Supporting Employees During the 2023-24 School Year
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.
As summer comes to an end and fall begins, employees with school-age children may have increased caretaking responsibilities as their kids begin a new academic year. In addition to other day-to-day challenges, parents are now dealing with school pick-up and drop-off, unexpected sick days and other occurrences that could affect their work-life balance.
Employers can support employees during this transition into the school year by acknowledging these changes and offering flexibility. This article explores considerations for acknowledging and responding during the back-to-school season.
Supportive Leave Policies
As Americans continue to live with COVID-19 circulating just like the common cold and flu, illnesses are inevitable. Therefore, employers may want to review their leave policies. While an organization’s policies may accommodate employees who become ill, family members could also become sick. Employers should consider offering workplace flexibility that allows them to leave and care for their family members if needed. Some employers have leave policies that allow employees to take time off when they or their family members are sick or when they need to receive vaccines for these illnesses. With the back-to-school season approaching, employers may be reevaluating their current leave offerings to ensure they reflect these realistic needs.
Flexible Working Arrangements
Remember that life happens, and unexpected circumstances will arise. Employers can consider providing remote and hybrid work models when possible or as needed. Even when remote and hybrid work is not feasible, flexible scheduling can allow employees time for other tasks, such as dropping off or picking up their children from school.
Furthermore, the workplace could implement core hours that allow employees some leniency in when they can start and stop their days. Whichever accommodations an employer chooses, it’s important to communicate to employees that the company is willing to work around events that may arise in their lives. This assurance may reduce stress during the back-to-school transition and could positively impact employee retention. However, it’s important to note that accountability should come with flexibility, so employees must work out any arrangements with their managers and teams.
Resources for Caretakers
Family caregivers account for an estimated 18% to 22% of the U.S. labor force, according to the Rosalynn Carter Institute for Caregivers. Furthermore, nearly one-third of caregiver employees have voluntarily left a job at some point during their careers because of their caregiving responsibilities.
While it may not be feasible for all employers to directly provide caretaking services, they can help ensure their employees have access to such resources.
Employers may consider hosting a workshop, distributing a handout or otherwise providing information regarding caretaking resources. Even if there are no specific caregiving benefits available at an organization, managers or supervisors could simply ask working employees how they are doing during the back-to-school season. This kicks off an open dialogue, demonstrating an interest in how they’re doing as a person and helping reduce guilt about juggling personal and work responsibilities.
Many schools end between 3 p.m. and 4 p.m., which means working parents might need child care for several hours or leave to handle it themselves. When school is closed due to holidays or professional development, working parents may have to find a secondary plan for those days while they’re still working. Helping employees feel supported during their search for caretakers or after-school programs for their children can go a long way in making them feel supported and may boost overall employee retention.
Takeaway
The back-to-school transition may initially seem misplaced to the workplace, but the reality is that many employees have school-age children and associated caretaking responsibilities. As a result, employers should prepare to be flexible, accommodate employees during this transition and provide relevant resources. These efforts can help make a difference and ultimately assist in appealing to and keeping workers during a time when attraction and retention are significant challenges for organizations.
Contact us for additional workplace resources.
- Published in Blog
Assessing the Viability of AI as a Self-diagnosis Tool
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.
Artificial intelligence (AI) has created revolutionary advances across many industries. Now, it’s paving its way as a tool to self-diagnosis medical conditions or get answers to health-related questions. Self-diagnosis is a growing practice, as people’s primary access point for health care information has shifted from professionals to the internet. Especially when you’re having trouble getting an appointment, the internet has proven itself as a fast, easily accessible and free source of information. Given the internet’s popularity in answering some of your most urgent health-related questions, you may wonder how AI can help. Keep in mind that while AI is new and exciting, it’s not a replacement for professional health care.
This article explores the use of generative AI for medical self-diagnosis and its benefits, limitations and viability.
Generative AI for Health Care
Generative AI is a type of technology that produces text, images, audio or other content. With the introduction of AI chatbots, more people may be turning to them to answer their health-related questions. Some common tools used for this purpose include OpenAI’s ChatGPT and Google’s Med-PaLM. These types of large language model (LLM) chatbots can predict the next word in a sequence to answer questions in a human-like style.
