HR Elements September 2014
Ideas and Information for Human Resources Professionals

A Cigarette by Any Other Name...

While tobacco, and specifically cigarette, use is down, the use of electronic cigarettes is gaining popularity. An "e-cigarette," as they are commonly known, is a battery-powered vaporizer that simulates tobacco smoking, though it contains no tobacco. However, usually the vaporized liquid does contain nicotine. This rise in popularity, combined with the ambiguity of whether an e-cigarette should be allowed or restricted like a tobacco cigarette, is causing employers to take a hard look at updating their current workplace smoking policies. A person who uses an e-cigarette is said to be "vaping" rather than "smoking."

Regardless of what an employer decides to do about e-cigarettes, a clearly written policy is vital to fostering solid employee relations. The employer should take into account the pros and cons of allowing vaping in the workplace and possibly even surveying employees to determine whether there is a strong opinion one way or the other on the issue. An article in Employee Benefit News ( lists the primary issues that an employer must face:

  • What are the current state and local laws regarding e-cigarettes in the workplace?
  • Should e-cigarettes be banned completely?
  • Should e-cigarettes be allowed in traditional smoking areas?
  • Should e-cigarettes be allowed in certain approved areas outside of the regular smoking areas?
  • Should e-cigarettes be allowed everywhere inside the workplace?

If the last bullet point is decided, will the employer need to have a policy in place to protect workers from coming into contact with second-hand vapors? E-cigarettes are usually considered "safer" than traditional tobacco cigarettes, but that doesn't mean that they're completely safe. Furthermore, while health effects are still being studied, individuals who have severe allergies or respiratory conditions or skin sensitivities may be able to show that exposures to this vapor causes them to have serious reactions. There are potential ramifications for allowing e-cigarettes in the workplace and reasonable accommodations should be considered and offered to employees who complain about exposure to the vapor.


Fitness Tracking -- Workplace Friend or Foe?

The latest craze in wearable technology is a device -- usually a bracelet -- that tracks a person's fitness. Often smaller than a watch, fitness tracking bracelets do so much more due to the technology inside them. These devices and their associated mobile apps are more than just basic pedometers, they track what people eat, how well they sleep, their progress in workouts, heart rate, body temperature, and more. Then, once the data is collected, the wearer gets tips on how to improve every aspect of their health. It's like having a fitness coach who follows them around.

Now, when someone says they ran five miles, slept a full eight hours, or ate healthy meals, they can verify this via the data collected. Conversely, the device also keeps track of when a person is indulging in not-so-healthy activities.

While some people may not want to be reminded of their bad health habits, others are flocking to this as a way to improve their overall well-being -- and companies are taking notice! According to an article on, an employee at BP was given an option to reduce his annual insurance bill by $1,200. All he had to do was wear a fitness-tracking bracelet to earn points toward lowering his insurance. After just one year, this employee shed 70 pounds, 10 pant sizes, and got his high blood pressure and cholesterol into the "normal" range.

BP committed to purchasing the device, but compared to the amount the company potentially saved on insurance claims, it was an investment in an employee that paid off and a great example of how companies are using new tactics to fight rising insurance premiums. Insurance companies are also jumping on the bandwagon and creating programs that incorporate wearable gadgets into their policies. The goal is to get people to become more aware of the choice they make concerning their health and to then make the right decisions. By doing so, the payoff is two-fold -- better health and cheaper health care costs. As part of the Patient Protection and Affordable Care Act (PPACA), companies can reward employees for healthy behavior with incentives of up to 30% (and in some cases 50%) of premium.

The downside to this is the huge red flag that's waving concerning an individual's right to privacy. Employees are focused on health, which is good, but at the expense of privacy, which could be bad. Throw in financial incentives and an employee is often swayed into participating in something they would not normally do. The potential, of course, is that this information could also be used against an employee.

According to a study by Fidelity Investments and the National Business Group on Health, companies have doubled their wellness spending since 2009 to almost $600 per employee per year. Fitness-tracking technology is similar to the trend in car insurance where a monitoring device attaches to a car and records how it's being driven. Theoretically, the data is used to more accurately reflect insurance rates versus the owner's driving history.

Another red flag is the concern for security. Regardless of whether a company, insurer, or just the wearer is keeping track of all this data, who is it being shared with voluntarily or involuntarily? Companies need to make sure they're complying with federal laws including the Health Insurance Portability and Accountability Act (HIPAA), but everyone involved should also ensure that the data is secure. In the aforementioned BP example, the company doesn't even see specific data on each employee, only data in aggregate.

While in its infancy, this technology is a giant leap forward to changing employee health care habits and providing employers with hard data they can take to insurers in order to lower premiums. This will overall have a more positive effect on the wellness of employees and their perception that the company is truly looking out for their best interests.


