catastrophe Experts Discuss Maui’s Long Road to Recovery “While wildfire search and rescue efforts continued in Maui, a group of CoreLogic experts gathered online last week to discuss the island’s road to recovery through an insurance lens. Panelists analyzed the disaster’s uncertain billion-dollar price tag as well as potential restoration and reconstruction barriers. “The road to recovery from an event like this will be long and arduous,” said Jon Schneyer, catastrophe response director at CoreLogic. “And the purpose of this briefing is to provide context and understanding of the degree of damage and the recovery costs to help the people of Lahaina to the best of our abilities.” Roughly 6,500 acres of land burned across the island, and the fires were largely contained as of press time. More than 100 fatalities have been confirmed by local officials, with hundreds more still unaccounted for.” Full Article – Insurance Journal
Reinsurers’ Cyber Rates Expected to Rise as They Seek to Regain Profitability: S&P “More cyber reinsurance rate increases can be expected as reinsurers seek to regain underwriting profits in their cyber portfolios, according to a report published by S&P Global Ratings. “Reinsurers had a difficult 2022 due to low profitability and even underwriting losses in their cyber portfolios,” said the report titled “Global Cyber Insurance: Reinsurance Remains Key to Growth.” The gross combined ratio was 107% and the net combined ratio was 101% in 2022 for global reinsurance groups for the cyber business they reinsured, the report added, noting that cyber reinsurers’ gross and net combined (loss and expense) ratios underperformed primary insurers on average. However, S&P said it’s important that primary cyber insurers can absorb reinsurance rate increases without passing them on to policyholders.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Executive Summary: Tracking Telehealth Changes State-by-State in Response to COVID-19 “A descriptive list of current and proposed state and federal guidance, regulations, and legislation concerning telehealth programs. Updated August 25, 2023.” Full Article – Manatt, Phelps & Phillips, LLP
In its 45th Right of Access Initiative Settlement, OCR Reminds Health Plans of HIPAA Compliance Obligations “Previously focused on healthcare providers, the settlement with UnitedHealthcare emphasizes the need for health plans to provide members with timely access to their health information. In the press release describing the settlement, OCR Director Melanie Fontes Rainer emphasized that health plans are not exempt from the access requirement.” Full Article – Nixon Peabody International LLC
ERISA Preemption Reaffirmed: Tenth Circuit Limits State PBM Regulation “Pending the outcome of the district court proceedings, Oklahoma is likely to request that the Tenth Circuit rehear the case, and/or pursue an appeal to the Supreme Court. The Mulready decision is a conservative, well-reasoned application of prior precedent. Had the Tenth Circuit reached an opposite conclusion, it would have been a sea change in the world of both ERISA preemption and state regulation of ERISA plans.” Full Article – Groom Law Group
DOL Continues Enforcement of Non-Quantitative Treatment Limitation Requirements “The most recent Report to Congress, which is over 100 pages, is instructive and provides several important lessons: [1] MH/SUD parity remains an enforcement priority; [2] Non- compliant plans reported to Congress; [3] Opportunity to think carefully and deeply; [4] Comparative analysis requirement is no longer new; [5] Top areas of DOL focus; and [6] More exclusions than expected, but also some successes.” Full Article – Verrill Dana LLP
New Regulation for Pharmacy Benefit Managers “Eight separate bills to change PBM practices have recently been introduced or advanced out of committee. The current proposals will introduce some transparency on PBM and pharmaceutical pricing. Rebate retention and spread pricing bans will decrease profit margin for some PBMs, but that is very unlikely to be significant. . . Ultimately the best approach to reducing costs for medications is for the government to set prices, just as most other higher- income countries do.” Full Article – Health Affairs Forefront
IRS Rev. Proc. 2023-29: 2024 Adjusted Contribution Percentage for Determining Affordable Employer-Provided Coverage “This revenue procedure provides the applicable percentage table in Section 36B(b)(3)(A) for taxable years beginning in calendar year 2024. This table is used to calculate an individual’s premium tax credit under Section 36B. This revenue procedure also provides the indexing adjustment for the required contribution percentage for determining the affordability of an employer’s offer of coverage. For plan years beginning in calendar year 2024, the required contribution percentage is 8.39%.” Full Article – Internal Revenue Service
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
NEW JERSEY
New Jersey Issues New Proposed Regulations on Temporary Workers Bill of Rights for Comment
“On 21 July 2023, the New Jersey Department of Labor and Workforce Development posted proposed regulations to implement the New Jersey Temporary Workers Bill of Rights on its website. Public comments on the proposal will be accepted until 20 October 2023.” Full Article
– Ford Harrison
PENNSYLVANIA
Confidentiality Agreements May be Enforced Against Employees Based on Continued Employment Even if There is No New Additional Consideration
“An employment agreement was executed five months after the employee was hired… Later, the employee was hired by a competitor and forwarded himself emails containing his employer’s confidential trade secret information before he left the employer. The employer sued, alleging that the employee had breached the confidentiality provision of his employment contract.” Full Article
– Finnegan, Henderson, Farabow, Garrett & Dunner LLP
ILLINOIS