Amid a shortage of health care workers, bots could help answer your questions. Initial tests by researchers so far suggest these AI programs are more accurate than a standard Google search.
The Pros
AI tools can potentially reduce medical costs for patients and health care providers. Here are some more potential benefits of using generative AI for medical self-diagnosis:
- Increased accessibility
- Quicker triaging
- Boosted health literacy
- Preserved anonymity
All of these factors contribute to an enhanced patient experience and improved engagement. Chatbots are also considered easier to use than online symptom checkers.
The Cons
While generative AI has great potential, it’s important to understand that there are also some limitations and pitfalls, including the following:
- False information
- Misinterpretation of information
- Ethical concerns (e.g., data privacy and bias)
- Risk of ignoring medical advice
Due to these risks, some LLM chatbots include disclaimers that they shouldn’t be used to diagnose serious conditions, provide instructions for curing conditions or manage life-threatening issues.
Using Generative AI in Medical Self-diagnosis
While generative AI tools may help you quickly answer health-related questions and self-diagnosis conditions, relying solely on them could be unsafe. Similar to their use in other applications, AI tools are meant to be complimentary and an additional source of information. They are great sources for general information and help simplify it so you can be an educated health care consumer.
Generative AI is not a replacement for medical advice from a professional, but it can be used to supplement professional medical advice. If you plan to use AI to answer your nonurgent health-related questions, consider the following best practices:
- Be aware of the potential ethical concerns of AI-driven health care, such as data privacy.
- Verify the AI information with trusted medical sources.
- Consult a health care professional for conclusive diagnoses and treatment plans.
The Future of AI-assisted Self-diagnosis
According to data from business consultant Accenture, health care AI applications could save up to $150 billion annually for the U.S. health care economy by 2026. AI offers numerous potential benefits, but it’s important to recognize the limitations and concerns associated with medical self-diagnosis. Health care providers will likely strive to harness AI’s power instead of solely relying on it. By layering AI into health care systems and making them user-friendly, providers can gain access to insights to provide better care.
AI is in the early stages of its development. However, as it advances, the future of medical self-diagnosis will likely involve even greater collaboration between AI developers and health care providers.
Summary
In today’s digital world, it’s easy to become overwhelmed when researching health-related information. Obtaining accurate health advice and information comes down to using all available sources but understanding their limitations. LLM chatbots could take provider-AI collaboration and diagnosis to the next level, but it has yet to be seen.
While generative AI is not meant to replace professional health care, it can be a good supplementary source and help you increase your health literacy and get answers quicker. Contact your doctor for the most accurate and personalized health care information and guidance.
- Published in Blog
The RISQ RECAP:
August 7th – August 11th, 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
Wind-Driven Hawaii Wildfire Destroying Maui Tourist Town “A wildfire erupted in Maui on Wednesday fueled by strong winds from Hurricane Dora, destroying homes and businesses in a tourist town and forcing some residents to jump into the ocean to escape the flames. The Associated Press is reporting the fire was widespread in Lahaina Town, including on Front Street, a popular shopping and dining area, County of Maui spokesperson Mahina Martin said by phone early Wednesday. Traffic has been very heavy as people try to evacuate the area, and officials asked people who weren’t in an evacuation area to shelter in place to avoid adding to the traffic, she said. The American Property Casualty Insurance Association responded with insurance tips and a statement. “Insurers are ready to help Maui homeowners, renters and businesses impacted by these wildfires,” said Karen Collins, APCIA vice president, property & environmental. ‘This first step is contacting your insurer to start your claim. This is what you have insurance for. Your company or agent will help you navigate this process and get you what you need each step of the way.’” Full Article – Insurance Journal
Bursting Ice Dam in Alaska Highlights Risks of Glacial Flooding “The gray, two-story home with white trim toppled and slid, crashing into the river below as rushing waters carried off a bobbing chunk of its roof. Next door, a condo building teetered on the edge of the bank, its foundation already having fallen away as erosion undercut it. The destruction came over the weekend as a glacial dam burst in Alaska’s capital, swelling the levels of the Mendenhall River to an unprecedented degree. The bursting of such snow-and-ice dams is a phenomenon called a jökuhlaup, and while it’s relatively little-known in the U.S., researchers say such glacial floods could threaten about 15 million people around the world. ‘We sat down there and were just watching it, and all of a sudden trees started to fall in,” Amanda Arra, whose house continued hanging precariously over the river bank Monday, told the Juneau Empire. “And that’s when I started to get concerned. Tree after tree after tree.’ The flooding in Juneau came from a side basin of the awe-inspiring Mendenhall Glacier, which acts as a dam for the rain and melted snow that collect in the basin during the spring and summer.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
