Four Misunderstood Terms in the Americans with Disabilities Act

Four Misunderstood Terms in the Americans with Disabilities Act

by | Nov 22, 2021 | Human Resources

The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. Despite its broad coverage, there’s a lot of confusion about what the law requires and what its terms entail. A big reason for this confusion is the language of the law itself; the ADA speaks of nebulous concepts like undue hardship and reasonable accommodation. Words like undue and reasonable are by their nature open to some interpretation, which is not exactly a comfort to employers.

Fortunately, employers can feel confident in their application of the law by reviewing and understanding its most important concepts. In this article, we’re going to define and analyze the terms disability, undue hardship, reasonable accommodation, and interactive process. These are the big four terms that serve as the foundation of your responsibilities as an employer under the ADA.

Disability

Let’s start with the term disability. Under the ADA, a person with a disability is someone who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, such as digestive, circulatory, and reproductive functions.

Although determining whether an impairment meets the definition of disability is an individualized assessment, some conditions “virtually always qualify.” For example, according to the EEOC, deafness substantially limits hearing; HIV substantially limits immune function; and bipolar disorder substantially limits brain function. Other conditions may vary from case to case in whether they substantially limit a major life activity.

It’s important to note that the definition of disability is broad. After the ADA was originally passed, the courts interpreted the definition very narrowly, and Congress responded by amending the ADA in 2008 so that more disabilities are covered. If an employee asks for an accommodation because of a physical or mental condition, it often won’t be hard for them to show that the condition substantially limits a major life activity.

Reasonable Accommodation

Employers often encounter the ADA when an applicant or employee asks for a reasonable accommodation. A reasonable accommodation is a change to the workplace or the job application process so that people with disabilities can perform the essential functions of their job, access employment benefits, or be considered for a job they’re qualified for. The intent of reasonable accommodations is to remove workplace barriers for people with disabilities—barriers that don’t prevent people without disabilities from performing the work or applying for the job. But don’t focus too much on the word reasonable; in the context of disability accommodations, reasonable means feasible or plausible.

Common types of accommodations include modifying work schedules, altering the way job duties are done, re-assigning a non-essential job duty (like asking the receptionist to stack the monthly 100-lb paper delivery in the storage room), granting additional breaks, providing accessible parking, and providing materials in alternative formats (e.g., Braille, large print). Another type of accommodation is a temporary leave of absence. Although a bit counterintuitive (because the employee isn’t working while on leave), the theory with a leave as an accommodation is that the time off will enable to employee to perform the essential functions of their job when they return.

Not every requested accommodation is required, however. For one, employers don’t have to remove an essential job function (e.g., the receptionist can still be expected to answer the phone). Employers also aren’t required to provide items for personal use, like wheelchairs or hearing aids. And, as we turn to next, an accommodation doesn’t have to be provided if it causes an undue hardship.

Undue Hardship

Under the ADA, an employer is not required to provide reasonable accommodations to employees or applicants with disabilities if doing so creates an undue hardship on the organization. The basic definition of undue hardship is an action that creates a significant difficulty or expense. Generally, this is a high standard to meet.

The cost of an accommodation could be an undue hardship on the employer, but so could an accommodation’s duration or disruption. An accommodation that would fundamentally alter the nature or operation of the business would be an undue hardship even if the cost was negligible. But if cost alone is the basis for claiming undue hardship, employers should remember that the standard is a significant expense.

Undue hardship is determined on a case-by-case basis, considering the following factors:

  • The nature and net cost of the accommodation, including the availability of tax credits and deductions, as well as outside funding;
  • The overall financial resources of the facility providing the accommodation, the number of employees at the facility, and the effect of the accommodation on expenses and resources;
  • The employer’s overall financial resources, size, number of employees, and the number, type, and location of its facilities;
  • The type of operation of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility providing the accommodation; and
  • The impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

An employer can’t claim undue hardship based on employee or customer fears or prejudices toward the disability. An undue hardship also can’t be based on the possibility that an accommodation could reduce employee morale.

Interactive Process

The interactive process is an ongoing conversation between the employer and employee to explore potential accommodations so that the employee can perform their essential job functions or access the benefits or privileges of their job.

Basically, the interactive process starts with brainstorming. The employee—and in some cases their medical provider—is often the best source for accommodation options. However, the employer should do some research too, for example, by searching for the disability or functional limitation on the Job Accommodation Network website.

Next, the employer chooses an accommodation from all the options. Employers should give consideration to which accommodation the employee prefers, but, at bottom, whatever accommodation they choose must be effective. If it’s not clear initially, the employer can implement an accommodation for a trial period to determine whether it’s effective. If that accommodation doesn’t work, employers should then try a different accommodation. In addition, circumstances may change over time, so the best practice is to keep an open dialogue with the employee to see if further adjustments are needed throughout the employment relationship.

By Megan LeMire

Originally posted on Mineral

Departments Issue Further Guidance Under No Surprises Act

Departments Issue Further Guidance Under No Surprises Act

by | Nov 17, 2021 | ACA

On September 30, 2021, the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury (collectively, the Departments), along with the Office of Personnel Management (OPM), released an interim final rule (IFR) under the No Surprises Act (Act) to help protect health care consumers from surprise billing and excessive cost sharing. The IFR primarily explains the Act’s mandatory independent dispute resolution (IDR) process.