Illinois Employers: Two Bills We Told You to Watch Are Now Law
“On August 4, Governor Pritzker signed HB 2862 into law, effective immediately, imposing new obligations on employers who use temporary employees, including providing information on their regular employees’ compensation to staffing companies and documenting and keeping records of training provided to the staffing company employee.” Full Article
– Baker & McKenzie LLP
NEW YORK
Remote Employees Nationwide May Trigger Special Rights in Group Terminations Under NY Law
“With just a handful of words, the NYS Department of Labor has turned upside down the purpose of the state’s WARN Act and imposed a plethora of new obligations on employers that make little practical sense.” Full Article
– Levy Employment Law, LLC
CALIFORNIA
California Modifies Employment Regulations Regarding Criminal History
“The Fair Chance Act (FCA) prohibits California employers with five or more employees from inquiring into, considering, distributing, or disseminating information related to an applicant’s criminal history until after the employer has made a conditional offer of employment.” Full Article
– Davis Wright Tremaine LLP
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Hiring Trends Are Pushing Employers to Focus on the Employee Experience
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
Employers have been forced to navigate and respond to several challenges over the last few years, including the COVID-19 pandemic, a tight labor market, rising health care costs, inflation and a potential recession. These challenges have pushed many organizations and their employees to their limits. According to a recent survey from management consulting firm McKinsey, more than half of business leaders say their organizations are not prepared for future economic and geopolitical challenges.
Workforce changes are now impacting employers in 2023. Organizations are posting fewer job openings, extending fewer offers and prioritizing best-quality hires. As a result, employers are shifting from prioritizing growth to focusing on hiring key talent. However, many organizations have failed to find effective ways to support employees’ long-term health, well-being and growth, potentially undermining their efforts to attract and retain top talent. This article explores how current hiring trends are forcing employers to redefine the employee experience in order to improve hiring outcomes and attraction and retention.
Current Hiring Trends
A recent study from enterprise management cloud company Workday found a 10% decline in open roles in the first quarter of 2023 and a 4% decline in job offers compared to the same time last year, even though the number of applicants has remained relatively the same. This is the first time since 2020 that requisition growth has declined. This trend is especially pronounced among tech and media organizations, where job seekers are expected to compete with approximately 27 candidates for each opening. This number marks a 248% increase from the first quarter of 2022.
These statistics likely indicate the end of the growth era as employers shift their attention to efficiency over growth. Economic and market factors are pushing organizations to increasingly prioritize hiring the right candidates for each new position and internal productivity, leading to fewer open positions and job offers. As a result, ensuring a positive employee experience is becoming more important to help employers improve employee engagement, productivity and retention.
Strategies to Improve Employee Experience
As employers shift from growth to efficiency, a positive employee experience is essential to improve hiring outcomes, attraction and retention efforts and productivity. Understanding the current workplace dynamics and employee experience, including any challenges and opportunities, can help employers establish strategies to improve employee experience.
Focusing on Employee Engagement
The following are aspects employers can emphasize as they focus on employee engagement:
- Employee health and well-being—As employers increasingly prioritize efficiency over growth, employees will likely feel pressure to be more productive. This can increase the risk of employee burnout, especially since many employees are already under significant pressure to perform. Therefore, employers will need to find ways to improve employee efficiency without increasing burnout risk. Supporting workers’ health and well-being can help reduce this risk.
- Hybrid work—While the majority of employees feel productive in a hybrid environment, many employers find that hybrid or remote work makes it difficult to trust that employees are remaining productive outside of the office. Employers are more likely to improve the employee experience by focusing on outcomes rather than hours worked. Defining clear goals and objectives, as well as ways to effectively measure them, can enable employers to better prioritize employee work and cultivate an environment of trust, even in hybrid or remote environments. This can help reduce the risk of employee burnout and foster employee autonomy.
- Growth and recognition—With a heightened emphasis on existing employees rather than new hires for growth and innovation, employees must provide talented workers and high performers with recognition and ample growth opportunities. Providing internal mobility opportunities can boost employee engagement and retention. It can also increase workforce productivity and efficiency by ensuring employees are in the right positions for their skill sets. Employers can further ensure this by mapping skills and capabilities across their organizations.
- Organizational strategy—As internal and external pressures shift, creating clear strategic goals can help employees prioritize their work in accordance with high-value initiatives. This can allow employees to stay focused and improve engagement by utilizing their skills and providing a sense of purpose.