OSHA’s New Electronic Reporting Rule Creates New Obligations for Some Employers “Beginning January 1, 2024, more employers will be required to electronically submit detailed information about their workplace injuries and illnesses to the Occupational Safety and Health Administration (OSHA) every year.” Full Article – Phelps Dunbar LLP
Pre-Employment Background Checks: Considerations for Employers When Screening Prospective Employees “Employers commonly conduct background checks on prospective employees in various areas that they may think relevant when deciding whether to hire an individual for a job. Yet, federal, state, and local laws are increasingly regulating and limiting pre- employment background checks to protect prospective employees from perceived unfair or illegal treatment.” Full Article – Venable LLP
When Hot is Too Hot: Workplace Safety Considerations for Employers as the Temperatures Climb “As large sections of the United States continue to experience soaring temperatures for extended periods, employers, especially those with workers in industries prone to heat-related illnesses, should be mindful of certain workplace safety obligations under federal and applicable state law.” Full Article – K & L Gates LLP
Employers — The NLRB Has Just Made Many Common Work Rules Unlawful “In an unsurprising decision applicable to both unionized and non-union employers, the National Labor Relations Board changed its standard for assessing whether seemingly neutral work rules violate the National Labor Relations Act (NLRA). The Board’s decision in Stericycle, Inc. applies to challenges to an employer’s maintenance of work rules that do not expressly apply to employees’ protected activity.” Full Article – Shawe Rosenthal LLP
House Committee Debates Changes to Independent Contractor Rule “During a recent hearing, the U.S. House Education and the Workforce Committee debated the pros and cons of changing the so-called ‘independent contractor’ rule. This rule dictates how to properly classify workers as employees or independent contractors, a distinction that has grown in importance with the steep increase in the independent workforce in recent years.” Full Article – Hall Benefits Law LLC
USCIS and DHS Announce a Revised Form I-9 and a New Option to Remotely Examine Employees’ Documents “U.S. Citizenship and Immigration Services (‘USCIS’) has announced that a revised version of Form I-9, Employment Eligibility Verification will be available starting August 1, 2023. The current version can be used through October 31, 2023; however, as of November 1, 2023, only the revised version may be used.” Full Article – Womble Bond Dickinson 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
Educating Young Employees on Open Enrollment
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.
Many employees need help with open enrollment. This is particularly true among younger workers, who typically have less experience selecting benefits than older generations that have been in the workforce longer. A study by insurance and employee benefits provider MetLife found that 26% of Generation Z (Gen Z) employees are insecure about making benefits decisions.
Employers who successfully educate young employees about open enrollment are likely to find that workers are more satisfied with their benefits packages, make better financial decisions and are more likely to recommend their organization to other people. Such positive outcomes can significantly influence an organization’s overall financial performance.
To this end, employers can implement several strategies for educating young employees to help them navigate open enrollment.
Educating Young Employees
Clear communication is crucial to ensure workers understand the open enrollment process and the benefits they’re signing up for. Employers should consider the following strategies for educating younger employees on open enrollment:
- Prioritize internal communications. Young employees may be unfamiliar with the open enrollment process. Inform employees about the upcoming open enrollment through multiple channels (e.g., emails, flyers and meetings). Ensure every employee knows when open enrollment begins, the last day to complete enrollment and the consequences of failing to enroll in time.
- Create multiple avenues for communication. Ensure young workers know how to ask questions about open enrollment and feel comfortable speaking to HR and their managers about the upcoming enrollment. Encourage these employees to discuss their benefits plans with their friends, family and more experienced coworkers.
- Provide educational resources. Give workers the information they need to make informed benefits decisions during open enrollment. To target young workers, employers should provide digital resources such as online webinars, videos, social media posts and articles.