Background

A prior interim final rule established that, for emergency services and certain non-emergency services furnished by out-of-network (OON) providers at in-network facilities, patients will pay a cost-sharing rate similar to the in-network rate, which must be calculated based on a state All-Payer Model Agreement, specific state law, or, if neither apply, the qualifying payment amount (QPA). The QPA is generally the plan or carrier’s median contracted rate for the same or similar service in the specific geographic area.

The Act provides that the balance of the bill to be paid by the plan or carrier following patient cost sharing and any initial payment from the plan or carrier is determined between the provider (including air ambulance provider), facility, and the plan or carrier through an open negotiation period. If the parties cannot agree on a payment amount, the Act mandates a federal IDR process.

The IDR process applies only to:

  • Balance billing for emergency services; cost-sharing for emergency services must be determined on an in-network basis.
  • Patient copayments, co-insurance, or deductibles for emergency services and certain non-emergency services provided at an in-network facility; cannot be higher than if such services were provided by an in-network provider, and any cost-sharing obligation must be based on in-network provider rates.
  • OON charges for items or services provided by an OON provider at an in-network facility; prohibited unless notice and consent given in advance. Providers and facilities must provide patients with a plain-language consumer notice explaining that patient consent is required to receive care on an OON basis before that provider can bill the patient more than in-network cost-sharing rates.

Independent Dispute Resolution

Before initiating the IDR process, disputing parties must initiate a 30-day open negotiation period. If open negotiation fails, either party may start the IDR process. If the parties cannot agree on a jointly selected certified IDR entity, or if the jointly selected certified IDR entity has a conflict of interest, the Departments will select a certified IDR entity. The parties will submit their payment offers along with supporting documentation, and the certified IDR entity will issue a binding determination by selecting one party’s offer.

When making a payment determination, certified IDR entities must assume that the QPA is the appropriate OON amount. The certified IDR entity must consider any credible permissible information submitted by a party. For the IDR entity to deviate from the offer closest to the QPA, however, any information submitted must clearly demonstrate that the value of the item or service is materially different from the QPA.

The IDR process will proceed according to the following guidelines:

Expanded External Review

Additionally, the IFR expands the scope of adverse benefit determinations eligible for external review to include determinations that involve whether a plan or issuer is complying with the surprise billing and cost-sharing protections under the No Surprises Act and its implementing regulations. In addition, under these interim final rules, grandfathered plans that are not otherwise subject to external review requirements will be subject to external review requirements for coverage decisions that involve whether a plan or issuer is complying with the surprise billing and cost-sharing protections under the No Surprises Act.

Conclusion

The regulations in the IFR become applicable to group health plans for plan and policy years beginning on or after January 1, 2022. However, the IFR is subject to a public comment period that will close in December 2021. We will continue to monitor this and other related developments under the No Surprises Act and provide ongoing updates as needed.

©2021 United Benefit Advisors, LLC. All rights reserved.

The Root Cause of the Great Resignation Is Not What You Think

The Root Cause of the Great Resignation Is Not What You Think

by | Nov 9, 2021 | Human Resources

Theories abound about why workers are leaving their jobs in record numbers in 2021 and thus creating what pundits are calling the Great Resignation. The U.S. Bureau of Labor Statistics reported that 4.3 million Americans quit their jobs in August. These resignations continue to be higher in food service, retail, and education.

One popular opinion was that people quit unexpectedly and did not look for a new job because of the generous unemployment benefits instituted during the pandemic. The claim was that the job market would return back to normal once those benefits were phased out.

Even though the benefits ended over Labor Day weekend, there has been no significant recovery in employment. Twenty states actually stopped the benefits over the summer and have seen no improvement since then either.

So what’s really behind this trend? According to economists and labor market experts, American workers are soul-searching.The Great Resignation is a philosophical reset of work expectations.

What Workers Really Want

Heather Long, an economics correspondent from the Washington Post, spoke with CBS News recently to discuss her reporting on the Great Resignation.

She said some workers are still concerned about COVID-19, yet that fear may be waning with the increase of vaccinations coupled with decreased infections. Many others simply want to change what they’re doing with their lives.

Lower wage workers are protesting over substandard pay and harsh work conditions, but even mid-level workers who earned higher salaries and better benefits are leaving to open their own businesses or pursue their passions.

Long said that the two biggest priorities for Americans are finding something different or more fulfilling, and working for an employer that values both mental health and work-life balance.

What does this mean for companies?

Offering higher salaries to job candidates may seem like an obvious fix to the problem, but be prepared for the needle to barely move as a result. And it’s clear from the last few months that unemployment benefits weren’t holding workers back either.

“The early evidence certainly suggests that the unemployment benefits were not the main reason holding people back from going and seeking work again,” said Long.

Instead, the Great Resignation has proven to be more about personal values and less about economics.

The Great Reassessment of Work in America

In her interview, Long described what’s happening as a” great reassessment of work in America,” and one of the “biggest shakeups of the labor market since World War II.”