Leveraging Technology
As employers increasingly focus on employee experience to further organizational growth and innovation, leveraging new technology, such as artificial intelligence (AI) and machine learning (ML), can help create additional growth opportunities. Incorporating AI and ML technologies can help organizations run more efficiently by automating and streamlining manual, error-prone tasks, allowing employees to attend to high-value work. Employers that offer technology and other tools to support their workforce can help improve the employee experience by increasing job satisfaction. This can also help organizations to grow efficiently and economically. However, employers should familiarize themselves with the functionality and limitations of AI and ML technologies. Being aware of the limitations can allow organizations to evaluate and determine how best to use these technologies.
Employer Takeaway
As organizations adjust to the end of growth-based hiring, prioritizing workplace efficiency and employee experience is essential. Employers can do this by supporting employee health, well-being and productivity and leveraging technology. By considering employee needs, employers can focus on areas of improvement and increase workforce engagement.
For more workplace resources, contact RISQ Consulting today.
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How Employers Fail to Upskill and Retain Key Talent
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
The current labor market presents challenges for employers looking to attract and retain talented employees. Despite recent highly publicized layoffs, especially in the tech sector, the unemployment rate has remained relatively low. This makes replacing talent challenging. Losing talent is also expensive, making retention critical for the success of every employer. This article highlights essential ways employers fail to upskill and retain talent and provides guidance for how they can improve retention efforts.
The Consequences of Failing to Retain Talent
High rates of employee turnover can damage morale, decrease productivity and harm customer relationships. It can also result in skills shortages. According to management consulting firm McKinsey & Company, most (87%) employers currently have skills gaps or expect to have them within the next few years. Replacing talented workers can be time-consuming and expensive, which can negatively impact an employer’s bottom line.
How Employers Fail to Upskill and Retain Talent
Unfortunately, retention remains a struggle for many organizations. A recent study by LinkedIn found that 61% of American employees were considering leaving their jobs in 2023. This number was even higher among younger generations of workers, with 72% of Generation Z workers and 66% of Millennials considering leaving their jobs in 2023. Employers can reduce employee turnover and boost job loyalty and satisfaction by understanding and addressing common factors that drive employees to quit. Common reasons employees leave their jobs include the following:
- Lack of employee engagement—Employers often fall into the trap of believing that paying their employees well is the only factor that impacts an employee’s decision to stay at their current organization. While financial compensation is important, research shows that engagement also plays a crucial role in retention. According to analytics and advisory company Gallup, employees who are engaged and have enhanced well-being are 59% less likely to look for a job at a different organization within the next 12 months. Despite the importance of engagement, Gallup found that just one-third of employees are engaged at their jobs, causing decreased job satisfaction, performance and retention.
- Absence of growth and learning opportunities—Upskilling and reskilling employees can increase employee engagement and decrease skills gaps. It’s also crucial for retaining employees, especially younger generations of workers who often prioritize career development over higher-paying positions. Growth opportunities are similarly important. In fact, the lack of growth opportunities is one of the biggest reasons employees leave their jobs. According to the online recruitment site Zippia, 76% of employees are looking for opportunities to expand their careers, and 45% would stay at their organizations longer if their employer invested in their learning and development. Despite this, over half (59%) of surveyed employees reported no formal workplace training.
- Lack of managerial support—According to Gallup, managers account for 70% of the variance in employee engagement across business units. Managers significantly impact employee engagement, retention, job satisfaction and productivity. When managers prioritize productivity over people or lack vital interpersonal skills, such as communication and authenticity, they can contribute to high turnover rates.
- Poor company culture—A 2022 survey by the employment website FlexJobs found that toxic company culture was the number one reason people quit their jobs. These impressions are often made as early as onboarding, where a negative experience can set the tone for an employee’s overall experience at an organization. Lack of a healthy work-life balance was also high on the list of reasons employees quit, identified by 49% of surveyed workers. When employees feel overworked and underappreciated, they’re more likely to look for jobs outside of their organization; this is especially true of employees in mentally unhealthy workplaces or toxic environments.
Strategies for Upskilling and Retaining Talent
Employees want to work for organizations that prioritize them as people and invest in their development. Employers should consider the following strategies for upskilling and retaining talent:
- Focus on skills-based hiring and hiring the right employee the first time.
- Create a positive, efficient onboarding process.
- Hire managers with strong interpersonal skills (e.g., connection, honesty, respect and communication).
- Recognize employees for their accomplishments.
- Encourage employee participation in important business decisions.
- Ask for employee feedback (e.g., surveys, in-person meetings).
- Create career ladders for transparency about career progression.
- Provide dedicated time for employee upskilling (e.g., block out time on employees’ calendars or provide optional training during lunch breaks).