- Explain benefits options. Employees are likely to think primarily of health insurance during open enrollment and may overlook voluntary benefits that could be useful to them. Employers should provide information about employee benefits choices (e.g., pet insurance, student loan repayment assistance and employee assistance programs) so that young employees don’t forgo benefits they may want later in the year.
- Cater to employee needs. Young generations of workers have different benefits needs than older generations. For example, they’re more likely to prioritize mental health resources and student loan assistance over life insurance or financial planning for retirement. Employers should capitalize on the wants and needs of younger generations to educate them on benefits they care about.
- Encourage young employees to take their time. Rushing through open enrollment can cause workers to forgo crucial benefits. This is especially true of young workers, who may feel stressed or unsure of the open enrollment process. Give employees ample time to research and select their benefits and encourage them to ask questions.
- Communicate all year round. Benefits education should be more than a flurry of activity during the open enrollment window. Employers should provide employees with the resources they need to understand and maximize their benefits all year round, highlighting the direct financial impact benefits decisions can have on employees. This can help young workers understand the importance of open enrollment and the impact that rushing through the process can have on their financial well-being, increasing the likelihood that they’ll make informed benefits decisions when the time comes.
Conclusion
Open enrollment can be a nerve-wracking period for all employees. The stress of selecting benefits is often most keenly felt by younger workers with less experience selecting benefits. Employers can use open enrollment as an opportunity to increase communication and trust with young workers by educating them on the process and their benefits choices. This may increase younger generations’ satisfaction with their benefits packages and jobs, improving organizations’ employee attraction and retention and ultimately their bottom lines.
Contact us today for more information.
- Published in Blog
Top 10 High-cost Claim Conditions in 2022
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.
Stop-loss provider Sun Life released its 2022 list of high-cost claims, revealing the COVID-19 pandemic’s widespread impact on Americans’ medical care, mental health and infant care.
Sun Life analyzes its claims data annually to help self-funded employers understand trends and potential impacts of the highest-cost medical and injectable drug claims. According to the report, 71% of all stop-loss claims in 2022 came from the following top 10 conditions, diseases or disorders:
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Malignant neoplasm: $324.8 million in stop-loss reimbursements
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Cardiovascular: $142.2 million
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Leukemia, lymphoma and multiple myeloma: $115.2 million
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Orthopedics and musculoskeletal: $106 million
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Newborn and infant care: $106 million
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Sepsis: $89.7 million
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Gastrointestinal: $70.2 million
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Neurological: $70 million
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Respiratory: $69.4 million
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Urinary and renal: $54.3 million
While COVID-19 dropped from the top 10 to number 11, it continues to impact other medical conditions. For example, COVID-19 can affect cardiac risk, potentially triggering or accelerating preexisting coronary artery disease. Additionally, mental health conditions increased during the pandemic, with alcohol-related disorders as a top subcategory. Newborn and infant care claims due to preterm births are also on the rise. According to the report, pregnant women in the United States who have had or have COVID-19 have a 40% higher risk of preterm birth. Sun Life suggests that the alarming rate of preterm births is attributed to inadequate prenatal care and preexisting maternal health conditions—such as hypertension, diabetes and COVID-19—which added challenges in terms of underlying health and access to care.
View the full Sun Life report to discover the top 20 high-cost conditions for 2022 and how these numbers have trended over the past few years.
Employer Takeaways
Cancer remains the largest driver of high-cost claims, with 11 of the top 20 high-cost injectable drugs related to cancer treatment. However, cardiovascular disease continued to rise and took the number two spot in 2022. Heart failure, specifically, is the largest cardiovascular claim subcategory. Based on this report, COVID-19 continues to have a ripple effect on Americans’ health and access to care.
Employers should continue to monitor health-related trends to make the right employee benefits decisions for their organization and employees.
Contact us today for more information.