It takes a significant or traumatic event like a pandemic or world war to get people questioning their lives and how work fits into it. So much about the workforce changed in the mid-1900s. Americans were still reeling from The Great Depression only a few years before the war that caused unemployment rates to skyrocket to 25%.

The start of the war actually got things moving again. Factories were established to produce weapons and supplies. More Americans, including women who were previously expected to be stay-at-home wives and mothers, went to work to support the effort. A majority of the workforce became permanently industrialized in that decade.

The American workforce was never the same after World War II, and many experts are pointing to a similar shift today in 2021.

Advice for HR Professionals and Companies

Knowing the root causes of “The Great Resignation” will help HR departments and companies truly solve this labor crisis. Money is important. Everyone needs to pay their bills, and it would be nice to have a few extra dollars to take an extra vacation or buy a more expensive car. But don’t make the mistake of thinking it’s all salary that will bring back workers.

Even if some employees return for a higher salary, it will only keep them engaged in the short-term. When they eventually quit again because of burnout, companies will be back to square one.

Younger workers from the Millennial and Gen-Z generations are leading this trend. Besides the money, they want to feel safe and well-compensated. They want to be treated with decency by employers, who care about their mental health and personal downtime.

by Mckenzie Cassidy

Originally posted on HR Exchange Network

Understanding Alzheimer’s Disease

Understanding Alzheimer’s Disease

by | Nov 2, 2021 | Hot Topics

Many of us have heard of Alzheimer’s disease but may not know much more than it is a disease that causes memory loss.  Experts suggest that more than 6 million Americans, most of them age 65 or older, may have dementia caused by Alzheimer’s.  This disease is currently ranked as the sixth leading cause of death in the United States, but recent estimates indicate the disorder may rank third, just behind heart disease and cancer as a cause of death for older people.

Alzheimer’s disease is a progressive brain disorder that slowly destroys memory and thinking skills, and eventually, the ability to carry out the simplest tasks. Changes in the brain may begin a decade or more before symptoms appear. During this very early stage of Alzheimer’s, toxic changes are taking place in the brain.  Previously healthy neurons stop functioning, lose connections with other neurons, and die.

Signs and symptoms of Alzheimer’s disease

Memory problems are typically one of the first signs of cognitive impairment related to Alzheimer’s. Alzheimer’s disease progresses in several stages: early, mild (sometimes called mild cognitive impairment), moderate, and severe.

In the Early stage, a person begins to experience memory loss and other cognitive difficulties, though the symptoms appear gradual to the person and their family.

During the Mild Cognitive Impairment(MCI), stage damage occurs in areas of the brain that control language, reasoning, sensory processing, and conscious thought. Conditions such as diabetes, depression, and stroke may increase a person’s risk for MCI.

Some of the signs of MCI include:

  • Losing things often
  • Forgetting to go to events or appointments
  • Having more trouble coming up with words than other people of the same age

MCI can be managed by seeing a doctor or specialist every 6 to 12 months.  A doctor can help track any changes in memory and thinking skills over time.  People with MCI might also consider participating in clinical trials or studies.

The Moderate stage of Alzheimer’s disease requires more intensive supervision and care becomes necessary.

Symptoms may include:

  • Increased memory loss and confusion
  • Inability to learn new things
  • Difficulty with speech and problems reading, writing and working with numbers
  • Difficulty organizing thoughts and logical thinking
  • Shorted attention span
  • Problems coping with new situations
  • Difficulty carrying out multistep tasks, such as getting dressed
  • Problems recognizing family and friends
  • Hallucinations, delusions, and paranoia
  • Impulsive behavior
  • Inappropriate outbursts of anger
  • Restlessness, agitation, anxiety, wandering in the late afternoon or evening
  • Repetitive statements or movement

People with Severe Alzheimer’s cannot communicate and are completely dependent on others for care.  The person may also be in the bed most or all the time as the body shuts down.

Symptoms often include:

  • Inability to communicate
  • Weight loss
  • Seizures
  • Skin infections
  • Difficulty swallowing
  • Groaning, moaning, or grunting
  • Increased sleeping
  • Loss of bowel and bladder control

How is Alzheimer’s disease treated?

Currently, there is no cure for Alzheimer’s, though there are medicines that can help treat the symptoms of the disease.  Most medicines work best for people in the early or middle stages of Alzheimer’s. Researchers are exploring other drug therapies and other interventions to delay or prevent the disease as well as treat its symptoms.  Some of those include physical activity, diet, cognitive training, and a combination of these.

Alzheimer’s is complex and it is therefore unlikely that any one drug or other intervention will successfully treat it in all people living with the disease.  It is important to talk to your doctor if you experience any signs or symptoms of the disease so that appropriate medical tests can be conducted.  This will not only give you peace of mind but will help you and your family prepare for the future.

The journey typically lasts for years and for most of that time, people living with Alzheimer’s can still enjoy the same things they always have.  Instead of focusing on what is lost, focus on what remains.  People still enjoy beauty and feel emotions long after losing the ability to store short-term memories. Recognize each moment as an opportunity to help your loved one experience the joys of life.