- Encourage mentorship relationships.
- Offer customized training programs and tools.
- Prioritize internal mobility over outside hires.
- Treat employees as people (e.g., promote flexibility, autonomy and work-life balance).
- Provide generous benefits and paid time off.
- Focus on creating a positive company culture that promotes mental health and employee well-being.
Conclusion
Employers who address common reasons employees quit their jobs may experience reduced rates of turnover. This can reduce hiring costs, boost employee morale and provide a competitive advantage over similar organizations that fail to retain talented workers successfully.
Contact us today for more workplace resources.
- Published in Blog
The RISQ RECAP:
August 20th – August 25th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
Rail Whistleblowers Fired for Voicing Safety Concerns “Hours before a Norfolk Southern train derailed in Ohio and erupted in fire in February, a judge ruled a former railroad employee could proceed with a lawsuit claiming he had been harassed for years by managers who said he reported too many flaws in rail cars he inspected and had his job changed after reporting an injury. Richard Singleton’s case against Norfolk Southern was settled for an undisclosed amount after the judge said he had enough evidence to go to trial over whether he was disciplined for reporting safety violations that slowed trains passing through a Macon, Georgia, railyard.” Full Article – Insurance Journal
Severe Weather Set to Boost US Disaster Funding Needs, FEMA Says “Growing extreme-weather risks mean President Joe Biden’s expected request for billions in extra disaster-relief funding might not be enough for the next fiscal year, FEMA head Deanne Criswell said. Biden’s roughly $12 billion request would cover the spending year ending Sept. 30, the Federal Emergency Management Agency administrator said on CBS’s Face the Nation on Sunday. “As we’re continuing to see the increase in these severe weather events, that dollar amount may need to go up as we go into next fiscal year,” Criswell said. A wildfire in early August that destroyed the Hawaiian town of Lahaina and killed more than 100 people has focused attention on the rising cost of natural disasters.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Zooming in on the I-9: Five Things Employers Need to Know About Remote Immigration Verification “The new rule became effective August 1, 2023, and allows eligible employers to utilize an alternative process for I-9 verification. The alternative process allows continued remote inspection of Form I-9 documents by a live video call interaction.” Full Article – Akerman LLP
‘Quiet Quitting,’ is Getting Louder — 7 Ways Employers Can Bolster Employee Engagement and Address the Risks of ‘Loud Quitting’ “Employers have been concerned about ‘quiet quitting’ for some time now, looking for ways to foster employee engagement and productivity. And new data shows the importance of doing so because ‘quiet quitting’ has turned into ‘loud quitting.’” Full Article – Levenfeld Pearlstein, LLC
EEOC Inks First-Ever AI-Based Antidiscrimination Settlement “On August 9, the U.S. Equal Employment Opportunity Commission (‘EEOC’) and iTutorGroup, Inc. filed a joint notice of settlement and consent decree announcing the settlement of a discrimination in hiring lawsuit. This settlement marks the first instance in which the EEOC settled a lawsuit alleging unlawful discrimination stemming from the use of Artificial Intelligence (‘AI’) in recruiting software.” Full Article – Proskauer Rose LLP
Building a Proactive Mental Health Strategy in the Workplace “What are best practices businesses and HR professionals can use to foster and maintain the mental wellbeing of employees? The answer to this question may be evolving. The rise in post- pandemic employees experiencing some type of mental health issue has prompted companies to audit the efficacy of their current employer-sponsored resources and assess alternative strategies to improve employee wellbeing.” Full Article – Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Escaping the Office: Remote and Hybrid Harassment “As employers continue to embrace work-from- home options for employees, a slew of new concerns and potential liabilities continue to arise. One particularly persistent issue is that as the workplace has been expanded into each employee’s home, so has the potential for harassment. In fact, even though many employees no longer see and interact with colleagues in person on a daily basis, recent studies have found that instances of workplace harassment have increased over recent years.” Full Article – Venable LLP
Eleventh Circuit Holds Adverse Employment Action is Required in ADA Failure-to-Accommodate Claims “The U.S. Court of Appeals for the Eleventh Circuit, in Beasley v. O’Reilly Auto Parts, recently held that a claim for failure-to-accommodate under the Americans with Disability Act (ADA) must include an adverse employment action. That is, ‘discrimination in the form of a failure to reasonably accommodate is actionable under the ADA only if that failure negatively impacts the employee’s hiring, advancement, discharge, compensation, training, and other terms, conditions, and privileges of his employment.’” Full Article – Littler Mendelson P.C.