- Published in Blog
The RISQ RECAP:
July 31st – August 4th, 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
Amwins Report Keys on Disruption in Cannabis Space “The disruption in the cannabis space is having an impact on that insurance specialty from coast to coast, a new report out from Amwins shows. The report, Amwins State of The Market Report 2023: A Focus on the Cannabis Market, points to “notable transformations and shifts” that are causing insurance providers to refine offerings “to meet the unique needs and challenges” that are developing as cannabis sales in the Western U.S. slow and new markets rapidly come online in the East.” Full Article – Insurance Journal
How to Efficiently Manage Variable Lines Brokers “At its fundamental level, compliance is about making sure the people you have selling products are authorized to sell them, and are doing it right away AND the right way. Some compliance efforts are likely already built into your daily activities, like recruiting brokers. But in your efforts to only spend time and money on the right people, are you actually spending unnecessary dollars without truly reducing your compliance risk?” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
Employer Considerations Concerning the HIPAA Special Enrollment Rule Temporary Extension “CMS announced a temporary special enrollment period on HealthCare.gov, through which individuals who lose Medicaid or CHIP coverage and come to HealthCare.gov anytime between March 31, 2023 and July 31, 2024 will be able to enroll.” Full Article – Kilpatrick Townsend & Stockton LLP
Employer’s Lack of COBRA Diligence Was Not Intentional Infliction of Emotional Distress “Courts have repeatedly held that damages for COBRA violations are generally limited to unreimbursed medical expenses less applicable premiums and deductibles. Neither COBRA nor ERISA provides for extra-contractual or consequential damages such as recovery for emotional distress.” Full Article – Thomson Reuters / EBIA
Health Care Organizations Support Government’s Effort on Preventive Services “A diverse set of advocates, academics, organizations, and participants in the health care system filed amicus briefs in support of the government and urged the Fifth Circuit to reverse the lower court’s decision. Brief overviews of the amicus briefs are provided in this article.” Full Article – Health Affairs Forefront
Proposed Mental Health Parity Regulations Arrive: Key Changes for Plan Sponsors “As proposed, a plan will need to assess the expected dollar amount of all plan payments for medical/surgical benefits in the classification to determine whether the NQTL applies to ‘substantially all’ medical/surgical benefits, and then identify the most common or frequent variation of the NQTL for purposes of determining whether it is ‘predominant.’” Full Article – Proskauer Rose LLP
Third Circuit Affirms Judgement on ERISA Retaliation Claim “The court found that the evidence supported the district court’s finding that the Company’s firing of Plaintiff was motivated by Plaintiff’s past and anticipated future use of ERISA health benefits. The Company’s healthcare invoices had Plaintiff’s hip replacement surgery costs highlighted, and though anonymized, it was not difficult for someone in the Company to identify Plaintiff and his expenses.” Full Article – Roberts Disability Law P.C.
IRS Issues Guidance on Expenses Related to COVID-19 and Preventive Care “For plan years ending after December 31, 2024, a high-deductible health plan will no longer be permitted to provide coverage for COVID-19 testing and treatment under the HDHP before the minimum HDHP deductible is met without jeopardizing a participant’s HSA eligibility. Notice 2023-37 clarified that the preventive care safe harbor does not include screening (i.e., testing) for COVID-19, effective as of June 23, 2023. This clarification will not be relevant for HDHPs/HSAs until the first plan year ending after December 31, 2024.” Full Article – Miller Johnson Snell & Cummisky P.L.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 YORK
NYC to Consider Indoor Air Quality Regulations
“The COVID-19 pandemic and wildfire smoke shrouding the skies over the East Coast this summer have drawn more attention to indoor air quality, leading the New York City Council to propose indoor air quality resolutions.” Full Article
– Seyfarth Shaw LLP
NNYC Releases Automated Employment Decision Tools FAQs Addressing Certain Lingering Questions
“The New York City Department of Consumer and Worker Protection (“DCWP”) has released its highly anticipated FAQs, providing additional guidance to employers seeking to comply with Local Law 144.” Full Article
– Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
MAINE
Maine Legislative Roundup: New Employment Laws Were Enacted This Session
“The First Special Session of the 131st Maine Legislature included debate about more than 2,000 bills. Many that were adopted will impact employers in the Pine Tree State. Below is a brief summary of important employment law changes enacted this session.” Full Article
– Littler Mendelson P.C.