AEDs in the Workplace

If you've ever taken a cardiopulmonary resuscitation (CPR) course, then you know how critical response time is to saving the life of the person in distress. According to an article by the Society for Human Resource Management (, several studies have found that for each minute of untreated cardiac arrest, the probability of survival decreases by 7% to 10%.

While CPR is an extremely valuable technique, sometimes it's just not enough. That's where having an automated external defibrillator (AED) onsite could mean the difference between life and death. An AED is a medical device that's used to restore the natural rhythm of the heart. It does this via an electric shock and is one of the best emergency treatments during sudden cardiac arrest -- when the heart, without warning, abruptly stops beating. The American College of Occupational and Environmental Medicine states that survival rates as high as 90% have been reported when defibrillation occurs within one minute of a person collapsing from sudden cardiac arrest.

The Occupational Safety and Health Administration (OSHA) says that approximately 10,000 sudden cardiac arrests happen in the workplace every year. It's the leading cause of death in the workplace, yet only 4% of the seven million businesses in the U.S. have an onsite AED. The lack of an AED in the workplace is a shockingly (pun intended) sad statistic. The national survival rate of sudden cardiac arrest is less than 7%. However, if an AED is used in conjunction with CPR, that survival rate skyrockets to more than 70%!

Not only response time, but preparation is key to saving a life. There needs to be a specific plan of action for employees who witness someone having sudden cardiac arrest to call 911 or other emergency medical services (EMS), start CPR, use an AED if available, and provide as much information as possible to emergency personnel when they arrive.

When it comes to emergency cardiovascular care (ECC), the American Heart Association provides a useful term -- Chain of Survival. The five links in the adult Chain of Survival are:

  • Immediate recognition of cardiac arrest and activation of the emergency response system
  • Early CPR with an emphasis on chest compressions
  • Rapid defibrillation
  • Effective advanced life support
  • Integrated post-cardiac arrest care

Of course, an AED is just like any other piece of equipment. Not all workplaces may be able to afford an AED or have an employee who is willing to take on the challenge of motivating and educating other employees in its use. Company representatives should assess the needs of their organization and whether an AED is necessary or expected. For example, a busy manufacturing facility is vastly different from a gym or a small office setting. In addition, AEDs require a prescription from a physician for purchase and placement in the workplace and there needs to be compliance with state laws on public access defibrillation and the federal Cardiac Arrest Survival Act.

Finally, should a company decide to install an AED, here are some simple guidelines:

  • Worksite integration: Not all employees will want or need to be trained on how to use an AED, but they should all be prepared to notify company personnel who are trained and emergency responders if an employee suffers sudden cardiac arrest.
  • Selecting the right AED: While all the devices on the market work, it's still important to comparison shop like you would for any other product and also buy one that's appropriate for the environment in which it will be placed.
  • Placement: Consider the logistics of where the AED might be used. Don't buy 10 AEDs if you only need five to be effective. Proper planning can reduce expenses while increasing effectiveness.
  • Maintenance: Like any piece of safety equipment, AEDs require maintenance. If a company has a specific person or third party that monitors its other safety equipment, then this is an easy add-on to the list.
  • Training: There are two types of training -- initial and ongoing. Besides teaching employees CPR and AED skills, it's equally important to have refresher courses and to educate people on how to apply these life-saving skills in an emergency situation.

Investing in an AED, and the programs associated with it, is a commitment to protect the lives of those in the workplace.


Overcoming Employee Disengagement

Peter Freska, CEBS

The LBL Group, a UBA Partner Firm

I have sat with hundreds of employers that want to make a difference. They want to make a difference in how their teams work, how productive the employees are, and better how they, as an employer, can attract, retain and engage the best and brightest people for long-term sustainable (profitable) growth of the organization. But many companies fall short. And, while most employees are 100% engaged when they start a new job, a recent Dale Carnegie Training study indicated that only 29% are fully engaged. In another article entitled "Overcoming Employee Disengagement," the author mentions that the "2013 RAND Health Study found that less than half of employees (46%) participate in health risk assessment (HRA) or clinical screenings, and out of those identified as needing a wellness program, less than one fifth chose to participate." (August 2014, Benefits Magazine) The point of the article was simple: that people create their own barriers to success.

So the question to pose is: With such low levels of overall engagement and low participation in something like an HRA, a simple thing that could help save a person's life, what can an employer do to really affect personal change for its employees? The answers are in Total Population Health Management, but let's concentrate on why employees maintain barriers and what is needed to make a difference.

When companies build and develop programs, they typically have productivity, efficiency, or most likely cost reduction motives. Well, what if a company builds a program that changes this paradigm by concentrating on more than just the bottom line?

For example, Costco is well noted for turning its nose up at Wall Street in years past. Costco pays its employees a living wage, provides benefits for almost 90% of its employees, pays the CEO much less than others in similar size companies, and it paid workers $1.50 per hour more over three years during the economic crisis. And the result of all these things is a fantastic shopping experience for you and me, with employees who tend to be fiercely loyal to the company and the members they serve.