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
NEW JERSEY
New Jersey Issues New Proposed Regulations on Temporary Workers Bill of Rights for Comment
“On 21 July 2023, the New Jersey Department of Labor and Workforce Development posted proposed regulations to implement the New Jersey Temporary Workers Bill of Rights on its website. Public comments on the proposal will be accepted until 20 October 2023.” Full Article
– Ford Harrison
PENNSYLVANIA
Confidentiality Agreements May be Enforced Against Employees Based on Continued Employment Even if There is No New Additional Consideration
“An employment agreement was executed five months after the employee was hired… Later, the employee was hired by a competitor and forwarded himself emails containing his employer’s confidential trade secret information before he left the employer. The employer sued, alleging that the employee had breached the confidentiality provision of his employment contract.” Full Article
– Finnegan, Henderson, Farabow, Garrett & Dunner LLP
ILLINOIS
Illinois Employers: Two Bills We Told You to Watch Are Now Law
“On August 4, Governor Pritzker signed HB 2862 into law, effective immediately, imposing new obligations on employers who use temporary employees, including providing information on their regular employees’ compensation to staffing companies and documenting and keeping records of training provided to the staffing company employee.” Full Article
– Baker & McKenzie LLP
NEW YORK
Remote Employees Nationwide May Trigger Special Rights in Group Terminations Under NY Law
“With just a handful of words, the NYS Department of Labor has turned upside down the purpose of the state’s WARN Act and imposed a plethora of new obligations on employers that make little practical sense.” Full Article
– Levy Employment Law, LLC
CALIFORNIA
California Modifies Employment Regulations Regarding Criminal History
“The Fair Chance Act (FCA) prohibits California employers with five or more employees from inquiring into, considering, distributing, or disseminating information related to an applicant’s criminal history until after the employer has made a conditional offer of employment.” Full Article
– Davis Wright Tremaine LLP
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Cyber Liability – Zero Trust Security Explained
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
Traditional cybersecurity protocols can’t keep up with the rapidly evolving modern workplace environment. The complexity of hybrid work, the rising number of fully remote employees and the dramatic increase in the use of cloud-based systems make traditional perimeter security ineffectual. A new security model is needed to keep the corporate network safe. This model is “zero trust.”
Zero trust is adapted to the modern workplace. It embraces mobility and protects people, networks, applications and devices, regardless of their location. Review the following guidance to learn why zero trust is important, how it works and how it can benefit your organization.
What Is Zero Trust?
Traditional network security trusts the identity and intentions of users within an organization’s structure. This puts the organization at risk from malicious internal actors and rogue credentials by allowing unauthorized and uncompromised access to the organization. The phrase “trust, but verify” is often used to describe traditional network security approaches.
The zero-trust approach removes the concept of trust from within an organization’s structure. With zero trust, a data breach is assumed with every access request. Every access request must be authenticated and authorized as if it originated from an open network. The concept “never trust, always verify” is emblematic of the zero-trust approach.
What Are the Benefits of Zero Trust?
The zero-trust approach is one of the most effective ways for organizations to control their network, applications, and data.
This is especially important today, as companies expand their infrastructure to include cloud-based applications and servers. The growing usage of locally hosted machines, VM and Software-as-a-Service products, and a dramatically increasing number of remote employees have made it difficult for organizations to secure their systems and data.
Implementing a zero-trust approach benefits companies in a wide range of ways, including:
- Minimizing your organization’s attack surface—By granting the lowest level of access possible for users and devices to perform their essential functions, organizations can minimize the affected area within their organization should a breach occur.
- Improving audit and compliance visibility— The first step to implementing zero trust is for an organization to know what devices exist and which credentials are on each device. In this way, devices are constantly kept in an audit-ready state.
- Reducing risk, complexity and costs—All access requests are vetted prior to allowing access to any company assets or accounts. This dramatically increases real-time visibility within the organization and helps prevent costly data breaches.
- Providing Layer 7 threat prevention— Layer 7 refers to the application level of the Open Systems Interconnect model. This layer identifies communicating parties, supports end-user processes and applications, and consults privacy and user authentication. By establishing who can access the different levels of your organization at any given time the zero-trust approach stops unauthorized users or applications from accessing your organization’s crucial data and prevents the unwanted exfiltration of sensitive information.
- Simplifying granular user-access control— Zero trust requires an organization to define which users may access certain aspects of an organization. As a rule, each user is granted the least privilege possible to perform their necessary functions.
- Preventing lateral movement—Segmenting the network by identity, groups and function allows organizations to contain breaches and minimize the damage from a hacker who was allowed to move freely within the organization’s perimeter.
How Does Zero Trust Work?
By combining a wide range of preventative techniques, including identity verification, behavioral analysis, microsegmentation, endpoint security, and least privilege controls, implementing a zero-trust approach can significantly reduce an organization’s risk of becoming a data breach victim.
Zero trust relies on three essential principles:
- Verify explicitly. Every user request must be authenticated and authorized using all available data points. This step is designed to ensure the person or application requesting access is who they say they are.