OHIO
Ohio Federal Court Denies Conditional Certification in an Early Application of the Sixth Circuit’s “Strong Likelihood” Standard,
Signaling a New Normal for Wage & Hour Lawsuits
“On May 19, 2023, the Sixth Circuit replaced the long-standing lenient test for facilitating notice under the Fair Labor Standards Act (FLSA) with a more rigorous test akin to the standard used to obtain a preliminary injunction.” Full Article
– Duane Morris LLP
HAWAII
Hawaii Enacts Pay Transparency and Expands Equal Pay Legislation
“On July 3, 2023, Hawaii Governor Josh Green signed S.B. 1057 into law, expanding equal pay protections and making Hawaii the latest state to require certain employers to disclose salary information in their job advertisements. The law takes effect on January 1, 2024.” Full Article
– Proskauer Rose LLP
- Published in Blog
Supreme Court’s Affirmative Action Ruling Could Impact Workplace DEIB Programs
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 U.S. Supreme Court issued several consequential decisions as its most recent term ended, including addressing affirmative action programs in college admissions. While these rulings will likely not directly affect employers, they may impact workplace diversity, equity, inclusion and belonging (DEIB) initiatives, including how organizations promote and implement them.
This article provides an overview of the Supreme Court’s affirmative action rulings. It explores how these rulings may impact workplaces in 2023 and beyond to help employers prepare for potential changes and navigate the evolving labor and employment law landscape.
Supreme Court’s Rulings
In Students for Fair Admission Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina, the Supreme Court struck down affirmative action programs at the University of North Caroline and Harvard University, holding that the universities’ affirmative action programs violated the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act of 1094. In doing so, the court effectively overruled its 2003 decision of Grutter v. Bollinger, which allowed universities to consider race—among other factors—in university admissions because diversity in education was considered a legitimate aim. As a result, these rulings will likely end the consideration of race in university admissions for private and public institutions.
The Rulings’ Impact on Workplace DEIB Programs
The Supreme Court’s affirmative action rulings did not change any employment-related laws; however, they could create a framework to challenge race-based recruitment and workplace DEIB programs. As a result, they could have an indirect effect on DEIB initiatives and other programs that promote workplace diversity.
Title VII of the Civil Rights Act prohibits covered employers from discriminating against applicants and employees based on race, color, religion, sex and national origin. While the Supreme Court has approved extremely limited race-conscious hiring plans to address past discrimination by a particular employer, it has not created an exception for making race-conscious employment decisions to improve workplace diversity. As a result, the Supreme Court’s decisions regarding affirmative action programs in college admissions could have the following impact on employers:
Individual Lawsuits
While the Supreme Court’s rulings did not directly address hiring or employment practices, employers may face increased scrutiny over their hiring practices and DEIB initiatives. This will likely take the form of individual reverse discrimination lawsuits, with applicants or employees claiming to be disadvantaged by an employer’s DEIB initiatives. For example, employers that rely on DEIB programs that impact employment decisions could be at a higher risk of potential litigation than those that simply offer employee resource groups (ERG). As a result, the Supreme Court’s ruling could impact individual hiring and promotion decisions for organizations with a strong public commitment to increasing workplace diversity.
Mentorship Programs, Affinity Groups and Other DEIB Programs
Some organizations offer mentorship programs, affinity groups (or ERGs) or other DEIB programs to address and strengthen workplace diversity. The Supreme Court’s recent decisions could impact these programs and groups. While it’s unlikely that employers will need to eliminate these programs and groups in light of the rulings, organizations may face legal challenges for limiting program and group membership based on a specific protected characteristic, such as race or gender.
Affirmative Action for Federal Contractors
Employers who are covered federal contractors are required to engage in affirmative action, meaning they must take action to recruit and advance qualified minorities, women, persons with disabilities and covered veterans. While the Supreme Court’s decision does not directly impact this requirement, federal contractors should consider reviewing any actions they take to comply with their regulatory obligations to ensure they don’t run afoul of federal law.
Considerations for Employers
The Supreme Court’s rulings come at a time when many employers are exploring DEIB programs. While dialing back DEIB programs is an option, these rulings do not mean employers can’t or shouldn’t have such initiatives. However, organizations may need to be more critical and thoughtful about designing and implementing their DEIB programs.