There are more examples of service to the employees and customers that come to mind...Trader Joe's, TOMS Shoes, and Dogeared to name a few. All of these companies are working to do their part to make this world a better place, while still being a profitable company. 

The methods that these organizations implement tend to break down the personal barriers that employees build up. These personal barriers come in many varieties; from emotional to cognitive, to environmental and deep-rooted habits, and even physiological. By creating a unified mission, vision, and set of core values at the root of an organization's culture, these personal barriers gradually diminish. And, as you know, just saying or writing it is not enough. Organizations need to actually live it every day. In fact, to really establish an organization's foundation of culture and values, these things need to happen every day through ongoing learning and reinforcement.

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 In This Edition


Employer Webinar Series

Wellness Programs and Health Care Reform

Tuesday, October 14, 2014
2:00 p.m. ET / 11:00 a.m. PT

Employers are increasingly turning to wellness programs as a way to control health care costs and improve employee engagement and productivity. However, a number of laws dictate what employers may, must, and may not do when designing and implementing these programs. Regulations issued last year have only added to the complexity. Employers offering or considering a wellness program need to understand the rules.

In this 90-minute intermediate level webinar we will discuss:

  • The types of wellness programs that must follow the HIPAA nondiscrimination rules
  • The different kinds of health-contingent programs
  • Limits on allowable wellness incentives and penalties, and how to calculate them
  • Reasonable alternative requirements, and ways to satisfy them
  • Whether you can have smoker and non-smoker rates without a formal wellness program
  • How GINA and the ADA affect wellness programs
  • Taxation of wellness incentives

About The Presenters:
Joseph J. Lazzarotti is a Shareholder in the Morristown, New Jersey, office of Jackson Lewis P.C. He leads the Firm's Privacy, Social Media and Information Management Practice. He also is a member of the Employee Benefits Counseling and Litigation Practice Group and is a member of the Firm's Healthcare Reform Taskforce. Mr. Lazzarotti advises employers and plan sponsors regarding the establishment, administration, and operation of fully insured and self-funded health and welfare plans, which includes counseling concerning the new reform law, as well as assisting in the set-up of administrative and other arrangements with third-party administrators, claims administrators and other vendors.

Joseph J. Lynett is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. and a member and regional coordinator of the Firm's Disability, Leave and Health Management Practice Group. Mr. Lynett defends employers, business, and educational institutions in federal and state courts and before administrative agencies, including the U.S. Equal Employment Opportunity Commission, New York State Division of Human Rights, the New York City Commission on Human Rights, and the U.S. Departments of Labor and Education involving claims of disability discrimination arising under federal, state, and local law, including the Americans with Disabilities Act, the Rehabilitation Act and the Family and Medical Leave Act, and similar state and local disability discrimination and public accommodation laws.

Register here for the webinar. The presentation slides will be posted on the UBA website the day before the webinar.


The Road to Better Absence Management

Stephen Coffman
Group Practice Leader

The Guardian Life Insurance Company of America

A more meaningful attempt to manage absences can go a long way toward helping ease the staffing and morale challenges of small and midsize businesses that often feel the impact of absences more acutely than larger firms. What's more, in an environment where government oversight is only intensifying, effective absence management may become more challenging and burdensome for employers unless they have access to a specialist who understands the increasing and ever-changing federal, state and local Family and Medical Leave Act (FMLA) laws. The Americans with Disabilities Act (ADA) also needs to be considered. For example, requirements have expanded in recent years to include reasonable accommodations designed to reduce employee stress. This stress can weaken an employee's immune system, which can potentially lead to them getting sick and then trigger absences and erode productivity.

Small or midsize employers may not even be aware of all these issues and updates, nor have the staff to appropriately address them, which can leave companies vulnerable to lengthy and costly ligation. Plus, a growing "sandwich generation," combined with an aging population, means the incidences and complexity of employee absences will only increase. For this and many other reasons, outsourcing absence management or partnering with an expert makes a lot of sense. But what should employers look for when evaluating their outsourcing options? Absence management programs that follow these five best practices, as revealed in the Guardian Absence Management Activity IndexSM and Study, will generate better outcomes for companies:

  • A full return-to-work program, starting with a written policy.
  • Detailed reporting for disability and FMLA usage patterns, costs and more.
  • A process that gives employees referrals to health management programs.
  • A central leave-reporting portal for short term disability and family and medical leaves.
  • Using the same resource for short term disability, family and medical leaves and other benefit programs.

Aside from helping to ensure compliance with FMLA, a more robust program approach to absence management can help shorten the duration and severity of absences and return employees to work sooner, thereby reducing health care costs and improving productivity. It's a win-win for both employers and their employees.

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