- Use least privileged access. Users should be given the least amount of access necessary to perform their authorized functions. Just-in-time (JIT) and just-enough access (JEA), risk-based adaptive policies and data protection can all help secure data and user productivity.
- Assume breach. Use end-to-end encryption to prevent data from flowing to undesired endpoints. Use analytics to drive threat detection, improve visibility and enhance defenses.
How Can I Implement Zero Trust?
Zero trust is relatively simple to deploy. Adopting the principles of zero trust doesn’t require any costly products. Use the following principles to employ zero trust at your organization:
- Define the attack surface. To adopt a zero-trust framework, your organization’s critical data, assets, applications and services must be identified. This critical information forms a “protect surface,” which is unique to every organization.
- Create a directory of assets. Determine where the sensitive information lives and who needs access to it. Know how many accounts there are and where they connect. Consider removing old accounts and enforcing mandatory password rotation.
- Adopt preventative measures. Give users the least amount of access necessary to do their work. Use multifactor authentication to verify accounts. Establish micro-perimeters to act as border control within the system and prevent unauthorized lateral movement.
- Monitor continuously. Inspect, analyze and log all data. Escalate and store logs with anomalous activity or suspicious traffic. Have a clear plan of action for how to handle anomalous activity.
For additional risk management guidance and insurance solutions, contact us today.
- Published in Blog
Reviewing Preemployment Drug Testing Policies to Comply With Marijuana Laws
This article is from RISQ Consulting’s Zywave client portal, a resource available to all RISQ Consulting clients. Please contact your Benefits Consultant or Account Executive for more information or for help setting up your own login.
There’s currently a patchwork of marijuana-related laws throughout the United States. While marijuana, including medical marijuana, remains illegal under federal laws, many states have legalized medical and/or recreational marijuana, decriminalized the drug or enacted workplace protections for its usage. As more states legalize marijuana and expand workplace protections regarding its usage, ensuring compliance with federal, state and local laws remains a challenge for employers.
Moreover, attitudes throughout the United States surrounding marijuana use have shifted, causing some employers to change their drug testing policies. Many organizations have altered their marijuana testing policies in recent years. Five years ago, many employers would likely have terminated an employee for testing positive for marijuana; today, state and local laws, as well as other considerations, are forcing organizations to proceed with more caution. As a result, many employers are reevaluating their preemployment marijuana drug testing policies.
This article outlines considerations for employers when reviewing their preemployment drug testing policies. Due to the complex nature of marijuana-related laws, employers are encouraged to consult with local legal counsel regarding any questions or concerns.
Increased Protections for Marijuana Usage
In addition to states that are either legalizing or decriminalizing marijuana use, an increasing number are adopting workplace protections for employee marijuana use. While the protections vary, these laws may require employers to treat marijuana usage like other medications. As a result, employers may need to accommodate employee marijuana usage or be prevented from taking adverse action based solely on a positive drug test.
Importantly, state laws vary on when a positive marijuana drug test can be used to discipline or as the basis to refuse to hire an individual. The laws can limit or determine what actions an employer can take before adversely impacting the employment of an individual who has tested positive for marijuana. For example, New York City and Philadelphia prohibit preemployment drug testing for marijuana. Additionally, Nevada bans employers from taking an adverse employment action based on a positive preemployment marijuana test result. Therefore, it’s vital that employers familiarize themselves with all applicable state and local marijuana laws as well as drug testing requirements. Additionally, they should review their workplace drug policies and procedures to ensure they comply with any state and local legal requirements.
Marijuana Testing Issues
Marijuana presents certain challenges for employers in terms of drug tests, as it can often produce inaccurate or unreliable results. Currently, most drug tests can only show the presence of tetrahydrocannabinol, or THC—a psychoactive compound found in marijuana—in a person’s system at the time of testing; however, they are not able to accurately determine the level of an individual’s impairment or intoxication. For instance, marijuana can stay in urine samples for up to a month or longer and in hair samples for a year. Additionally, individuals metabolize cannabinoids differently, and drug tests cannot capture or process these differences, leading to unreliable test results. Further, cannabinoid components, including legal substances such as CBD, can produce false positive results, making it difficult for employers to be confident in test results.
To address these issues, some employers rely on objective indicators and observations in addition to positive drug test results. This can include the following:
- Unusual behavior
- Dizziness
- Strong odors
- Dilated eyes
- Impaired speech
- Blank or confused facial expressions
Saliva tests have been shown to be more accurate at detecting marijuana usage within 24 hours. As a result, employers are increasingly relying on these tests. Even the U.S. Department of Transportation has recently changed its drug testing requirements to use saliva tests to detect marijuana.