With so much uncertainty, employers may need to navigate changing legal landscapes and adjust their DEIB programs and strategies accordingly. This may mean casting a wider net when recruiting. For example, employers can advertise job openings in publications, attend more career fairs or use multiple online channels to expand their talent pool. Employers can also continue to focus on creating an inclusive workplace where employees feel they belong and are treated fairly. Additionally, reviewing workplace policies and practices can help employers ensure they do not reflect implicit bias or illegal impact on individuals based on protected characteristics.
Takeaway
How the Supreme Court’s affirmative action decisions will impact workplace DEIB programs and initiatives is a developing issue, and it’s currently unclear what the landscape will look like for employers. Time will tell whether these rulings will impact or alter established labor and employment laws and workplace DEIB practices. Awareness of these cases and their potential effects on workplaces can help employers prepare and feel confident in their ability to navigate any changes.
Employers should monitor the situation carefully since this is a rapidly developing issue. Consulting with legal counsel can help ensure that employers’ DEIB programs comply with any changes or legal developments.
For more workplace resources, contact RISQ Consulting today.
- Published in Blog
PB&J – The Key to Your Company’s Most Appetizing Workflows
By Alison Nelson, Employee Benefits Account Manager
I was recently chatting with my mom, who is an elementary school teacher, and she was telling me about one of her favorite projects to do with her class – the PB&J project. To teach her class the importance of clear and concise instructions, she divides her students into groups and gives them the simple task of writing instructions on how to make a peanut butter and jelly sandwich. Easy enough, right?
After the groups complete their instructions, my mom stands in front of the class with all of the tools and ingredients needed to make a PB&J and she follows each group’s written directions. Word for word.
“Spread peanut butter on bread” the directions don’t say what to use, so she scoops peanut butter with her bare hands and smears it on all sides of the bread.
“Add jelly” Add jelly to what? My mom would then scoop jelly onto the table.
This process would go on and on until she would present the class with a multitude of Frankenstein-like sandwiches. Then, they would work together as a class to write a final set of incredibly detailed instructions that, when followed by their teacher, finally resulted in a deliciously ordinary PB&J.
Aside from being a fun activity, the PB&J project highlights the need to be incredibly detailed and thoughtful when writing instructions intended for others to follow – something every organization should consider when it comes to their workflow processes. Life happens, colleagues call out sick or go on vacation. When someone else must cover for that colleague, do they have access to written instructions that will allow them to follow the workflow with ease?
At RISQ Consulting, we’ve been updating some of our written processes and conducting our own version of the PB&J project. Once a process has been written, we have someone from a completely different department try to follow the directions to complete the task. Having someone who has no prior knowledge of the task at hand follow the directions has been a crucial step in writing our processes. It’s easy to make assumptions that some things might be common sense, but, when thrown into a new workflow, you’ll want all the clarity you can get.
You can view a popular (and funny) video version of the PB&J task here. And as you write your own set of processes, ask yourself if you think you’d end up with a PB&J or a complete mess of a sandwich.
- Published in Blog
The RISQ RECAP:
July 24th – July 28th, 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
A First Look at How U.S. Insurers Are Adopting Global Climate Reporting Guidelines “U.S. insurers are adopting numerous strategies to deal with risks from climate change, according to a review out today that gives the first look at how or if insurance companies are adopting the widely used Task Force for Financial Disclosure guidelines. The review of Climate Risk Disclosure Survey responses, submitted to state regulators each year by insurers operating in 27 member states and jurisdictions, was conducted by climate leadership group Ceres and the California Department of Insurance.” Full Article – Insurance Journal
Berkley on Industry’s Financial Results: ‘Cat Losses Count’ “The fact is, catastrophe losses are a part of an insurers’ financial results and not a line item to be dismissed, said W. Robert Berkley Jr, president and chief executive of W.R. Berkley Corp during a recent conference call on second quarter earnings. Berkley opened his comments last week by saying it looked as though the industry was poised for “another ‘but-for’ quarter” – referring to insurers’ habit of spinning results “but for” catastrophe losses. “It would seem as though [catastrophe] losses don’t make a difference and, bizarrely, from our perspective, people seem to very quick to back out cat losses as though it’s not real money,” Berkley said. “Ironically, they do not seem to back out the premium associated with the exposure that just had the losses.” Full Article – Insurance Journal