Workplace Safety Concerns
Even in states that have legalized or decriminalized marijuana usage, there are certain exemptions regarding workplace protections for marijuana usage. These typically include carve-outs for safety-sensitive positions or jobs involving driving or piloting vehicles. However, in many cases, preemployment drug tests may not be a reliable indicator of potential future workplace safety issues. Instead, employers are implementing reasonable suspicion and post-accident drug testing policies to address workplace safety issues. Organizations can also develop separate workplace policies for safety-sensitive positions. Under these policies, job positions are treated differently based on whether their requirements and duties involve legitimate safety concerns, such as operating heavy machinery. This can be an effective way for employers to protect employees and customers as well as reduce potential legal risks.
Strategies for Preemployment Marijuana Testing Policies
While more accurate testing measures can provide employers with results they can confidently rely on, many employers may hesitate before taking adverse employment action against an applicant in response to a positive test result due to ever-changing marijuana regulations. Because of the legal complexities and potential future compliance obligations surrounding the drug, there is no one-size-fits-all approach to preemployment marijuana testing. Instead, employers should consider which option best serves their organization and specific business needs.
The best practices for employers that conduct drug testing for marijuana will depend heavily on the applicable state laws; nonetheless, the following is general guidance for employers when reviewing and implementing preemployment marijuana testing policies:
- Apply state and local policies and practices to preemployment testing.
- Adopt policies and practices that comply with the most restrictive laws for any states and localities where an employer operates.
- Employ an “as-needed” approach to required preemployment marijuana testing based on business necessity.
- Eliminate preemployment marijuana testing in states and localities where there is no legal testing requirement.
Employers operating in multiple states should review their policies to ensure they comply with all applicable state and local requirements. Some organizations that operate in multiple states may decide to implement a universal policy that applies to all employees regardless of location or adopt state-specific policies depending on where employees work. If employers decide to forgo preemployment testing altogether, they should determine whether doing so may expose their organizations to legal risks, such as claims of negligent hiring.
Additionally, accommodating employee marijuana usage does not mean employers must tolerate unsafe work environments or individuals working under its influence. Most state laws, even those permitting medical and/or recreational marijuana usage, do not permit individuals to use marijuana while at work or during work hours.
Summary
The expanding network of marijuana laws in the United States is forcing many employers to reevaluate their workplace policies, including preemployment drug testing. Rescinding a job offer due to a positive marijuana result could expose an organization to legal risks and liabilities, including civil fines, lost wages, compensatory damages and attorneys’ fees. This is a rapidly changing area of law, so it’s critical that employers regularly review their workplace policies to ensure they comply with the most current marijuana and drug testing laws. Employers should monitor state and local laws for further developments.
For more workplace resources related to medical or recreational marijuana use, contact RISQ Consulting today.
- Published in Blog
The RISQ RECAP:
August 14th – August 18th, 2023
Each week, you’ll find specially curated news articles to keep you up to date on the ever-evolving world of insurance and risk management. The articles are divided out between items relevant to Property & Casualty, Employee Benefits/Human Resources, and Compliance. We’ve included brief summaries of each item as well as a link to the original articles.
PROPERTY & CASUALTY
ChatGPT Fever Spreads to US Workplace, Sounding Alarm for Some “Companies worldwide are considering how to best make use of ChatGPT, a chatbot program that uses generative AI to hold conversations with users and answer myriad prompts. Security firms and companies have raised concerns, however, that it could result in intellectual property and strategy leaks. Anecdotal examples of people using ChatGPT to help with their day-to-day work include drafting emails, summarizing documents and doing preliminary research. Some 28% of respondents to the online poll on artificial intelligence (AI) between July 11 and 17 said they regularly use ChatGPT at work, while only 22% said their employers explicitly allowed such external tools.” Full Article – Insurance Journal
White House Holds First-Ever Summit on Ransomware Crisis Plaguing Public Schools “The White House on Tuesday held its first-ever cybersecurity “summit” on the ransomware attacks plaguing U.S. schools, in which criminal hackers have dumped online sensitive student data, including medical records, psychiatric evaluations and even sexual assault reports. ‘If we want to safeguard our children’s futures we must protect their personal data,” first lady Jill Biden, who is a teacher, told the gathering. “Every student deserves the opportunity to see a school counselor when they’re struggling and not worry that these conversations will be shared with the world.’ At least 48 districts have been hit by ransomware attacks this year – already three more than in all of 2022, according to the cybersecurity firm Emsisoft. All but 10 had data stolen, the firm reported.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Preparing for Health Plan Anti-Gag Clause Attestation “The first annual attestation is due December 31 of this year, and employers should take the following steps to prepare: [1] Ensure that contracts with health insurance TPAs and insurers do not contain prohibited provisions. [2] Confirm if your plan’s insurer or TPA is submitting the GCPCA on behalf of the plan.” Full Article – Warner Norcross & Judd LLP