EMPLOYEE BENEFITS, HUMAN RESOURCES, & COMPLIANCE
NLRB Issues Advice Memo Designating Workplace Discussions of Racism as Protected Activity “The National Labor Relations Board (NLRB) recently issued an advice memo confirming its earlier position that workplace discussions about racism are protected concerted activity under the National Labor Relations Act (NLRA). As a result, employers cannot fire, discipline, or take any adverse employment action against employees who publicly raise concerns about racism in the workplace.’” Full Article – Hall Benefits Law
More Than “De Minimis” — The Supreme Court Clarifies Title VII Undue Hardship Standard “Title VII makes it illegal for covered employers to discriminate against employees and applicants based on certain protected characteristics, including sincerely held religious beliefs. Title VII also creates an affirmative obligation to accommodate the religious practices of employees and applicants unless doing so would impose an ‘undue hardship’ on the conduct of the employer’s business.” Full Article – Vinson & Elkins LLP
Revolutionary Change but No Free Lunch: What to Know About Algorithmic Discrimination and AI “The capacity and deployment of artificial intelligence (“AI”) is dizzying. As businesses vet and/or actively integrate AI into their business processes, it is critical to understand not only AI’s potential but the potential risks. This includes inadvertently contributing to systemic discrimination issues and being subject to claims of violation of existing legal protections.” Full Article – Brownstein Hyatt Farber Schreck, LLP
Spike in Religious Discrimination Charges Stemming from COVID-19 Vaccine Mandates Fuels Increase in EEOC Charges “In FY 2022, the EEOC saw the number of charges leap by more than 10,000 over the prior year. This uptick appears to be almost entirely attributable to the COVID-19 pandemic: a striking rise of over 600% in religious discrimination claims, with many filed by applicants and employees seeking religious exemptions to companies’ COVID- 19 vaccine mandates.” Full Article – Seyfarth Shaw LLP
OSHA: Targeting Warehouses, Distribution and Retail “Effective July 13, 2023, OSHA has launched a National Emphasis Program (NEP) targeting inspections on workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments.” Full Article – Michael Best & Friedrich LLP
Employers Seek to Delay Start of Mandatory I-9 Re-inspections “Employers are reportedly urging the Biden Administration to delay the current August 30 deadline for in person re-inspections of I-9 documents that were submitted virtually during the COVID-19 pandemic. The employers argue that the delay is justified because final regulations are expected in August that might make virtual verification and other alternative options permanent, according to a recent article in Bloomberg Law (paid subscription required to access).” Full Article – Constangy Brooks Smith & Prophete, 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.
NEW YORK
NYC to Consider Indoor Air Quality Regulations
“The COVID-19 pandemic and wildfire smoke shrouding the skies over the East Coast this summer have drawn more attention to indoor air quality, leading the New York City Council to propose indoor air quality resolutions.” Full Article
– Seyfarth Shaw LLP
NNYC Releases Automated Employment Decision Tools FAQs Addressing Certain Lingering Questions
“The New York City Department of Consumer and Worker Protection (“DCWP”) has released its highly anticipated FAQs, providing additional guidance to employers seeking to comply with Local Law 144.” Full Article
– Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
MAINE
Maine Legislative Roundup: New Employment Laws Were Enacted This Session
“The First Special Session of the 131st Maine Legislature included debate about more than 2,000 bills. Many that were adopted will impact employers in the Pine Tree State. Below is a brief summary of important employment law changes enacted this session.” Full Article
– Littler Mendelson P.C.
OHIO
Ohio Federal Court Denies Conditional Certification in an Early Application of the Sixth Circuit’s “Strong Likelihood” Standard,
Signaling a New Normal for Wage & Hour Lawsuits
“On May 19, 2023, the Sixth Circuit replaced the long-standing lenient test for facilitating notice under the Fair Labor Standards Act (FLSA) with a more rigorous test akin to the standard used to obtain a preliminary injunction.” Full Article
– Duane Morris LLP
HAWAII
Hawaii Enacts Pay Transparency and Expands Equal Pay Legislation
“On July 3, 2023, Hawaii Governor Josh Green signed S.B. 1057 into law, expanding equal pay protections and making Hawaii the latest state to require certain employers to disclose salary information in their job advertisements. The law takes effect on January 1, 2024.” Full Article
– Proskauer Rose LLP
- Published in Blog