Excessive Fee Litigation Spreads to Health Plans “Excessive fee litigation is no longer confined to defined contribution plans. In recent months, plan sponsors of self-funded health plans have filed three cases against Aetna, Elevance, Inc. (formerly known as Anthem, Inc.), and Blue Cross Blue Shield of Massachusetts in their capacities as third- party administrators (“TPAs”) under similar theories of liability.” Full Article – Davis Wright Tremaine LLP
States Continue Expansion of PBM Regulation “More than half the states have enacted PBM laws in the last three years — some of which specifically impact group health plans, such as Colorado, Oregon, New Mexico, Florida, North Carolina, and Oklahoma. [This article outlines] the most common provisions in these laws that could impact plans, using laws in Oklahoma, North Carolina and Florida as examples of state laws that have been adopted or are being considered by state legislatures.” Full Article – Groom Law Group
KFF Health Tracking Poll July 2023: The Public’s Views of New Prescription Weight Loss Drugs and Prescription Drug Costs “While there is overall interest in taking a prescription weight loss drug, interest… Most adults (80%) say that insurance companies should cover the cost of weight loss drugs for adults who are overweight or obese, while half of adults (53%) say insurance should cover the cost of these drugs for anyone who wants them to lose weight.” Full Article – Henry J. Kaiser Family Foundation
CMS Recommends Extension of Special Enrollment for Individuals Losing Medicaid and CHIP “There is no legal basis upon which CMS can rely in requesting this voluntary action by employers. In effect, CMS is asking employers to take this action because it believes that it is the ‘right thing to do,’ in light of the ‘complex transition’ … ‘and the importance of maintaining life-saving coverage for employees and their families.’ From an ERISA standpoint, an employer wanting to implement this CMS recommendation would need to amend its plan.” Full Article – The Wagner Law Group
Better Hide the Wine … Employer Considerations as the DOL Doubles Down on Mental Health Parity Compliance in New Proposed Regulations “Sponsors of self-insured plans may want to: [1] Confirm that their TPA will make the necessary changes to their plan’s NQTLs based on the potential heightened requirements [2] Confirm that their TPA will retain and evaluate the necessary data regarding NQTLs and network adequacy [3] Confirm that their TPA is preparing the required comparative analyses in a manner consistent with the proposed regulations. [4] Independently review any NQTL comparative analyses that have been or are prepared. [5] Negotiate contractual protection in the event the TPA’s NQTL comparative analyses are determined to be deficient or the TPA’s application of NQTLs is determined to be impermissible.” Full Article – Holland & Hart LLP
STATE & INTERNATIONAL COMPLIANCE
In addition to the RISQ Review, RISQ Consulting also provides a resource that features changes and updates to State and International Compliance measures. We’ve included brief summaries of each item below, and also provided links to the original articles if you’d like to read further.
CALIFORNIA
Changes in California’s Regulations Regarding Criminal Records Approved
“The California Civil Rights Council previously issued draft revisions to the Fair Employment and Housing Act’s regulations governing inquiries into and consideration of a job applicant’s criminal history in making hiring decisions. On July 24, 2023, the Office of Administrative Law approved the Council’s proposed modifications to the regulations.” Full Article
– Littler Mendelson P.C.
NEW YORK
Amendments to New York WARN Act Now in Effect
“Amendments to the New York State Worker Adjustment and Retraining Notification Act (NY WARN Act) that the New York State Department of Labor (NY DOL) adopted in June 2023 are now in effect.” Full Article
– Davis Wright Tremaine LLP
NEW JERSEY
New Jersey Issues New Proposed Regulations on the Temporary Workers Bill of Rights for Comment
“On July 21, 2023, the New Jersey Department of Labor and Workforce Development posted on its website proposed regulations to implement the New Jersey Temporary Workers Bill of Rights. Public comments on the proposal will be accepted until October 20, 2023.” Full Article
– Ford Harrison LLP
COLORADO
Colorado Peculiarities
“The Colorado Protecting Opportunities and Worker’ Rights (POWR) Act was signed into law by Governor Jared Polis on June 6, 2023, and will go into effect on August 7, 2023. The legislation, which amends the Colorado Anti- Discrimination Act, is multifaceted.” Full Article
– Seyfarth Shaw LLP
ILLINOIS
Illinois AG Settles Investigation into Company’s Payment Practices for $950K
“On July 6, Illinois Attorney General Kwame Raoul announced a $950,000 settlement concerning the Illinois Wage Payments and Collection Act, marking the conclusion of an investigation into GrapeTree Medical Staffing (GrapeTree), a medical staffing company that operates in 12 states.” Full Article
– Troutman Pepper Hamilton Sanders LLP
- Published in Blog